Súdny dvor Európskej únie·12.3.2002

C-379/00

ECLI:EU:C:2002:165

Súd: Súdny dvor Európskej únie
IČS: 62000CC0379
Zdroj: eur-lex.europa.eu ↗

OVERLAND FOOTWEAR

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 12 March 2002 1

1. Perhaps surprisingly, errors, or pur- 1979 on the repayment or remission of ported errors, made by an importer in import or export duties, 3 and currently declaring customs value do not always governed by Council Regulation (EEC) result in a reduction in the duty to be No 2913/92 of 12 October 1992 establish- collected. ing the Community Customs Code 4('the Customs Code').

2. There are cases in which an importer declares a customs value higher than that he was obliged to declare under the rel- evant Community legislation and such cases are not always of the type dealt with by the Court of Justice, for example, in its Facts of the case and questions referred for judgment of 15 December 1987, 2in which a preliminary ruling the extra cost in terms of customs duty was deliberately assumed to avoid more oner- ous burdens such as anti-dumping duty.

4. It was an error of that type which Overland Footwear Ltd, formerly Overland Shoes Ltd ('Overland') made. This com- 3. Sometimes, perhaps more often than we pany, established in the United Kingdom, might imagine, an importer simply makes a buys products manufactured outside the mistake to his own disadvantage, without European Union, imports them and dis- any wrongful intention. Indeed, in such tributes them within the Union. For its circumstances, there is the possibility of purchases in the Far East it uses the services having import duties paid in error reim- of a buying agent, Wolverine Far East bursed, originally provided for by Council ('Wolverine'), in remuneration for which Regulation (EEC) No 1430/79 of 2 July it pays a buying commission corresponding

1 — Original language: French. 3 — OJ 1979 L 175, p. 1. 2 — Case 328/85 Deutsche Babcock [1987] ECR 5119. 4 —OJ1992 L 302, p. 1.

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to a fixed percentage of the selling price of customs value the amount paid to the the goods to their manufacturer, which in manufacturer, as, once the Commissioners turn pays it on to Wolverine on behalf of had been informed of the situation, they Overland, thus acting as paying agent. accepted both the existence of a buying commission within the meaning of the Community legislation and its amount calculated as a percentage of the manu- facturer's selling price.

5. Only one figure appears on the invoice sent by the manufacturer to Overland, made up of the selling price and the buying commission to be paid to Wolverine, which was thus neither mentioned nor identified 8. In respect of imports made before that separately. date Overland submitted applications for repayment to the Commissioners under Article 236 of the Customs Code, arguing that a part of the value given on each declaration of customs value represented buying commission due to Wolverine and that, therefore, it had paid duties which 6. Before 1 January 1998, that is to say were, in part, not legally owed. before Overland obtained the advice of an expert in customs matters, in the declar- ations which they made to the United Kingdom customs authorities (the Com- missioners) when the goods were released for free circulation, the transporters instructed by Overland to deal with the customs clearance of the imported goods 9. Initially some of those applications were gave as the customs value the figure granted and repayments were made but appearing on the seller's invoice, the only subsequently the Commissioners went back document in their possession, without on the decision to repay on the ground that mentioning the buying commission the duties collected were legally owed in included in that invoice. Overland thus full. They therefore required Overland to paid customs duties not only on the repay the amounts paid by way of reim- imported goods, as required by the Com- bursement under Article 242 of the Cus- munity legislation, but also on the buying toms Code. commission.

10. Overland appealed against the 7. Since 1 January 1998, although the decisions ordering it to repay those invoices sent to it are in the same form as amounts before the VAT and Duties Tribu- before, Overland has only declared as nal, London.

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11. The Tribunal, having established that 2. If the answer to the first question is the decision to be made on this action negative, could the bona fide buying turned on the interpretation of certain commission be deductible from the provisions of Community law, in this case declared transaction value bearing in certain articles of the Customs Code, mind the provisions of Articles 32(3) decided to refer the following questions to and 33 of the Code? the Court for a preliminary ruling:

