C-148/93
ECLI:EU:C:1994:18
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- 61993CC0148
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3M MEDICA
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 20 January 1994 *
Mr President, 3. By decision of 16 July 1992 the Oberfi Members of the Court, nanzdirektion rejected a complaint seeking to classify those articles under heading 9021 ('Orthopaedic appliances').
4. In response to the action brought by 3M Medica the Bundesfinanzhof (Federal Finance Court) has submitted to the Court 1. The company, 3M Medica, imports into two questions on whether (1) the term the Community a canvas cast shoe and a 'orthopaedic appliances' in heading 9021 vinyl cast shoe (hereinafter together referred includes footwear of that kind and (2) in the to as the 'cast shoes') under the following negative whether those articles may be description: '"sandals" or "footwear" with deemed to be 'splints and other fracture outer soles of plastic and uppers of textile appliances' or 'other' parts thereof. materials or plastics (webbing with visible plastic outer layer), declared to be designed for wearing on the foot over a plaster cast'. 1
5. I shall examine these two questions in turn.
2. The two binding customs tariff notifica 6. It follows from paragraph A. 3 (a) of the tions issued by the Oberfinanzdirektion General Rules for the interpretation of the (Principal Revenue Office), Frankfurt am combined nomenclature of the Common Main, assigned these articles to subhead 2 Customs Tariff and from point 1 (d) of the ings 6404 19 90: ('other' footwear with outer Explanatory Notes to Chapter 64 (Foot soles of plastics and uppers of textile mater 3 wear) that the articles under examination ials) and to heading 6402 91 90: ('other' foot wear with outer soles and uppers of plastics).
2 — Commission Regulation (EEC) No 2587/91 of 26 July 1991 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Com * Original language: French. mon Customs Tariff (OJ 1991 L 259, p. 11). 1 — Order of the national court, page 2 of the French translation. 3 — Ibid., p. 412.
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can come under subheadings 64041990 (6) Orthopaedic footwear ... made only to and 6402 9190 only if they do not fall under measure. a more specific tariff heading, such as that relating to orthopaedic footwear.
(7) Special insoles made to measure.
7. In accordance with the Explanatory- 4 Notes orthopaedic appliances coming (8) ... under Chapter 90 are for:
(9) Orthopaedic foot appliances (talipes 5 appliances, leg braces ... etc.)'. 'preventing or correcting bodily deformi ties;
9. On the other hand 'simple protectors or devices designed to reduce pressure on cer tain parts of the foot' and 'mass-produced supporting or holding organs following an footwear the inner soles of which have been illness or operation'. simply arched to alleviate flat-footedness' are excluded from Heading 9021. 6
8. In the words of the Explanatory Notes, those appliances include: 10. Thus, as the Commission points out, the items falling under this heading all have in common that they are especially adapted to the handicap which they are designed to overcome and that they are 'especially 7 intended for a given person'.
5 — Ibid. Emphasis added. 6 — Ibid. Emphasis added. 4 — Section XVIII, 90.212, p . 1497. 7 — Commission's observations, p . 10 of the French translation.
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3M MEDICA
11. Thus, the Commission is right to point 14. Whilst crutches are essential to enable a out that the cast shoes whereby walking is person with a physical handicap to walk that facilitated and comfort improved if a 'walk is not so in the case of the cast shoe which ing plaster' is worn, certainly improves the walking comfort of the person in plaster who could however get about without the aid of that shoe.
(1) are not for correcting certain bodily deformities, or 15. If they do not come within the category of 'orthopaedic appliances' may those shoes be regarded as '...fracture appliances' (sub heading 9021 19 90) or as 'other' articles (2) for supporting or holding organs fol (subheading 902190 90) concerning such lowing an illness or operation; appliances? That issue is addressed in the second question.
(3) are not appliances or items especially designed for a specific handicap and 16. Under the terms of the Explanatory made to measure. Notes of the harmonized system 9 articles and appliances for fractures are "... used either to immobilize injured parts of the body, for extension or protection, or for set ting fractures'.
12. They may be assimilated to mass- produced inner soles 8or to mass-produced footwear the inner soles of which are adapted to correct dropped arches, all articles 17. As the Commission pointed out, 'the which do not fall within Chapter 90. characteristic feature of these appliances is that they act directly on the organ 10 affected'.
13. I should add that manifestly these shoes 18. It is clear that articles such as the cast cannot be assimilated to crutches (Heading shoes do not fall within that definition. 9021).
9 — Heading 9021, (II), p. 1498. 8 — Sec point 7 of the Explanatory notes, mentioned above. 10 — Observations, p. 11 of the French translation.
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19. They could possibly come under 'Other' value. It is not a commercial product within parts of orthopaedic and fracture appliances the meaning of Chapter 90 of the Common if the plaster to which they are adapted could Customs Tariff. It is significant that the be regarded as such. Explanatory Notes concerning fracture appliances make no mention of it.
20. However, this is not the case. The plaster cast applied to the fractured leg of a person 21. The two questions submitted must cannot be reused and is of no commercial therefore be answered in the negative.
22. Consequently , I propose that the Court should rule that:
(1) the expression Orthopaedic appliances' in Heading 9021 of the Combined nomenclature must be interpreted as meaning that it does not include footwear of the type described in the order for reference;
(2) nor are those articles 'fracture appliances' or 'other' parts of orthopaedic or fracture appliances within the meaning of subheadings 9021 19 90 and 9021 90 90 of the combined nomenclature .
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