C-84/79

HAUPTZOLLAMT (Principal Customs Office) BAD REICHENHALL,

on the interpretation of Article 8 (2) of Regulation (EEC) No 803/68 of the Council of 29 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170),

T H E C O U R T (Second Chamber)

composed of: A. Touffait, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following:

803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English The costs, charges and expenses Special Edition 1968 (I), p. 170) mentioned in Article 1 (2) (b) include provides : inter alia the transport costs to which Article 8 of the said regulation, which " 1 . For the purpose of applying the reads as follows, applies: Common Customs Tariff, the value for customs purposes of the goods " 1 . Where goods are carried by the imported shall be taken to be the same means of transport to a point normal price, that is to say, the price beyond the place of introduction which they would fetch, at the time into the customs territory of the referred to in Article 5, on a sale in Community, transport costs shall be the open market between a buyer assessed in proportion to the and a seller independent of each distance covered outside and inside other. the customs territory of the Community, unless evidence is 2. The normal price of any imported produced to the customs authorities goods shall be determined on the to show the 'costs that would have following assumptions: been incurred under a general compulsory schedule of freight rates (a) that the goods are delivered to for the carriage of the goods to the the buyer at the place of intro- place of introduction into the duction into the customs customs territory of the Community. territory of the Community. (b) that the seller bears all costs, charges and expenses incidental 2. Where goods are invoiced as a to the sale and to the delivery of uniform free domicile price which the goods at the place of intro- corresponds to the price at the place duction, which are hence of introduction, transport costs included in the normal price; · within the Community shall not be deducted from that price. However, such deduction shall be allowed if

evidence is produced to the customs Munich. On this occasion it also authorities that the free-frontier produced documents in which a freight price would be lower than the supervision authority (Frachtenprü- uniform free domicile price. fungsstelle) calculated that average internal transport costs were DM 70.30 per tonne. The Finanzgericht dismissed the action on the ground that it had been proved that uniform prices within the 2. The firm Richard Meyer-Uetze KG, meaning of Article 8 (2) of Regulation the plaintiff in the main action in this No 803/68 were applied and that no case applied between 6 March and 11 evidence had been produced that a November 1972 to the customs office different and lower free frontier price Freilassing-Saalbriicke, which comes had been charged. Statements, the under the Principal Customs Office, Bad accuracy of which is not susceptible of Reichenhall, the defendant in the main verification cannot by themselves prove action in this case, for 15 consignments the facts which have been relied upon. of deep-frozen fruit and vegetables imported by road from Hungary to be cleared for free circulation. The plaintiff in the main action then appealed to the Bundesfinanzhof Meyer-Uetze declared on this occasion [Federal Finance Court] its principal certain values for the free domicile price submission being that the Finanzgericht and calculated the internal transport was wrong to regard the letter of 30 costs in accordance with the official road August 1972 produced by the plaintiff as transport tariff. The customs office a statement which is not verifiable.

The defendant in the " 1 . Must the words 'uniform free main action overruled the objection. domicile price' in Article 8 (2) of Regulation (EEC) No 803/68 of the The plaintiff in the main action appealed Council of 27 June 1968 on the to the Finanzgericht [Finance Court], valuation of goods for customs

purposes be interpreted as meaning the territory of the Community and that that such price must be uniform for it may, for example, vary in the case of all destinations within the customs individual Member States, provided that territory of the Community? it always corresponds to the price at the place of introduction . . ." 2. If the answer to Question 1 is in the affirmative, may the fact that The Bundesfinanzhof goes on to say: uniform free domicile prices apply to only one Member State be taken "Another question arises in this into account, and if so how? connexion, namely how the evidence in both cases is to be produced.

4. As far as concerns the question in (various) transport costs must always be the order making the reference whether included. Accordingly, the provision can the first sentence of Article 8 (2) of only be interpreted as meaning that Regulation No 803/68 applies in this evidence must be produced as to how case the Bundesfinanzhof makes the high the price at the place of intro- following observations: duction would be if a specified average amount, evidence of which must be "Article 8 deals specifically with the produced, were deducted from the treatment for the purposes of customs uniform free domicile price.

