C-356/93

'1 . Is the Common Customs Tariff — Combined Nomenclature 1991 — to be 3. If Question 2 is answered in the nega­ interpreted as meaning that a retail tive: to which other heading is the set of product put up in a set, namely the goods including the test card which "Chemcard Cholesteroltest", used for constitutes its essential characteristic to determining the cholesterol level of be assigned?' blood plasma — comprising a test card with a glued-on, reagent-impregnated, shaped paper cut-out (0.6 cm thick) covered by web-backed paper, a lancet, webbed wadding etc. (as more particu­ larly described in the grounds of the 2. The Combined Nomenclature for 1991 to order), is to be classified pursuant to which the Bundesfinanzhof refers 1 is General Rule No 3(b) as a "composite diagnostic reagent" under heading No 3822 on the ground that the component 1 — In its observations to the Court the Commission is basing itself on the combined nomenclature for 1993 as established by Commission Regulation (EEC) No 2505/92 of 14 July 1992 (OJ 1992 L 267, p . 1). The Commission also points out there have been no changes to the combined nomencla­ ture of relevance to the questions submitted. * Original language: Dutch.

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OPINION OF MR VAN GERVEN — CASE C-356/93

appended as Annex I to Commission Regu­ Heading No 4823 includes 'other paper, lation (EEC) of 31 July 1990 2 amending paperboard, cellulose wadding and webs of Annex I to Council Regulation (EEC) cellulose fibres, cut to size or shape, other No 2658/87 on the tariff and statistical articles of paper pulp, paper, paperboard, cel­ nomenclature and on the Common Customs lulose wadding or webs of cellulose fibres', 3 Tariff. I mention below the chapters and together with various subheadings of which headings discussed in the questions submit­ the last, subheading 4823 90 is entitled ted, in the parties' observations to the Court 'other'. and further on in this Opinion.

them gives a more complete or precise April 1991 by the Oberfinanzdirektion description of the goods' (emphasis added). Köln, upheld by the decision of 20 May 1992 on the objection, in which the Oberfinanz­ direktion issued to it a binding tariff classifi­ cation ruling. That ruled that the set of goods used for determining the cholesterol level of blood plasma, known as the 'Chem- card Cholesteroltest' fell to be classified under heading No 4823 90 90 — 'other' Rule 3(b) states that: 'mixtures, composite articles of paper (autonomous rate of goods consisting of different materials or duty: 19%; conventional rate of duty: 11%). made up of different compounds, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classi­ fied as if they consisted of the material or component which gives them their essential character in so far as this criterion is applic- able' (emphasis added).

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OPINION OF MR VAN GERVEN — CASE C-356/93

cut-out. Drops of blood deposited on to the card. In its view, therefore the most impor­ web-backed paper penetrate through the tant element of the product is the web cov­ web to the paper cut-out beneath. Since that ering the test area. The paper cut-out consti­ paper is impregnated with reagents, the tuting the test area is in its view not the blood causes a chemical reaction which is essential component of the product since it is recorded on the paper cut-out by a colour merely a throw-away item which serves only change indicating the cholesterol level in the as a medium for displaying the result of the blood. reaction induced. For that reason the prod­ uct consisting mainly of plastic is correctly classified in the United kingdom as a com­ posite diagnostic or laboratory reagent under heading No 3822.

Essentially, the web-backed paper operates in such a way that the red globules (cellular components) are absorbed but the plasma is As far as the last assertion is concerned, allowed to go through. It is the plasma however, the United Kingdom in its observa­ which brings about a chemical reaction indi­ tions to the Court stated that its customs cated by a colour change on the paper cut­ authorities have in the meantime formed a out impregnated with three enzymes and a different view and are now in agreement chromogen (tetramethylbenzidine). The col­ with classification under heading No 4823 as oration is only possible because the red glob­ proposed by the Oberfinanzdirektion (see ules are first filtered out. The filtering pro­ below). cess through the web-backed paper is therefore in itself a purely physical process.

