3.

I come now to the interpretation of tariff subheading 20.06 B I requested by the Bundesfinanzhof which might in certain circumstances lead to the conclusion that, if it is to retain its validity, Regulation No 1709/74 must be interpreted restrictively, or, if this approach should not prove possible, might enable it to be said that the regulation is to be regarded as invalid, contrary to the ruling given in Case 37/75. As regards the last point mentioned, I must first remind the Court that it was held in the judgment in Case 37/75 that the Commission has “wide discretion” in making tariff decisions pursuant to Regulation No 97/69. Doubt cannot consequently be cast upon the correctness of such tariff classification decisions for the simple reason that it is conceivable that the goods in question also fall under another tariff heading. Such doubt would require a much firmer foundation; in the context of the present case it must therefore be shown that a classification under 20.06 BI of the goods concerned appears clearly and unambiguously to be ruled out. (a) In this case the starting-point must obviously be the fact that only the two tariff subheadings first referred to (08.11 or 20.06 B I) are relevant to the dispute regarding classification which is pending before the Bundesfinanzhof and that consequently what matters is the correct determination of their scope. If there is to be an examination into whether or not this has been done correctly in regard to the goods in question in Regulation No 1709/74, we must first look at the appellants' argument that as against that regulation reference may be made to Note 1 (a) to Chapter 20 of the Common Customs Tariff. There it is stated that fruit preserved by the processes mentioned in Chapter 8 do not come under Chapter 20. What therefore matters above all is the method of preservation. If it is done in such a way that it would only be described as provisional preservation — which would be the case with low alcoholic strength and the nonaddition of sugar — then, it is claimed, it would only be correct to entertain classification under a tariff subheading under Chapter 8. However, in my opinion the Commission is right in thinking that this is too narrow an interpretation of the provision quoted. In my view too, the provision does not mean that if it is clear that the fruit has only been provisionally preserved, Chapter 20 is no longer relevant. A “preservation process” in the sense of this provision is rather to be regarded as a process which leads to the application of Chapter 8; this includes the criterion under tariff subheading 08.11 whether the goods are subsequently unsuitable for immediate consumption. Otherwise there would be a lacuna in classification. The judgment in Case 37/75 is also relevant on this point. In fact this aspect — Note 1 (a) to Chapter 20 — was thoroughly examined in the proceedings as may be seen from paragraph 9 of the decision and yet no objection was made to the fact that Regulation No 1709/74 classified provisionally preserved cherries under tariff heading 20.06 B I. Decisive evidence for the question of delimitation may therefore be derived from the said note to Chapter 20 only once it is clear what is meant by the phrase “unsuitable for immediate consumption”. I shall go into that question in detail later on. (b) Another important argument of the appellants which I should first like to discuss and which they claim also militates against a classification under tariff heading 20.06 BI of the goods concerned in the main action, is one which they believe may be deduced from the relevant Brussels Explanatory Notes on the two tariff subheadings in question. On the one hand the Notes on tariff heading 08.11 say: “Provided that it remains unsuitable for immediate consumption in that state, the present heading applies to fruit (whether or not blanched or scalded) which has been treated solely to ensure its provisional preservation during transport or storage prior to use (for example fruit preserved by sulphur dioxide gas, in brine, in sulphur water or in other preservative solutions). Such fruit is used mainly in the food industry (manufacture of jam, preparation of candied fruits, etc.). The fruits most commonly imported in this manner are organes, citrons, apricots, cherries, greengages, strawberries and other red berries. They are usually packed in casks, trays or open-lath type containers.” On the other hand the Notes on tariff heading 20.06 say, inter alia: “This heading covers fruit (whether whole, in pieces or crushed), prepared or preserved otherwise than by any of the processes specified in the headings of Chapter 8 or in the preceding headings of this Chapter. It includes, inter alia: 1) Fruit preserved in syrup, in water, in chemicals or in alcohol ... The products of the present heading are generally put up in cans, jars or airtight containers, or in casks, barrels or similar containers.” The argument runs