3. In such circumstances are the customs authorities obliged under the Code, 'On the basis of Council Regulation (EEC) and in particular Article 78(3) thereof, No 2913/92, in particular Articles 29, 32 to accept the amendment to the price and 33 thereof, and the case-law of the paid or payable for the imported goods Court, where, at the time of customs and thereby [a] reduced customs value? clearance, an importer inadvertently declares as the price paid or payable for the goods an amount inclusive of buying commission and inadvertently fails to show the buying commission separately on the import declaration from the price actually paid or payable but, after the goods have 4. Is the importer therefore entitled under been released into free circulation, shows to the Code, and in particular Article 236 the satisfaction of the Customs authorities thereof, to a refund of the duty paid on that the declared price paid or payable for the buying commission?' the goods included bona fide buying com- mission, which could have been properly deducted at importation, and makes a claim for repayment of the duty paid on the buying commission within three years of the date on which the amount of customs duty was communicated:

Legal background

1. Could the bona fide buying commis- 12. Before tackling those questions, I will sion be dutiable as part of the price set out the provisions of the Customs Code actually paid or payable for the goods which were held by the referring court to be under Article 29 of the Code? of relevance.

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13. Article 29 provides: 14. Article 32 provides:

' 1 . In determining the customs value under Article 29, there shall be added to the price actually paid or payable for the imported ' 1 . The customs value of imported goods goods: shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided... (a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods:

(i) commissions and brokerage, except buying commissions,

3. (a) 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 3. No additions shall be made to the price goods and includes all payments actually paid or payable in determining the made or to be made as a condition customs value except as provided in this of sale of the imported goods by the Article. buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller. The payment need not necessarily take the form of a transfer of money. Payment may be made by way of letters of credit or negotiable 4. In this Chapter, the term "buying com- instrument and may be made directly missions" means fees paid by an importer or indirectly.' to his agent for the service of representing

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him in the purchase of the goods being valued.'

15. Article 33 provides: 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs pro- cedure concerned have been applied on the basis of incorrect or incomplete infor- 'Provided that they are shown separately 5 mation, the customs authorities shall, in from the price actually paid or payable, the accordance with any provisions laid down, following shall not be included in the take the measures necessary to regularise customs value: the situation, taking account of the new information available to them.

...'

(e) buying commissions;

17. Finally, Article 236 reads as follows:

...'

' 1 . Import duties or export duties shall be repaid in so far as it is established that 16. Article 78 provides: when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

' 1 . The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. Import duties or export duties shall be remitted in so far as it is established that when they were entered in the accounts the 5 — Translator's note: 'Shown separately' corresponds to 'dis- tincts' in the French version of this provision. In the amount of such duties was not legally owed corresponding provision in the earlier customs legislation, or that the amount has been entered in the the English term corresponding to 'distincts' is 'distin- guished'. accounts contrary to Article 220(2).

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No repayment or remission shall be granted 19. In other words, is such commission when the facts which led to the payment or part of the transaction value which entry in the accounts of an amount which Article 29 of the Customs Code takes as was not legally owed are the result of the customs value? deliberate action by the person concerned.

2. Import duties or export duties shall be 20. The answer to that question can only repaid or remitted upon submission of an be in the negative. Such commission, which application to the appropriate customs is not due to the seller but to a third party, office within a period of three years from the buying agent, as consideration for his the date on which the amount of those services, is clearly not part of the 'price duties was communicated to the debtor. actually paid or payable for the goods' sold for export to the customs territory of the Community nor of the 'the total payment made or to be made by the buyer to... the seller' (Article 29(3)).

That period shall be extended if the person concerned provides evidence that he was prevented from submitting his application within the said period as a result of unforeseeable circumstances or force majeure. Where the customs authorities 21. It is clearly for the same reason that themselves discover within this period that Article 32(1)(a) provides that it should not one or other of the situations described in be added to the price actually paid in order the first and second subparagraphs of to determine customs value. paragraph 1 exists, they shall repay or remit on their own initiative.'

22. Finally, Article 33(e) expressly lists buying commissions among the expenses which are not included in customs value. The first and second questions

18. By its first question the referring court is asking whether the bona fide buying commission could be dutiable as part of the 23. However, and it is on this point that price actually paid or payable for the goods the parties to the main proceedings differ, under Article 29 of the Code. Article 33 requires that, if it is not to be

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included in customs value, the buying within the definition of customs value in commission must be 'shown separately' Article 29 of the Customs Code, the provi- ['distinguished'] 6from the price actually sion in Article 33 of the Code, under paid or payable for the imported goods. which, for its exclusion to be effective, the buying commission must be shown separ- ately [distinguished], 7 would be wholly otiose. It concludes that the term 'distin- guished' must be taken to mean both 24. What is the scope of this requirement? 'distinguished' and 'shown separately'. Does it render dutiable things which, in themselves, are not? This seems to me to be the point of the second question referred to the Court.