Since, however, classification of the test card under heading No 3822 is not entirely beyond doubt, as the test card could also be regarded as impregnated paper within the meaning of Chapter 48 and then would fall to be classified under heading No 4823, 7it preferred to refer the case to the Court for a 8. In its order for reference the Bundesfinan­ preliminary ruling. zhof states that it is inclined to favour the view advanced by Techmeda concerning tar­ iff classification but on different grounds. For the Bundesfinanzhof is of the view that the test card consisting of a reagent- impregnated paper cut-out is the essential 9. The Commission is not in agreement as component of the test as defined by General the legislation stands (though it shares the Rule 3(b) (cited in paragraph 3 above). aspiration for a legislative amendment) with Going by its characteristics and use, it con­ the preference expressed by the Bundesfi­ siders that the test card (or paper cut-out) nanzhof for heading No 3822. In its observa­ can be regarded as a composite reagent, other tions to the Court it considers that the test than those mentioned in headings 3002 card which it, too, considers to be the essen­ or 3006, 4 within the meaning of heading tial component of the test set within the 3822. The reactive area of the card, however, meaning of General Rule 3(b) was correctly contains various 'chemical substances' so classified by the Oberfinanzdirektion under that a composite product may be assumed to heading No 4823 90 90 as 'other' paper art­ 5 be involved. The substances contained in icles. Nevertheless, it too is of the opinion the test area react with the blood constitu­ that it would be more normal to classify the ents in a chemical reaction which causes a test card under heading No 3822: the test result to be displayed. 'Therefore', says the card is, after all, 'impregnated' with the three Bundesfinanzhof, 'the conditions for classifi­ enzymes in combination with the chro­ cation under heading No 3822 appear to be mogen in order to indicate the cholesterol met.'

But the Commission takes the view that it is not the reagent but the reactive paper which Accordingly, I am at one with the above- is the product to be classified. In that con­ mentioned institutions that the reagent- nection it relies on Note 1(d) to Chapter 48 impregnated paper cut-out must in principle of the Combined Nomenclature according to be regarded as a composite reagent.. The which certain kinds of impregnated paper do Commission, too, comes to that conclusion 9 10 not come within that Chapter. The Com­ in its reply to the first question submitted. mission infers therefrom that all other kinds of impregnated paper come under Chapter 48. As a legislative aspiration, however, the Commission considers that classification under heading No 3822 would be appropri­ ate. In June 1991 it submitted a proposal to that effect to the Customs Cooperation The actual dispute turns on whether the Council in Brussels. And, after long debates, paper cut-out in which the chemical sub­ the Council is said to support the Commis­ stances are located and the chemical reaction sion's interpretation. occurs must be regarded, as the Commission and the Oberfinanzdirektion propose, as (reactive) paper rather than, as the Bundesfi­ nanzhof is inclined to think, as a composite reagent, although the paper acts as the medium.

character. This rule does not merely permit, The Analog Devices judgment 1cannot be as indicated above, the paper cut-out as availed of against that solution: there the opposed to the web-backed paper to be competent authorities were held to be en­ regarded as determining the classification of titled to make changes to the Common Cus­ the test set: it also permits the reagents toms Tariff when technical developments (enzymes and chromogen) to be deemed to necessitate a fresh tariff classification. That be part of the paper cut-out from which the judgment and the later Casio Computers 12 cut-out and therefore the whole test set judgment, cited above, involved actual derives its essential character. That decision technical developments in the field of elec­ is moreover in conformity with the feelings tronics. In the present case it was purely and of the parties and institutions that the test set simply a question of making the diagnostic ought as a result of a legislative amendment test more readily accessible by the applica­ be regarded as a composite reagent within tion of reagents to the paper cut-out the meaning of heading No 3822. As indi­ whereby the test set also became available cated above, that decision can already be for the retail trade. I do not see that as a reached by applying General Rule 3(b). technical development.

12. On the basis of the foregoing I therefore propose that the Court should reply to the first question that the test set described therein must be classified under head­ ing No 3822 of the Combined Nomenclature . The second and third questions do not then call for any reply.