C-11/89
ECLI:EU:C:1990:150
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OPINION OF MR TESAURO —CASE C-11/89
O P I N I O N OF MR ADVOCATE GENERAL TESAURO delivered o n 28 M a r c h 1 9 9 0 *
Mr President, and amounting to 6% of the amount Members of the Court, invoiced for each particular consignment.
As a result of an inspection at the 1. In these proceedings the Court has once appellant's premises, the Hauptzollamt again been called on to interpret Council requested payment of D M 172 099.60 in Regulation (EEC) N o 1224/80 of 28 May supplementary duties. 1980 on the valuation of goods for customs purposes. ' Unifert challenged that request before the Finanzgericht (Finance Court), which 2. T h e appellant in the main proceedings is dismissed the action. Unifert then appealed the German subsidiary of the Unifert group. to the Bundesfinanzhof (Federal Finance T h e group's purchases of fertilizer in Court), which referred the following non-member countries are usually made questions to the Court for a preliminary through Ferdis SA of Brussels, which resells ruling: the fertilizers, uncleared, to the group's various subsidiaries. '(1) (a) Can the transaction value within the meaning of Article 3(1) of Regulation (EEC) N o 1224/80 also In its customs value declarations, the be the price stipulated in a contract appellant stated that Ferdis was the seller of sale between persons resident in and referred to the invoices issued to it by the Community? Ferdis.
(b) If Question 1(a) is answered in the affirmative : Those declarations contained a 'recon- structed' price, calculated by multiplying the actual weight of the goods established upon may the person concerned choose unloading, which was less than the weight stipulated in the contract, by the price per the price to be taken as the basis tonne, without regard to the price actually for customs valuation purposes if paid. prices stipulated in other contracts of sale fulfil the requirements of Article 3(1) of Regulation No 1224/80? Is the person concerned bound by his choice once T h e appellant also excluded from its exercised? declaration demurrage charges and a so-called buying commission paid to Ferdis
* Original language: Italian. (c) If Question 1(a) is answered in the I — OJ 1980, L 134, p. I. affirmative:
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does this price also include a payable is the total payment made or to be so-called buying commission? made by the buyer to or for the benefit of the seller for the imponed goods and includes all payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to (2) Are demurrage charges (compensation a third party to satisfy an obligation of the for delays in loading) transport costs seller. within the meaning of Article 8(l)(e) of Council Regulation No 1224/80?
4. It is evident from the wording of the (3) Is the full price paid or payable the provision alone that the essential element transaction value within the meaning of for determining the transaction value is the Article 3 of Regulation No 1224/80 if reference to a contract relating to goods before the material time short intended for import into the customs shipments are found which are within territory of the Community, while the place an agreed weight discrepancy of residence of the parties to the contract of allowance and do not lead to a sale is entirely irrelevant. reduction of the purchase price?'
3. The first group of questions concerns mainly the interpretation of Article 3 of The conclusion must therefore be that the Regulation N o 1224/80. price stipulated in a contract of sale relating to goods purchased in a non-member country and resold before completion of the requisite customs formalities, in other words before their importation into the customs Article 3, which constitutes one of the territory of the Community, may legit- essential provisions of Regulation N o imately be used for determining the customs 1224/80, provides in its first paragraph that value of the goods in question, irrespective the customs value of imported goods is, in of the place of residence of the parties to principle, the transaction value, that is, the the contract. price actually paid or payable for the goods when sold for export to the customs territory of the Community. 2
5. Moreover, that appears consistent with Article 6 of Commission Regulation (EEC) Article 3(3)(a), as amended by Council N o 1495/80 of 11 June 1980 implementing Regulation (EEC) No 3193/80 3 then certain provisions of Articles 1, 3 and 8 explains that the price actually paid or of Council Regulation (EEC) N o 1224/80 on the valuation of goods for customs 2 — Article 3(1) is based on Article 1(1) of the Agreement on purposes, 4 as amended by Commission Implementation of Article VII of the General Agreement on Tariffs and Trade (OJ 1980, L 71, p. 107). 3 — OJ 1980, L 333, p. 1. 4 — OJ 1980, L 154, p. 14.
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Regulation (EEC) No 1580/81, 5 which Regulation (EEC) No 1430/79, 7 which states that the fact that the goods which are provides that import duties are to be repaid the subject of a sale are declared for free or remitted in so far as it is established that circulation in the Community must be the amount of such duties exceeds the regarded as adequate indication that they amount lawfully payable, or its reference to were sold for export to the customs territory Article 10(2) of Directive 79/695/EEC, of the Community, and that that indication relating to possible subsequent verification also applies in the case of successive sales by the competent authorities and to the before valuation; each price resulting from possible consequences thereof as regards those sales may be taken as a basis for any change in the amount of import duty. valuation.
