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Community at a provisional price which imports effected by it during the period at was adjusted at the end of the season. issue.

5. For the purpose of determining the 8. Capespan lodged an appeal against that customs value of the imported fruit, Cape- decision before the VAT and Duties Tribu- span believed that it was entitled to base nal, London (United Kingdom). That tribu- itself on Article 29 of the Customs Code. nal took the view that resolution of the That article provides that the customs value dispute was dependent on the interpre- of goods is equivalent to their 'transaction tation of the Community provisions relied value', that is to say the price actually paid on by the parties. It therefore decided to or to be paid for the products. None the stay proceedings and to refer the following less, since the definitive price of the fruit questions to the Court for a preliminary was not known at the time of importation, ruling: Capespan provided a provisional indication of value under Article 254 of the imple- menting regulation.

9. The provisions relevant to an examin- (ii) If the customs value is not to be ation of the above questions are contained determined in accordance with either in the customs legislation and in the of the above, what is the correct basis agricultural legislation. For the sake of for the determination of the customs clarity I will present these provisions by value of such products? placing them in their general context.

(iii) Is Regulation No 1498/98, amending with effect from 18 July 1998 Article 5 of Regulation No 3223/94 on detailed rules for the application of the import arrangements for fruit and vegetables A — Customs legislation published in the Official Journal of the European Communities (OJ 1998 L 198, p. 4), valid?

10. The customs legislation essentially comprises the Customs Code and the implementing regulation. (iv) If Regulation No 1498/98 is not valid, how is the customs value of products of the type identified in question (i), which are entered into the European Community from 18 July 1998, to be determined? 11. The Customs Code provides that import duties are based on the common customs tariff. 6It states that that tariff comprises the combined nomenclature of goods and the rates and other items of (v) Whether or not Regulation No 1498/98 charge applicable as regards customs duties is valid, does Regulation No 3223/94 and agricultural levies. 7 preclude the giving of a provisional indication of customs value in accord- ance with Article 254 of the imple- 6 —Article 20(1). menting regulation?' 7 — Article 20(3)(a) and (c).

tains the combined nomenclature and the 13 — Columns 3 and 4 thereof. 14 — Regulation No 2658/87 provides that the duties expressed table of duties relating to 'products to as percentage rates in Columns 3 and 4 are tid valorem which an entry price applies.' ' ' It states customs duties (see Section I of l'art I of Annex I 11(4) to Regulation No 2658/87). that the detailed rules governing appli­ 15 — In their written observations the United Kingdom and Capespan very usefully provided specific examples of calculations under the rules set out above (see written observations of the United Kingdom, paragraph 2.7 and written observations of Capespan, paragraph 3.15). Thus, 8 — OJ 1987 L 256, p. 1. It should be noted that that regulation m order to ascertain the duties applicable to apples of the was adopted before the entry into force of the Customs variety Cranny Smith imported between 1 and 30 |uly Code. At that time the provisions of customs law were to be 1997 with an entry pnce of between ECU 46.8 and r.CU found dispersed amongst a number of Community regu­ 47.7 per 100 kg net weight reference must be made to lations and directives. The Customs Code gathered them heading 0808 10 73 (fifth indent) of the table at Annex 2 into a single text (first recital). to Annex I to Regulation No 2658/87, as amended by 9 — O J 1997 1.238, p. 1. Regulation No 1734/96 (OJ 1996 I. 238, p. 862). Ad 10 — O J 1998 L 312, p. 1. Unless otherwise stated, in the valorem duty amounts to 5.4% of the value of the product and specific duty is fixed at ľ.CU 1.9 per 100 kg net remainder of this Opinion I will use the term 'Regulation weight. Converselv, if the entry price of the same product N o 2658/87' to designate Regulation N o 2658/87, as is lower than ľ.Clí 44.8 specific duty will amount to 1ECU amended by Regulations Nos 1734/96 and 2086/97. 26.8 per 100 kg net weight whereas <?</ valorem duty will 11 — Annex 2 to Annex I to Regulation No 2658/87. remain at 5.4% of the value of the product.

