C-29/93
ECLI:EU:C:1994:35
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OSPIG TEXTIL-GESELLSCHAFT
OPINION OF ADVOCATE GENERAL GULMANN delivered on 2 February 1994 *
Mr President, included in the valuation for customs pur- Members of the Court, poses of goods imported into the Commu- nity within the meaning of the provisions of Council Regulation N o 1224/80 of 28 May 1980 on the valuation of goods for customs purposes. 2 1. The Finanzgericht (Finance Court) Bre- men has referred for a preliminary ruling a question raised in the course of a dispute between the German company Ospig Textil- Gesellschaft and the Hauptzollamt (Principal Customs Office) Bremen-Freihafen. That dispute arose as a result of the decision by 3. The present case concerns the question the customs authorities to include, in the val- whether the same result applies to quota uation for customs purposes of the goods charges in respect of imports from Taiwan, imported by Ospig, the charges incurred in where there is no lawful trade in export connection with the acquisition of an export licences. licence ('quota charges').
2. The case is closely connected to the case between the same company and the German 4. The question referred in the present case customs authorities in which the Court is worded as follows: delivered its judgment on 9 February 1984 ('the Ospig judgment'). 1
The Ospig judgment concerned the question 'Do quota charges arising from the acquisi- whether quota charges incurred in connec- tion of export quotas also not constitute part tion with the purchase of textile products in of the customs value of goods imported into Hong Kong, where there was a lawful trade the Community within the meaning of the in export licences, could be included in the provisions of Council Regulation (EEC) valuation for customs purposes. The Court No 1224/80 of 28 May 1980 (Official Jour- ruled that such quota charges could not be nal 1980 L 134, p. 1) in cases where export licences cannot be the subject of lawful trade
* Original language: Danish. 1 — Case 7/83 Ospig v Hauplzollamt Bremen-Ost [1984] 2 — OJ 1980 L 134, p. 1, as amended by Regulation N o 3193/80 ECR 609. of 8 December 1980 (OJ 1980 L 333, p. 1).
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in the relevant country of export (in this account in the determination of the customs case, Taiwan)?' value. Quota charges are not included in that list.
5. The relevant rules in the regulation on valuation for customs purposes were not 6. Quotas have their origin in the so-called amended following the delivery of the Ospig multifibre agreements entered into since the judgment. Article 3(1) of the regulation pro- beginning of the 1970s under the GATT vides that: 'The customs value of imported arrangements. The background to the agree- goods determined under this Article shall be ments lay in the capacity of developing and the transaction value, that is, the price actu- recently industrialized countries to produce ally paid or payable for the goods when sold cheap textile products, the export of which for export to the customs territory of the represented a threat to textile production in Community, adjusted in accordance with industrialized countries. The object of these Article 8, provided ...'. agreements was to promote the textile indus- tries of developing countries while at the same time also restricting their exports to industrialized countries to enable the latter to carry out at an appropriate pace the struc- tural reforms necessary in their own textile industries. The principal method used to secure that objective has been bilateral agree- Under Article 3(3)(a), 'The price actually ments imposing quantitative restrictions on paid or payable is the total payment made or textile imports. to be made by the buyer to or for the benefit of the seller for the imported 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 a third party to satisfy an obligation of the seller ...'. 7. The Community has concluded bilateral agreements of this kind with a large number of third countries, including Hong Kong. With regard to Taiwan, the agreement was concluded with the trading organization 'Taiwan Textile Organization'. The agree- ments specify the quantities of various cate- Article 8, to which Article 3(1) refers, pro- gories of textiles which may be imported in vides for the addition to 'the price actually the course of a year from the third countries paid or payable' of various expenses which, in question. The Community's partners in in the economic sense, are ancillary to the these agreements themselves decide how to price. Article 8 contains an exhaustive list of divide up their quotas among their national the expenses which may be taken into exporters. The Community's import rules
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for the period relevant to the present case are vendor and manufacturer, Bai Lucky Indus- to be found in Council Regulation trial Co. Ltd. The quota charges of N o 4134/86 on the arrangements for imports D M 7 000, which Ospig had paid directly to of certain textile products originating in Tai- the independent agent Taipan Oceanic Co. wan 3 and Council Regulation N o 4136/86 Ltd, which handled the export transaction, on common rules for imports of certain tex- were not included in the figure submitted for tile products originating in third countries. 4 the calculation of the customs value. The German customs authorities, which were unable to accept Ospig's exclusion of the quota charges from the figure for calculation of the value for customs purposes, requested the company to pay customs duties amount- ing to DM 5 187.77, calculated on the basis 8. It was pointed out in the first Ospig case of the net price of the goods plus the quota that in Hong Kong it is the local chamber of charges. Ospig contested the decision of the commerce which divides export quotas German authorities by reference, inter alia, annually among manufacturers and traders in to the Court's judgment in the Ospig case. textile products on the basis of the volume of The German authorities, on the other hand, goods exported in the previous year. The argued that that decision could be relied o n quotas are transferable and their value is to support the view that such charges could determined by supply and demand. Towards not be included in the calculation of the cus- the end of the year, when export quotas are toms value of the goods in question only in almost exhausted, quota charges may amount so far as quotas were transferable under the to considerable sums, whereas they may have laws of the particular country of export: as it been negligible in the previous months. was not possible under the law of Taiwan to Exporters in Hong Kong who have used up transfer quotas, the charges incurred had to their own quotas and who need to obtain be included in the calculation of the value of unused quotas in order to apply for an the goods for customs purposes. export licence with a view to executing an order from an undertaking in the Commu- nity send to the undertaking which placed the order a separate invoice for quota charges.
