C-17/89

OPINION OF MR TESAURO —CASE C-17/89

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, The national court has therefore asked the Members of the Court, Court of Justice to state the criteria to be used for calculating the transport costs relating to the journey outside the Community, in a case such as the one just described.

1. This reference for a preliminary ruling concerns the method of calculating the cost of transport for the purposes of determining the customs value. 3. The basic objective of Regulation N o 1224/80 is to foster world trade by intro- ducing a fair, uniform and neutral form of customs valuation excluding the use of arbitrary or fictitious values (see the sixth recital in the preamble to the regulation). 2. Under Article 8(1) of Council Regulation Moreover, as I have already pointed out, (EEC) N o 1224/80, · in determining the with regard specifically to calculating the customs value, it is necessary to add to the cost of transport, the basic principle must be price actually paid or payable for the that, as the case-law of the Court bears out, imported goods 'the cost of t r a n s p o r t . . . to the customs value includes the costs the place of introduction of the goods into 'actually" incurred by the buyer in trans- the customs territory of the Community'. porting the goods to the place of intro- duction into the customs territory of the Community. 2 Conversely, costs falling on the goods in connection with transport within the Community must be deducted from the price of those goods. 3

6. In the absence of any other provision which is specifically applicable to the facts described by the national court, a rule must 'Where goods are carried by the same be found, if necessary by analogy, which means of transport to a point beyond the allows the value at issue to be calculated in place of introduction into the customs accordance with the objectives and prin- territory of the Community, transport costs ciples of Regulation No 1224/80. shall be assessed in proportion to the distance covered outside and inside the customs territory of the Community, unless evidence is produced to the customs auth- orities to show the costs that would have been incurred under a general compulsory The Commission points out in that regard schedule of freight rates for the carriage of that Article 2 of Regulation N o 1224/80 the goods to the place of introduction into provides that 'where the customs value of the customs territory of the Community.' imported goods cannot be determined under Articles 3, 4, 5, 6 or 7, it shall be determined using reasonable means consistent with the principles and general provisions of the Agreement and of Article VII of the General Agreement on Tariffs It is clear from that provision that and Trade and on the basis of data available assessment of transport costs in proportion in the Community'. Thus the regulation to the distance covered outside and inside itself has indicated the principles which must the customs territory of the Community be used as guidelines whenever the extreme presupposes a single means of transport and, variety of accepted practices reveals gaps in consequently, a single schedule of rates the rules for determining the customs value. applied for the entire journey. It is evident — and the parties are, moreover, agreed on this point — that the fact that, as in the present case, the goods were in a container for the entire journey is completely immaterial for the purposes of In the Commission's opinion, the method applying that provision. A container is not a which would be most consistent with those means of transport; what is important is the principles would be to deduct from the total means by which the container was itself cost of transport the costs relating to the transported. If, as in the present case, the journey within the Community, which in

turn would have to be calculated by consequently, the actual unit cost of the applying the schedules of charges generally journey is not substantially changed because applied for the means of transport of the length of the total journey. employed. That amount, fixed on the basis of standard rates, could then be corrected, if necessary, upon presentation of documents proving that the costs actually incurred for the part of the journey outside the Consequently, the criterion proposed by the Community amounted to a different sum. Commission falls, in my view, within the T h e Commission emphasizes that the scope of Regulation No 1224/80 and may criterion which it proposes not only enables be used for determining the cost of transport costs incurred outside the transport to be included in the customs Community to be determined in a value. reasonable manner, but can also be applied simply and with certainty in so far as it is

very great in practice. The case at issue way of an estimate 'in accordance with the concerns a journey in which various means schedule of freight rates normally applied of transport were used — if one means had for the same modes of transport'. been used it would have been covered by Article 15(2)(a) — and in such cases the change of means of transport often takes place upon entry into the Community. Therefore, and at least in so far as the part The rule in Article 15(2)(c) could, because of the journey within the Community is the rationale is the same, be extended by made with a different means of transport analogy to the facts of the present case, than was employed for the earlier part, it is without prejudice of course to the right of to be assumed that the cost of the journey the person concerned to put forward a within the Community is determined inde- different valuation if he is able to produce pendently, on the basis of the generally documents establishing the actual costs applicable schedules of charges and that, incurred.

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