It is In accordance with Article 20 of the therefore reasonable to apply the concept Protocol on the Statute of the Court of 'uniform free domicile price' also within Justice the Commission of the European the territory of the Community and to Communities, represented by its Legal interpret it as constituting a price which Adviser, R. Wagenbauer, acting as is calculated uniformly for all places Agent, assisted by W. Schürmann of the within the Community at the same level, Frankfurt am Main Bar and H. without regard for the transport costs Glashoff, tax adviser, submitted written which are in fact payable. Nevertheless, observations. the view has also been put forward that the price only has to be uniform for After hearing the report of the Judge- specific places inside a price-zone within Rapporteur and the views of the

Advocate General, the Court decided to not in fact been charged — are not open the oral procedure without any deductible. The same applies in the case preparatory inquiry. of the actual transport costs, part of which the supplier charges to other pur- By order of 18 October 1979 the Court, chasers and this is exactly what happens pursuant to Article 95 (1) of the Rules of in the case of uniform prices which are Procedure, decided to assign the case to obtained by a composite calculation and the Second Chamber. generally include transport costs which are too high in the case of a purchaser near the frontier and too low in the case II — W r i t t e n o b s e r v a t i o n s s u b - of one far from the frontier.

customs purposes. From the point of sentence of Article 8 (2). view of assessing the latter two importers, one near to and the other far from the frontier, will only receive equal treatment if the conditions of sale (for So, in order to delimit the field of example market/price zone, marketing application of Article 8 (2) of Regulation stage, time, quantity) are the same. No 803/68, it is only necessary, in the Consequently, if a price to be paid view of the Commission, to determine includes transport costs within the whether it has been proved that, in this Community, that part of the actual costs case, the free domicile price — the place attributable to transportation within the of destination being other than the Community must be deducted in order frontier — is the same as the price at the to determine value for customs purposes; place of introduction where the goods this .follows from Article 8 (1) of Regu- which have to be valued for customs

MEYER-UETZE v HAUPTZOLLAMT BAD REICHENHALL

By reason of its definition a uniform and this price is applied. The place of price must be regarded as the same in all introduction into the Community is only the places of destination within the same taken for determining delivery costs. regional or supraregional market. But the Consequently delivery costs within boundaries of this territory do not have Community territory are calculated to be determined by the customs office starting with the place of introduction. if, as a result of the application of a However, in practice, transport costs uniform price at the place or intro- from the frontier and from the place of duction, it is proved that such uniform introduction are regarded as being the prices do not in principle include same if there is no evidence of any sub- transport costs calculated according to stantial difference. the actual distance covered but include costs which are higher or lower.

But according to the Commission it is not enough to calculate any free-frontier price of any Member State of the The Commission emphasized that Article Community; on the contrary the 1 (2) (b) of Regulation No 803/68 leads to the same result in so far as it provides declarant for customs purposes must give that under the ideal conditions of sale the free-frontier price or the price free at which are used as the criterion for the place of introduction which a determining value for customs pruposes prospective purchaser would have had to "the seller bears all costs, charges and pay for a free-frontier purchase of the expenses incidental to the sale and to the goods which have to be valued, all the delivery of the goods at the place of other conditions of sale being the same introduction, which are hence included and the goods being imported through in the normal price." the same place of introduction.

JUDGMENT OF 14. 2. 1980 — CASE 84/79

uniform prices applied in a price zone question of persuading the particular (market) a deduction of transport costs national customs office that the free within the Community, if it is proved domicile invoiced price declared in this that a lower free-frontier price is applied case in fact includes transport costs for these deliveries on this market (price which under similar conditions of sale zone) under identical conditions of sale. are not included in a free-frontier price. The Commission concludes from this The Commission takes the view that that the first question referred to the extracts from calculations, contracts or Court for a preliminary ruling must be invoices relating to the deliveries to other answered as follows: purchasers, firm offers, any other "The expression 'uniform free domicile relevant correspondence and also price' in Article 8 (2) of Regulation No statements made by witnesses may be 803/68 must not be interpreted as produced as evidence.

follows : 3. The third question for a preliminary "a) There is no Community law ruling provision on the production of The Commission points out that evidence in connexion with the Community legislation relating to value second sentence of Article 8 (2) of for customs purposes; does not provide Regulation N o 803/68. It is for the for any specific procedure for the national court to decide whether or production of evidence. Consequently not evidence has been produced that national rules are to be applied to the the free-frontier price is lower than procedure for adducing evidence in the uniform free domicile price. connexion with the second sentence of Article 8 (2) of Regulation No 803/68. b) The fact that the importer (the

MEYER-UETZE v HAUPTZOLLAMT BAD REICHENHALL

III — Oral procedure H. Glashoff, tax adviser, presented oral argument. The Advocate General delivered his At the hearing of 15 November 1979 opinion at the sitting on 13 December the Commission, represented by 1979.

Decision

1 By an order of 24 April 1979, which was received at the Court on 25 May 1979, the Bundesfinanzhof, pursuant to Article 177 of the EEC Treaty, referred to the Court for a preliminary ruling, three questions on the in- terpretation of Article 8 (2) of Regulation (EEC) N o 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170): This paragraph provides:

"Where goods are invoiced at a uniform free domicile price which corresponds to the price at the place of introduction, transport costs within the Community shall not be deducted from that price. However, such deduction shall be allowed if evidence is produced to the customs authorities that the free-frontier price would be lower than the uniform free domicile price."

