C-299/90

2. Article 8(l)(a)(i) states that in deter- mining the customs value under Article 3 there shall be added to the price actually 5. In its customs declarations Hepp entered paid or payable for the imported goods the name of Novimex under the heading commission and brokerage, except buying 'seller' and presented the invoices issued to commissions to the extent that they are it by Novimex without mentioning the incurred by the buyer but are not included commissions agreed. On the basis of those in the price actually paid or payable for the declarations the Hauptzollamt Karlsruhe, goods. the defendant in the main proceedings, orig- inally determined the customs value of the goods pursuant to the aforementioned Article 3. However, after investigation, it adopted the decision to include the 3. The term 'buying commission' is defined commissions in the customs value and to in Article 8(4) as 'fees paid by an importer levy additional customs duties. That

* Original language: French.

I-4310

HEPP

decision is at the origin of the main name and thus become a party to the proceedings. contract of sale made by the latter. It is irrelevant in that respect that he did not intend to act on his own behalf but for another, namely the plaintiff in the main The first question proceedings. That amounted to a first sale within the meaning of Article 3 of the basic regulation.

6. The Bundesfinanzhof, before which the case came, first asks the Court the following question:

12. I do not propose to accept that argument, for the following reasons. 9. In the view of the German Government, the agent must be regarded as having 1 — Case C-ll/89 Unifert Handels GmbH v Hauptzollamt bought from the manufacturer in his own M«mtfr [1990] ECR 1-2275.

I-4311

OPINION OF MR MISCHO —CASE C-299/90

13. Although Regulation No 1224/80 does signed at Geneva on 12 April 1979 and not define the term 'sale', it does define the approved by the Decision of the Council of term 'buying commissions'. That term the European Communities of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973 to 1979 trade negotiations (Official Journal 1980 L 71, p. 1). The Technical 'means fees paid by an importer to his agent Committee on Customs Valuation is placed for the service of representing him in the under the auspices of the Customs purchase of the goods being valued'. Cooperation Council and includes represen- tatives of all the countries which are parties to the abovementioned Geneva Agreement. Pursuant to Annex II to that agreement the Technical Committee was established 'with 14. T h e German phrase 'daß er für ihn tätig a view, at the technical level, towards wird' (literally: 'for acting for him') appears uniformity in interpretation and application' to me to be weaker than that used in the of the agreement. Its opinions, which may other eight language versions, namely take various forms including explanatory 'representing him', 'le représenter', notes, are adopted by a majority of at least 'rappresentarlo', and so forth which two thirds of the members present. Even if correspond more to the German 'daß er ihn the opinions are only of an advisory nature, vertritt'. I think that where only one nevertheless they represent the opinion of language version uses a somewhat different the experts of the majority of countries term, regard should be had to the term in engaged in world trade. If the Community all the other versions, in this case 'represen- were to adopt an interpretation contrary to tation'. such an opinion, it would risk creating quite considerable problems and the Community should do so only for very serious reasons.

20. That explanatory note defines the applicable rules perfectly and I see no reason why Community law should require the Court to come to different conclusions. 19. After stating that the agent's In the present case, the applicable provisions remuneration takes the form of a of Community law, namely Council Regu­ commission, generally expressed as a lation N o 1224/80 and the implementing percentage of the price of the goods, the Commission regulations, are expressly note then draws a distinction between intended to meet the obligation of the selling agents and buying agents. It declares Community 'to ensure . . . that its rules in relation to the latter, that concerning customs valuation conform with the provisions of the Agreement' on implementation of Article VII of G A T T (see the fifth recital in the preamble to Regu­ lation N o 1224/80). '[a] selling agent is a person who acts for the account of a seller; he seeks customers and collects orders, and in some cases he may arrange for storage and delivery of the goods (point 7). The buying agent's 21. The note confirms first of all what Mr remuneration which is usually termed Advocate General Tesauro had already "buying commission" is paid by the stated at point 10 of his Opinion in the importer, apart from the payment for the Unifert case [(1990] ECR 1-2287), namely goods (point 10). In this case, under the that it is necessary above all to establish terms of paragraph l(a)(i) of Article 8, the what was the real function of the agent. If commission paid by the buyer of the he acted solely on behalf of the buyer he imported goods must not be added to the participated in the conclusion of the pńce actually paid or payable (point 11). contract of sale by representing the buyer

23. For the purposes of applying Article 3 26. It follows from all the foregoing that, as of the basic regulation it is therefore not the Commission — supported at the hearing possible to make a distinction between by Hepp — argues, neither the transaction representation in the strict sense, which is between Novimex and Hepp nor that open representation, and indirect or between Novimex and the manufacturer 'undisclosed' 3 representation which is the must be regarded as sales for the purposes subject of the main proceedings. Both kinds of Article 3 of the basic regulation. On the of such legal relations are essentially similar contrary, for the purposes of applying that from the point of view of their economic provision, the relevant transaction is that characteristics and the second seems quite which took place, through the mediation of frequent in international trade, the smooth Novimex, between Hepp and the manu- conduct of which must be facilitated by the facturer. provisions requiring interpretation. The preamble to the Agreement on Implemen- tation of Article VII of the General Agreement on Tariffs and Trade states that the 'customs value should be based on 27. The German Government, however, simple and equitable criteria consistent with contends that there is no contractual commercial practice1. relationship between Hepp and the manu- facturer. Strictly speaking, that is unde- niable. However, the German Government itself emphasizes the need to avoid excessive 24. The sixth recital to the basic regulation formalism and to adopt a broad interpre- states that its objective is 'to foster world tation of the term 'transaction value'. From trade by introducing a fair, uniform and that point of view, it seems to me that there neutral system of customs valuation is no other course than to accept that for excluding the use of arbitrary or fictitious the purposes of the basic regulation the customs values' and 'the customs value must transaction took place between Hepp and be determined in accordance with criteria the manufacturer and that Novimex was which are compatible with trade practice'. only an intermediary.

