1 BY AN ORDER OF 25 MARCH 1975, RECEIVED AT THE COURT ON 15 APRIL 1975, THE FINANZGERICHT BERLIN REQUESTED THE LATTER, UNDER ARTICLE 177 OF THE EEC TREATY, TO GIVE A PRELIMINARY RULING ON THE VALIDITY OF REGULATION ( EEC ) NO 1709/74 OF THE COMMISSION OF 2 JULY 1974 ( OJ L 180, P . 15 ) AND ON THE INTERPRETATION OF HEADING 08.11 AND OF SUBHEADING 20.06 B 1 OF THE COMMON CUSTOMS TARIFF .
2 THE MAIN ACTION IS CONCERNED WITH THE QUESTION WHETHER CHERRIES IMMERSED IN A MIXTURE OF WATER AND ALCOHOL IN ORDER TO PRESERVE THEM PROVISIONALLY DURING TRANSPORT TO THE COMMUNITY AND UNTIL, AFTER DRAINING, THEY ARE USED FOR THE CHOCOLATE INDUSTRY IN THE COMMUNITY, ARE TO BE CLASSIFIED UNDER TARIFF SUBHEADING 20.06 B 1 .
3 THE COURT IS ASKED TO RULE WHETHER CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL MUST BE CLASSIFIED UNDER HEADING 08.11 OR UNDER SUBHEADING 20.06 B 1 OF THE COMMON CUSTOMS TARIFF AND IN PARTICULAR WHETHER REGULATION ( EEC ) NO 1709/74 IS VALID TO THE EXTENT TO WHICH IT CLASSIFIES CERTAIN PRODUCTS UNDER SUBHEADING 20.06 B 1 .
4 ARTICLE 1 OF REGULATION ( EEC ) NO 1709/74 PROVIDES THAT 'CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL SHALL BE CLASSIFIED AS FRUIT SUITABLE FOR IMMEDIATE CONSUMPTION IN THE FOLLOWING SUBHEADING OF THE COMMON CUSTOMS TARIFF :
20.06 FRUIT OTHERWISE PREPARED OR PRESERVED, WHETHER OR NOT CONTAINING ADDED SUGAR OR SPIRIT :
B . OTHER :
I . CONTAINING ADDED SPIRIT '.
5 THE SECOND RECITAL OF THE PREAMBLE TO REGULATION NO 97/69 OF THE COUNCIL ON MEASURES TO BE TAKEN FOR UNIFORM APPLICATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ( OJ, ENGLISH SPECIAL EDITION 1969 ( I ) P . 12 ) EXPLAINS THAT THE PROVISIONS ENSURING THAT THE NOMENCLATURE IS UNIFORMLY APPLIED IN ALL THE MEMBER STATES SHOULD SPECIFY THE CONTENT OF THE HEADINGS OR SUBHEADINGS OF THE COMMON CUSTOMS TARIFF, WITH THE SOLE RESERVATION THAT THE PROVISIONS ADOPTED BY THE COMMISSION DO NOT AMEND THE TEXT OF THE TARIFF .
6 THE REGULATION SET UP A COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE, SPECIFYING IN THE THIRD RECITAL OF THE PREAMBLE THERETO THAT THE PROVISIONS CONCERNING THE MEASURES WHICH MAY BE NECESSARY FOR CLASSIFYING CERTAIN GOODS IN THE TARIFF RELATE TO A PARTICULARLY TECHNICAL FIELD AND THAT CLOSE COOPERATION IS REQUIRED BETWEEN THE MEMBER STATES WHEN DRAWING THEM UP .
7 IN THIS FIELD, THE COUNCIL HAS CONFERRED ON THE COMMISSION, ACTING IN COOPERATION WITH THE CUSTOMS EXPERTS OF THE MEMBER STATES, A WIDE DISCRETION AS TO THE CHOICE BETWEEN TWO OR MORE HEADINGS WHICH CAME INTO CONSIDERATION WITH REGARD TO THE CLASSIFICATION OF SPECIFIC GOODS .
8 IT IS NECESSARY TO CONSIDER WHETHER THE EFFECT OF REGULATION ( EEC ) NO 1709/74 HAS BEEN TO AMEND THE TEXT OF THE TARIFF .