28. I, for my part, do not in the least dispute that an importer is bound, when he submits his customs declaration, to show 25. In Overland's view this requirement explicitly both the existence and the must be understood as relating to the facts amount of any buying commission and of the commercial transactions made by the that the burden is on him to adduce importer. It is necessary and sufficient, it evidence of such commission if the customs submits, for the importer to have actually authorities so request. paid a third party acting as buying agent, as to which there is no dispute here.

29. If, at the time he makes the declaration, he does not have at his disposal all the 26. Neither the fact that this commission necessary information, he always has the was in fact invoiced by the seller nor the option, as the Commission rightly observes, fact that the declaration of customs value of submitting an incomplete declaration submitted to the Commissioners makes no under Article 254 of Commission Regu- mention of it can alter in any way the lation (EEC) No 2454/93 of 2 July 1993 incontrovertible fact that the commission laying down provisions for the implemen- was actually paid to Wolverine by the tation of Council Regulation (EEC) seller, and that it is thus impossible to take No 2913/92 establishing the Community it into account as a part of the dutiable Customs Code 8(Article 254 et seq.). value.

27. The United Kingdom Government con- 30. If he does not take that precaution, that tends, disputing that interpretation, that if is to say, if he submits a declaration which a buying commission can in fact never fall

7 — Translator's note: See translator's notes to points 15 and 23. 6 — Translator's note: See translator's note to point 15. 8 — OJ 1993 L 253, p. 1.

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includes a buying commission in the cus- indicated in the appropriate box of the toms value declared but does not indicate customs declaration form, and does not the existence of that commission in any consider from what time those elements are way, it is hard to see how the customs actually, rather than artificially or services are supposed to detect the exist- notionally, distinct from the price to be ence of such commission, because, while paid for goods sold for export outside the we are, of course, entitled to expect cus- customs territory of the Community. toms staff to be perspicacious, we cannot expect them to have the gift of divination. Such an importer will thus quite simply be subject to Article 71 of the Customs Code, under which: 32. Finally, I have to say that I do not think the judgment of the Court in Hepp, 9a case in which I delivered the Opinion, is a precedent we can follow to solve the problem before us. In that judgment, which ' 1 . The results of verifying the declaration also concerned the inclusion of buying commission in customs value, the Court shall be used for the purposes of applying held, as Overland points out, that 'the the provisions governing the customs pro- manner in which the importer actually cedure under which the goods are placed. completes the administrative formalities regarding the customs declaration in no way changes the substance of the legal situation' (paragraph 19) and interpreted the Community legislation as not entitling the customs administration to add to the price paid for imported goods the buying 2. Where the declaration is not verified, the commission to which the transaction car- provisions referred to in paragraph 1 shall ried out by the Community importer gave be applied on the basis of the particulars rise. contained in the declaration.'

33. However, Hepp concerned an importer 31. That is also the approach of the who used a buying agent to obtain supplies Customs Code Committee (customs valu- in the Far east, as Overland did. Like ation section) which, in its Commentary Overland, it filled in the customs docu- No 5 on the meaning of the term 'distin- ments incorrectly but, unlike Overland, it guished' for the purposes of the provisions did not declare a customs value including a on the valuation of goods for customs buying commission which it had had to purposes, takes for granted that the various pay. Its mistake was to declare as the seller elements, including buying commissions, which Article 33 of the Customs Code excludes from customs value, must be 9 — Case C-299/90 [1991] ECR I-4301.

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its buying agent, who bought goods from any financial risk, should not, despite the producers in its own name but on behalf of indications given in the customs declar- Hepp in order to sell them on to Hepp, ation, be considered as the seller and that, issuing two invoices: one for the sale of the therefore, there was only one transaction, goods and one for its services as buying namely that concluded between the manu- agent. facturer and the importer, on the basis of which the customs value should be estab- lished.