that, as regards 08.11, one must also look at the intended use (raw materials for the food industry) and whether the fruit is packed in casks. On the other hand, as regards 20.06, the important factors are whether the fruit was preserved in syrup or alcohol, put up in airtight containers and sold to the public in that state. But because it is established that the goods at issue in the main proceedings were not sold to the public in that state but were exclusively raw materials for the industry, that they were put up in casks which were not airtight allowing limited preservation only and that they were not put up in alcohol but in a mixture of water and alcohol, then, it is said, pursuant to the Notes referred to, nothing is clearer than that they must be classified under tariff heading 08.11. To that argument, however, it must be stated first that, according to case-law, the Brussels Explanatory Notes constitute an aid to interpretation only so long as there are no relevant Community provisions. However, in this case there is such a Community provision in the form of Regulation No 1709/74 which, although only prescribing rules for classification under 20.06 B I, was actually adopted to determine the limits of that tariff subheading as distinct from tariff heading 08.11. Secondly it must not be overlooked that the Notes on 08.11 mention fruit which is used mainly in the food industry and which is usually packed in casks, which makes it clear that it is not just these factors alone which matter. Similarly, the use of the words “inter alia” in the Notes on 20.06 makes it clear that it is referring only to examples and not giving an exhaustive list. Furthermore, all that is said is that products under this heading are generally put up in cans and so on, which makes it clear that it is not these factors alone which matter. Consequently, even upon reference to the Brussels Explanatory Notes, there can be no argument in favour of a restrictive construction of Regulation No 1709/74 or even the proposition that it is invalid for incompatibility with tariff heading 20.06. (c) Thus all that still falls to be examined in the position with regard to the requirement in tariff heading 08.11 that the fruit shall be “unsuitable in that state for immediate consumption” which, together with the requirement of provisional preservation, must be fulfilled in order for the goods to be classified under that tariff heading. The appellants primarily take the view that the Commission wrongly interpreted that phrase to mean that consumption must not be possible without damage to health and that it therefore erred in arriving at the view that cherries in a mixture of water and alcohol were not covered by tariff heading 08.11 and consequently only the residual subheading 20.06 B I was relevant to them. On the other hand, it is significant, they say, that the word “Verzehr” [consumption] which may usually be found in German food legislation and merely describes the ingestion of edible substances into the stomach, does not appear in 08.11 but the word “Genuß” ( 2 ) appears instead. This is to be understood in a different sense according to the lexical meaning. The sensations accompanying ingestion are what matter, therefore only whatever is eaten with appetite, which is determined by appearance, taste and smell, is suitable for consumption. The need to make such a distinction is moreover supported not only by the fact that the concept is used also in other Community provisions, for example, in the Council Directive of 15 February on health problems affecting trade in fresh poultry-meat where, as regards the Genußtauglichkeitsbescheinigung [certificate of suitability for consumption, translated as “health certificate”] not only the absence' of pathogenic agents is important but also other marginal conditions meant to ensure a state of hygiene in the sense of being appetizing. Only such a construction would be in conformity with the fact that Chapter 8 is headed “Edible fruit” and with the fact that according to Note 1 it does not cover inedible fruits. Reference may further be made on this point to the Brussels Explanatory Notes which provide that fruit which is used mainly in the food industry comes under tariff subheading 08.11, which could not on any account be fruit the consumption of which might cause damage to health. But, the argument continues, if this construction were adopted, then because the taste of the goods in this case was impaired owing to the low alcoholic strength of the mixture of water and alcohol and the packing which was not airtight, it would also have to be admitted that they were unsuitable in that state for immediate consumption. This may be proved by the expert's report dating from 1972, which has previously been submitted to the Bundesfinanzhof and which refers to the lack of any properties of taste or smell in cherries of that kind. For further details reference may be made to the expert's