DELIVERED ON 4 JUNE 1981 (*1)

Mr President,

Members of the Court,

The proceedings on which I give my opinion today concern once again the question how cherries put up in a mixture of alcohol and water are to be classified under the Common Customs Tariff. That question has already arisen in Case 37/75 Bagusat KG ν Hauptzollamt Berlin-Packhof [1975] ECR 1339, judgment of 11 November 1975, and in Joined Cases 87/79 Gebrüder Bagusat KG ν Hauptzollamt Berlin-Packhof, 112 and 113/79 Einkaufsgesellschaft der Deutschen Konservenindustrie mbH ν Hauptzollamt Hamburg-Waltershof and Hauptzollamt Bad Reichenhall [1980] ECR 1159, judgment of 20 March 1980.

In those cases, however, the imports were effected after a regulation prescribing a tariff classification (Regulation No 1709/74, Official Journal L 180 of 3 July 1974, p. 15) had been adopted by the Commission, whereas this case concerns imports effected before that date.

The plaintiff in the main proceedings received a binding customs classification notice dated 16 August 1968 from the Oberfinanzdirektion München [Regional Finance Office, Munich] issued pursuant to Article 23 of the German Customs Law. According to that notice mahaleb cherries imported from Yugoslavia put up in a solution having a spirit content of 13.4% and a sugar content of 9.3% had to be classified under tariff subheading 20.06 B I (e) 1 (“Fruit otherwise prepared or preserved, whether or not containing added sugar or spirit: ... B. Other: 1. Containing added spirit: ... (e) Other fruits: 1. With a sugar content exceeding 9% by weight...”).

The plaintiff appealed against that classification to the Bundesfinanzhof [Federal Finance Court] and succeeded in obtaining by a judgment of 16 January 1973 the annulment of the classification notice. On 9 May 1973 a new classification notice was issued to the plaintiff according to which, as the judgment of the Bundesfinanzhof made clear, the goods were to be classified under tariff subheading 08.11 D (“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: ... D. Other”).

During the period of validity of the first classification notice from 16 August 1968 to 24 April 1973 the plaintiff had cleared for home use through various customs offices 111 consignments of mahaleb and sweet cherries with or without stones put up in a mixture of alcohol and water and imported from Yugoslavia. The plaintiff declared the alcohol content to be between 14 to 16% by volume and in exceptional cases up to 23% by volume. According to the findings of the customs authorities, which were based on numerous tests, the alcohol content fluctuated between 10.8 and 15% by weight and in some cases was as high as 18.1% by weight; the sugar content was sometimes less and sometimes more than 9% by weight. In each case the goods were classified under tariff heading 20.06 by the customs offices, as the classification notice valid at that time provided. The plaintiff lodged objections against 23 such customs notices; the remaining notices are no longer appealable.

After the new classification notice had been issued, the plaintiff, relying on Article 94 of the Reichsabgabenordnung [German Revenue Code] which grants discretion to amend notices of assessment, sought rectification of all the notices of assessment issued between 16 August 1968 and 24 April 1973. However, the customs offices amended only those notices against which objections had been lodged before the judgment of the Bundesfinanzhof of 16 January 1973 had been delivered. They refused to amend the other notices, even after objections had been lodged against their refusal to do so.

The matter then came before the Finanzgericht München. In its judgment of 24 February 1975 it annulled the notices rejecting the applications for amendment in so far as the periods of limitation in respect of the duties fixed by the notices of assessment had not yet expired. The Bundesfinanzhof, before which an appeal against that judgment was brought, went still further in criticizing the attitude of the customs authorities. In its judgment of 26 April 1979 it held that once a customs classification notice has been successfully challenged, the notices of assessment issued on the basis of that notice are not required to be challenged in order to be amended; they may still be amended even if those assessments have acquired force in law. That is also the case as regards the rectification of assessments if rectification is not sought until after the period of limitation for the claims for duty has expired. It therefore overturned the judgment of the Finanzgericht and referred the case back to that court for reconsideration. In so doing it also stressed the importance of determining whether the customs classification notice is binding and thus whether the classification notice was the basis for the classification which must be assumed to be the case if the imported goods were covered by it and the customs offices through which they were cleared were bound by the classification notice.

When reconsidering the case the Finanzgericht München stressed that, since strict law applies to the actual fixing of duty, for the purposes of the application of Article 94 of the Reichsabgabenordnung it is of importance whether the original notices of assessment should be regarded as being incorrect, and thus whether the goods were classified incorrectly by the customs authorities. In that respect the Finanzgericht stated that it is not bound by either the judgments of the Bundesfinanzhof of 16 January 1973 and 26 April 1979 or by the customs classification notice of 9 May 1973. Nor is it possible to fall back upon Regulation No 1709/74 to answer that question because that regulation did not enter into force until after the relevant date of importation of the goods. On the other hand, in view of the ruling on classification contained in Regulation No 1709/74, with which the judgment of the Bundesfinanzhof of 16 January 1973 is in conflict, the line of demarcation between tariff headings 08.11 and 20.06 for the period before Regulation No 1709/74 was adopted is not clear.