34. Having received a declaration of cus- toms value showing only the invoice issued 37. It was against that background that the for the sale of the goods but knowing of the Court held that 'the price in the transaction payments made by the importer by way of between the manufacturer or supplier, on buying commission to someone that the one hand, and the importer, on the importer described as the seller, the cus- other, constitutes the customs value for the toms authorities took the view that the purposes of Article 3(1) of the basic regu- amount of such commission should be lation. The buying commission is not to be included in the customs value, since a included in that value even when the buying commission had to be paid to a importer has described the buying agent third party in order to be excluded. as the seller and has declared the price of the goods as invoiced by that agent' (para- graph 20).

35. In other words, for the customs auth- 38. Unlike Overland, Hepp did not indicate orities this was a case of a reduction of a customs value higher than that it should customs value, justifying an adjustment to have declared, it had declared the customs take account of actual customs value, as it value as it should be established under the should be established by application of the Community legislation. Community rules.

39. Its mistake had been merely to give information about the identity of the seller 36. The Court held that in fact the buying which could suggest that the customs value agent, in view of the actual part he played was not correct, given the payment of a in relations between the manufacturer and buying commission in addition to the price the importer, in which he did not assume of the goods.

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40. Only two lessons can therefore be 43. If Hepp is of no assistance, might the drawn from the Court's judgment, namely, judgment in Brown Boveri 10 be of more first, that the fact that the buying agent acts relevance in confirming on all points the in his own name does not automatically argument of the United Kingdom Govern- make him the seller of imported goods and, ment and the Commission, as they claim? second, that an importer who has declared a correct customs value can rely on the economic facts to dispute an upward adjustment of the customs value thus declared, which the customs authorities wish to make in reliance on incorrect information given in the customs declar- ation giving rise to doubt about the exist- 44. At first sight, this appears to be so. In ence of a buying commission paid to a third that judgment, the Court held that '[i]t party within the meaning of the Commu- follows that, as the Court ruled in Case nity legislation. C-11/89 (Unifert [1990] ECR I-2275), once an importer has omitted in his customs declaration to distinguish the assembly costs from the price actually paid or pay- able, he may not amend his declaration or, consequently, the particulars regarding the customs value, after the customs authority has released the goods for free circu- lation — that is, after the material time for valuation for customs purposes' (para- 41. However, nothing can be inferred from graph 29). this judgment as to the possibility of an importer's relying, once the goods have been released for free circulation, on an error which led it to declare a customs value higher than that it was required to declare.

45. It must be said, in passing, that this reference to the judgment in Unifert raises certain questions. Whereas in Brown Boveri and in the present case the question to be decided concerned the implications of the fact that the declaration of customs value does not show separately an element 42. The absence of an obligation on the which the customs legislation allows to be importer who has paid a buying commis- excluded from customs value provided that sion to include it in the customs value does it is shown separately, Unifert concerned, not imply an obligation on the customs as Overland pertinently observes, a differ- administration to deduct from the customs ent question, that is to say whether an value declared a buying commission which has not been mentioned in the declaration of customs value. 10 — Case C-79/89 [1991] ECR I-1853.

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importer who, although he was entitled, course, we take the view, as the United under Community legislation, to choose Kingdom Government and the Commission from a variety of permissible customs suggest, that an error in filling in a values, corresponding to various trans- declaration of customs value is no different actions made before customs formalities from the error of choosing from among were completed, selected and declared the several options the one which is best least advantageous of those values, may eschewed, if one wishes to act in one's later select another which is more to his own best interests. advantage.

48. If we follow that line of reasoning, there would be no room left for mistakes, 46. The fact that the Court's reply to that as all mistakes could be reduced to the question was that 'where, in successive unfortunate exercise of a right to choose sales of goods, more than one price actually between submitting a declaration of cus- paid or payable fulfils the requirements laid toms value strictly adhering to the rules for down in Article 3(1) of Regulation assessing that value and submitting a No 1224/80, any of those prices may be declaration which does not. chosen by the importer for the purposes of determining the transaction value. If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1) of Council Directive 79/695/EEC' (paragraph 21) does 49. I do not think that the Court can not imply, at least in my view, that where endorse such sophistry, since it held in an importer includes in customs value an Deutsche Babcock that the Community element which, under Community legis- customs legislation, here Regulation lation, should not be included, he may not No 1430/79, allowed for mistakes made subsequently rely on that error. in good faith and for the correction of their consequences adversely affecting an importer.

