C-106/94

COLIN AND DUPRÉ

J U D G M E N T O F T H E C O U R T (Fourth Chamber) 14 December 1995 *

In Joined Cases C-106/94 and C-139/94,

REFERENCES to the Court under Article 177 of the E C Treaty by the Cour d'Appel, Bourges (France) and the Tribunal de Grande Instance, Paris for a pre- liminary ruling in the criminal proceedings before that court against

Patrick Colin,

attended by Distrithera SARL (C-106/94)

JUDGMENT OF 14. 12. 1995 —JOINED CASES C-106/94 AND C-139/94

(OJ 1985 L 78, p . 13) and Chapter 30 of the Common Customs Tariff and the Combined Nomenclature as regards the classification of throat pastilles,

T H E C O U R T (Fourth Chamber),

composed of: C. N . Kakouris, President of the Chamber, P. J. G. Kapteyn and J. L. Murray (Rapporteur), Judges,

Advocate General: M. B. Elmer, Registrar: D . Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

COLIN AND DUPRÉ

— the French Government, by Philippe Martinet, Secretary of Foreign Affairs in the Legal Affairs Directorate of the Ministry of Foreign Affairs, and Catherine de Salins, Deputy Director in the same directorate, acting as Agents,

— the Commission of the European Communities, by Blanca Rodriguez Galindo, of its Legal Service, and Jean-Francis Pasquier, a French expert seconded to its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Patrick Colin, attended by Distrithera SARL, represented by Pierre Courtois, of the Paris Bar, Daniel Dupré, attended by Lab- oratoires Valda SA, represented by Sylvie Deniniolle and Jean Nicolas, and of the Commission, represented by Hendrik van Lier and Jean-Francis Pasquier, at the hearing on 26 January 1995,

after hearing the Opinion of the Advocate General at the sitting on 16 March 1995,

3 Those questions were raised in two sets of criminal proceedings brought by the French Administration des Douanes et Droits Indirects ('the Customs Authority') against two French manufacturers for allegedly obtaining, by means of false dec- larations or deceptive practices, refunds to which they were not entitled under the Community rules applicable to production refunds on certain sugar products used in the chemical industry.

4 Council Regulation (EEC) N o 1010/86 of 25 March 1986 laying down general rules for the production refund on certain sugar products used in the chemical industry (OJ 1986 L 94, p. 9), as amended by Commission Regulation (EEC) N o 1714/88 of 13 June 1988 (OJ 1988 L 152, p. 23), following the introduction of the combined nomenclature ('CN'), lays down rules for granting refunds to undertak- ings using sugar in the manufacture of certain chemical products.

5 With the object of developing the market in sugar and offsetting the difference in price between the Community price and the world price, Regulation N o 1010/86 grants production refunds on the manufacture of products containing sucrose. In accordance with Articles 1 and 2(1), the refund is granted by the Mem- ber State in the territory of which processing of the 'basic products' into the 'chemical products' listed in the Annex to the regulation takes place. Pharmaceu- tical products in Chapter 30 of the C C T are included among those chemical prod- ucts.

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COLIN AND DUPRÉ

6 Between 1986 and 1989, Distrithera SARL, of which Mr Colin is the director, received under the said regulations FF 2 371 976.78 in refunds related to the use of sugar by declaring red and green Pulmoll pastilles, Sangart mixture and Quinto¬ nine as pharmaceutical products.

JUDGMENT OF 14. 12. 1995 — JOINED CASES C-106/94 AND C-139/94

of Chapter 30 of the Common Customs Tariff, "Pharmaceutical products" — 30-4?

2. Having regard to their composition, presentation and use, do green Pulmoll pastilles fall within the scope of Commission Regulation (EEC) N o 717/85 of 19 March 1985 on the classification of goods within subheading 17.04 D I or of Chapter 30 of the Common Customs Tariff, "Pharmaceutical products" — 30-4?

3. Having regard to its composition, presentation and use, does Sangart mixture fall within the scope of Chapter 30 of the Common Customs Tariff "Pharma- ceutical products"?

