C-357/87
ECLI:EU:C:1988:376
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SCHMID v HAUPTZOLLAMT STUTTGART-WEST
OPINION OF MR ADVOCATE GENERAL CRUZ VILAÇA delivered on 6 July 1988 *
Mr President, not returned and charged the rate applicable Members of the Court, to beer (24%) on the amount of the compensatory payments. For that purpose, it relied on Articles 2 (3) and 3 (3) (a) of Council Regulation (EEC) No 1224/80 of 1. The two questions which have been 28 May 1980 on the valuation of goods for referred to the Court for a preliminary customs purposes. 1 According to Article 3 ruling were submitted by the Finanzgericht (3) (a), the price actually paid or payable (Finance Court) Baden-Württemberg in a (which determines the value of imported dispute between Albert Schmid, a German goods for customs purposes) is 'the total company, and the Hauptzollamt (Principal payment made or to be made by the buyer Customs Office) Stuttgart-West. to or for the benefit of the seller for the imported goods'.
2. The plaintiff in the main proceedings imports beer in barrels or in bottles 5. The plaintiff contested that decision of contained in plastic crates from Czecho the Hauptzollamt in proceedings before the slovakia into the Federal Republic of Finanzgericht and argued that the customs Germany. Under the contract concluded by duty payable on the packing was already the plaintiff, the price of the beer does not included in the duty paid on the beer, include the cost of the receptacles. Those calculated in accordance with the price receptacles, for which no rental fees or thereof. In support of that argument, it similar charges are payable, must be relied on Section II, D.1. of Part I of the returned empty to the exporter, at the Annex (Common Customs Tariff) to Regu importing company's expense. lation (EEC) No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff, 2as amended by Council Regulation (EEC) No 3333/83 of 4 November 1983. 3 For one thing, the aforesaid provision lays 3. The loss of receptacles must be made down that packings imported full and put good either in kind or by way of financial into free circulation at the same time as the compensation corresponding to 75 % of the goods contained therein are, as a rule, to be new value of barrels or to 100% of the new chargeable at the same rate of customs duty value of bottles and crates. as the goods themselves, where such goods are subject to an ad valorem customs duty. According to the plaintiff, it follows from that provision that the customs duties payable on the packings are included in the 4. The German customs administration duties paid on the beer. Moreover, in its demanded payment of customs duties from Albert Schmid on empty packings that were 1 — OJ L134, 31.5.1980, p. 1. 2 — OJ, English Special Edition 1968 (I), p. 275. * Translated from the Portuguese. 3 — OJ L 313, 4.11.1983, p. 1.
OPINION OF MR CRUZ VILAÇA - CASE 357/87
11. That interpretation falls squarely within view, Regulation No 1224/80 does not the definition of 'packings' in Section I, C.2 permit a value for customs purposes to be of Part I of the Common Customs Tariff: fixed in respect of the packings. 'any external or internal containers, holders, wrapping or supports other than transport devices (e.g. transport containers), 6. In those circumstances, the Finanzgericht tarpaulins, tackle or ancillary transport referred to the Court for a preliminary equipment'. ruling two questions on the interpretation of the Common Customs Tariff annexed to Regulation No 950/68, as amended by Regulation No 3333/83. The questions are set out in the Report for the Hearing. 12. In normal usage a distinction is generally drawn between articles whose usual purpose is to permit or facilitate transport and those whose purpose is to I — First question serve not as means of transport but as packings, although they may be used during transport and may help to facilitate it. Thus, 7. In its first question, the Finanzgericht barrels, bottles and crates are used in seeks to ascertain whether the beer barrels, accordance with their specific function as beer bottles and plastic crates for beer packings or for storage purposes, indepen bottles are to be regarded as packings, dently of the fact that they are transported within the meaning of Section I, C.2 of Part together with the goods they contain. That I of the Common Customs Tariff, or as is not the case with regard to transport transport devices, within the meaning of the devices, whose purpose is spent with the same provision of the Common Customs transport unless they are converted, by Tariff. altering the use to which they are to be put, into packings or anything else, like old electric tramways used as saloon bars or railway coaches used as sleeping accommo 8. All the parties which have submitted dation. observations in these proceedings (the plaintiff in the main proceedings, the Federal Government and the Commission) unanimously considered the barrels, bottles and crates to be packings. 13. There may be some uncertainty, in particular, in the case of crates since, as the national court has pointed out, they are 9. Only the Finanzgericht expressed doubts used for transporting beer bottles and not and acknowledged that the barrels, bottles the beer itself directly. and crates could be regarded as transport devices.
