4.

It is therefore necessary to consider how tariff heading 08.11 of the Common Customs Tariff should have been construed as regards the characteristics “provisionally preserved” and “unsuitable in that state for immediate consumption” before Regulation No 1709/74 entered into force-and how it was to be distinguished from tariff heading 20.06 which brings me to the question put by the Finanzgericht. The plaintiff has expressed the view that before the adoption of Regulation No 1709/74, which according to the case-law has no retroactive effect because it creates new law, various interpretations — it even speaks of several correct interpretations — of tariff heading 08.11 were possible. If that were not the case the regulation would not have been necessary and it would not have been stipulated that it was to enter into force 21 days after its publication. If, however, the well-known Explanatory Notes of the Customs Cooperation Council are applied to that period it appears quite possible for the goods in question to be classified under tariff heading 08.11, which the Bundesfinanzhof also accepted in its judgment of 16 January 1973. That may be seen, the plaintiff argues, from that part of the Explanatory Notes which says that for tariff heading 08.11 to apply fruit should have been only provisionally preserved for the purposes of transport, be mainly intended for use as raw materials in the food industry and usually be put up in casks or skips. Like the Commission, I believe that there are good reasons for not accepting that view. Previous case-law of the Court set forth at the beginning of my opinion, particularly the judgment in Case 87, 112 and 113/79 [1980] ECR 1159, at p. 1171, provides some guidance in this matter. It is true that determination of the validity of Regulation No 1709/71 is the predominant issue here, as it was in Case 37/75, but when the compatibility of that regulation with the Common Customs Tariff was examined a direct interpretation of tariff heading 08.11 came to be given to which we may now refer without further ado. According to that interpretation the requirement that goods should be “unsuitable in that state for immediate consumption” is of crucial importance whilst the question whether or not the goods concerned are intended for further processing plays no part in distinguishing the sphere of application of tariff heading 08.11 from that of 20.06. In my opinion on Cases 87, 112 and 113/79 I undertook a detailed examination of that requirement, examining the various language versions and general context to which the tariff heading belongs. I came to the firm opinion that “genießbar” [consumable] means “ess-bar” [edible] and “Genuß” ( 2 ) means nothing more than “Verzehr” [consumption]. Therefore, in my view, application of tariff heading 08.11 is conceivable only if a product cannot be consumed without damage to health. The Court took the same view, stating that the fact that goods are not, in the view of consumers at the present time, considered to be appetizing and though it is not usual to consume them as they are, that does not signify that they are thereby unsuitable for consumption “as long as they may be consumed in that state without risk to health”. Those findings may suffice for the purposes of the present case, too. Since, as I also argued in my opinion, the experts' reports hitherto available do not afford evidence that the imported goods are unsuitable for consumption in the sense indicated, those findings clearly lead to the conclusion that classification is not possible under heading 08.11 but only under heading 20.06 and that, as the Commission has argued, Regulation No 1709/74 does in fact represent an important aid to the interpretation of the Common Customs Tariff, even for the period before it was adopted. In the oral procedure the plaintiff also referred to the judgments in Case 4/79 Société Coopérative “Providence Agricole de la Champagne” ν Office National Interprofessionnel des Céréales [1980] ECR 2823, judgment of 15 October 1980, and in Case 109/79 Niaiseries de Beauce ν Office National Interprofessionnel des Céréales [1980] ECR 2883, judgment of 15 October 1980, which, after declaring the monetary compensatory amount fixed for maize meal to be invalid, emphasized that that fact does not enable the charging or payment of monetary compensatory amounts on the basis of that regulation to be challenged as regards the period prior to the date of the judgment, and after referring to the principle of the protection of legitimate expectation expressed in that way the plaintiff submitted that the Court should declare that a binding classification notice must remain effective until the law is changed, so that the notice is binding on courts as well. As far as that argument is concerned, I should just like to point out that it cannot provide any grounds for making additional observations going beyond the scope of the question asked. First, the facts of the cases in question are quite clearly not comparable. Secondly, it is no doubt primarily a question of national law whether classification notices, which, as has been established, are admissible under Community law, are binding in situations such as this, that is to say, where notices of assessment which are no longer subject to appeal are examined under the discretionary provision of Article 94 of the Reichsabgabenordnung. Only when that issue has been resolved may the question also be raised whether a classification notice which is not in accord with the Common Customs Tariff still retains its effect so long as it is not set aside under national law.