Judgment of the Court (Second Chamber) of 15 June 1976. - Walter J. Riemer v Hauptzollamt Lübeck-West. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Cranberries. - Case 120-75.



European Court reports 1976 Page 01003

Greek special edition Page 00377

Portuguese special edition Page 00407



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

COMMON CUSTOMS TARIFF - TARIFF HEADING 08.08 - CONCEPT

Summary

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 .

Parties

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 ,

Subject of the case

ON THE INTERPRETATION OF TARIFF HEADING 08.08 B ( BERRIES , FRESH , CRANBERRIES ) OF THE COMMON CUSTOMS TARIFF ( REGULATION NO 950/68 OF THE COUNCIL , OJ L 172 , P . 1 , AS LAST AMENDED BY REGULATION NO 3000/75 OF THE COUNCIL , OJ L 304 , P . 1 ),

Grounds

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?

'

2 THE ORDER REFERRING THE CASE SHOWS THAT THIS QUESTION AROSE IN AN ACTION BETWEEN A GERMAN IMPORTER AND THE COMPETENT CUSTOMS AUTHORITIES OVER TWO CONSIGNMENTS OF CRANBERRIES WHICH , AS ' FRUIT , PRESERVED BY FREEZING ' , WERE CLASSIFIED UNDER HEADING 08.10 B OF THE COMMON CUSTOMS TARIFF , ALTHOUGH THE IMPORTER CLAIMS THAT THEY CAME UNDER HEADING 08.08 B , AS ' BERRIES , FRESH ' .

THE QUESTION RAISED THEREFORE CONCERNS THE INTERPRETATION OF THE TERM ' FRESH ' APPEARING IN HEADING 08.08 IN RELATION TO THE TERM ' PRESERVED BY FREEZING ' IN HEADING 08.10 .

3 THE TARIFF DISTINGUISHES BETWEEN ' FRESH ' BERRIES REFERRED TO UNDER HEADING 08.08 AND FRUIT PRESERVED BY FREEZING , DRIED OR PRESERVED , UNDER HEADINGS 08.10 , 08.11 , 08.12 AND 20.06 .

IT FOLLOWS THAT THE TERM ' FRESH ' MUST BE INTERPRETED TO MEAN THOSE BERRIES WHICH ARE IN THE NATURAL STATE IN WHICH THEY HAVE BEEN HARVESTED AND WHICH HAVE NOT UNDERGONE ANY OF THE METHODS OF PRESERVATION OR TREATMENT MENTIONED .

4 THE INFORMATION PROVIDED TO THE COURT SHOWS THAT THE CHARACTERISTICS OF THE BERRIES WHICH ARE SUBJECTED TO THE FREEZING PROCESSES UNDERGO CERTAIN IRREVERSABLE CHANGES AS A RESULT OF THIS VERY PROCESS , IN PARTICULAR TO THE STRUCTURE OF THE FLESH , WITH THE RESULT THAT THEY ARE NO LONGER IN THE NATURAL STATE , EVEN AFTER THEY HAVE STARTED TO THAW OR HAVE THAWED OUT .

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 .

Decision on costs

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 .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 31 OCTOBER 1975 , HEREBY RULES :

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 .