C-170/80

on the interpretation of tariff heading 08.11 of the Common Customs Tariff,

T H E C O U R T (Third Chamber)

composed of: J. Mertens de Wilmars, President, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

B. Other: " H o w was tariff heading 08.11 of the Common Customs Tariff as regards the I. Containing added spirit: characteristics 'provisionally preserved' and 'unsuitable in that state for im- mediate consumption' to be interpreted (e) Other fruits : and distinguished from tariff heading 1. With a sugar content 20.06 before the entry into force of Regulation (EEC) N o 1709/74 of the exceeding 9 % by weight, Commission of 2 July 1974?" and the customs offices applied that classification in the case or each im­ The Finanzgericht München stated in its portation. judgment that the answer was intended to "clarify the question whether cherries which are put up in a mixture of water On the application of the plaintiff in the and ethyl alcohol with a concentration of main action, on 16 January 1973 the from 10.8 to 18.1 % of alcohol by Bundesfinanzhof [Federal Finance weight are to be classified under tariff Court] annulled that classification notice heading 08.11 or 20.06". The court and on 9 May 1973 the Oberfinanz­ making the reference also states that the direktion München issued to the plaintiff crucial nature of the question arises from in the main action a new notice the fact that the action can be successful classifying the goods under tariff heading only if the customs offices have classified 08.11 D : the imported goods inappropriately and consequently fixed excessive import Fruit provisionally preserved (for charges. example, by sulphur dioxide gas, in brine, in sulphur water or in other pres- ervative solutions), but unsuitable in that The order making the reference was state for immediate consumption : registered at the Court on 24 July 1980.

plaintiff in the main action, represented interpret the tariff headings in question. by Barbara Festge of the Hamburg Bar. That is especially borne out by the fact that there is nothing in the order for After hearing the report of the Judge- reference to justify altering the view Rapporteur and the views of the adopted by the Court in regard to the Advocate General the Court, by order of period subsequent to the entry into force 19 November 1980, decided, pursuant to of Regulation No 1709/74. Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the The Commission therefore proposes Third Chamber. the following reply to the question submitted : "Before the entry into force of Regu­ II — Written observations sub­ lation (EEC) No 1709/74 of the mitted under Article 20 of Commission of 2 July 1974 tariff the Protocol on the Statute headings 08.11 and 20.06 of the of the Court of Justice of Common Customs Tariff had to be the EEC interpreted as meaning that fruit put up in a mixture of water and ethyl alcohol and which is not unsuitable in that state A — Observations submitted by the for immediate consumption must be Commission classified under subheading 20.06 B I of the Common Customs Tariff." The Commission wonders whether the Court did not answer this question in its judgment of 20 March 1980 (Joined B — Observations of the plaintiff in the Cases 87, 112 and 113/79 Bagusat[1980] main action ECR 1159). Whilst acknowledging that the decisive factor in those cases was The plaintiff in the main action claims Regulation No 1709/74 of the that Regulation No 1709/74 is Commission of 2 July 1974 relating to constitutive in nature and that, as the the classification of goods under sub­ Court acknowledged in its judgment of heading 20.06 Β I of the Common 24 November and 15 December 1971 Customs Tariff (Official Journal L 180, (Case 30/71 Kurt Siemers [1971] ECR p. 15), the Commission in fact points out 919 and Case 77/71 Gervais-Danone that in that judgment the Court entered [1977] ECR 1127), it cannot have any upon an examination of the independent retroactive effect. tariff subheading 20.06 B I, concluding that: Before the entry into force of Regulation No 1709/74 and contrary to the "Fruit put up in a mixture of water and situation examined by the Court in its alcohol, which is not unsuitable in that judgment of 23 March 1977 (Case 86/76 state for immediate consumption, must Gervais-Danone [1977] ECR 619) several be classified under subheading 20.06 B I interpretations of the tariff headings at of the Common Customs Tariff". issue, including that adopted by the Oberfinanzdirektion München in its Furthermore, whilst acknowledging that notice of 9 May 1973, were possible, Regulation No 1709/74 is not retro­ logically of equal rank and therefore active, the Commission observes that, correct from a legal point of view. since it has in its opinion an explanatory function only, there is no reason why it It was precisely for the purpose of should not be applied to the period prior bringing that situation to an end that the to its entry into force in order to help Commission adopted Regulation No

