1 BY ORDER OF 13 JANUARY 1982 , WHICH WAS RECEIVED AT THE COURT ON 22 JANUARY 1982 , THE TARIEFCOMMISSIE ( ADMINISTRATIVE COURT OF LAST INSTANCE IN REVENUE MATTERS ), AMSTERDAM , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF TARIFF HEADING 30.04 OF THE COMMON CUSTOMS TARIFF .
2 THAT QUESTION WAS RAISED IN THE COURSE OF A DISPUTE BETWEEN THE NEDERLANDSCH BEVRACHTINGSKANTOOR BV AND THE INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN ( INSPECTOR OF CUSTOMS AND EXCISE ), AMSTERDAM , ON THE TARIFF CLASSIFICATION OF SURGICAL COVERING CLOTHS .
3 SUCH SURGICAL COVERING CLOTHS ARE RECTANGULAR IN SHAPE AND CONSIST OF THREE SHEETS LAID ONE ON TOP OF THE OTHER AND SEALED AROUND THE EDGES . THE TWO OUTER SHEETS ARE OF PAPER , WHILST THE INNER SHEET IS OF PLASTIC . SUCH SURGICAL COVERING CLOTHS , WHICH ARE COMPLETELY STERILE , ARE INTENDED FOR USE DURING SURGICAL OPERATIONS IN ORDER TO COVER THE PATIENT ' S BODY IN SUCH A WAY THAT THE AREA OF THE OPERATION IS LEFT CLEAR . ALTHOUGH THE CLOTHS ARE NEITHER IMPREGNATED NOR TREATED WITH BACTERICIDES , THE PARTIES TO THE MAIN ACTION CONCUR IN CONSIDERING THAT THEY FULFIL AN ANTISEPTIC FUNCTION .
4 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION , SUCH SURGICAL COVERING CLOTHS MUST BE CLASSIFIED UNDER HEADING 30.04 OF THE COMMON CUSTOMS TARIFF , WHICH IS WORDED AS FOLLOWS : ' ' WADDING , GAUZE , BANDAGES AND SIMILAR ARTICLES ( FOR EXAMPLE DRESSINGS , ADHESIVE PLASTERS , POULTICES ), IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES OR PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES . . . ' '
5 THE INSPECTEUR DER INVOERRECHTEN EN ACCIJNZEN CONSIDERS THAT THE SURGICAL COVERING CLOTHS CANNOT BE TREATED AS EQUIVALENT TO WADDING , GAUZE AND BANDAGES SINCE , UNLIKE THE LATTER PRODUCTS , THEY DO NOT COVER THE AREA OF THE OPERATION . ACCORDING TO HIM , SUCH CLOTHS ARE COMPARABLE TO OPERATING SHEETS , WHICH ARE NOT CLASSIFIED UNDER TARIFF HEADING 30.04 . HE SUGGESTS THAT THEY SHOULD BE CLASSIFIED UNDER TARIFF HEADING 48.21 D , WHICH AT THE TIME OF THE IMPORTATION IN QUESTION WAS WORDED AS FOLLOWS :
' ' 48.21 : OTHER ARTICLES OF PAPER PULP , PAPER , PAPERBOARD OR CELLULOSE WADDING :
A . . . .
B . . . .
C . . . .
D . OTHER . . . ' '
6 THOSE WERE THE CIRCUMSTANCES IN WHICH THE NATIONAL COURT REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE :
' ' CAN COVERING CLOTHS SUCH AS THOSE IN ISSUE IN THESE PROCEEDINGS - WHICH CONSIST OF STRIPS OF CELLULOSE SEPARATED BY A LAYER OF SYNTHETIC MATERIAL , ARE NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES BUT ARE INDIVIDUALLY PACKED IN ENVELOPES IN STERILE CONDITIONS FOR RETAIL FOR SURGICAL PURPOSES , AND ARE USED ONLY ONCE IN SURGICAL OPERATIONS FOR THE PURPOSE OF COVERING THE PATIENT ' S BODY IN SUCH A WAY THAT THE AREA OF THE OPERATION IS LEFT CLEAR - BE REGARDED AS ARTICLES SIMILAR TO WADDING , GAUZE OR BANDAGES WITHIN THE MEANING OF HEADING 30.04 OF THE COMMON CUSTOMS TARIFF?
' '
7 IN THE OBSERVATIONS WHICH IT HAS SUBMITTED TO THE COURT THE COMMISSION MAINTAINS THAT THE HEADING OF THE COMMON CUSTOMS TARIFF TO BE APPLIED IN THIS CASE IS HEADING 48.21 D . ACCORDING TO IT , SURGICAL COVERING CLOTHS ARE NOT SIMILAR TO WADDING , GAUZE AND BANDAGES IN SO FAR AS THEY DO NOT , LIKE THE LATTER PRODUCTS , FACILITATE OR ACCELERATE THE HEALING OF THE WOUND BUT FULFIL A PURELY HYGIENIC FUNCTION . IN ADDITION THE COMMISSION CONSIDERS THAT SURGICAL COVERING CLOTHS CANNOT BE REGARDED AS BEING INTENDED FOR SURGICAL PURPOSES WITHIN THE MEANING OF HEADING 30.04 BECAUSE THAT HEADING REFERS SOLELY TO ARTICLES USED DIRECTLY IN THE PRACTICE OF SURGERY TO THE EXCLUSION OF THOSE HAVING AN ENTIRELY DIFFERENT FUNCTION SUCH AS , FOR EXAMPLE , THE IMPROVEMENT OF HYGIENE .
