C-219/88

OPINION OF MR TESAURO —CASE C-219/88

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 12 October 1989 *

Mr President, cost of obtaining the certificates of authen­ Members of the Court, ticity.

The Hauptzollamt, on the other hand, 1. The Bundesfinanzhof is seeking an inter­ included those costs in the invoiced price pretation of Council Regulation (EEC) No for the purpose of calculating the customs 1224/80 of 28 May 1980 on the valuation value. of goods for customs purposes ' in order to give judgment in the proceedings pending before that court between the company Malt GmbH (hereinafter referred to as 'the Both the administrative complaint and the plaintiff') and the Hauptzollamt Düsseldorf action at law brought by the plaintiff were (hereinafter referred to as 'the Haupt- dismissed. In consequence the plaintiff zollamť). appealed on a point of law to the Bundes­ finanzhof claiming, inter alia, that the costs relating to the certificate were not an integral part of the purchase price of goods, a price which was previously and separately 2. The facts underlying the dispute in the negotiated. main action are briefly as follows.

(2) If the answer to Question 1 is in the quota by all interested traders within the affirmative: Gommunity and the uninterrupted application of the rate laid down for that quota to all imports of the products in is the abovementioned regulation, in question in all the Member States up to the 4 particular Article 3(4)(b), to be inter­ limit of the volume of the quota. preted as meaning that the amounts paid for the certificates must for purposes of customs valuation be treated as taxes payable in the The detailed rules for the application of Community by reason of the Regulation No 217/81 were laid down by importation? the Commission by Regulation No 263/81 of 21 January 1981. The latter regulation provided inter alia that the total suspension (3) If the answer to Question 2 is in the of the import levy for the meat in question affirmative : should be subject to the presentation, at the time when it is put into free circulation, of a certificate of authenticity intended to guarantee the origin and quality of the meat is the abovementioned regulation, in and to the condition that the certificate particular Article 3(4), to be interpreted should be duly completed and signed by one as meaning that the requirement that of the issuing authorities listed in the annex. such charges must be distinguished from the price actually paid or payable for the imported goods is satisfied even if the invoice states the total amount paid for the goods and for the The certificates are in practice issued and certificates but makes clear the amounts allocated among the slaughterhouses by the paid for the certificates?' national authorities of the non-member countries concerned according to procedures which they adopt.

5. The legal context of Article 3 of Regu­ lation No 1224/80, which the Court is required to interpret, is quite different. 'The price actually paid or payable is the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods and includes all In adopting the above regulation on the payments made or to be made as a valuation of goods for customs purposes the condition of sale of the imported goods by objective of which is to foster world trade the buyer to a third party to satisfy an obli­ by introducing a fair, uniform and neutral gation of the seller. The payment need not system of customs valuation excluding the necessarily take the form of a transfer of use of arbitrary or fictitious customs money. Payment may be made by way of 5 letters of credit or negotiable instruments values, the Council in effect applied the Agreement on the Implementation of Article and may be made directly or indirectly.' 6 VII of the GATT , which was approved on behalf of the Community by Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the Multi­ lateral Agreements resulting from the 6. The Court has already had occasion to 1973-79 trade negotiations. 7 give a ruling in a case appreciably similar to that with which we are concerned.

The agreement in question, which lays down a set of provisions intended to As regards quota charges relating to the facilitate international trade by removing acquisition of export quotas the Court obstacles to it in the form of different stated in particular that: methods of valuation for customs purposes, introduces the transaction value of the goods as the basis of valuation.

on the valuation of goods for customs The Commission points out that, in purposes, as amended by Council Regu­ connection with the importation of beef of lation (EEC) No 3193/80 of 8 December high quality, the acquisition of the goods 9 1980'. cannot be separated from the acquisition of the certificate of authenticity since the latter relates to very specific goods. The wording for which the certificate provides ('I hereby certify that the beef described in this The Court came to that conclusion after certificate complies with the specification stressing that the system of export and shown overleaf') clearly shows that it is import licences formed part of the impossible for a certificate to be issued Community system of authorization and without the cattle intended for the slaugh­ quantitative limitation of imports into the terhouse having been examined in order to Community of textile products from certain verify that the information certified with non-member countries and that those rules, regards their rearing, feed and so forth is which sought only to control the quantities correct. of textile products imponed from certain non-member countries, pursued an entirely different objective from that of Regulation No 1224/80, whose purpose was to establish a fair, uniform and neutral system of customs valuation of goods for the Since, therefore, the certificate relates to application of the Common Customs Tariff. goods with which it is inseparably The latter regulation must therefore, connected the costs relating thereto should according to the Court, be interpreted be regarded as an integral pan of the sale without reference to the rules on the system price and the transaction value: the amounts of export and import licences. 10 paid for the certificate represent, in the Commission's view, payments for the goods even if they are separately mentioned in the invoice.

That view is moreover corroborated by the observation that the actual price for the It seems to me undeniable that the system certificate of authenticity is not only stated relating to the opening and use of a separately on the invoice but is in fact nego­ Community tariff quota for beef, like the tiated separately and subject to criteria and Community system for authorization and fluctuations unrelated to the market price of quantitative restriction on imports into the the meat. Community of textile products, pursues an objective of import control which is quite distinct from that aimed at by the provisions on the valuation of goods for customs purposes and that, from this point of view, Moreover the mere observation that there is which was adopted by the Court in the a closer connection between the certificate Ospig case, the two situations do not differ. in question and the imported meat than that between export licences and textile products covered by them does not appear to me sufficient to alter the nature of the problem.

9. Then there is a point on the wording of the provision which must be borne in mind. On a proper view the price paid for the The close connection between the certificate certificate represents not consideration for of authenticity and the meat which it the goods but rather a payment to acquire accompanies arises from the system set up the right to import the goods into the by Regulations Nos 217/81 and 2263/81 Community free from levy. according to which only beef of high quality may enjoy the advantages resulting from the opening of the tariff quota.