The court therefore stayed the proceedings by an order of 4 July 1980 and pursuant to Article 177 of the EEC Treaty referred the following question to the Court for a preliminary ruling:

“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?”

My views on that question are as follows :

In my view that submission no longer needs to be considered. It was evidently not pursued because the Bundesfinanzhof has since given a ruling, even though not to the effect sought by the plaintiff. If my understanding is correct, the Bundesfinanzhof adhered to its case-law which had already acquired expression in a decision of 27 January 1981(Außenwirtschaftsdienst des Betriebsberaters 1981, p. 971) whereby objections against references for preliminary rulings by the German Finance Courts under Article 177 of the EEC Treaty are not admissible.

2. Likewise the plaintiff has evidently not maintained the argument also put forward in its written observations that the reference for a preliminary ruling is inadmissible at the moment and will continue to be inadmissible for as long as no ruling is given on the question (which anticipates the question as to classification) whether the second classification notice has retroactive binding effect from 16 August 1968 and thus has to be applied to the imports in question in this case.

That could have meant only a ruling of the (higher) Bundesfinanzhof since the court making the reference, the Finanzgericht, has obviously formed its own view and this Court certainly could not have been expected to persuade the Finanzgericht to change its point of view on a matter of national law.

The plaintiff has abandoned that argument because the Bundesfinanzhof has in the meantime given a ruling which admittedly did not solve the problem to which the plaintiff alludes because the objection was rejected as inadmissible. Such a solution could therefore be arrived at only if, after an application for appeal on a point of law were duly lodged, the Finanzgericht were finally to decide the case on the basis of this Court's preliminary ruling and the plaintiff's legal viewpoint were not followed in that ruling.

3. In the oral proceedings the plaintiff returned to the argument which I have just mentioned but this time in another guise.

It pointed out that under the case-law of the Court (judgment of 15 December 1971 in Case 77/71 Gervais-Danone AG ν Hauptzollamt München-Schwanthalerstraße [1971] ECR 1127, at p. 1138) binding classification notices issued pursuant to Article 23 of the German Customs Law are admissible under Community law as well; it believes that such notices should at any rate be treated as valid if, in the absence of Community rules on classification, they accord with the well-known Explanatory Notes of the Customs Cooperation Council. That is true, the plaintiff claims, of the classification notice of 9 May 1973 at issue in the present case, which, as I mentioned at the beginning, classified the goods in question under tariff subheading 08.11 D. That notice was issued on the basis of the judgment of the Bundesfinanzhof of 16 January 1973 in which that court relied expressly on the Explanatory Notes of the Customs Cooperation Council when refusing classification under heading 20.06 and declaring tariff heading 08.11 to be the proper heading. Therefore the plaintiff argues that for classification purposes the aforesaid classification notice is determinative and that, as the notice had retroactive effect from 16 August 1968, for the purpose of judging notices of assessment relating to imports effected after that date, national courts are not required to pay any attention to the interpretation of the tariff headings referred to in the order making the reference or to the line of demarcation between them.

That argument obviously raises the issue whether the question put by the Finanzgericht is relevant. In my opinion, however, the arguments put forward by the plaintiff cannot provide any compelling reason for refraining from answering the question which has been raised.

The Court has already repeatedly emphasized in its decisions that in proceedings pursuant to Article 177 of the EEC Treaty it should not in principle become involved in arguments about the need for it to answer questions raised for the purpose of resolving the case before the national court. That is particularly true if such arguments are not purely a matter of Community law but relate to national law as well.

Clearly that is the position in the present case. It is apparent even from the plaintiff's own written submissions that the question whether the second classification notice also has retroactive binding effect on imports in respect of which the Bundesfinanzhof still considers the amendment of notices of assessment pursuant to Article 94 of the Reichsabgabenordnung possible even though the period for objection and the period of limitation have expired, is a question of national law. There can be no doubt either that that question was clearly resolved in the judgment of the Bundesfinanzhof of 26 April 1979. At all events, after the case had been referred back to it by the Bundesfinanzhof, the court making the reference did not construe the dicta of the Bundesfinanzhof in that way. Rather, that court takes the view that it is not bound by the classification notice when judging the cases brought before it and that view is manifestly based on grounds of German law above all else; it does indeed say on page 13 of the order making the reference that the binding customs classification notice of 9 May 1973 could give the plaintiff no right to have the goods already imported and cleared into free circulation classified under tariff subheading 08.11 D. Since in that respect there can be no question either, as far as the issue of relevance is concerned, of an obvious mistake (within the meaning of the judgment of 19 December 1968 in Salgoil ν Italian Ministry for Foreign Trade [1968] ECR 453) there is in fact no justification for stating that examination of the question raised as to classification is irrelevant as regards the aforesaid customs classification notice.