6. In my view, Article 6 also provides a Those rules apply to the case of an inac- sufficiently clear answer to Question 1(b) curate customs declaration or an incorrect since, in the case of successive sales, the application of the customs rules, and it is importer is in principle at liberty to choose not possible to deduce from them any right the price which must be taken as a basis for on the part of the trader to correct his determining the customs value. declaration after the release of the goods in circumstances where, as in the present case, neither the choice of the price to be taken as a basis for determining the customs value nor the application of the customs rules 7. However, with regard to the possibility were in any way invalid. of the trader correcting his choice, it must be pointed out that, under Article 8(1 )(a) and (b) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation, 6 such corrections must be 9. With regard to the inclusion of the requested before the goods are released for buying commission — itemized separately in free circulation and may no longer be the invoice and calculated as a percentage allowed where the request is made after of the price of the goods — in the price the customs authority has informed the stipulated in the contract of sale, it should declarant that it intends to examine the be recalled firstly that Article 8(1 )(a) of goods or that it has itself established that Regulation N o 1224/80 excludes- buying the particulars in question are incorrect. commissions from the list of sums to be added to the price actually paid or payable for the imported goods.
8. N o r do I consider pertinent the reference made by Unifert to Article 2 of Council
5 — OJ 1981, L 154, p. 36. 6 — OJ 1979, L 205, p. 19. Under Article 27 of Directive However, Article 8(4) gives a narrow defi- 79/695/EEC, as amended by Council Directive nition of the term 'buying commission' as a 81/853/EEC (OJ 1981, L 319, p. 1), the Member States were required to take the measures necessary to comply with the directive not later than 1 July 1982. 7 — OJ 1979, L 175, p. 1.
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fee paid by an importer to his agent for the It is true that the price actually paid for the service of representing him in the purchase goods constitutes the transaction value, even of the goods being valued. when the quantities shipped are less than those purchased if the discrepancy is within the limits of an expressly agreed weight allowance, since in that case the price agreed is valid even when there are limited 10. In order to apply the Community variations in weight and that price was customs rules correctly, regard must be had established expressly to take account of to the reality of the relations between the such a possibility; however, in my view, a contracting parties and it is for the national different reply must be given where the authorities, and where applicable for the weight discrepancy established at the time national court, to determine whether in a the goods are shipped exceeds the limits of particular case, regardless of the words used the allowance. by the parties themselves, the commission in question actually constitutes a sum paid in return for that specific service or whether it simply represents a part of the purchase price which must, as such, be taken into account for calculating the transaction value of the goods. 13. In that second case, Article 4 of Regu lation No 1495/80, as amended by Regu lation No 1580/81, becomes relevant Article 4 sutes that, in the event that part of the goods are lost or when the goods have 11. With regard to the inclusion of been damaged before entry into free circu demurrage charges in the cost of transport lation, the price actually paid or payable within the meaning of Article 8(l)(e)(i) of must be apportioned proportionately. Regulation No 1224/80, it must be pointed out that those charges are collected on the basis of the transport contract and are directly connected with the transport of the goods by sea, which could not be effected without payment of such sums. Thus, in such a case, subject to the quantity falling within the allowance, the price actually paid or payable must be reduced in proportion to the damage suffered, irres In my view, therefore, irrespective of their pective of payment of the full agreed price. controversial legal nature, demurrage charges are covered by the concept of the cost of transport within the meaning of the abovementioned provision.
14. Moreover, that interpretation of the provision is borne out by the Court's statement in Repenning,* according to 12. The final question asked by the Bundes finanzhof must, in my opinion, also be 8 — S « the judgment in Cue 183/85 HtuptxollamiItzrboe v answered in the affirmative. However, JUfamimļ \\9ii] ECK 1873. b shouldbe pointed out that the facts of the cue occurred before the entry into force of further clarification is necessary in that the abovementioned amendment to Article 4 of Regulation regard. No 1495/80.
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which: 'Article 3(1) of Council Regulation circulation the price actually paid or No 1224/80 must be interpreted as meaning payable, on which the transaction value is that where goods bought free of defects are based, must be reduced in proportion to the damaged before being released for free damage suffered'.
15. In the light of the foregoing considerations I therefore propose that the Court should give the following replies to the questions referred by the Bundesfinanzhof:
'(1) The price stipulated in a contract of sale between persons resident in the Community may be regarded as the transaction value within the meaning of Article 3 of Regulation No 1224/80 when the seller, having purchased the goods in a non-member country, resells them before completion of the customs formalities necessary for the importation of the goods into the customs territory of the Community.
(2) Where prices stipulated in other contracts of sale also satisfy the conditions laid down in Article 3 of Regulation No 1224/80, the importer may, pursuant to Article 6 of Regulation No 1495/80, choose the price which is to be taken as the basis for determining the customs value. However, under Article 8 of Directive 79/695/EEC he may not correct his declaration after having obtained the release of the goods for free circulation.
(3) In order for a buying commission which is mentioned separately on the invoice not to be included in the selling price of the goods, it must actually be a fee paid by an importer to his agent for the service of representing him in the purchase of the goods, in accordance with Article 8(4) of Regulation N o 1224/80.
(4) Demurrage charges, consisting in mooring charges incurred in the event of a delay in loading, form part of the cost of transport within the meaning of Article 8(l)(e)(i) of Regulation No 1224/80.
(5) Where, before the material time, it is found that the quantities are lower than those purchased but fall within the agreed weight allowances and do not give rise to a reduction in the purchase price, the full price paid or payable for the goods constitutes the transaction value within the meaning of Article 3 of Regulation N o 1224/80.'
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