C-120/75

The term 'Berries, fresh' used in heading a short time and merely for the purpose 08.08 of the Common Customs Tariff of transportation, and which, at the must be interpreted as not including relevant time, have started to thaw or berries which have been frozen, even for have thawed out again.

In Case 120/75

Reference to the Court under Article 177 of the EEC Treaty by the Finanzgericht Hamburg, for a preliminary ruling in the action pending before that court between

FIRMA WALTER J. RIEMER, Hamburg,

and

HAUPTZOLLAMT LUBECK-WEST,

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order referring the case and the bilberries, blackberries written observations submitted under (brambleberries), mulberries Article 20 of the Protocol on the Statute and cloudberries of the Court of Justice of the EEC may B. Other.' be summarized as follows:

In June and July 1974 the undertaking lodged objections against the notices of I — Facts and procedure assessment of May and June 1974, on the ground that the imported products were 1. In May and June 1974 Firma Walter fresh cranberries. J. Riemer declared to the Zollamt (customs office) Lübeck-Hafen two The Hauptzollamt (Principal Customs consignments of cranberries imported Office) Lübeck-West dismissed the from Finland and intended for release objections of the importer, who then into free circulation; it claimed that the brought an application before the goods came under tariff heading 08.08 B Finanzgericht (Finance Court) Hamburg (0 %): against this decision dismissing the objections. '08.08 Berries, fresh: 2. By order of 31 October 1975 the B. Cranberries. Finanzgericht stayed the proceedings and requested the Court of Justice to give a The Zollamt Lübeck-Hafen classified the preliminary ruling under Article 177 of goods under tariff heading 08.10 B the EEC Treaty on the following (20 %): question:

According to the 'Zollgesetz' (Customs Walter J. Riemer has alleged that, for Law) manipulation of the date of the customs purposes, the concepts of fresh customs examination cannot bring the goods and frozen goods cannot be given goods under a more favourable tariff a different interpretation from that subheading. applied for trade purposes. In the trade goods are regarded as fresh where they It considers that fruits which are frozen are intended for immediate consumption throughout at temperatures below 0°C or processing by not where, as a result of must be classified under heading 08.10. the use of any kind of preservatives, a In this instance, a customs examination specific method of treatment or storage revealed that, inside the barrel, the or the passage of time, the goods are only imported goods were as hard as rock and intended to be released for consumption in an icy and crystallized condition; at or processed after some considerable the sides of the barrels and in the upper time. layers the cranberries had started to thaw or were a little further on the way to The actual condition of the goods at the thawing out. time of the customs examination is, therefore, not decisive for the customs 4. In the order referring the case, the classification. If such were the case then Finanzgericht Hamburg stated, in the persons liable for customs duty particular, that it is doubtful whether a could, at any time, bring the goods under purely static consideration of the different tariff headings, by selecting the concepts 'fresh' or 'frozen' without taking date for the customs examination. into consideration the whole set of circumstances and the economic In this instance the goods in question are requirements of trade, can result in a of the current season and, after correct classification. importation into Germany, have been subjected to processing. The cranberries The Finanzgericht does not consider that are stored in Finland in underground the Explanatory Notes to the Brussels concrete bunkers immediately after the Nomenclature provide clear guidance on harvest. In order that they may be the correct classification of the imported transported without deterioration, they goods. In this respect, it states: are -placed in a deepfreeze depot for a short period; they do not thereby lose the 'On the one hand, tariff heading 08.10 character of fresh goods. There is no includes on this footing all edible fruits continuous chain of cold storage frozen throughout at temperatures below operations during transportation. 0° C (see marginal number 1 of the Explanatory Notes to the Brussels The reason lying behind the exemption Nomenclature on tariff heading 08.10 from payment of customs duties is, and the explanatory notes to tariff moreover, that trade in fresh goods heading 07.02). On the other hand, intended for immediate consumption or according to marginal number 2 of the use ought to be encouraged. Explanatory Notes to the Brussels

Nomenclature on tariff heading 08.10, II — Written observations sub fruit which has merely been chilled is mitted to the Court classified as fresh fruit. Accordingly, the cranberries some of which at the relevant The Commission considers that the date had started to thaw or had thawed decision to be taken in this instance does out might have to be considered merely not involve a definition of what, in the as fruit which was (still) chilled and thus trade, is regarded as fresh or frozen, but have to be classified as fresh fruit, rather concerns the distinction existing because the 'frozen' state has not been under the Common Customs Tariff maintained or not been completely between the two headings 08.08 and maintained during transportation until 08.10.

very definition of 'chilled' might, then be that when the application for customs clearance is submitted or takes effect. again, permit of the inference that chilling or freezing must be treatment carried out by the importer on a As regards the tariff heading applying to the berries the Commission notes that long-term basis or that the intention of the plaintiff 'to keep the goods fresh' by the original action has not yet established the ways and means described must be whether the goods presented for customs taken into consideration.' clearance were frozen berries, in an icy and crystallized condition, or berries