2 The questions have been raised during an action brought against the German customs authorities by a German undertaking, the plaintiff in this main action, which in 1972 was not allowed to deduct from the value for customs purposes of deep-frozen fruit and vegetables, imported from Hungary by road and invoiced at a free domicile price charged throughout the Federal Republic of Germany, the amount of the transport costs within the Community.

2. If the answer to Question 1 is in the affirmative may the fact that uniform free domicile prices apply to only one Member State be taken into account, and if so how?

3. H o w is the second sentence of Article 8 (2) of Regulation (EEC) N o 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes to be interpreted in relation to the requirements with regard to the evidence to be produced?"

5 In order to be able to answer these questions it is necessary as the sixth and eighth recitals in the preamble to Regulation N o 803/68 make clear, that the principal objective of the said regulation is to ensure equal treatment of importers so that the level of the protection given by the Common Customs Tariff is the same throughout the Community.

6 It is to this end that Article 1 (1) of the said regulation provides that the value for customs purposes of the goods imported shall be taken to be the normal price, that is to say, the price which they would fetch on a sale in the open market between a buyer and a seller independent of each other. According to Article 1 (2) the normal price includes the costs of transport of the goods to the place of introduction within the customs territory of the Community. In principle transport costs from the place of introduction to the place of destination are therefore to be deducted from the invoice price.

MEYER UETZE v HAUPTZOLLAMT BAD REICHENHALL

7 Article 8 (2), to which the questions of interpretation referred to the Court relate, contains an exception to the principle that transport costs within the customs territory of the Community are deductible from the invoice price where the goods are invoiced as a uniform free domicile price which corresponds to the price at the place of introduction.

JUDGMENT OF 14. 2. 1980 — CASE 84/79

11 Since the first sentence of Article 8 (2) only contains a presumption and since the main idea is still the deduction of internal transport costs there had to be an exception to cover the case where the fixed sum included in the uniform price for transport costs is satisfactorily ascertainable; this is the aim of the second sentence of Article 8 (2).

i2 The actual wording of this sentence, which uses the conditional mood, indicates that it is not necessary to prove that the same supplier has in fact sold the goods at a free-frontier invoice price. Moreover, as the Commission explains in its observations, it is necessary to determine the price which a prospective purchaser would have had to pay for a free-frontier purchase of the goods which have to be assessed, all the other conditions of sale being identical, in the event of importation through the same place of introduction.

i3 Community legislation relating to value for customs purposes does not provide for any specific procedure for the production of evidence. Consequently national rules are to be applied in this field if the importer wishes to produce evidence to the customs authorities that the free-frontier price would be lower than the free domicile price. However, the customs authorities must take account of the objectives of Article 8 (2) which, as the Commission has stressed, is to prevent the deduction of transport costs which are too high and not in fact included in the invoiced price, but also to allow, in accordance with the principle laid down in the preamble to the regulation and Article 1 thereof the deduction of transport costs in Community territory which are in fact included in this price.

On those grounds

T H E C O U R T (Second Chamber)

in answer to the questions referred to it by the Bundesfinanzhof by order of 24 April 1979, hereby rules:

1. The words "uniform free domicile price" mentioned in Article 8 (2) of Regulation No 803/68 must be interpreted as meaning that the price in question is not necessarily uniform for all the destinations within the customs territory of the Community.

2. In the present state of Community law it is for the national court to decide, in accordance with its national legislation, what evidence the importer is to produce to establish, as provided for in the second sentence of Article 8 (2) of Regulation No 803/68, that the free- frontier price would be lower than the uniform free domicile price, all the other conditions of sale being identical, in the event of impor- tation through the same place of introduction. The national court

OPINION OF MR REISCHL — CASE 84/79

Mr President, of his intention that the goods should Members of the Court, enter into home use)" on a sale in the The reference for a preliminary ruling open market between a buyer and a with which we are concerned today seller independent of each other". To raises questions relating to the interpre- determine the normal price it must be tation of Regulation (EEC) No 803/68 assumed according to Article 1 (2) that of the Council of 27 June 1968 on the the goods are delivered to the buyer at valuation of goods for customs purposes the place of introduction into the (Official Journal, English Special Edition customs territory of the Community, 1968 (I), p. 170). which under Article 6 (1) (c) in the case of goods carried by road is the place According to Article 1 thereof "For the where the first customs office is situated, purpose of applying the Common and that "the seller bears all costs, Customs Tariff, the value for customs charges and expenses incidental to the purposes of the goods imported shall be sale and to the delivery of the goods at taken to be "the normal price" and this the place of introduction, which are "normal price" is defined as "the price hence included in the normal price". In which they would fetch, at the time connexion with the last point Article 7 of referred to in Article 5 "(that is usually the regulation provides that the "costs, the date of acceptance by the customs charges and expenses" mentioned in authorities of the declarant's statement Article 1 (2) (b) include, inter alia,

I — Translated from the German.