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 .
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 .
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 .
