Pfizer wins customs duty challenge in the Court of Justice of the EU – Valentina Sloane QC represented Pfizer

02 Apr 2020

The Court of Justice of the EU has found in favour of Pfizer in its action for annulment of a European customs classification regulation.

Pfizer imports into the United Kingdom products falling under the registered trade mark ThermaCare. The products are presented and marketed for the purposes of heat therapy, to deliver benefits such as analgesia, reduced stiffness and acceleration of healing to damaged tissue.

The European Commission issued a classification regulation which had the effect of classifying Pfizer’s ThermaCare range of therapeutic heat products as “chemical products and preparations” and rejecting their classification as “wadding, gauze, bandages and similar articles..for medical purposes”. HMRC issued a Binding Tariff Information in accordance with the regulation.

Pfizer appealed to the First-tier Tribunal against HMRC’s classification decision and applied for a reference to the CJEU on the ground that the European Commission classification regulation was invalid.
HMRC contested the application and argued that the relevant test was whether the Commission had made a manifest error. The First-tier Tribunal rejected that argument and allowed Pfizer’s application, with an interesting and useful analysis of the appropriate threshold for making a reference in challenges to the validity of EU legislation.

The Court of Justice of the EU has now ruled that the European Commission exceeded its powers and the commission regulation is invalid. Its judgment contains helpful principles on the concept of “medical purposes”, which is not defined in the Combined Nomenclature or the explanatory notes.

Valentina Sloane QC represented Pfizer and was instructed by Hogan Lovells.

A copy of the national court’s judgment on Pfizer’s application for a preliminary ruling is here.

A copy of the judgment of the Court of Justice of the EU is here.