sometimes purely formal legal characteri­ 31. In view of the answer I have proposed zations. to the first question, the second question does not call for an answer. However, if the Court were to consider, as the German Government does, that lįere are here two contracts of sale withifc the meaning of 29. I therefore propose that the first Article 3 of the basic regulation, it would be question should be answered as follows: necessary to apply the decision in Unifert, which concerns an identical case, namely that of two successive sales of the same goods. It would follow that the importer has a choice between the sale by the manu­ 'Where it is established that the agent who facturer to the agent or that between acted in his own name in fact represented himself and the agent but once he made that the importer and acted on his behalf, there choice he would be bound by it (see is only one sale, namely that between the paragraph 21 of the Unifert judgment). manufacturer/supplier and the importer of the goods, for the purposes of Article 3 of Council Regulation (EEC) N o 1224/80 of 28 May 1980 on the valuation of goods for customs purposes.' 32. The German Government considers that in the present case the importer made the second choice and that he must bear the consequences, namely that the relevant price Second question is that which his agent invoiced to him, the commission being included because according to the aforementioned judgment a payment made by the buyer to the seller, separately invoiced and described as a 30. The second question is worded as 'buying commission' is part of the price follows: actually paid or payable for the imported goods within the meaning of Article 3(1) of Regulation N o 1224/80. Like the Bundes­ finanzhof I consider that that conclusion follows inevitably from the Unifert judgment 'If the answer to Question 1 is that both the but only if there were in fact two successive contract between manufacturer and agent sales, that is to say if Novimex was a buyer and the contract between agent and and not a buying agent. importer meet the criteria of Article 3 of Regulation No 1224/80, and the importer has specified the price in his contract with the agent as the basis for determining the value of goods for customs purposes, must the buying commission be added to the 33. The Commission proposes a different price paid?' solution. It accepts that the importer in the present case opted for the second trans­ 4 — See, for example, the case-law of the Court of Justice on action but considers that it does not neces­ taxes having an effect equivalent to customs duties or on sarily follow that the buying commission discriminatory internal taxation in which the Court has always used as the decisive criterion the effect of the tax must be included in the price. The Unifert on trade between Member States whatever its formal judgment must be applied taking into description, its method of levy or the legal status of the body for which it is levied. account the special role played by Novimex

34. I cannot accept that reasoning for it seems to me to contain a contradiction. Either we have two successive sales and 37. It is clear that if there is only one Novimex is then a 'normal' seller in the relevant transaction from the point of view second transaction; according to Unifert, of Article 3 of the basic regulation the the amount which it receives in that case importer cannot have any choice. The fact must be included in the customs value. Or that he gave the agent's name under the Novimex is only an agent and there is not a heading 'seller' of his declaration on series of sales. On the other hand, it seems customs value cannot alter the legal position to me to be contradictory to regard first of under the provisions of the basic regulation. all Novimex as a 'normal' buyer/seller inter- The same is true of the fact that he annexed vening in two sales and then to treat it as an to the declaration the invoice sent to him by agent in order to exclude an amount which the agent rather than that sent by the manu- should not even be a commission since it facturer to the agent. They are two was a 'normal' seller. problems concerning the proper fulfilment of the formalities which are not capable of affecting the substance of the legal position, which is that only one transaction exists for the purposes of Article 3 and that the Third question importer has no choice in this regard.

Fourth question

40. Contrary to the opinion of the German Government but in accordance with the view of the Commission, I consider that in 42. The fourth question is worded as its Conclusion N o 14 the Community follows: Committee on Customs Valuation 7 examined a factual situation identical to that of the main proceedings. It concluded that 'where the price paid to the manufacturer/ supplier is the basis for the transaction value 'If the answer to Question 1 is that, under Article 3 of Regulation (EEC) N o although the contract between manufacturer 1224/80' — which, according to the and agent is a sale, the contract between wording of the questions from the Bundesfi- agent and importer is not, how is the nanzhof, is the case in the main customs value to be determined under proceedings — 'the declarant, pursuant to Community law when the importer has Article 4 of Regulation (EEC) No 1496/80, stated the customs value in the manner is normally required to present the customs described in Question 3?' authorities with the invoice issued by the manufacture/supplier. However in the light of the abovementioned facts, the customs 43. In view of the reply which I have 6 — Commission Regulation (EEC) N o 1495/80 of tl June proposed should be given to the first 1980 implementing certain provisions of Articles 1, 3 and 8 question, the fourth question does not call of Council Regulation (EEC) N o 1224/80 on the valuation of goods for customs purposes (OJ 1980 L 154, for an answer. It is therefore only in the p. 14). alternative that I make the following obser- 7 — Conclusion N o 14, Customs Valuation, of the Commission of the European Communities, 1989, p. 364. vations.

(2) Even where the importer has entered the agent's name in the box headed "seller" in the customs value declaration and has also declared the price invoiced by the agent (without commission), the buying commission is not to be included in the customs value.'

I-4318