1 BY ORDER OF 4 JULY 1980 , WHICH WAS RECEIVED AT THE COURT ON 24 JULY 1980 , THE FINANZGERICHT MUNCHEN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF TARIFF HEADING 08.11 OF THE COMMON CUSTOMS TARIFF .
2 BETWEEN 16 AUGUST 1968 AND 24 APRIL 1973 THE PLAINTIFF IN THE MAIN ACTION IMPORTED FROM YUGOSLAVIA OVER 100 CONSIGNMENTS OF MAHALEB AND SWEET CHERRIES PRESERVED IN A MIXTURE OF ALCOHOL AND WATER . BY DECISION OF 16 AUGUST 1968 THE OBERFINANZDIREKTION MUNCHEN ISSUED THE PLAINTIFF WITH AN OFFICIAL CLASSIFICATION NOTICE CLASSIFYING THOSE PRODUCTS UNDER HEADING 20.06 B I ( E ) 1 ( FRUIT OTHERWISE PREPARED OR PRESERVED , WHETHER OR NOT CONTAINING ADDED SUGAR OR SPIRIT . . .) AND THROUGHOUT THE PERIOD MENTIONED ABOVE CUSTOMS DUTIES AND LEVIES WERE PAID ON THAT BASIS .
3 BY JUDGMENT OF 16 JANUARY 1973 , THE BUNDESFINANZHOF ANNULLED THE CLASSIFICATION NOTICE ISSUED IN 1968 , AFTER WHICH THE OBERFINANZDIREKTION ISSUED TO THE PLAINTIFF ON 9 MAY 1973 A NEW NOTICE CLASSIFYING THE GOODS IN QUESTION THENCEFORTH UNDER HEADING 08.11 D ( FRUIT PROVISIONALLY PRESERVED BUT UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION . . .), A CLASSIFICATION MORE FAVOURABLE TO THE IMPORTER . THE PLAINTIFF IN THE MAIN ACTION HOWEVER ASKED THAT IT ALSO BE GRANTED THE BENEFIT OF THAT MORE FAVOURABLE CLASSIFICATION FOR THE IMPORTS WHICH IT HAD EFFECTED BETWEEN 1968 AND 1973 . THE OBERFINANZDIREKTION REFUSED TO GRANT THAT REQUEST AND THE PLAINTIFF IN THE MAIN ACTION THEN BROUGHT THE ISSUE BEFORE THE FINANZGERICHT MUNCHEN .
4 WHILE THOSE PROCEEDINGS WERE GOING ON THE COMMISSION IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE ON COMMON CUSTOMS TARIFF NOMENCLATURE ADOPTED REGULATION NO 1708/74 OF 2 JULY 1974 ON THE CLASSIFICATION OF GOODS UNDER SUBHEADING 20.06 B I OF THE COMMON CUSTOMS TARIFF ( OFFICIAL JOURNAL L 180 , P . 15 ). ACCORDING TO THE RECITALS IN THE PREAMBLE THERETO THE AIM OF THAT REGULATION WAS TO DEFINE , AS REGARDS PRESERVED CHERRIES , THE RESPECTIVE SPHERES OF APPLICATION OF HEADINGS 08.11 AND 20.06 B I . ARTICLE 1 OF THAT REGULATION LAYS DOWN THAT ' ' CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL SHALL BE CLASSIFIED AS FRUIT SUITABLE FOR IMMEDIATE CONSUMPTION UNDER 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 ' ' WHICH IMPLIED A VIEW DIFFERENT FROM THAT RESULTING FROM THE JUDGMENT OF THE BUNDESFINANZHOF OF 16 JANUARY 1973 AND FROM THE CLASSIFICATION NOTICE OF 9 MAY 1973 .
5 IT WAS IN THESE CIRCUMSTANCES THAT THE GERMAN COURT PUT THE FOLLOWING QUESTION :
' ' HOW WAS TARIFF HEADING 08.11 OF THE COMMON CUSTOMS TARIFF AS REGARDS THE CHARACTERISTICS ' PROVISIONALLY PRESERVED ' AND ' UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION ' TO BE INTERPRETED AND DISTINGUISHED FROM TARIFF HEADING 20.06 BEFORE THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 1709/74 OF THE COMMISSION OF 2 JULY 1974?