9 ALTHOUGH THE TERMS OF SUBHEADING 20.06 B 1 OF THE COMMON CUSTOMS TARIFF ARE APPROPRIATE TO COVER THE GOODS IN QUESTION, NEVERTHELESS THE CHAPTER NOTES WHICH ACCORDING TO THE GENERAL RULES FOR THE INTERPRETATION OF THE NOMENCLATURE OF THE COMMON CUSTOMS TARIFF ARE, TOGETHER WITH THE TERMS OF THE HEADINGS, DETERMINATIVE FOR LEGAL PURPOSES WITH REGARD TO THE CLASSIFICATION OF A PRODUCT, STATE THAT CHAPTER 20 DOES NOT COVER FRUIT PREPARED OR PRESERVED BY THE PROCESSES SPECIFIED IN CHAPTER 8 .
ACCORDING TO THE TERMS OF HEADING 08.11, THE ONLY HEADING OF THIS CHAPTER WHICH COULD BE TAKEN INTO CONSIDERATION WITH REGARD TO THE CLASSIFICATION OF THE GOODS IN QUESTION, THAT HEADING COVERS 'FRUIT PROVISIONALLY PRESERVED ( FOR EXAMPLE, BY SULPHUR DIOXIDE GAS, IN BRINE, IN SULPHUR WATER OR IN OTHER PRESERVATIVE SOLUTIONS ), BUT UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION '.
IT IS PRECISELY IN A CASE LIKE THAT IN THE PRESENT INSTANCE WHERE THE TARIFF DOES NOT SET OUT AN EXHAUSTIVE LIST OF PRESERVING PROCESSES WHICH COME UNDER HEADING 08.11 BUT GIVES ONLY EXAMPLES THAT THE COMMISSION, ACTING IN COOPERATION WITH THE NATIONAL EXPERTS, IS EMPOWERED TO ADOPT A REGULATION DEFINING THE TYPES OF PROCESS WHICH ARE REFERRED TO THEREIN .
10 THE EXPERT'S REPORT LODGED BY THE PLAINTIFF IN THE MAIN ACTION TENDS ONLY TO SHOW THAT CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL, IN THE ABSENCE OF OTHER CONSTITUENTS CALCULATED TO IMPROVE THE TASTE, CANNOT BE REGARDED, ACCORDING TO GENERAL OPINION, AS 'SUITABLE FOR IMMEDIATE CONSUMPTION '.
11 ON THE OTHER HAND, THE COMMISSION, FOLLOWING THE OPINION OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE, CONSIDERED THAT SUCH CHERRIES ARE NOT MADE UNSUITABLE FOR CONSUMPTION .
NO FACTOR PUT FORWARD BY THE PLAINTIFF IN THE MAIN ACTION IS SUCH AS TO SHOW THAT THE COMMISSION HAS EXCEEDED THE LIMITS OF THE DISCRETION CONFERRED UPON IT .
12 CONSEQUENTLY IT IS NECESSARY TO REPLY TO THE NATIONAL COURT THAT AN EXAMINATION OF THE QUESTION RAISED HAS NOT DISCLOSED ANY FACTOR SUCH AS TO AFFECT THE VALIDITY OF REGULATION ( EEC ) NO 1709/74 OF THE COMMISSION AND THAT UNDER THAT REGULATION CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL MUST BE CLASSIFIED UNDER SUBHEADING 20.06 B 1 OF THE COMMON CUSTOMS TARIFF .
13 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED ITS 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 ON COSTS IS A MATTER FOR THAT COURT .
THE COURT IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BERLIN BY ORDER OF 25 MARCH 1975 HEREBY RULES :
1 . AN EXAMINATION OF THE QUESTION RAISED HAS NOT DISCLOSED ANY FACTOR SUCH AS TO AFFECT THE VALIDITY OF REGULATION ( EEC ) NO 1709/74 OF THE COMMISSION;
2 . UNDER REGULATION ( EEC ) NO 1709/74 OF THE COMMISSION, CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL MUST BE CLASSIFIED UNDER SUBHEADING 20.06 B 1 OF THE COMMON CUSTOMS TARIFF .