14. They may even be said to reveal the full 10. The answer that I shall propose will extent of their usefulness only when it reflect the first-mentioned solution, namely becomes necessary to transport the bottles that the articles in question constitute which they contain. packings.
SCHMID v HAUPTZOLLAMT STUTTGART-WEST
15. It is no less true, however, that crates 19. According to that provision: are normally used for the everyday storage of bottles, thereby fulfilling their usual function, one that is wholly unrelated to transport which nevertheless still constitutes a secondary or ancillary function of crates. 20. ' "Packings" means: As the Commission has pointed out in its observations, the fact that the crates, like the barrels or the bottles, are normally delivered with the goods in question to the final consumer clearly demonstrates that (a) holders used, or to be used, as external they are not 'transport devices' but or internal coverings for goods; 'packings' for beer.
(b) holders on which goods are, or are to be, rolled, wound or attached, but excluding packing materials such as 16. What happens, as we can see in these straw, paper, glass wool and shavings proceedings, in the field of application of 5 when imported in bulk'. customs rules relating to the cross-frontier passage of goods is that the function performed by packings is closely connected with the transport of the goods. 21. Consideration of certain other aspects of the relevant legislation lends support to the inference which may be drawn from that provision. 17. The actual wording of Section I, C.2., the provision to be interpreted, would appear to dispel any doubts as to whether crates fall within the definition of packing, 22. Thus, Article 11 (b) of Council Regu inasmuch as that definition refers to 'any lation (EEC) No 222/77 of 13 December external or internal containers' (emphasis 6 1976 on Community transit contains an added) and to 'supports'. illustrative list of what is to be understood by the expression 'means of transport', translated into German as 'Beförderungs mittel', which is the term used in the German version of Regulation No 3333/83 18. The same approach is evident in the as the equivalent of 'transport device'. That definition of 'packings' in Article 14 (2) of provision refers to 'any road vehicle, trailer, Council Regulation (EEC) No 3599/82 semi-trailer', 'any railway car or wagon', of 21 December 1982 on temporary im 'any boat or ship', 'any aircraft' and 'any portation arrangements, 4 which, although container within the meaning of the couched in terms which differ from those 5 used in Regulation No 950/68, is equally — The plaintiff in the main proceedings also refers, in the same connection, to a proposal for a definition of packings expressive as regards the scope of the defi drawn up by the Technical Committee on Customs nition. Valuation of the Customs Cooperation Council, according to which all goods which are used to wrap, protect, stow or separate goods from other goods during transport are considered to be packings. 4 — OJ L 376, 31.12.1982, p. 1. 6 — OJ L 38, 9.2.1977, p. 1.
OPINION OF MR CRUZ VILAÇA - CASE 357/87
Customs Convention on containers'. In that definition (which is not reproduced other words, we are a long way from a here) that the term in question is a technical category which can encompass barrels, term corresponding to the English term bottles or crates of beer. Clearly the 'container', which is in current usage, and is Community legislature intended to treat as not to be confused with the much broader means of transport or as transport devices concept of a receptacle, which covers any articles intended to promote or to 'plastic crates' for bottles. facilitate the movement of goods or persons from one place to another, in particular those capable of moving either wholly or in part by themselves. 26. The fact that, in contrast to the French version of Regulation No 950/68, the reference in brackets to the English term 'containers' has been omitted from the German version in no way affects the 23. Only containers would appear not to correct interpretation of that term. Moreover, that was also the case with come within that framework since they are regard to the definition of 'means of not capable of moving by themselves but transport' in Article 11 (b) of Regulation only to the extent to which their support No 222/77. moves.
27. Accordingly, the answer to the first 24. However, their purpose, or their greater question submitted by the national court suitability for the transport of goods, is self- must be that the articles in question are to evident and is the reason why the legislature be regarded as 'packings' within the made a point of including them amongst meaning of the Common Customs Tariff 'means of transport' or 'transport devices', annexed to Regulation No 950/68, as even though there are circumstances in amended by Regulation No 3333/83. 8 which they can also be used for the storage of goods. In order to dispel any doubts which might arise from that classification, the legislature expressly included them, both when it defined 'means of transport' in II — Second question Regulation No 222/77 and when it defined 'packings' in Regulation No 3333/83.