' '
6 AS THE COURT ACCEPTED IN ITS JUDGMENT OF 20 MARCH 1980 ( JOINED CASES 87 , 112 AND 113/79 BAGUSAT ( 1980 ) ECR 1159 ), IT FOLLOWS FROM THE USE OF THE EXPRESSION ' ' FRUIT PROVISIONALLY PRESERVED , BUT UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION ' ' IN TARIFF HEADING 08.11 THAT FRUIT PROVISIONALLY PRESERVED MAY ONLY COME UNDER THAT HEADING IF THE PRESERVATION PROCESS RESULTS IN MAKING THE FRUIT UNSUITABLE FOR CONSUMPTION IN THAT STATE . ON THE OTHER HAND THE QUESTION WHETHER OR NOT THE GOODS AT ISSUE ARE TO UNDERGO SUBSEQUENT PROCESSING IS IRRELEVANT FOR THE PURPOSE OF DEFINING THE SCOPE OF HEADINGS 08.11 AND 20.06 . IT FOLLOWS FROM THIS THAT FRUIT PRESERVED IN A MIXTURE OF WATER AND ALCOHOL MUST BE CLASSIFIED UNDER SUBHEADING 20.06 B I IF IT IS NOT UNSUITABLE FOR IMMEDIATE CONSUMPTION IN THAT STATE .
7 ACCORDING TO THAT JUDGMENT THE FACT THAT THE GOODS AT ISSUE ARE NOT , IN THE VIEW OF CONSUMERS AT THE PRESENT TIME , CONSIDERED TO BE APPETIZING AND THOUGH IT IS NOT UNUSUAL TO CONSUME THEM AS THEY ARE , DOES NOT SIGNIFY THAT THEY ARE THEREBY UNSUITABLE FOR CONSUMPTION AS LONG AS THEY MAY BE CONSUMED IN THAT STATE WITHOUT RISK TO HEALTH . INDEED THE APPLICANT IN THE MAIN ACTION HAT NOT ARGUED THAT THE CONSUMPTION IN THAT STATE OF THE GOODS AT ISSUE WHICH ARE INTENDED TO BE USED IN THE FOOD INDUSTRY REPRESENTS A SPECIAL RISK TO HEALTH .
8 IT SHOULD ALSO BE MENTIONED THAT IN ITS JUDGMENT OF 11 NOVEMBER 1975 ( CASE 35/75 BAGUSAT ( 1975 ) ECR 1345 ) THE COURT INDICATED THAT REGULATION NO 1709/74 OF THE COMMISSION DID NOT INVOLVE AN AMENDMENT TO TARIFF HEADING 08.11 OR CONSEQUENTLY ANY AMENDMENT OF THE RESPECTIVE SPHERES OF APPLICATION OF THAT HEADING AND OF HEADING 20.06 B I ( E ) 1 . IT FOLLOWS THAT THE CLASSIFICATION UNDER HEADING 20.06 LAID DOWN IN THAT REGULATION FOR CHERRIES PUT UP IN A MIXTURE OF WATER AND ETHYL ALCOHOL REPRESENTS A CORRECT INTERPRETATION OF THE SPHERES OF APPLICATION OF HEADINGS 08.11 AND 20.06 AS THEY APPEAR IN THE COMMON CUSTOMS TARIFF IN THE VERSION IN REGULATION NO 950/86 OF 28 JUNE 1968 .
9 THE QUESTION ASKED SHOULD THEREFORE BE ANSWERED TO THE EFFECT THAT THE DESCRIPTION ' ' FRUIT PROVISIONALLY PRESERVED BUT UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION ' ' INDICATES THAT TARIFF HEADING 08.11 COVERS ONLY THOSE PRODUCTS FOR WHICH THE PRESERVATION PROCESS USED HAS MADE THEM UNSUITABLE FOR IMMEDIATE CONSUMPTION IN THEIR THEN STATE WITHOUT RISK TO HEALTH .
10 IT SHOULD FURTHER BE MENTIONED , IN VIEW OF THE ARGUMENTS PUT FORWARD AT THE HEARING BY THE APPLICANT IN THE MAIN ACTION , THAT IF , ON THE BASIS OF THE INTERPRETATION OF TARIFF HEADING 08.11 GIVEN ABOVE , THE NATIONAL COURT FINDS THAT THE CLASSIFICATION NOTICE OF 9 MAY 1973 WAS NOT IN ACCORDANCE WITH COMMUNITY LAW IT IS FOR THAT COURT TO DRAW THE INFERENCES .
11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .
AS THESE PROCCEDINGS 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 .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT MUNCHEN BY ORDER OF 4 JULY 1980 , HEREBY RULES :
THE DESCRIPTION ' ' FRUIT PROVISIONALLY PRESERVED BUT UNSUITABLE IN THAT STATE FOR IMMEDIATE CONSUMPTION ' ' INDICATES THAT TARIFF HEADING 08.11 COVERS ONLY THOSE PRODUCTS FOR WHICH THE PRESERVATION PROCESS USED HAS MADE THEM UNSUITABLE FOR IMMEDIATE CONSUMPTION IN THEIR THEN STATE WITHOUT RISK TO HEALTH .
