Nederlandsch Bevrachtingskantoor BV v Inspecteur der Invoerrechten en Accijnzen, Amsterdam (37/82)

II —Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

The Commission begins its observations by saying that the question of interpretation raised by the Tariefcommissie involves determining whether covering cloths may be regarded as falling within the description “wadding, gauze, bandages and similar articles ... put up in retail packings for medical or surgical purposes”.In the Commission's view, covering cloths are not similar to wadding, gauze and bandages because their function is different. They are not intended to cover a wound or part of the body in order to facilitate or accelerate healing; their function is solely to cover the body around the wound for reasons of hygiene without contributing to healing the wound itself.In addition, the Commission considers that covering cloths are not intended either for medical or surgical purposes. In that respect, it observes that covering cloths in no way contribute to healing the wound and submits that the words “articles intended for surgical purposes” must be strictly construed. Such articles are those used directly in the practice of surgery and not articles having another function such as, for example, the improvement of hygiene.In the Commission's view, heading 48.21 D of the Common Customs Tariff in the version in force in 1980 (Council Regulation No 3000/79 of 20. 12. 1979, Official Journal L 342) is applicable. In support of that argument the Commission refers also to the tariff classification of a product which, in its view, has a function similar to that of the surgical covering cloths, namely drawsheets, classified by Regulation No 1484/70 of the Commission of 24 July 1970 (Official Journal, English Special Edition 1970 (II) p. 480) under subheading 48.21.In conclusion the Commission proposes that the Court should answer the question put to it for a preliminary ruling by the Tariefcommissie as follows :“On a proper construction of heading 30.04 of the Common Customs Tariff, surgical covering cloths such as those in question in the present case cannot be regarded as articles similar to wadding, gauze or bandages put up in retail packings for medical or surgical purposes.”