47. It is one thing to make an unfortunate choice when faced with several options, 50. I will, therefore, take the lesson to be and it is quite a different thing to make an drawn from the judgment in Brown Boveri error in a declaration of customs value in to be simply that Council Directive the absence of any options. Unless, of 79/695/EEC of 24 July 1979 on the har-

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monisation of procedures for the release of (b) have established that the particulars in goods for free circulation 11 did not allow question are incorrect; or, an importer who had failed to show separately on his customs declaration an element which was not to be included in that value, even though it was separate, to amend that declaration after the goods were released for free circulation by the (c) have released the goods.' customs authorities.

52. The fact that amendments are allowed seems to me to confirm that the Commu- 51. I do not think that this solution is nity legislature accepted that importers undermined by the fact that the above might make mistakes and need to correct directive is no longer in force. The provi- them. The limitation in time of the option sions of its Article 8 are reproduced in to amend seems to me to be perfectly Article 65 of the Customs Code. That justified. article provides:

53. It is, of course, necessary to prevent an 'The [declarant] shall, at his request, be importer who has produced an inaccurate authorised to amend one or more of the declaration from evading the consequences particulars of the declaration after it has of what may turn out to be fraud by been accepted by customs. The amendment amending his declaration at the last minute shall not have the effect of rendering the when the inaccuracy, which we can assume declaration applicable to goods other than may not always be unintentional, is dis- those it originally covered. However, no covered or is about to be discovered by the amendment shall be permitted where auth- administration. orisation is requested after the customs authorities:

54. I also understand perfectly that, once the goods are released, that is to say, once they are beyond the physical control of the (a) have informed the declarant that they customs agents, amendment carries too intend to examine the goods; or, great a risk of fraud to be allowed at that stage, and that a flexible approach, allow- ing amendments, subject to strict con- 11 — OJ 1979 L 205, p. 19. ditions, to matters unrelated to the physical

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characteristics of the goods could perhaps the previous 'system' in that the Commu- have been envisaged. However, no provi- nity legislature realised that it was necess- sion was made for such an approach. ary to provide for the possibility of correc- ting customs declarations even after goods are released.

55. Must we then apply to Overland the maxim dura lex sed lex, as the United Kingdom and the Commission do? 58. Article 78 may, on the face of it, appear to be inconsistent with Article 65 of the Code because it allows the amend- ment of something which, under that article, could no longer be amended. How- ever, it is only an apparent inconsistency.

The third question

59. The rules governing amendment under Article 78 a n d a m e n d m e n t u n d e r 56. I think that conclusion would have Article 65 are different. While the latter been inescapable had the Customs Code can be effected unilaterally by the importer, not included Article 78 which provides, in the former is carried out by the customs paragraph 1: authorities themselves.

'The customs authorities may, on their own 60. It is true that both Article 65 and initiative or at the request of the declarant, Article 78 refer to the declarant's request amend the declaration after release of the but I do not think that requesting the goods.' administration to do something is as straightforward an option as requesting authorisation to do something oneself.

57. There was no equivalent to that provi- sion in the Community legislation preced- ing the Customs Code. That was confirmed 61. Rather, it seems to me that the adminis- by the Commission at the hearing. I am tration cannot refuse authorisation for a thus entitled to assume that it was intro- declarant to make an amendment, but it is duced because a gap had been discovered in certainly not bound to act on a request that

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it amend a declaration made to it. Amend- support of his request for amendment are ment under Article 65 is simply a matter of not permissible. That would be the case, of replacing one unilateral declaration with course, if an error was alleged but appeared another, before the administration has not to be one, for example because the checked the accuracy of the original dec- declaration of a customs value higher than laration, and it is hard to see how the that which should have been declared is customs administration could refuse such a due to the importer's wish to evade meas- request on the ground that it is not ures laid down by Community legislation founded. relating to imports at a low price. That might also be the case if it appeared that the error made was caused by inexcusable negligence, as, in my view, the principle must be established that an importer is bound by a duty to cooperate in good faith with the customs services and cannot adopt 62. Amendment under Article 78 is carried a cavalier attitude towards them. out by the administration either of its own motion or at the request of the importer, but only if it appears justified. That man- datory condition allows it to be effected after the goods have been released.

65. There is no need to describe here all the instances in which a refusal to amend would be justified. It is sufficient to exam- ine whether Overland was entitled to an 63. In my view, the exercise by the admin- amendment, in the circumstances of the istration of that power of amendment case, if its application for repayment pres- cannot be exempt from judicial review ented on the basis of Article 236 of the and an importer who has made a request Customs Code should have been inter- for amendment under Article 78, stating preted as necessarily implying a request reasons, is entitled, if that request is for amendment of its declaration of cus- refused, to challenge that refusal before toms value. the court. It seems inconceivable to me, despite the wording of Article 78(1) which uses the term 'may', that the customs authorities should have a full discretion on that point.