28. In its second question, the Finanz gericht seeks to ascertain in what manner duty is to be charged, pursuant to Section 25. The absence of any connection between II, D.1 (a) of Part I of the Common 'containers' and 'crates for bottles' is now Customs Tariff, on reusable packings that clearly apparent from the definition in Article 2 of Regulation (EEC) No 2096/87 8 — The substitution of the word 'Verpackungen for the word 'Umschließungen', and the new wording of Section 11, of 13 July 1987 on the temporary D 1 (a)' of Part I of the Common Customs Tariff in Council Regulation (EEC) No 2658/87 of 23 July 1987 importation of containers. 7It follows from (OJ L 256, 7.9.1987, p. 1), should have relegated the problems of interpretation raised in these proceedings to the role of historical curiosities. 7 — OJ L196, 17.7.1987, p. 4.
SCHMID v HAUPTZOLLAMT STUTTGART-WEST
are to be returned empty to the exporter in 32. For its part, the national court suggests another country: the possibility of applying the first solution, that is to say that duty is chargeable on all the packings whenever they cross the Community frontier. (i) is duty to be charged on the full value of the packings whenever they enter the customs territory of the Com munity, 33. I am quite certain that the answer to be given to the Finanzgericht's question must be based on the interpretation advocated by (ii) or is duty to be charged only on the the Hauptzollamt. packings which have gone astray and which, under the terms of the contract, must be made good to the seller, 34. That follows clearly and directly from the fact that the provision to be interpreted is set in the context of Section II, D.1, of (iii) or else are the packings to be which it forms part. considered exempt from duty, on the ground that the duty paid on the imported beer discharges the duty payable on the packings? 35. In the first place, it is apparent from a comparison between subparagraphs (a) and (b) that the legislature intended to exempt the packings in question from customs 29. Essentially, the answer depends on the duties only on the specific conditions set out correct interpretation of the words: in subparagraph (b), which are as follows: 'packings ... imported full and put into free circulation at the same time as the goods contained therein shall be: (a) chargeable at the same rate of customs duty as the goods '(i) where the goods contained therein are contained therein ... '. free of customs duty,
30. The practice of the German customs (ii) where the goods contained therein are authorities — supported in these pro dutiable otherwise than by reference to ceedings by the Commission — corresponds, weight or value, or as is clear from the summary of the facts set out at the beginning of this Opinion, to the second approach. (iii) where the weight of the packings is not to be included in the dutiable weight of the goods contained therein'. 31. That was the interpretation challenged by the plaintiff in the main proceedings when it argued in favour of the third possible interpretation, that is to say that no 36. None of those conditions is satisfied in further duty is chargeable on the packings the present case, in which the goods even if they are not returned. contained in the packings are subject to an
OPINION OF MR CRUZ VILAÇA — CASE 357/87
purposes that was different from that ad valorem customs duty of 24 %. For that accorded to the goods contained in the reason subparagraph (a), which provides that packings are to be chargeable at the packings with which they constitute a whole same rate of customs duty as the goods for practical purposes. contained therein, is applicable.
37. That can only mean that the rate of 41. For that reason, packings imported in customs duty payable on such packings must those circumstances qualify for exemption be the same as that applicable to the goods from customs duties only where the goods they contain are also exempt or where one they contain. or more of the other conditions set out in subparagraph (b) are satisfied. 38. That is immediately and unequivocally apparent from some of the different language versions of the Common Customs Tariff adopted by Regulation No 950/68 as 42. As the Commission points out in its amended by Regulation No 3333/83 (for observations, subparagraph (b) would make instance the French and Italian versions), no sense at all and would be wholly and from the corresponding Portuguese unnecessary if packings imported full were version of the new Council Regulation never dutiable on the ground that the duties (EEC) No 2658/87 of 23 July 1987 on the payable on them were always deemed to be tariff and statistical nomenclature and on discharged by the duties paid on the goods the Common Customs Tariff. 9 Moreover, they contain. that conclusion is particularly striking in the light of the English version of that regu lation, which provides that 'packings ...: shall be ... chargeable at the same rate of 43. On the other hand, it must be pointed customs duty as the goods contained out that this case also precludes the therein'. application of the rule in subparagraph D.I. (c), which provides — by derogation from subparagraphs (a) and (b) — for packings to 39. The German version — the plaintiff in be chargeable at the rates of customs duty the main proceedings contends — is, appropriate to them, subject to the however, more ambiguous. According to following conditions: that version, packings imported full are to be 'durch den Zoll für die in ihnen verpackten Waren erfaßt'. Any doubts raised by that version cannot, however, call '(i) where they are not of a type normally in question the interpretation resulting from used for the goods contained therein the scheme of the provision and from the and have an independent and durable system established by the regulation of use other than as packings, or which that provision forms part.
