In a decision on 26.03.2020, the European Court of Justice issued a ruling on the tariff classification of medical warming pads and belts which are intended to alleviate pain through the application of heat. The specific case concerned ThermaCare brand products.
Simultaneously, the European Court of Justice nullified Implementing Regulation 2016/1140. The European Commission had previously classified the product concerned as a chemical product under customs tariff number 3824 90 96 in the regulation.
However, the ECJ ruled that it was correct to classify the heat pads under customs tariff heading 3005 as “similar products” such as cotton wool, bandages or plasters. In adopting the regulation, the Commission had exceeded its jurisdiction with regard to the tariff classification of the product, the ECJ stated in its judgment.
Our customs attorneys would be happy to advise you on how to determine the correct customs tariff number and whether you should lodge an appeal against customs.
Customs tariff number for medical heat pads and heat belts
The product is a device used for thermo-therapeutic purposes to help relieve pain, reduce stiffness and accelerate tissue healing.
- consists of a bandage-like material containing “heat cells” including chemicals,
- works in a similar way to a mustard plaster, but offers additional advantages,
- has the following effect: an exothermic chemical reaction relieves pain, reduces stiffness and promotes tissue healing
- is intended for retail sale in its presentation
- are offered and marketed expressly for medicinal purposes and with a statement that they produce the effects mentioned.
Exceeding the jurisdiction of the EU Commission
The European Commission had classified the product under HS heading 3824, more precisely under tariff heading 3824 90 96. The Commission based its classification on the chemical composition of the product. In the Commission’s view, classification under HS heading 3005 was not appropriate.
However, the wording of CN heading 3824 requires that the products in question are not classifiable under any other tariff heading. By classifying the product under tariff heading 3824 90 96 and not under HS heading 3005, the Commission altered the content of those tariff headings and exceeded its powers, the Court held.
In the court’s ruling, the ECJ pointed out that although the European Commission has a wide margin of discretion in determining the content of tariff headings in the classification of certain goods, the Commission is not entitled to exercise such discretion. However, the Court held that it was not for the Commission to alter the content or scope of tariff headings.
What is the importance of the customs tariff number?
The ECJ has placed emphasis on the criteria for the tariff classification of a product:
- The objective characteristics and qualities resulting from the wording of the provisions of the customs tariff are decisive factors.
- Additionally, the purpose of use must be inseparably linked to the goods themselves. For that purpose, the objective characteristics and properties must be considered.
Thermal products are goods for medical purposes
The ECJ has classified ThermaCare’s heat pads under customs tariff number 3005.
This includes the following goods:
“Wadding, gauze, bandages and similar products (for example, dressings, adhesive plasters for medical use, mustard plaster), impregnated or coated with medicinal substances or put up for retail sale for medical, surgical, dental or veterinary purposes.”
Contrary to the Commission’s view, the requirements in their presentation are intended for retail sale, the ECJ stated.
However, for the criterion “for medical purposes“, circumstances such as the use that the manufacturer intended for the product, as well as the type and place of use must also be taken into account.
This means that the warming pad must have been manufactured specifically for medical purposes.
In this respect, it is also worth noting that in the case of undefined terms such as “for medical purposes”, it is possible to refer, among other things, to typical language use and its context.
Thus, the term “medical” and the meaning of the term “medicine” also play a role for tariff classification purposes. According to the ECJ, the term “medicine” in common parlance covers the science of prevention, diagnosis and treatment of diseases or injuries.
To that extent, a product manufactured specifically for the prevention, diagnosis or treatment of disease or injury also has “medical purposes” within the meaning of CN heading 3005.
This is the case with heat pads and heat belts. Heat treatment by hyperthermia is also recognised as medical treatment because of its physiological benefits.
According to the ECJ, the criterion “for medical purposes” is also supported by the fact that the pads of the ThermaCare brand are classified as “active medical devices” under the European Medical Devices Directive.
Dispute about the intended use
The Commission had rejected classification under tariff heading 3005 also with regard to the intended use of goods of HS heading 3005. This consists of treating pain or injury. However, it warns against the use of heat pads to bandage injuries, bruises or edema on the skin.
The ECJ does not see this as an exclusion criterion: even if the pads should not be used in certain cases, they are still intended to treat pain and injury.
Furthermore, the objection that the product is primarily intended to achieve aesthetic improvements was not accepted by the ECJ.
Binding tariff information becomes invalid
The consequence for companies is that all Binding Tariff Information (BTI) issued on the basis of implementing Regulation 2016/1140 will become invalid.
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