C-340/93

THIERSCHMIDT v HAUPTZOLLAMT ESSEN

OPINION OF ADVOCATE GENERAL GULMANN delivered on 28 April 1994 *

Mr President, 3. The Court is thus well aware of the back­ Members of the Court, ground to the questions referred here. It will therefore suffice if I give a brief summary as follows.

1. The Finanzgericht Düsseldorf has referred to the Court for a preliminary ruling ques­ 4. Within the framework of the so-called tions which arose in the course of a dispute GATT-Multifibre Agreements the Commu­ between the German company Klaus Thier- nity has entered into agreements with a schmidt GmbH and the Hauptzollamt number of textile-producing countries (as far Essen. The dispute arose as a result of the as Taiwan is concerned the agreement was customs authorities' decision to include in concluded, however, with the 'Taiwan Textile the customs value of textiles which Thier- Organization'). The purpose of the agree­ schmidt had imported from Hongkong and ments is to lay down the quantities of the Taiwan amounts invoiced by the exporters to various categories of textile products which cover so-called 'quota charges'. may be imported into the Community from the countries in question. The Community's partners in these agreements themselves decide how to divide up the quotas among exporters. In some countries the quotas are divided up after a tendering procedure, in others on the basis of quantities exported in the reference year. In some countries the authorities require payment for the alloca­ 2. In two previous cases questions have been tion of export quotas and in others the quo­ referred to the Court concerning the cus­ tas are allocated free of charge. In some toms treatment of quota charges. The first countries quotas are allocated throughout was Case 7/83 Ospig v Hatfptzollamt the year and in others quotas are allocated Bremen-Ost on which the Court delivered once a year. judgment on 9 February 1984, 1 and the sec­ ond was Case C-29/93 Ospig v Haiiptzoll- amt Bremen-Freihafen, on which I delivered my Opinion on 2 February 1994 and the Court has not yet delivered judgment.

In both cases, alonside the actual purchase of the textile products, there are separate trans­ actions involving expenses. Whether it is the 8. The second Ospig case concerns the ques­ importer who has himself bought the export tion whether it is significant with regard to quota directly from a third-party or the the inclusion of quota charges in the customs exporter who has bought the quota, the value that the acquisition of export quotas question arises whether the customs value of took place in a country where trade in the imported textiles includes the costs of obtaining the export quota ('quota charges') or whether the customs value should com­ 2 — Council Regulation No 1224/80 of 28 May 1980 on the val­ prise only the invoiced price of the textiles uation of goods for customs purposes (OJ 1980 L 134, p. 1), as amended by Regulation No 3193/80 of 8 December 1980 themselves. (OJ 1980 L 333, p. 1).

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export quotas is not lawful. In my Opinion I The background to the case is as follows: proposed that the Court should reply to the between 1987 and 1989 Thierschmidt question to the effect that it was not signifi­ arranged for textile products to be manufac­ cant that the quotas had been acquired in a tured in Hongkong and Taiwan and subse­ country where they could not lawfully be quently imported them into the Community. traded provided it was proved that the In Hongkong the exporter was the firm of J. charges were in fact incurred in the acquisi­ Wong and Co, which also obtained the nec­ tion of export quotas. essary export quotas. The company invoiced separately the quota charges, some of which related to its own export quotas, some to export quotas acquired by purchase from a third-party. Thierschmidt did not declare those quota charges in connection with the importation of the goods.

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authorities view, only allowed for quota the reservation discussed below, the question charges not to be included in the customs should be answered in the affirmative, value if the quotas were obtained lawfully. whereas Thierschmidt has claimed that it should be answered in the negative.

12. Thierschmidt appealed against the cus­ toms authorities' decision to the Finanzger­ icht Düsseldorf, which referred three ques­ 15. The reply calls for an interpretation of tions to the Court for a preliminary ruling. Council Regulation No 1224/80 on the valu­ The first concerns quota charges for the ation of goods for customs purposes. exporter's 'own' quotas, the third concerns quota charges on exports from Taiwan, and the second concerns the extent of the importer's duty to make a separate declara­ tion of quota charges. Thierschmidt, the United Kingdom and the Commission have submitted observations to the Court. 16. Article 3(1) of the regulation provides 'The customs value of imported goods deter­ mined under this Article shall be the transac­ tion value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted in accordance with Article 8, pro­ Question 1 vided ...'. Article 3(3)(a) states: '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 payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or 13. The first question is worded as follows: by the buyer to a third party to satisfy an 'Are payments by the buyer to the seller for obligation of the seller.' export licences allocated to the seller (export quotas) part of the customs value?'