10. As will be clear from the present case and also from the first Ospig case, the ques- 9. The present case relates to the importa- tion whether quota charges are to be tion by Ospig in March 1989 of 1 000 jackets included in the calculation of the customs of blended fabric. As the value for customs value may be of considerable financial purposes, the company submitted the figure importance to the traders concerned. The of DM 30 000, an amount representing the level of customs duty on the textile products net price invoiced to it by the Taiwanese in question is relatively high and quota charges can, at least at certain periods and in certain circumstances, make up a relatively 3 — OJ 1986 L 386, p. 1. large part of the total price paid for the 4 — OJ 1986 L 387, p. 42. goods.
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11. In the first Ospig case, it appears that the question. In addition, charges can be committee set up to advise on the adminis- deducted only in the case of licences acquired tration of Regulation N o 1224/80 decided in from third parties ('external' quota charges). a non-binding opinion that the quota charges This means that there can be no deduction of which the Community importer has paid in 'own' quota charges, that is to say, charges purchasing himself the necessary export which the exporter who has effected the licence directly from a third tarty could not export transaction by using quotas directly be included for the calculation of the cus- allocated to him has incurred in connection toms value. with that quota allocation or which he has calculated to cover the generally applicable market value of the licences.
In its judgment in Ospig, the Court refused to draw any a contrario conclusion from that opinion when it held that 'the solution sug- gested by the Customs Valuation Committee also applies when the exporter/vendor who 14. The requirement of the customs author- no longer has any quotas obtains some him- ities that the licences should be transferable self from a third party and invoices them t o was endorsed by the Finanzgericht Bremen the purchaser. To hold otherwise would, in in a judgment of 12 June 1990. Since then, fact, create an unjustified disparity between however, that court has become unsure as to importers in the Community placed in an whether that result was the correct one and analogous situation and would therefore be that is why it has referred the question in the contrary to the fair, uniform and neutral sys- present case for a preliminary ruling. tem of customs valuation established by Council Regulation N o 1224/80' (para- graph 17, emphasis added).
12. It is clear from the present case and from 15. The abovementioned Case C-340/93 Case C-340/93 Thierschmidt v Hauptzollamt Thierschmidt was referred by the Finanzge- Essen, which is still before the Court, that richt Düsseldorf and involves primarily the the German customs authorities are proceed- question whether 'own' quota charges must ing on the basis that the result of the first be included in the calculation of the customs Ospig case applies only where the purchaser value. or vendor has incurred quota charges by rea- son of the acquisition from a third party of export licences which are freely transferable under the law of the country of export.
The Thierschmidt case, which involves exports from both Hong Kong and Taiwan, 13. The requirement thus imposed is that it as well as both 'own' and 'external' quota must be lawful under the law of the country charges, also deals, however, with the ques- of export to transfer the export licences in tion whether the result of the judgment in
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the first Ospig case can be applied to exports importance to existing differences in Com- from Taiwan. In contrast to the Finanzge- munity supervision rules, while that differ- richt Bremen, the Finanzgericht Düsseldorf, ence constitutes the background to the ques- on the basis of the documentation before it, tions referred by the Finanzgericht took the view that trade in export licences is Düsseldorf. lawful in Taiwan. Its decision none the less to refer the question was attributable to the fact that it was uncertain whether it was rel- evant to the determination of the customs value that the rules applying to imports from Taiwan (contained in Regulation 17. In the Thierschmidt case, the written N o 4134/86) differed from the general rules observations of, among others, Thierschmidt on imports from third countries (contained and the Commission argue that it is unneces- in Regulation N o 4136/86) inasmuch as the sary to stress the different supervision rules, former regulation did not provide for any which one can already understand in view of double control as in the case of the latter the fact that it would appear that in the situ- regulation, that is to say, that Regulation ations relevant to the present case the Ger- No 4134/86 did not expressly provide that man authorities treat imports from Taiwan in an export licence had to be issued in the the same way as imports under the common country of export and that an import licence import rules deriving from Regulation issued by the authorities of the country of N o 4136/86. importation had to be produced in the case of imports into the Community, which pre- supposed that an export licence had been produced.
18. To that extent, it might be appropriate to deal with the two cases together — even as far as my opinion is concerned.
16. Thus, the position is that the same basic question, namely whether 'external' quota charges can be included in the calculation of 19. However, I have taken the view that the the customs value in the case of exports from most reasonable course of action would be Taiwan, has been referred by two German for me to set out my opinion in the present finance courts, one of which assumes that case now. trade in quotas is unlawful, while the other takes the opposite view.
