Report for the Hearing in Case C-177/91

I — Legal background

Heading 13.02 of the Annex to Commission Regulation (EEC) No 2886/89 of 2 August 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), (hereinafter the Annex) refers to vegetable saps and extracts; pectic substances, pectinates and pectates; agar-agar and other mucilages and thickeners, whether or not modified, derived from vegetable products.

Notes 1(d) and (f) at the head of Chapter 13 of the said Annex exclude from that heading vegetable saps or extracts constituting alcoholic beverages or compound alcoholic preparations of a kind used for the manufacture of beverages and medicaments of heading 30.03 or 30.04 respectively.

Heading 22.08 includes:

subheading 22.08.90.59 covers, by exclusion,

According to Note 14 of the Explanatory Notes to the Harmonized System of the Common Customs Tariff (hereinafter the Explanatory Notes) heading 22.08 includes:

In addition, headings 30.03 and 30.04 of the Annex include:

whether they are (30.04) or are not (30.03) put up in measured doses or in forms or packings for retail sale.

In this connection it appears from Note 1(b) to the explanatory notes to heading 30.04 that:

Finally, according to Commission Regulation (EEC) No 1422/90 of 23 May 1990 concerning the classification of certain goods in the combined nomenclature (OJ 1990 L 137, p. 5) certain products which are not prepared for therapeutic or prophylactic purposes are to be considered to be food supplements and not medicaments (heading 21.06).

II — Background to the dispute and procedure

1. The main proceedings are based on the action brought by Bioforce GmbH, the plaintiff in the main proceedings, before the court of reference, the Bundesfinanzhof (Federal Finance Court) against a customs tariff ruling binding the customs administration, given by the Oberfinanzdirektion München (Regional Tax Office, Munich), the defendant in the main proceedings, and concerning the classification of Weissdorn-Tropfen (hawthorn drops) in the combined nomenclature of the Common Customs Tariff.

2. The preparation in question is an extract of a medicinal plant, hawthorn, which may be taken drop by drop in an alcoholized form (with 45.9% vol. of alcohol) as a tonic. On the packaging of the product it is stated that the tonic is indicated:

3. The defendant in the main action had excluded this product from classification as a medicament as, in its opinion, it lacked the necessary specific medical indications as the description did not mention the prevention or treatment of illnesses.

4. The plaintiff in the main action claimed before the court of reference that its preparation must be classified under heading 30.04 because it was a medicament recognized by the rules on medicaments and authorized by the Bundesgesundheitsamt (Federal Health Department). It is used both for prophylaxis (prevention) and therapy (treatment) and according to the specialized documentation the indications are, inter alia, reduced cardiac capacity in the case of heart disease, difficulty in breathing or feeling of tightness round the heart and mild arrhythmia.

5. The Bundesfinanzhof, on the basis of the finding that the aforesaid Regulation No 1422/90 considers not as medicaments, but as products coming under the residuary heading 21.06 (food preparations not elsewhere specified or included), certain preparations not having a specific action or being prepared for therapeutic or prophylactic purposes, considered that there remained nevertheless a doubt about the tariff classification of products which, on the one hand, cannot be assimilated to such products but, on the other hand, cannot be assimilated either to medicaments acting against a certain more serious state of ill health or to prevent such a state, as is the case with the defendant's Weissdorn-Tropf en, the indications for which are very general and, in any case for certain persons, do not necessarily correspond to illnesses.

6. Taking the view that the dispute before it raised a question of Community law, the Bundesfinanzhof requested the Court to give a ruling on the following questions:

III — Written observations submitted to the Court

1. Bioforce GmbH, the plaintiff in the main proceedings, starts by stressing that Weissdorn-Tropfen, from their external presentation, show in several ways and without ambiguity (see inter alia packaging, notice, dose, bottle) that they must be a medicament and neither a food supplement or spirituous beverage nor, as observed by the Bundesfinanzhof, a plant or vegetable extract for medicinal uses. It stresses in that respect the fact that the indications are given as treatment of the heart, aiding cardiac irrigation, encouraging cellular activity of the cardiac muscle and improving the blood supply to the coronary vessels.

2. The Commission first states that it shares the opinion of the court of reference in making a distinction between the tariff classification of a preparation and its description according to the rules on medicinal preparations. In particular, a preparation regarded as a medicinal product under the rules on medicinal products need not necessarily be regarded as such by the customs tariff.

1 Language of the case: German.