18. Since, according to the evidence, in this case there were no charges connected with the actual allocation of export quotas to the 20. 'Own' quota charges are fictitious traders, the term 'own' quota charges which charges. The seller has not incurred expenses is material here covers an amount calculated in acquiring the necessary export quotas. If it by the exporter in question, which in princi­ is possible for him in fact to increase the ple corresponds to the amount which the price paid by the buyer for the goods export quota in question is worth, that is to because there is a greater demand for the say the amount which the buyer or seller goods in question than can be satisfied would have had to pay for the purchase of within the available quotas, that means that the export quota from a third party. 'Own' as a result of the quota system he is in a quota charges is thus a term made up by position to increase his profit and not that as traders, the aim of which is that it be used a result of the quota system he has had to for customs value purposes for the purpose incur costs in order to carry out the export, of achieving a legal situation where it makes since he has the necessary quotas available no difference to the determination of the himself.

3 — [1990] ECR I-1481, in which the Court held: 'It should further be noted that Article 8 of Regulation No 1224/80, to which Article 3(1) refers, contains an exhaus­ tive list of the ancillary costs which must be added to the price actually paid or payable for the purpose of determinine the customs value. Since the costs of acquiring certificates of authenticity are not included, it follows that such costs can be taken into account for the purpose of determining the customs value only if they are regarded as an integra! part of 21. In my view the Bundesfinanzhof was the price of the goods.' {paragraph 11) right in its judgment of 24 April 1990

22. The judgment of the Court in the Ospig 24. The question referred to the Court must case did not deal directly or indirectly with accordingly in my view be answered to the the question at issue here. The Court dealt effect that so-called 'own' quota charges with the question whether 'charges for the should be included in the customs value. acquisition of free quotas' should be included in the customs value and the Court dealt expressly with that question alone when it held that 'quota charges incurred in the acquisition of export quotas' are not to be included in the customs value.

25. In the foregoing it is assumed that the term 'own' quota charges does not mean 23. Thierschmidt has claimed, and the positive expenses incurred in the acquisition Finanzgericht Düsseldorf stated, that the of quotas. As mentioned, on the evidence

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that is correct as far as Hongkong and Tai­ company took the view that neither 'own' wan are concerned. The evidence shows, nor 'outside' quota charges should be however, that in other places payment is included in the customs value. It appears that demanded for the allocation of quotas. The on the basis of the documents available at question arises whether such expenses Thierschmidt's premises it might be difficult should be treated as 'own' or Outside' quota to decide whether the quota charges paid charges. relate to 'own' or 'outside' quotas.

26. It seems to me most appropriate to treat them as 'outside' quota charges since they in 29. The German customs authorities admin­ fact represent an expense for the seller and ister the customs value regulation as meaning moreover can be documented in the same that in all circumstances it is necessary for way as the quota charges which the buyer or the importer to state quota charges, whether the seller incurs when export quotas are 'own' or 'outside', and that if no such state­ bought from a third-party since the expenses ment is given quota charges are to be involved can be documented by the produc­ included in the customs value in connection tion of invoices for the purchase of export with the customs declaration. That practice quotas. was upheld by the Bundesfinanzhof in its judgment of 12 June 1991 (VII R 98/89).

In contrast, according to the case-law of the one of proof. The starting point is that the Court, 'outside' quota charges need not be transaction value and thus the customs value included in the customs value. The question includes all payments obtained for the goods is whether they should nevertheless be and therefore also the payments which the declared separately. buyer has made to the seller in order to obtain export quotas, unless the quotas are allocated to the seller against payment. The onus is thus on the buyer to show that the payment concerns 'outside' quota charges, since it is to his advantage if they are not taken into account.

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not be included in the customs value of the Community's general import rules are to be goods must prove that the seller has obtained found in Council Regulation No 4136/86 on the export quota against payment, but that common rules for imports of certain textile 5 answer assumes that there is no duty to products originating in third countries. declare Outside' quotas separately.

Question 3 35. The question of 'outside' quota charges on imports from Taiwan was, as stated, the subject of the reference in Case C-29/93 Ospig, on which I delivered my Opinion on 2 February 1994.

country's authorities first issue an export 37. There is evidence in the case to show licence and the customs authorities in the that in practice the German authorities Community then issue an import licence on administer the import arrangements in rela­ the basis of submission of the export licence tion to Taiwan in the same way as they does not exist as far as Taiwan is concerned. administer the general import arrangements, In the order for reference the Finanzgericht that is to say that in connection with imports expresses the view that it does not find that for Taiwan there is a double control. to be a material difference and that there is therefore no reason to treat quota charges in a way different from that in which they are 38. In my view there can be no reasonable treated under the general arrangements doubt but that quota charges arising as a because they relate to Taiwan. Thierschmidt consequence of Council Regulation and the Commission express the same view. No 4134/86 should be treated like quota The United Kingdom did not put forward a charges based on Council Regulation view on that question. No 4136/86.

Conclusion

On the basis of the foregoing, I would suggest that the Court answer the questions referred by the Finanzgericht Düsseldorf as follows:

1. Payment made by the buyer to the seller for export licences (export quotas) which the seller has been allocated free of charge should be included in the customs value.

2. A buyer who claims that his payment to the seller for export quotas should not be included in the customs value of the goods must prove that the seller acquired the export quota against payment.