20. The question referred is based on the premiss that it is unlawful in the country of export to trade in expon licences. The Court In addition, it would appear that the Finan- must base itself on that premiss in the zgericht Bremen does not attach great present case.
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21. There is in this case no more detailed support such an assumption. The reasons information as to the implications of the given by the Court were that 'the system of statement that it is unlawful under the laws export and import licences forms part of the of the country of export to trade in export Community system of authorization and licences or as to whether such unlawful trade quantitative limitation of imports into the may have consequences under private or Community of textile products from certain criminal law, or both. O n the other hand, it non-member countries' and that 'those rules, is clear that the Finanzgericht Bremen has which seek only to control the quantities of assumed in its order of reference that the textile products imported from certain non- case involves 'external' quota charges, that is member countries, pursue an entirely differ- to say, charges actually incurred by the ent objective from that of Regulation exporter when purchasing export licences N o 1224/80, as amended, whose purpose is from a third party. to establish a fair, uniform and neutral sys- tem of customs valuation of goods for the application of the Common Customs Tariff. The latter regulation must therefore be inter- preted without reference to the rules on the system of export and import licences.' (para- graphs 13 and 14). That reasoning does not attach significance to the circumstances under which the trade in export licences is 22. In my opinion, the Commission was conducted. correct in its argument that there is no rea- son to restrict the result arrived at in the Ospig judgment merely because the trade in that case happened to be lawful.
25. As the Commission has pointed out, there is no difference in economic terms between cases where trade in export licences 23. The Court's judgment in Ospig contains, is lawful and cases where it is not. Importers in my view, nothing that could support such are in each case required to pay a certain sum a restriction. in order to be able to complete the import transaction. The amount of that sum will depend on conditions obtaining on the mar- ket in question and for that reason may dif- fer for goods of the same type, depending on the third country in question. Consequently, only the actual value of the goods (transac- tion value/amount invoiced), which accord- ing to the expert report produced in the 24. The judgment does not expressly state main proceedings is roughly the same the that the acquisition must be lawful. The world over, ought to be used as the customs grounds on which the Court reached its value. As the Court pointed out in the Ospig decision also do not contain anything to judgment, any other solution would 'create
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an unjustified disparity between importers in 27. For the sake of completeness, reference the Community placed in an analogous situ- ought to be made to the Court's judgment in ation'. Different treatment of the goods in Case C-219/88 Malt6 in view of the fact that question according to the third country from the Finanzgericht Bremen stated in the judg- which they were imported would be con- ment making the reference that that decision trary to the objective of the regulation on might be taken as supporting the view that valuation for customs purposes, which is to the distinction between lawful and unlawful guarantee that the regulation is applied uni- trade in quotas can be relevant. formly to imports of all goods. 5
28. In its decision in Malt, the Court inter- preted the regulation on valuation for cus- The grounds to which the Court attached toms purposes as meaning that amounts paid importance in its judgment in Ospig there- to the vendor over and above the price of the fore do not argue in favour of drawing a dis- goods in respect of expenses incurred in con- tinction between lawful and unlawful trade nection with the issue of certificates of in quotas. authenticity needed to secure exemption from duties charged under a Community tar- iff quota for beef had to be regarded as part of the value for customs purposes. The rea- son given was that the certificates and the goods in question were 'inseparably connect- 26. It will obviously be more difficult in ed'. The difference between the certificates of some cases to provide proof of actual pay- authenticity in that case and export licences ment for a quota which may not be sold in was that '[export licences] are not connected the country of export in question. It may be with a specific contract of sale but with a imagined, as the national court making the specific class of goods and may be sold inde- reference has pointed out, that what are pendently of the goods', whereas a certificate claimed to be quota charges may in fact rep- of authenticity could relate only to one spe- resent commission or other remuneration cific consignment. The point made by the paid to intermediaries involved in the export Court at paragraph 14 of its judgment in that transaction, which must by law be included case that 'contrary to what happens under in the customs value under Article 8 of the the system for quotas applicable to textiles, regulation on valuation for customs pur- certificates of authenticity cannot lawfully b e poses. As the Commission correctly pointed traded separate from the goods to which out, however, it is for the importer to prove they relate' refers solely to that difference that the costs in question are in fact quota between the two documents and the com- charges and in cases of doubt the customs ment therefore does not preclude the possi- authorities will be entided, by reference to bility that the decision in Ospig may also b e Article 10, to require production of all doc- applicable to quota charges arising in con- uments which might be needed to resolve the nection with potentially unlawful trade in issue. export licences.
5 — See the eighth recital in the preamble to Regulation 6 — Case C-219/88 Malt v Haupaollamt Düsseldorf [1990] N o 1224/80. ECR 1-1481.
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Conclusion
29. I would for those reasons propose that the Court reply to the question referred as follows:
Charges incurred in connection with the acquisition of the export licences referred to in this case may not be included in the calculation of the customs value of goods imported into the Community within the meaning of Council Regulation N o 1224/80 on the valuation of goods for customs purposes, irrespective of whether or not export licences can be the subject of lawful trade in the relevant country of export.
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