3.

During the hearing, the representative of the Commission stated that, as the product concerned was in a frozen condition, it could not in any case compete in the Community with the corresponding fresh Community product, because a product of this kind is never marketed as fresh. The Commission also stated that the product would not compete with the corresponding frozen Community product because the latter would be used in the production of jam or preserves. This statement takes for granted that the Community product is never put to this latter use, a supposition which, in my view, it is dangerous to accept in its entirety. However that may be, on the assumption that the imported product involved does not compete with the Community product, it occurs to me that there might perhaps be justification for giving the concept of ‘Berries fresh’, a wider meaning than which I have recommended in order to exempt from a duty products against which the Community economy has no need of protection. Generally speaking, the first comment to be made is that the purpose of the duties in the Common Customs Tariff goes beyond any protection they may offer. A Community duty, such as that laid down for frozen cranberries, the amount of which represents the arithmetic result of the average of the previous national duties whose function was presumably protectionist even when, owing to a change in economic circumstances, it no longer fulfils that function, nevertheless remains of importance to the Community, especially in terms of the common commercial policy, as a bargaining counter in tariff negotiations with third States. This fact alone shows how little justification there would be for basing the interpretation of a customs concept and, consequently, the applicability or otherwise of a duty, on considerations based on the competitiveness or otherwise of the imported product. Secondly, I take the view that it would be wrong in law and dangerous for the economy of the Community to relate the scope of a customs concept to the aforesaid consideration; I say this not only because the situation regarding the market in a given product may change within the Community but above all because, when the customs heading concerned embraces a multiplicity of products, as is, in fact, true in the case of heading 08.08, an interpretation which holds equally good for various products under the same heading (in the present case, ‘Berries, fresh’) on the basis of the competitive position of one of them would affect the interpretation to be applied to other products which were in a position of greater competitiveness compared with the corresponding Community product. It must be borne in mind that the level of customs duties laid down for fresh products under heading 08.08 is appreciably lower than that of the duties applicable to the corresponding frozen products under heading 08.10. It may, therefore, be of real importance to the Community that a clear distinction should be drawn between products which are fresh and which must, therefore, be sold as such and frozen products, which means that we must avoid a widening of the concept of fresh products which would remove the greater protection which the different levels of duty applicable to the two customs headings involved were intended to secure for Community products other than that which is the subject of this case. In order to avoid an outcome which would be unsatisfactory for Community products with which we cannot concern ourselves in this case, in my opinion the Court must, in interpreting the concepts of the Common Customs Tariff involved here, in principle forswear any consideration connected with the competitive position of the particular product which is the subject of the question from the national court As regards, in particular, the proper meaning to be attached to the concept of frozen berries, if it were to be conceded that a product which had been previously frozen were to be treated as a fresh product solely owing to the fact that it was presented to Community customs in a thawed state, it might be difficult both in theory and in practice to avoid treating as fresh also fruit which had been picked much earlier and which had been kept fresh by refrigeration. This would deprive the concept of fresh fruit of all meaning. If, on the other hand, it is true that, as the Commission informs us, there is no possibility of the cranberries with which we are concerned competing in the Community with fresh cranberries, it might be assumed that importers of these cranberries would avoid placing them on the market as fresh fruit, not through considerations of business ethics but for the simple reason that the product which had been frozen (even though, as is alleged to have happened in this case, this was only for a short time) could, on account of its external characteristics, no longer be sold as fresh fruit. If a consumer is able to tell fresh cranberries from thawed ones, one must assume that a customs official would not find it difficult either. But even when the external appearance of a thawed out product is the same as that of the fresh product it would not be permissible to classify the former as the latter for customs purposes; this is because, as is implied by the Explanatory Notes to the Brussels Nomenclature on tariff heading 07.02, to which the Explanatory Notes to tariff heading 08.10 refer, these would still be goods which have only the appearance of being fresh. On the other hand, according to the evidence of the Commission, there has been an irreversible change in its texture which, even though this has not resulted in destroying the cellular structure, can in any case be objectively determined.