The Classification of food supplements

28 January 2010

ECJ Case Swiss Caps (C-410/08, C-411/08 and C-412/08)

The ECJ recently made a judgement in Swiss Caps (Joined cases C-410/08, C-411/08 and C-412/08) concerning three disputes regarding the CN classification of three types of capsules containing mainly fish oil, wheat germ oil and black cumin oil imported into Germany as “food preparations”.

In all three cases, the goods in question were edible capsules that contained preparations intended for use as supplements, composed of vegetable or animal oil to which a certain quantity of vitamins had been added. The ECJ once again examined the General Rules of Interpretation to decide under which CN code the products should be classified.

The Arguments

Swiss Caps believed that the products should be classified under CN 2106:

“Food preparations not elsewhere specified”

Whereas the German customs authorities wanted the goods classified under CN headings 1515 and

“Other fixed vegetable fats and oils (including jojoba oil) and their fractions, whether or not refined, but not chemically modified” and;

“Margarine; edible mixtures or preparations of animal or vegetable fats or oils or of fractions of different fats or oils of this chapter, other than edible fats or oils or their fractions of heading 1516:”

The Judgement

The ECJ emphasised that the decisive criterion for the customs classification of goods in general should be sought in their “objective characteristics and properties as defined in the wording of the heading of the Combined Nomenclature (CN) and the relevant Explanatory Notes to them.

In the present cases the court noted that the Explanatory Notes to heading 2106 stated that this heading included “food supplements” which are put up in packagings with indications that they maintain general health or well-being.

The goods could therefore only be classified under CN 2106 if the food preparations in question were not specified or included elsewhere in the CN according to General Rule of Interpretation 3(a).

The capsules in question were edible preparations composed of animal or vegetable oils which were intended to be used as food supplements. Therefore the casing which contained the oils at issue in the main proceedings was not a “packing material” within the meaning of general rule 5. The presentation of the oils was a decisive factor which revealed their function as a food supplement since it determined the dosage of the preparations, the way in which they were absorbed and the place where they were supposed to become active. Consequently the casing was a factor which, together with the contents, determined the use and character of the goods at issue. The fact that the raw materials of which the capsules were composed were partly covered by the headings determined by the respondent did not preclude their classification under CN2106 as the two other headings did not allow for account to be taken of the characteristics of the capsules in that they determined the dose and objective characteristics and properties. The goods therefore should be classified under CN 2106 because the 2106 was more specific than the other two headings.

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1 General rule of interpretation 3(a) provides that a heading that provides a more specific description of the goods is to be preferred than a more general heading.


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