66. In my view there is no doubt on that point. As the national court stated, it seems that the Commissioners have always recog- nised that it was a genuine error, made in 64. A refusal can be justified only if the good faith, and excusable, so much so that, customs administration is able to show that initially they made repayment of the the reasons put forward by the importer in amount levied in excess. Their change of

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heart might be explained by one of the 68. Once that amendment has been made it following three reasons. Either they took is incumbent on it to apply Article 78(3) of the view that a claim for repayment under the Customs Code, under which, 'where Article 236 of the Customs Code could not revision of the declaration or post-clear- be granted in the absence of a prior ance examination indicates that the provi- amendment of the declaration of customs sions governing the customs procedure value, which was, apparently, not expressly concerned have been applied on the basis requested in this case, and I will consider of incorrect or incomplete information, the the merits of this explanation below. Or, customs authorities shall, in accordance they may have considered, erroneously, with any provisions laid down, take the that Article 65 precluded any amendment measures necessary to regularise the situ- of that declaration after the goods were ation, taking account of the new infor- released, without considering whether it mation available to them'. was appropriate, in this case, to rely on Article 78. Or, finally, they may have con- sidered Article 78 but taken the view that it offered an option entirely at their discretion which, in the circumstances, they did not think they needed to make use of. 69. Applying that provision should there- fore result in the refunding of the over- payment.

The fourth question

67. Be that as it may, the judgment in Hepp 12 serves to remind us that the aim of 70. However, the fact remains that, in this the Community legislation on customs case, according to the information provided valuation is to establish a fair, uniform by the national court, Overland relied only and neutral system of customs valuation on Article 236 of the Customs Code, in excluding the use of arbitrary or fictitious other words, it claimed repayment directly, customs values. I therefore take the view without making a request for amendment that the competent national authority, once under Article 78 of the Code. it is in possession of the explanations and justifications put forward by an importer and provided that it reaches the conclusion that it is faced with a mistake made in good faith, is bound to amend the customs valuation. 71. As I said above, the Commissioners would have been entitled to consider that claim in the context of Article 78 since the 12 — See point 12. application of that article would have had

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the practical result sought by Overland, 74. Two objections which might be raised that is to say, repayment. Apparently, they against the argument set out above remain did not do so and only considered it in the to be examined. context of Article 236.

72. I must therefore consider whether, in 75. The first could be derived from the such a case, the decision to demand wording of Article 236 itself, which pro- recovery, pursuant to Article 242 of the vides, in paragraph 1, that '[ijmport duties Customs Code, of sums previously repaid, or export duties shall be repaid in so far as can be based on a correct interpretation of it is established that when they were paid13 Community law. In my opinion, since the the amount of such duties was not legally judgment in Deutsche Babcock, cited owed'.14 One might be tempted, as the above, expressly takes the error made by United Kingdom Government was, to infer the importer as a ground for repayment from that passage that the increased within the meaning of Regulation amount of customs duty (resulting from No 1430/79 and it is indisputable that the inclusion of the buying commission in Overland did not simply make an unfor- the customs value), which was certainly not tunate choice from the options available to legally owed according to the logic of the it, but genuinely made a mistake and system, must none the less be considered as cannot be accused of deception, it must be having been legally owed when it was considered that the conditions laid down by paid,15 because the buying commission Article 236(1) have been met in so far as an was not, at that time, shown separately amount was paid that was not legally from the price of the goods. owed.

76. In other words, can a mistake made at 73. Moreover, it is not disputed that the a key stage of a procedure make a trader claim for repayment was made within the subject to duty which is not justified in period of three years prescribed by itself? Does the right to be charged duty on Article 236(2) of the Customs Code. The an amount not including the buying com- fact that this error was relied on directly to mission exist in absolute terms or does it obtain the benefits of Article 236, with no depend entirely on taking a practical pre- prior argument in favour of a decision to caution? amend the declaration of customs value under Article 78, cannot be used against Overland as to do so would be to insert an 13 — Emphasis added. additional implied condition in Article 236 14 — Emphasis added. which it does not contain. 15 — Emphasis added.