8 HAVING REGARD TO THE ARGUMENTS THUS SUMMARIZED , IT IS APPROPRIATE TO OBSERVE THAT THE COMPOSITION AND FORM OF THE PRODUCTS LISTED UNDER TARIFF HEADING 30.04 DIFFER SO GREATLY FROM ONE PRODUCT TO ANOTHER THAT IT IS IMPOSSIBLE TO CONSIDER THAT THE SIMILAR PRODUCTS MENTIONED IN THAT TARIFF HEADING CAN BE IDENTIFIED ON THE BASIS OF THOSE CRITERIA . IN FACT , AS THE COMMISSION EMPHASIZED IN ITS OBSERVATIONS , THE SIMILARITY BETWEEN THOSE PRODUCTS LIES IN THEIR FUNCTION , WHICH IS TO COVER OR PROTECT A WOUND IN ORDER TO FACILITATE OR ACCELERATE HEALING .
9 IT CANNOT BE CONTESTED THAT SURGICAL COVERING CLOTHS USED IN ORDER TO MAXIMIZE ASEPSIS DURING A SURGICAL OPERATION ARE INTENDED TO FACILITATE THE RECOVERY OF THE PATIENT BY REDUCING THE RISK OF INFECTION . IT FOLLOWS THAT SURGICAL COVERING CLOTHS MUST BE REGARDED AS PRODUCTS SIMILAR TO THOSE LISTED UNDER TARIFF HEADING 30.04 .
10 A FURTHER CONDITION FOR THE CLASSIFICATION OF THESE SURGICAL COVERING CLOTHS UNDER TARIFF HEADING 30.04 IS THAT THEY SHOULD EITHER BE IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES OR BE PUT UP IN RETAIL PACKINGS FOR MEDICAL OR SURGICAL PURPOSES . IT IS AGREED THAT THE PRODUCTS ARE NEITHER IMPREGNATED NOR COATED WITH PHARMACEUTICAL SUBSTANCES BUT THAT THEY ARE , ON THE OTHER HAND , PUT UP IN RETAIL PACKINGS . THE COMMISSION , HOWEVER , DISPUTES THAT THEY ARE USED FOR MEDICAL OR SURGICAL PURPOSES .
11 ALTHOUGH THE POINT DOES NOT APPEAR TO HAVE BEEN RAISED BEFORE THE TARIEFCOMMISSIE IT SHOULD NEVERTHELESS BE MADE CLEAR , IN ORDER TO ENABLE THAT COURT CORRECTLY TO APPLY THE RELEVANT PROVISIONS OF THE COMMON CUSTOMS TARIFF , THAT , IF IT IS ESTABLISHED THAT SURGICAL COVERING CLOTHS ARE SPECIALLY DESIGNED FOR USE IN THE COURSE OF SURGICAL OPERATIONS AND IN ORDER TO PREVENT ANY RISK OF CONTAMINATION OR INFECTION THEREBY CREATED , IT CANNOT BE DENIED THAT THEY ARE EMPLOYED FOR SURGICAL PURPOSES .
12 ACCORDINGLY , THE REPLY TO THE QUESTION SUBMITTED BY THE TARIEFCOMMISSIE MUST BE THAT SURGICAL COVERING CLOTHS WHICH CONSIST OF STRIPS OF CELLULOSE SEPARATED BY A LAYER OF SYNTHETIC MATERIAL AND WHICH ARE NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES BUT ARE INDIVIDUALLY PACKED IN ENVELOPES IN STERILE CONDITIONS FOR RETAIL FOR SURGICAL PURPOSES AND ARE USED ONLY ONCE IN SURGICAL OPERATIONS FOR THE PURPOSE OF COVERING THE PATIENT ' S BODY IN SUCH A WAY THAT THE AREA OF THE OPERATION IS LEFT CLEAR MUST BE REGARDED AS ARTICLES SIMILAR TO WADDING , GAUZE OR BANDAGES WITHIN THE MEANING OF HEADING 30.04 OF THE COMMON CUSTOMS TARIFF .
COSTS
13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TARIEFCOMMISSIE , AMSTERDAM , BY ORDER OF 13 JANUARY 1982 , HEREBY RULES :
SURGICAL COVERING CLOTHS WHICH CONSIST OF STRIPS OF CELLULOSE SEPARATED BY A LAYER OF SYNTHETIC MATERIAL AND WHICH ARE NOT IMPREGNATED OR COATED WITH PHARMACEUTICAL SUBSTANCES BUT ARE INDIVIDUALLY PACKED IN ENVELOPES IN STERILE CONDITIONS FOR RETAIL FOR SURGICAL PURPOSES AND ARE USED ONLY ONCE IN SURGICAL OPERATIONS FOR THE PURPOSE OF COVERING THE PATIENT ' S BODY IN SUCH A WAY THAT THE AREA OF THE OPERATION IS LEFT CLEAR MUST BE REGARDED AS ARTICLES SIMILAR TO WADDING , GAUZE OR BANDAGES WITHIN THE MEANING OF HEADING 30.04 OF THE COMMON CUSTOMS TARIFF .