Decision

1 By order of 4 July 1980, which was received at the Court on 24 July 1980, the Finanzgericht München referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of tariff heading 08.11 of the Common Customs Tariff.

2 Between 16 August 1968 and 24 April 1973 the plaintiff in the main action imported from Yugoslavia over 100 consignments of mahaleb and sweet cherries preserved in a mixture of alcohol and water. By decision of

JUDGMENT OF 8. 7. 1981 — CASE 170/80

16 August 1968 the Oberfinanzdirektion München issued the plaintiff with an official classification notice classifying those products under heading 20.06 Β I(e) 1 (Fruit otherwise prepared or preserved, whether or not containing added sugar or spirit . ..) and throughout the period mentioned above customs duties and levies were paid on that basis.

3 By judgment of 16 January 1973, the Bundesfinanzhof annulled the clas­ sification notice issued in 1968, after which the Oberfinanzdirektion issued to the plaintiff on 9 May 1973 a new notice classifying the goods in question thenceforth under heading 08.11 D (fruit provisionally preserved but unsuitable in that state for immediate consumption . . . ) , a classification more favourable to the importer. The plaintiff in the main action however asked that it also be granted the benefit of that more favourable classification for the imports which it had effected between 1968 and 1973. The Oberfinanz­ direktion refused to grant that request and the plaintiff in the main action then brought the issue before the Finanzgericht München.

6 As the Court accepted in its judgment of 20 March 1980 (Joined Cases 87, 112 and 113/79 Bagusat [1980] ECR 1159), it follows from the use of the expression "fruit provisionally preserved, but unsuitable in that state for immediate consumption" in tariff heading 08.11 that fruit provisionally preserved may only come under that heading if the preservation process results in making the fruit unsuitable for consumption in that state. On the other hand the question whether or not the goods at issue are to undergo subsequent processing is irrelevant for the purpose of defining the scope of headings 08.11 and 20.06. It follows from this that fruit preserved in a mixture of water and alcohol must be classified under subheading 20.06 Β I if it is not unsuitable for immediate consumption in that state.

7 According to that judgment the fact that the goods at issue are not, in the view of consumers at the present time, considered to be appetizing and though it is not unusual to consume them as they are, does not signify that they are thereby unsuitable for consumption as long as they may be consumed in that state without risk to health. Indeed the applicant in the main action hat not argued that the consumption in that state of the goods at issue which are intended to be used in the food industry represents a special risk to health.

8 It should also be mentioned that in its judgment of 11 November 1975 (Case 35/75 Bagusat [1975] ECR 1345) the Court indicated that Regulation N o 1709/74 of the Commission did not involve an amendment to tariff heading 08.11 or consequently any amendment of the respective spheres of application of that heading and of heading 20.06 Β I (e) 1. It follows that the classification under heading 20.06 laid down in that regulation for cherries put up in a mixture of water and ethyl alcohol represents a correct interpre­ tation of the spheres of application of headings 08.11 and 20.06 as they appear in the Common Customs Tariff in the version in Regulation N o 950/86 of 28 June 1968.

On those grounds,

THE COURT (Third Chamber),

in answer to the question referred to it by the Finanzgericht München by order of 4 July 1980, hereby rules:

The description "fruit provisionally preserved but unsuitable in that state for immediate consumption" indicates that tariff heading 08.11 covers only those products for which the preservation process used has made them unsuitable for immediate consumption in their then state without risk to health.

Mertens de Wilmars Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 8 July 1981.