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77. In support of this argument, we can cannot see how entering a figure of 50 invoke the principles that everyone is pre- tonnes on a customs declaration, when in sumed to know the law and that a pro- fact only 5 tonnes of goods have been fessional trader must show the greatest imported, is perfectly excusable whereas possible diligence. failing to deduct a buying commission from an invoice is not.

78. In response, it might be argued that an importer is bound by the same duty of diligence as regards all the information he gives on his declaration, whether as regards quantities imported, tariff headings, addi- 82. In my view, this is the true position: the tions and multiplications or amounts to be rule that buying commissions must be shown separately. shown separately is intended to facilitate customs clearance procedures. It seeks to establish a clear and simple procedure for customs agents and importers to follow, but it does not create an irrebuttable presumption as regards the duty legally 79. Therefore, if the amount of duty legally owed. owed must be assessed solely according to the information given at the time of pay- ment of that duty, that rule ought to be applicable to all the elements which affect the calculation of that amount.

83. Except in the case of errors which they detect themselves, customs agents carry out 80. That is not what the United Kingdom their duties on the basis of the information Government and the Commission argue; given to them, both as regards quantities they submit, without really explaining, that and as regards the other elements included different treatment must be given to so- in the calculation of customs duty. If an called 'normal' errors and to errors consist- importer wishes to avoid having too much ing in failing to show items separately customs duty imposed, it is in his interest to within the meaning of Article 33. declare a quantity of goods which is not higher than that actually imported, just as it is in his interest to show separately the price paid to the seller and the buying commission. If he does not do so, he will pay too much duty and, when he discovers 81. However, I am not convinced by that his mistake, he must embark on the pro- distinction which, as far as I can see, has no cedure for amendment under Article 65 or basis in the Customs Code. In any event, I 78, with all the additional delay and

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expense that entails. However, all types of accepted by the customs authorities error can be amended in these procedures. immediately, provided that the goods to There are not some errors which are which they refer are presented to customs.' susceptible of correction and others which are not.

88. Article 235(a) defines repayment as 84. I therefore take the view that what 'the total or partial refund of import duties matters is the amount legally owed in fact or export duties which have been paid'. and not the amount legally owed at the time of a payment made on the basis of an incorrect customs declaration. The expression 'amount legally owed when it was paid' only refers to the customs duties applicable at that time. 89. If duties have been paid, that is because the declaration was accepted and the customs debt incurred. The fact that Articles 235 and 236 provide for the possi- bility of repayment of duties already paid 85. Second, one might none the less be proves that repayment can be made even if tempted to object that an error of the type a customs debt has already been incurred made by Overland is always incapable of and that the fact that a customs debt has remedy because the customs debt had been been incurred does not, in itself, constitute incurred and from that moment no amend- an obstacle to repayment. (The only con- ment was possible. Let us look at what the dition attached to repayment is the absence legislation tells us in that regard. of deliberate action; see Article 236(1).)

86. According to Article 201(2) of the Customs Code, '[a] customs debt shall be 90. For all those reasons, I have reached incurred at the time of acceptance of the the conclusion that the error consisting in customs declaration in question'. not showing the buying commission separ- ately from the price actually paid to the seller can still be rectified after the goods have been released and that, if the con- ditions under Article 236 are fulfilled, the importer is entitled to repayment of the 87. According to Article 63 of the Code, amount he paid in excess because the '[declarations which comply with the con- buying commission was included in the ditions laid down in Article 62 shall be customs value.

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Conclusion

91. On conclusion of my argument, I propose that the Court should reply as follows to the questions referred by the VAT and Duties tribunal, London (United Kingdom):

First and second questions

Articles 29, 32 and 33 of the Customs Code should be interpreted as meaning that the buying commission is not dutiable as part of the price actually paid or payable for the goods, but can none the less give rise to the imposition of duty if it is not shown separately in the customs declaration.

Third question

If the competent authorities reach the conclusion that the buying commission was not shown separately from the price paid or payable as a result of an error by the person concerned and that deception on his part can be ruled out, they are bound, under Article 78 of the Customs Code, to agree to the amendment of the declaration and, therefore, a reduced customs value.

Fourth question

In the circumstances outlined in the reply to the third question, the importer is entitled, under the Customs Code, and Article 236 in particular, to repayment of the duty paid on the buying commission.

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