4. Having regard to its composition, presentation and use, does Quintonine fall within the scope of Chapter 30 of the Common Customs Tariff "Pharmaceu- tical products"?'

Questions referred by the Tribunal de Grande Instance, Paris:

12 The first point which must be made is that it is the Court's task to interpret the C C T and the C N , not to give its opinion on the classification of particular prod- ucts. In those circumstances, the questions referred by the Cour d'Appel, Bourges, must be understood as seeking to ascertain whether products such as those men- tioned in the questions submitted to the Court fall under heading 30.03 of the C C T (heading 30.04 of the C N ) or headings 17.04 and 22.09 of the C C T (heading 22.08 of the C N ) .

1 3 As regards the composition of the cough pastilles at issue in the main proceedings, it is apparent from the documents before the Court that a Valda pastille is essen- tially composed of sugar, gelatine or gum arabic, and to a lesser extent of ingredi- ents such as menthol, eucalyptol, and also thymol, guaiacol and terpinol. Accord- ing to the manufacturer, the pastilles are for coughs, have antiseptic properties and are intended to relieve the pain and discomfort caused by a sore throat.

1 4 Red Pulmoll pastilles consist essentially of sugar, terpene, menthol, amylocaine hydrochloride and glycirrhizin as well as a binding agent, flavouring and colour- ing. They are for coughs, sore throats and colds.

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JUDGMENT OF 14. 12. 1995 — JOINED CASES C-106/94 AND C-139/94

15 Green Pulmoll pastilles also consist essentially of sugar, menthol, peppermint essence and eucalyptus oil as well as a binding agent, flavouring and colouring. They are described as being for use against coughs and sore throats.

COLIN AND DUPRÉ

beverages; compound alcoholic preparations of a kind used for the manufacture of beverages'.

21 There are also explanatory notes drawn up by the Customs Cooperation Council ('CCC') (as regards the CCT) and by the Harmonized System Committee ('HSC') (as regards the C N ) which, as the Court has already stated, may be an important aid to the interpretation of the scope of the various tariff headings but do not have legally binding force (see the judgments in Case 200/84 Daiber [1985] ECR 3363, and Case C-35/93 Develop Dr Eisbein [1994] ECR I-2655).

The questions referred by the Cour d'Appel, Bourges

22 It is settled case-law that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods is in general to be sought in their objective characteristics and properties as defined in the wording of the rel- evant heading of the C C T and of the notes to the sections or chapters (see, in par- ticular, the judgment in Case C-459/93 Thyssen Haniel Logistic [1995] ECR I-1381, paragraph 8).

Throat pastilles

26 According to the Explanatory Notes of both the C C C and the HSC, heading 30.03 (30.04 of the C N ) includes pastilles, tablets and drops of a kind suitable only for medicinal purposes. However, according to the Explanatory Notes, prepara- tions put up as throat pastilles or cough drops, consisting essentially of sugars (whether or not with other foodstuffs such as gelatin, starch or flour) and flavour- ing agents (including substances such as benzyl alcohol, menthol, eucalyptol and tolu balsam), fall under heading 17.04 in so far as, where a flavouring agent may also have medicinal properties, the proportion which it forms of each pastille or drop is such that it does not enable the preparation to be given therapeutic or pro- phylactic uses.

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COLIN AND DUPRÉ

27 T h e interpretation afforded b y t h e E x p l a n a t o r y N o t e s c o n c e r n i n g heading 30.03 of the C C T (30.04 of the C N ) is also consistent w i t h t h e provisions of the C C T and C N . Sugar confectionery n o t c o n t a i n i n g cocoa c o m e s u n d e r h e a d i n g 17.04, except for p r e p a r a t i o n s c o n t a i n i n g a certain p r o p o r t i o n of flavouring agents w h i c h have sufficient medicinal p r o p e r t i e s t o m a k e t h e p r e p a r a t i o n fall u n d e r heading 30.03 of the C C T (30.04 of the C N ) .

