C-459/93

Thyssen Haniel Logistic GmbH

on the interpretation of tariff headings 21.07 and 30.03 of the Common Customs Tariff as amended by Council Regulation (EEC) N o 3618/86 of 24 November 1986, amending Regulation (EEC) No 3331/85 amending Regulation (EEC) N o 950/68 on the Common Customs Tariff (OJ 1986 L 345, p. 1),

T H E COURT (Third Chamber),

composed of: C. Gulmann (Rapporteur), President of the Chamber, J. C. Moitinho de Almeida and J.-P. Puissochet, Judges,

* Language of the case: German.

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having regard to the Report for the Hearing,

after hearing the oral observations of Thyssen Haniel Logistic G m b H and the Commission at the hearing on 19 January 1995,

after hearing the Opinion of the Advocate General at the sitting on 23 March 1995,

gives the following

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JUDGMENT OF 1. 6. 1995 — CASE C-459/93

THYSSEN HANIEL LOGISTIC

5 The Hauptzollamt appealed to the Bundesfinanzhof. It contended that at the mate- rial time there was as yet no finished product for artificial parenteral nutrition. Furthermore, inasmuch as further processing was possible, the products could not be regarded as non-finished infusion solutions. The nature of the goods in ques- tion indicated that they were food preparations which could solely be administered orally.

6 The Bundesfinanzhof considered that an interpretation of the C C T was required before the case could be resolved and decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

' 1 . Is the Common Customs Tariff to be interpreted to the effect that products such as powdered sterile mixtures of various amino acids in measured doses for the manufacture of infusion solutions fall as "medicaments" under tariff heading 30.03 (in this case tariff subheading 30.03 A II (b))?

2. If not: Is the Common Customs Tariff (1987) to be interpreted to the effect that goods such as those described in question 1 fall as "other food prepara- tions" under tariff heading 21.07?'

7 The relevant subheadings of the C C T in force at the material time are worded as follows:

G. Other:

[···]'

— Heading 30.03:

'Medicaments (including veterinary medicaments):

A. N o t put up in forms or in packings of a kind sold by retail:

I. Containing iodine or iodine compounds

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THYSSEN HANIEL LOGISTIC

8 It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in gen- eral to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the Common Customs Tariff and of the notes to the sections or chapters (see, in particular, the judgment in Case C-395/93 Neckermann Versand [1994] ECR 1-4027, at paragraph 5). Likewise, for the purpose of interpreting the Common Customs Tariff, the Court has consistently held that both the notes which head the chapters of the Common Customs Tariff and the Explanatory Notes to the Nomenclature of the Customs Cooperation Council are important means for ensuring the uniform application of the Tariff and as such may be regarded as useful aids to its interpretation (same judgment, at paragraph 5).

9 According to Note 1(a) to Chapter 30 of the Common Customs Tariff, for the purposes of heading 30.03, 'medicaments' means products which have been mixed or compounded together for therapeutic or prophylactic uses.

io The same note specifies that that definition does not apply to foods o r beverages such as dietetic, diabetic or fortified foods, tonic beverages and spa water. H o w - ever, according to Note A(4) of the Explanatory Notes to the Customs Coopera- tion Council Nomenclature concerning heading 30.03 'Nutritional preparations for ingestion other than by mouth' are covered by 'medicaments'. That can be explained by the fact that that type of nutritional preparation is always used as part of medical treatment.

is It is clear from the documents in the case that 'Amino Acid AA Mixture Peco' is presented in the form of a sterile, pyrogen-free powder of several amino acids in measured doses. The term 'doses' as used by the Bundesfinanzhof does not have the same connotation as it does in the Common Customs Tariff and the Explana- tory Notes to the Nomenclature of the Customs Cooperation Council. According to N o t e (B)(a) thereof, products are p u t up in the form of 'doses' where the unmixed product is presented in the measured quantitities in which they are to be used for therapeutic or prophylactic use, generally in forms such as tablets, ampoules, capsules, cachets, or small quantities of powder ready for taking as sin- gle doses. The Bundesfinanzhof intended solely t o indicated that the amino acids making up the mixture are presented in precise proportions.

u As was made clear at the hearing before the Court and in the expert opinion pro- duced by Thyssen before the national courts, t o which both Thyssen and the Commission referred in their written observations and which was not contested by

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THYSSEN HANIEL LOGISTIC

the Hauptzollamt, use of the amino acid mixtures in question as a foodstuff is the- oretically conceivable but highly improbable from an economic point of view, because the product's high level of microbiological and chemical purity obtained at great expense, as well as the fact that it is pyrogen-free, de facto preclude its use in that area, where recourse may be had to many other options which are much cheaper.

i7 Since the use of the product in question in human nutrition by way of mouth is a purely theoretical possibility it would therefore appear that, on the basis of its objective characteristics and properties — being sterile, pyrogen-free, with a high level of purity and precise dosage of the various amino acids — the said product is naturally intended for medical use and more particularly for the preparation of infusion solutions by the addition of water.

T H E COURT (Third Chamber),

in answer to the questions referred to it by the Bundesfinanzhof by order of 19 October 1993, hereby rules:

The C o m m o n Customs Tariff as amended by Council Regulation (EEC) N o 3618/86 of 24 November 1986, amending Regulation (EEC) N o 3331/85 amend- ing Regulation (EEC) N o 950/68 on the Common Customs Tariff, must be interpreted t o the effect that a sterile powder made up of amino acids mixed in precise proportions and used for the preparation of infusion solutions falls under heading 30.03 (subheading 30.03 A II (b)).

Gulmann Moitinho de Almeida Puissochet

Delivered in open court in Luxembourg on 1 June 1995.

R. Grass C. Gulmann