report, which previously featured in Case 37/75 and similarly refers to the absence of sweet taste, the predominance of acids, a burning taste and lack of flavour, emphasizing that the fruit here is only a semi-finished product, which is unsuitable for consumption. Finally, it is stated, on this point a consumer survey undertaken in May 1976 by the Gesellschaft für Marktforschung [Market Research Company] and submitted by the appellants is of interest too; it shows a predominantly negative reaction to the taste of the goods involved in this case. If reliance is placed exclusively on the German wording of the Common Customs Tariff, then these submissions may seem to possess some plausibility although there must also be grounds for reflexion in the fact that the word “genießbar” [edible] which in Chapter 8 certainly has only the meaning considered correct by the Commission — namely edible without damage to health — has the same root as the concept “Genuß”. However, it is quite clear that the appellants' interpretation is undermined when one looks at the wording of the versions in the other languages, which is indispensable when dealing with Community texts, and in particular the wording used in the Brussels Customs Tariff Nomenclature which is also the basis of the Common Customs Tariff. For example, the French version of tariff heading 08.11 uses the phrase “impropre à la consommation en l'état”, the English says “unsuitable in that state for immediate consumption”, the Italian version runs “non atte per il consumo nello stato in cui sono presentate”, and the Dutch says “als zodanig ongeschikt voor dadelijke consumptie”. None of these wordings contains any descriptive element as in the appellants' interpretation: this becomes particularly clear if we then compare the chapter headings in Chapter 8 (fruits comestibles, edible fruit, frutta commestibili, fruit) and if one tries to imagine how the concept “Genuß” is otherwise defined in these languages. All they signify in fact is nothing other than that fruit must be “eßbar” [edible] and “genießbar” [consumable]. Furthermore, in my opinion this view is supported by the fact that the expert's report submitted in Case 37/75 stressed the lack of “Genußeignung” [suitability for consumption] but that did not compel the Court in any degree to question the classification adopted in Regulation No 1709/74. On the contrary this reading is not contradicted, either, by the heading to Chapter 8 and Note 1 therein, which, in the opinion of the appellants, goes to prove that because Chapter 8 must always cover fruit which is “genießbar”, as regards tariff heading 08.11 a distinction must be drawn between “genießbar” and “zum Genuß geeignet” [suitable for consumption]. In my opinion the Notes are simply to be understood to mean that only fruit which is basically edible comes under this chapter; but that does not preclude 08.11 from also covering fruit which may be in conformity with it because it is provisionally preserved in a given way but which in its unaltered state is not suitable for consumption — that is how “immediate” is to be understood. If that is accepted, then classification under 08.11 of the goods at issue would in fact only be acceptable if it were proved that the goods were not suitable for immediate consumption without damage to health — and not just that they were not intended for such consumption. That is difficult to entertain in regard to cherries which are put up in a drinkable mixture of water and alcohol, in whatever concentration. Nor can it be proved by means of the expert's report also referred to in the proceedings. By saying that there was a negative reaction to the taste, that the persons used in the sample were on the whole not prepared to use the cherries in that state, and that it was only possible to record minimal willingness to buy them, all the expert's report prepared by the Gesellschaft für Marktfoschung in fact proves is a commercial practice with regard to eating habits such as has already been held irrelevant in the judgment in Case 37/75 in regard to another expert's report. Similarly, all that is to be discerned from the expert's report of 2 October 1979 by the Institut für Lebensmitteltechnologie [Institute of Food Technology] is that it is not possible to say such fruit is suitable for immediate consumption since it is usually not consumed until after further processing. Finally, it is stated in the report of 26 October 1972 by the Staatliche Chemische Untersuchungsanstalt [State Chemical Research Institute] of Munich, upon which the Bundesfinanzhof relied in its judgment of 16 January 1973, that such fruit is not suitable for immediate consumption. But it is clear from the grounds of that judgment that it was only declared to be unsuitable because it had a sour and unattractive taste and lacked any properties of smell or taste which would be necessary in the case of a finished article intended for the ultimate consumer.