28 It follows that it is not enough that a product's flavouring agents should have a therapeutic or prophylactic effect. In order for the product to be classified under heading 30.03 of the CCT, the effect must be due to the flavouring agents' medic- inal properties present in proportions sufficient for the product to be used only for therapeutic or prophylactic purposes. Although the ingredients of the products in question may have a soothing effect, in particular where they ease the pain of a sore throat, it would seem that this effect may be caused by the non-medicinal ingredients.

chapter exclude from heading 30.03 of the C C T foodstuffs and beverages such as dietetic, diabetic and fortified foods, tonic beverages and mineral waters.

32 As stated in the Explanatory Notes on Chapter 22 of both the C C C and the HSC, spiritous beverages designed to maintain general health fall within heading 22.09 of the C C T (22.08 of the CN). It is apparent from the documents before the Court that given their ingredients, and also their alcoholic strength and use, Quintonine and Sangart mixture correspond to that objective. Tonic beverages of that kind are specifically excluded from Chapter 30 of the CCT. The Explanatory Notes con- firm that they are excluded even if medicinal substances have been added once the latter have been added solely to ensure a better dietetic balance, to increase the energy-giving or nutritional value of the product or to improve its flavour and do not remove its character of a foodstuff.

33 It has not been demonstrated that the medicinal substances contained in the tonic beverages are present in such proportions that they enable those beverages to be used for therapeutic or prophylactic purposes. Consequently, since the tonic bev- erages do not fall under heading 30.03 of the C C T (heading 30.04 of the C N ) , it follows that they must be classified under heading 22.09 of the C C T (heading 22.08 of the C N ) .

34 The answers to be given to the questions referred to the Court by the Cour d'Appel, Bourges, must therefore be:

1. Having regard to their composition, presentation and purpose, pastilles such as red Pulmoll pastilles fall under heading 17.04 of the CCT.

35 By its first question, the Tribunal de Grande Instance, Paris, asks whether Regu- lation N o 717/85 may be interpreted as referring to goods whose composition (percentage by weight) is different from that indicated in Article 1 of that regu- lation.

36 Regulation N o 717/85 provides that certain cough and throat-irritation pastilles containing defined substances capable in certain doses of having a particular med- ical effect are to be classified under heading 17.04 D I.

37 However, while the composition of the pastilles at issue in the main proceedings is similar to that referred to in the regulation, it is not identical. Since Regulation N o 717/85 cannot have a wider scope than that conferred by its own terms, it cannot be interpreted as applying to the products under consideration in this case.

38 The answer to the question referred by the national court must therefore be that Regulation N o 717/85 may not be interpreted as referring to goods whose com- position (percentage by weight) is different from that indicated in Article 1.

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JUDGMENT OF 14. 12. 1995 —JOINED CASES C-106/94 AND C-139/94

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COLIN AND DUPRÉ

O n those grounds,

T H E C O U R T (Fourth Chamber)

in answer to the questions referred to it by the Cour d'Appel, Bourges, by judg- ment of 3 February 1994, and by the Tribunal de Grande Instance, Paris, by inter- locutory judgment of 2 March 1994, hereby rules:

1. Having regard to their composition, presentation and purpose, pastilles such as red Pulmoll pastilles fall under heading 17.04 of the Common Customs Tariff.

may not be interpreted as referring to goods whose composition (percentage by weight) is different from that indicated in Article 1 of that regulation.

6. Heading 30.03 of the CCT, which covers medicaments, is to be interpreted as including a product consisting of sugar, but above all of active flavouring agents with medicinal properties in such a proportion that it is used only for therapeutic and prophylactic purposes. Nevertheless, where the proportion of flavouring agents in the composition of each product does not enable the product to be used only for therapeutic or prophylactic purposes, it cannot be regarded as a pharmaceutical product falling under that heading.

Kakouris Kapteyn Murray

Delivered in open court in Luxembourg on 14 December 1995.

R. Grass C. N . Kakouris

Registrar President of the Fourth Chamber