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Judgment of the Court (Fourth Chamber) of 14 January 1993.

Bioforce GmbH v Oberfinanzdirektion München.

C-177/91 • ECLI:EU:C:1993:10 • 61991CJ0177

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Bioforce GmbH v Oberfinanzdirektion München.

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Keywords

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Common Customs Tariff ° Tariff headings ° Hawthorn extract with added alcohol ° Product for therapeutic and prophylactic use ° Classification under heading 30.04 of the Combined Nomenclature

Summary

The Common Customs Tariff must be interpreted as meaning that an extract of hawthorn with added alcohol, entitled "Weissdorn-Tropfen" (hawthorn drops), must be classified under heading 30.04 of the Combined Nomenclature. Taken in appropriate doses determined by medical prescription, that product has clearly defined therapeutic and above all prophylactic characteristics, the effect of which is concentrated on precise functions of the human organism, namely the cardiac, circulatory and neuro-vegetative functions. Moreover, the alcohol contained in the product in question, however high the percentage may be, far from changing its nature, acts on the contrary as an adjuvant, a preservative and a vehicle for its active principles.

Parties

In Case C-177/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between

Bioforce GmbH

and

Oberfinanzdirektion Muenchen

on the interpretation of headings 30.04 and 22.08 of the Annex to Commission Regulation (EEC) No 2886/89 of 2 August 1989 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1989 L 282, p. 1),

THE COURT (Fourth Chamber),

composed of: C.N. Kakouris, President of the Chamber, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: C. Gulmann,

Registrar: D. Louterman-Hubeau, Principal Administrator,

after considering the written observations submitted on behalf of:

° Bioforce GmbH, by Dr Berthold Widemann, Rechtsanwalt, Konstanz,

° Commission of the European Communities, by Blanca Rodríguez-Galindo, of its Legal Service, and Roberto Hayder, a national official seconded to its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Bioforce, represented by Dr B. Widemann, assisted by Dr med. V. Harth, President of the Sektion Innere Medizin in der Europaeischen Vereinigung der Fachaerzte, as expert witness, and of the Commission, at the hearing on 25 June 1992, at the hearing on 25 June 1992,

after hearing the Opinion of the Advocate General at the sitting on 15 September 1992,

gives the following

Judgment

Grounds

1 By order of 14 May 1991 received at the Court Registry on 8 July 1991, the Bundesfinanzhof (Federal Finance Court) referred to the Court, for a preliminary ruling under Article 177 of the EEC Treaty, two questions on the interpretation of the Common Customs Tariff in the version contained in Annex I to Commission Regulation (EEC) No 2886/89 of 2 August 1989 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1989 L 282, p. 1) as regards the classification of "Weissdorn-Tropfen" (hawthorn drops), an extract of hawthorn with added alcohol which may be taken as a tonic for the heart.

2 These questions arose in proceedings between Bioforce GmbH, the plaintiff in the main proceedings, and Oberfinanzdirektion Muenchen (Regional Tax Office, Munich), the defendant in the main proceedings, concerning the tariff classification of the abovementioned substance, the packaging of which specifies that it is indicated

"for treatment of the heart and to aid cardiac irrigation ... encourages cellular activity in the cardiac muscle, thus improving the blood supply to the coronary vessels".

3 The Oberfinanzdirektion Muenchen had issued an official tariff classification ruling to the effect that the product in question could not be classified as a medicament. Bioforce brought an action contesting that decision.

4 The Bundesfinanzhof, taking the view that the dispute before it raised a question of the interpretation of the Common Customs Tariff, decided to stay the proceedings until the Court of Justice had given a preliminary ruling on the following questions:

"1. Is the Common Customs Tariff ° Combined Nomenclature 1990 ° to be interpreted as meaning that products such as 'Weissdorn-Tropfen' (extract of hawthorn with 45.9% vol. alcohol, used as a tonic (for the heart)) must be classified under heading 30.04 ° medicaments consisting of ... unmixed products for therapeutic or prophylactic uses, put up ... for retail sale ° ?

2. In the event of a negative answer to the previous question, is the Common Customs Tariff to be interpreted as meaning that products such as those referred to in the previous question must be classified under subheading 22.08.90.59 amongst the 'other' spirituous beverages?"

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are hereinafter referred to or mentioned only in so far as is necessary for the reasoning of the Court.

First question

6 For the purpose of answering the first question, it must first of all be observed that heading 30.04 of the Common Customs Tariff covers

"medicaments ... consisting of mixed or unmixed products for therapeutic or prophylactic uses, put up in measured doses or in forms or packings for retail sale".

7 It is, furthermore, clear from Note 1(a) of the introductory notes to Chapter 30 of the Common Customs Tariff that that chapter does not cover "food supplements".

8 It should next be noted that, as the Court has consistently held (see, most recently, the judgment in Case C-338/90 Hamlin Electronics v Hauptzollamt Darmstadt [1992] ECR I-2333, paragraph 8), the decisive criterion for the classification of goods for customs purposes is to be sought, regard being had to the requirements of legal certainty, in their objective characteristics and properties, as defined in the wording of the headings of the Common Customs Tariff.

9 It should therefore be considered whether the product in question has the objective characteristics and properties defined in heading 30.04 of the Common Customs Tariff, which must be interpreted in the light of medical developments.

10 In that respect it may first be noted, as emerges from the oral argument presented to the Court and also from the scientific publications annexed to the file, which have not been contradicted, that in the course of both therapeutic and prophylactic application and in appropriate dosages determined by medical prescription, this product meets the following indications: ° cardio-vascular disorders (declining cardiac capacity, difficulty in breathing and tightness round the heart, ageing heart not yet justifying treatment with digitalin and mild forms of bradycardia); ° neuro-vegetative imbalances; ° sleeplessness.

11 Furthermore, as also emerges from the documents before the Court, the alcohol contained in the product, however high the percentage may be, does not change its nature. On the contrary, its function is to act as an adjuvant, a preservative and a vehicle for the active principles of the said product.

12 It follows from those considerations that the product at issue may not be regarded as a food supplement within the meaning of Note 1(a) of the introductory notes to Chapter 30 of the Common Customs Tariff or as a spirituous beverage designed to maintain general health or well-being within the meaning of Note 14 of the Explanatory Notes to the Harmonized System for designation and codification of goods relating to heading 22.08, but as a product having clearly defined therapeutic and, above all, prophylactic characteristics, the effect of which is concentrated on precise functions of the human organism, namely the cardiac, circulatory and neuro-vegetative functions.

13 The answer to be given to the national court must therefore be that the Common Customs Tariff must be interpreted as meaning that "Weissdorn-Tropfen" (hawthorn drops) are to be classified under heading 30.04.

Second question

14 Regard being had to the answer given to the first question raised by the national court, the second question does not call for an answer.

Decision on costs

Costs

15 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Fourth Chamber)

in answer to the questions referred to it by the Bundesfinanzhof, by order of 14 May 1991, hereby rules:

The Common Customs Tariff must be interpreted as meaning that "Weissdorn-Tropfen" (hawthorn drops) must be classified under heading 30.04.

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