The Commission considers that the decision to be taken in this instance does not involve a definition of what, in the trade, is regarded as fresh or frozen, but rather concerns the distinction existing under the Common Customs Tariff between the two headings 08.08 and 08.10.

By using the descriptions fresh and preserved by freezing, the two tariff headings refer to objective characteristics of the berries at the time of importation.

In the absence of any binding Community provisions, the relevant time is determined according to national rules, as regards Germany, these rules are contained in Article 35 of the Zollgesetz which states that the relevant time shall be that when the application for customs clearance is submitted or takes effect.

As regards the tariff heading applying to the berries the Commission notes that the original action has not yet established whether the goods presented for customs clearance were frozen berries, in an icy and crystallized condition, or berries which were frozen and then unfrozen. For this reason, and in the light of the wording of the preliminary question, the Commission explains its attitude to the classification of these two categories of goods in the Common Customs Tariff.

As regards the tariff classification of the first category, the Commission maintains that tariff heading 08.10 may alone be considered.

Current usage of the terms frozen berries means berries which have been solidified by the effect of cold. The Explanatory Notes to the Brussels Nomenclature concerning tariff headings 08.10 and 07.02 confirm this interpretation and further define it

The main action concerns the question whether or not it is necessary to adopt a special interpretation of the term preserved by freezing which takes particular account of the fact that the goods have merely been frozen for the purposes of transportation, are subsequently transported without refrigeration and that they must be marketed, after thawing out, as fresh goods.

However, no such interpretation can be presumed in the present instance, since it is neither indicated by the Tariff nor by any of its Explanatory Notes.

The Commission also considers that a single type of frozen goods cannot be classified in a different category on the basis of its intended use, which can only be verified with difficulty and which has not necessarily been determined when the goods are imported.

Furthermore, the slowness or the speed of the process of freezing the berries in no way alters their characteristics as a frozen product. This is shown by tariff heading 07.02.

The argument that the importation of fresh berries is encouraged by the exemption from payment of customs duty provided for to this end is irrelevant as regards tariff classification, since the exemption in no way affects the distinction in the Tariff between fresh goods and frozen goods and it can only apply if the goods imported are actually fresh and unfrozen.

As regards the tariff classification of cranberries which are frozen and then thawed out, the Commission maintains that frozen cranberries certainly lose their consistency when they are thawed out, but that they are only excluded from tariff heading 08.10 if this operation were to be regarded as a form of processing or preservation, as a result of which they satisfy the criteria of classification of another tariff heading. This is not the case here since, as a result of their thawing out, the berries could not fall either under tariff heading 08.11 or under tariff headings 08.12 or 20.03. Moreover, the Commission does not consider that mere thawing out constitutes preparing or preserving within the meaning of tariff heading 20.06.

Furthermore thawed berries cannot be regarded as fresh berries within the meaning of tariff heading 08.08. By contrasting the fresh berries under tariff heading 08.08 with the cooked fruit, preserved by freezing, dried, containing added sugar or preserved temporarily or for a long period by one means or another, governed by tariff headings 08.10, 08.11 and 08.12, as well as 20.06, the wording of the Tariff shows that the berries to be regarded as fresh are those which are in the natural state in which they have been harvested and have not undergone any of the forms of preservation or treatment referred to.

As a result of the freezing process to which they have been subjected, the thawed berries have lost the characteristics of fresh berries, they are no longer in the natural state in which they have been harvested and thus can no longer be classified as fresh berries within the meaning of tariff heading 08.08.

The Commission observes that it is not unaware of the fact that it may be difficult to distinguish between fresh and thawed berries on the basis of their outward appearance. However, although the freezing process is reversible, other changes, in particular those to the flesh of the berry, are irreversible and result in a thawed berry which is softer than a fresh one, crushes more easily under pressure and has a lower juice content

The Commission concludes: Cranberries which have merely been frozen for the purpose of transportation, which are transported without refrigeration and which, at the relevant time, have started to thaw or have thawed out completely, cannot be classified as fresh berries within the meaning of subheading No 08.08 B of the Common Customs Tariff, but come under tariff heading No 08.10 as fruit, preserved by freezing.

At the hearing on 6 May 1976 the Commission, represented by its Legal Adviser, Peter Kalbe, submitted its oral observations.

The Court asked the Commission to explain, during the hearing, the reasons for the considerable difference between the rates of customs duty applicable, on the one hand, to fresh berries and, on the other hand, to berries preserved by freezing.

In reply, the Commission stated in particular that, as regards the duty under the Common Customs Tariff on frozen berries (20 %), this is an autonomous duty [a duty decided upon independently] fixed at the level of the arithmetic mean of the duties in force in the various Member States when the Common Customs Tariff was drawn up.

At the national level, the duties have been based on economic considerations. Thus, the previous German duty on frozen berries (30 %) was fixed in order to protect the German industry which, at that time, was just starting.

As regards the duty on fresh berries under the Common Customs Tariff (0 %), the Commission maintains that this is a conventional duty [a duty agreed to internationally] and follows from the Dillon Round, during which certain countries, such as Sweden and Finland, demanded a concession for fresh fruit.

When questioned by a Member of the Court, the Commission explained during the hearing that, in making the distinction under the Common Customs Tariff, it is not possible to take account of the fact that the goods in question, which are a raw material for the food-preserving industry, do not compete with the frozen product. There are cases in which the ultimate use of goods forms a criterion for classification, but these cases are provided for by the Tariff. Such criteria for classification are generally linked to an official verification of the use to which the goods are put. In this instance the question which may arise is whether the amount of the duty on frozen berries (20 %) is justified.

The Advocate-General delivered his opinion at the hearing on 26 May 1976.