Like the Commission, I believe that there are good reasons for not accepting that view.

Previous case-law of the Court set forth at the beginning of my opinion, particularly the judgment in Case 87, 112 and 113/79 [1980] ECR 1159, at p. 1171, provides some guidance in this matter. It is true that determination of the validity of Regulation No 1709/71 is the predominant issue here, as it was in Case 37/75, but when the compatibility of that regulation with the Common Customs Tariff was examined a direct interpretation of tariff heading 08.11 came to be given to which we may now refer without further ado.

According to that interpretation the requirement that goods should be “unsuitable in that state for immediate consumption” is of crucial importance whilst the question whether or not the goods concerned are intended for further processing plays no part in distinguishing the sphere of application of tariff heading 08.11 from that of 20.06.

In my opinion on Cases 87, 112 and 113/79 I undertook a detailed examination of that requirement, examining the various language versions and general context to which the tariff heading belongs. I came to the firm opinion that “genießbar” [consumable] means “ess-bar” [edible] and “Genuß” means nothing more than “Verzehr” [consumption]. Therefore, in my view, application of tariff heading 08.11 is conceivable only if a product cannot be consumed without damage to health. The Court took the same view, stating that the fact that goods are not, in the view of consumers at the present time, considered to be appetizing and though it is not usual to consume them as they are, that does not signify that they are thereby unsuitable for consumption “as long as they may be consumed in that state without risk to health”.

Those findings may suffice for the purposes of the present case, too. Since, as I also argued in my opinion, the experts' reports hitherto available do not afford evidence that the imported goods are unsuitable for consumption in the sense indicated, those findings clearly lead to the conclusion that classification is not possible under heading 08.11 but only under heading 20.06 and that, as the Commission has argued, Regulation No 1709/74 does in fact represent an important aid to the interpretation of the Common Customs Tariff, even for the period before it was adopted.

In the oral procedure the plaintiff also referred to the judgments in Case 4/79 Société Coopérative “Providence Agricole de la Champagne” ν Office National Interprofessionnel des Céréales [1980] ECR 2823, judgment of 15 October 1980, and in Case 109/79 Niaiseries de Beauce ν Office National Interprofessionnel des Céréales [1980] ECR 2883, judgment of 15 October 1980, which, after declaring the monetary compensatory amount fixed for maize meal to be invalid, emphasized that that fact does not enable the charging or payment of monetary compensatory amounts on the basis of that regulation to be challenged as regards the period prior to the date of the judgment, and after referring to the principle of the protection of legitimate expectation expressed in that way the plaintiff submitted that the Court should declare that a binding classification notice must remain effective until the law is changed, so that the notice is binding on courts as well. As far as that argument is concerned, I should just like to point out that it cannot provide any grounds for making additional observations going beyond the scope of the question asked. First, the facts of the cases in question are quite clearly not comparable. Secondly, it is no doubt primarily a question of national law whether classification notices, which, as has been established, are admissible under Community law, are binding in situations such as this, that is to say, where notices of assessment which are no longer subject to appeal are examined under the discretionary provision of Article 94 of the Reichsabgabenordnung. Only when that issue has been resolved may the question also be raised whether a classification notice which is not in accord with the Common Customs Tariff still retains its effect so long as it is not set aside under national law.

5.In my opinion, therefore, the question asked by the Finanzgericht München should be answered to the effect that before Regulation No 1709/74 entered into force the application of tariff heading 08.11 depended on whether fruit had been provisionally preserved and was unsuitable in that state for immediate consumption, it not being possible to consider the second condition fulfilled if the fruit could be consumed as it was without risk to health.

(<span class="note"><a id="t-ECRCJ1981ENA.0600187301-E0001" href="#c-ECRCJ1981ENA.0600187301-E0001">1</a></span>) Translated from the German.

(<span class="note"><a id="t-ECRCJ1981ENA.0600187301-E0002" href="#c-ECRCJ1981ENA.0600187301-E0002">2</a></span>) Translator's note: This word appears as “consumption” in the English version of the Common Customs Tariff and of the Explanatory Notes of the Customs Cooperation Council, but it may also denote enjoyment.