40. Clearly, the Community legislature (ii) where they have been used in order wished as far as possible to avoid applying to evade payment of customs duties to full packings treatment for customs applicable thereto in accordance with their tariff description'. 9 — OJ L 256, 7.9.1987, p. 1.
SCHMID v HAUPTZOLLAMT STUTTGART-WFST
44. Tax avoidance of any kind is not an goods . . . shall be the transaction value, that issue in these proceedings, nor are the two is, the price actually paid or payable for the cumulative conditions referred to in the first goods', the price, according to Article 3 (3), indent satisfied. Even on the assumption being 'the total payment made or to be that the packings in question were made by the buyer to or for the benefit of considered to have 'an independent and the seller for the imported goods'. durable use other than as packings' (which is still open to doubt), the fact remains that barrels, bottles and plastic crates must still be regarded as packings ('receptacles') of a perfectly normal kind for the goods (beer) they contain.
50. Since the importer is required, under 45. In conclusion, those packings must be the contract, to make a compensatory chargeable at the same rate of ad valorem payment to the Czechoslovakian seller for customs duty as that applicable to beer. packings that are not returned, such payment constitutes 'the cost of containers which are treated as being one for customs purposes with the goods in question', such 46. That, as we have seen, is the approach cost, according to Article 8 (1) (a) of Regu adopted by the German customs authorities lation No 1224/80, being added to the price with regard to receptacles that have gone of the imported goods since it is incurred by astray and have not been returned, and it the buyer and was not included in the price involves taking as the dutiable amount the actually paid or payable for the goods financial compensation payable under the (contrary to the normal practice in the case contract. of packings that are not reusable).
47. In my view, that approach is correct.
48. In order to determine the customs value 51. As for receptacles that are returned, of the packings it is necessary to take they are not dutiable since the cost, not account of Council Regulation (EEC) No being incurred by the buyer, does not have 1224/80 of 28 May 1980 on the valuation to be added to the price paid or payable for of goods for customs purposes. 1 the goods. Alternatively, the corresponding costs are apportioned among the various consignments of the goods contained in the receptacles on the basis of their useful life, and the price of the beer they contain 49. Article 3 (1) of that regulation provides therefore already includes a proportion of that 'the customs value of imported the cost of the packing, with the result that it is inappropriate to charge duty on the 1 — OJ L134, 31.5.1980, p. 1. packing again.
OPINION OF MR CRUZ VILAÇA — CASE 357/87
III — Answers to the questions submitted for a preliminary ruling
52 In the light of the foregoing considerations, I suggest that the questions submitted by the Finanzgericht Baden-Württemberg for a preliminary ruling should be answered as follows:
'(1) The term "packing", defined in the final sentence of Section I, C.2 of Part I of the Common Customs Tariff annexed to Regulation (EEC) No 950/68 of the Council of 28 June 1968 on the Common Customs Tariff, as amended by Council Regulation (EEC) No 3333/83 of 4 November 1983, includes beer barrels, beer bottles and plastic crates for beer bottles, regardless of whether those articles have to be returned to the seller of the beer in another country.
(2) Section II, D.1 (a) of Part I of the Common Customs Tariff, which is annexed to the aforesaid regulation, must be interpreted as meaning that packings that are not returned are chargeable to duty at the same rate as the goods they contain since, according to Article 8 (1) (a) (ii) of Regulation (EEC) No 1224/80, the cost of those packings must be added to the value lor customs purposes of the goods contained therein where that cost has to be incurred by the buyer and has not been included in the price actually paid or payable for the goods themselves.'