By order of 22 March 1976, the Court decided, under Article 95 (1) of the Rules Current usage of the terms 'frozen of Procedure, to assign the case to the berries' means berries which have been Second Chamber. solidified by the effect of cold. The Explanatory Notes to the Brussels Upon hearing the report of the Nomenclature concerning tariff headings Judge-Rapporteur and the views of the 08.10 and 07.02 confirm this Advocate-General, the Court, Second

RIEMER v HAUPTZOLLAMT LUBECK-WEST

special interpretation of the term either under tariff heading 08.11 or 'preserved by freezing' which takes under tariff headings 08.12 or 20.03. particular account of the fact that the Moreover, the Commission does not goods have merely been frozen for the consider that mere thawing out purposes of transportation, are constitutes preparing or preserving subsequently transported without re­ within the meaning of tariff heading frigeration and that they must be 20.06.

exemption in no way affects the distinction in the Tariff between fresh The Commission observes that it is not goods and frozen goods and it can only unaware of the fact that it may be apply if the goods imported are actually difficult to distinguish between 'fresh' fresh and unfrozen. and 'thawed' berries on the basis of their outward appearance. However, although As regards the tariff classification of the freezing process is reversible, other cranberries which are frozen and then changes, in particular those to the flesh thawed out, the Commission maintains of the berry, are irreversible and result in that frozen cranberries certainly lose a 'thawed' berry which is softer than a their consistency when they are thawed fresh one, crushes more easily under out, but that they are only excluded from pressure and has a lower juice content tariff heading 08.10 if this operation were to be regarded as a form of processing or The Commission concludes: 'Cranberries preservation, as a result of which they which have merely been frozen for the satisfy the criteria of classification of purpose of transportation, which are another tariff heading. This is not the transported without refrigeration and case here since, as a result of their which, at the relevant time, have started thawing out, the berries could not fall to thaw or have thawed out completely,

JUDGMENT OF 15. 6. 1976 —CASE 120/75

cannot be classified as fresh berries to protect the German industry which, at within the meaning of subheading No that time, was just starting. 08.08 B of the Common Customs Tariff, but come under tariff heading No 08.10 As regards the duty on fresh berries as fruit, preserved by freezing. under the Common Customs Tariff

other hand, to berries preserved by Tariff, it is not possible to take account freezing. of the fact that the goods in question, which are a raw material for the In reply, the Commission stated in food-preserving industry, do not compete particular that, as regards the duty under with the frozen product. There are cases the Common Customs Tariff on frozen in which the ultimate use of goods forms berries (20 %), this is an autonomous a criterion for classification, but these duty [a duty decided upon cases are provided for by the Tariff. Such independently] fixed at the level of the criteria for classification are generally arithmetic mean of the duties in force in linked to an official verification of the the various Member States when the use to which the goods are put. In this Common Customs Tariff was drawn up. instance the question which may arise is whether the amount of the duty on At the national level, the duties have frozen berries (20 %) is justified. been based on economic considerations. Thus, the previous German duty on The Advocate-General delivered his

frozen berries (30 %) was fixed in order opinion at the hearing on 26 May 1976.

Law

1 By order of 31 October 1975, received at the Court on 5 December 1975, the Finanzgericht Hamburg referred to the Court under Article 177 of the EEC Treaty the following question:

'May cranberries which have merely been frozen for a short time for the purpose of transportation and which are transported without refrigeration and have already started to thaw or have thawed out again be classified as fresh berries within the meaning of tariff heading 08.08 B?'

5 The appropriate reply to the question referred is therefore that the term 'Berries, fresh' used in heading 08.08 of the Common Customs Tariff must be interpreted as not including berries which have been frozen, even for a short time and merely for the purpose of transportation, and which, at the relevant time, have started to thaw or have thawed out again.

Costs

6 The costs incurred by the Commission of the European Communities, which has 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 as to costs is a matter for that court.

OPINION OF MR TRABUCCHI — CASE 120/75

On those grounds,

Registrar President of the Second Chamber

OPINION OF MR ADVOCATE-GENERAL TRABUCCHI DELIVERED ON 26 MAY 1976 1

Mr President, Community from Finland free of Members of the Court, customs duty whereas frozen cranberries, which come under tariff heading 08.10 1. The proceedings before the B, were subject to a duty of 20 %. Finanzgericht Hamburg, which has referred a question to this Court under During the examination of the goods Article 177 of the EEC Treaty, are concerned when they crossed the concerned with the customs classification frontier, the German authorities noted of cranberries imported into Germany that the product appeared to constitute a from Finland in 1974. At the material very hard mass, in a frozen and time in the main action, cranberries, crystallized condition, although it was which come under tariff heading 08.08 B frozen to a lesser extent on the outside of the Common Customs Tariff, covering and there were indications that it was fresh berries, could be imported into the thawing out The authorities considered

1 — Translated from the Italian.