(a) the 'transaction value', that is, the price actually paid or payable for the goods 18 — Article 32(1) of the Code sets out the items to be added to the price actually paid or payable: commissions and when sold for export to the customs brokerage, the cost of containers and of packing, the value of certain goods and services for use in connection with the production and sale for export of the goods; royalties and licence fees, the cost of transport and insurance of the goods, and loading and handling charges associated with 16 — Article 28. the transport of the imported goods to the place of 17 — Articles 30 and 31. introduction into the customs territory of the Community.

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(e) the computed value, consisting of the the value of the goods is established on the sum of the cost of fabrication of the basis of prices quoted on certain inter- goods, an amount for profit and gen- national markets. 21 It provides that, every eral expenses and the cost of transport 15 clays, the Commission is to establish for and insurance of the imported goods to each classification heading a unit value per the place of introduction into the 100 kg net expressed in the currencies of customs territory of the Community the Member States. 22 The unit value is (Article 30(2)(d) of the Code); established on the basis of:

— the quantities entered into free circu- lation over the period of a calendar 19. Under those rules the customs value of year with payment of import duties. 25 the fruit and vegetables20 may be calcu- lated on the basis of a reference 'unit value'. Under that system, which is fairly complex, 21 — Berr, C.J., cited above (Vol. 504, N o 67). 22 — Article 17.1(1) of the implementing regulation. 23 — The list of marketing centres is contained i n Annex 27 to the implementing regulation. Thus, in respect of apples, 1 9 — B e r r , C.J., 'Union douanière. Bases cle la taxation' the Commission may use the prices charged in the (Customs Union, Bases or taxation!, Juris-classeur, Paris marketing centres of Hamburg (Germany), Dublin (Ire- 1999 (Vol. 504, No 58). land), Rungis (France), Antwerp (Belgium), etc. (see head- 20 — That is to say the fruit and vegetables contained in ing 2.130 of that annex). Annex 26 to the implementing regulation. Apples arc 24 — Article 173(3) of the implementing regulation. included in that list {see heading 2.130 of that annex). 25 — Article 173(2)(b) of the implementing regulation

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20. The unit value corresponds to the on the basis of the provisional value and weighted average of the average unit prices demand, if necessary, the lodging of a determined in accordance with the quan- security adequate to cover the difference tities of goods entered into free circu- between that amount and the amount to lation. 26 Use of that system is at the option which the goods may ultimately be of the importer. 2 7 If the importer has liable. 33 recourse to it the customs value of his goods will be the amount of the unit value in force during the period in question. 28 The unit values are applied for periods of 14 days. 29

24. Initially it was provided for in several 22. However, under Article 76 of the Code Community regulations which were con- the importer may in certain cases omit solidated in Council Regulation (EEC) certain particulars from the declaration. No 1035/72 of 18 May 1972 establishing Thus, where the goods are liable to ad a common organisation of the market in valorem duties, an importer who is not able fruit and vegetables. 34 That regulation to declare a definitive customs value may, contains several provisions organising the under Article 254 of the implementing system of trade with non-Member States. 35 regulation, provide a provisional indication of that value. 32 In that case, the customs authorities enter immediately in the accounts the amount of duties determined 25. In fact, attainment of a common mar- 26 — Article 175(1) of the implementing regulation. ket in fruit and vegetables required the 27 — Article 177 of the implementing regulation. establishment of a single system for trade 28 — Second subparagraph of Article 173(1) of the implement- ing regulation. 29 — Idem. 30 — Article 62(1) of the Code. 33 — Article 257(3) of the implementing regulation. 31 — Idem. 34 — OJ, English Special Edition 1972 (II), p. 437 (hereinafter 32 — Second indent of Article 254 of the implementing regu- 'the basic regulation'). lation. 35 — Articles 22 to 30.

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27. Each year the competent authorities fix a reference price for the fruit and vegetables 29. The basic regulation provides that, if coming within the scope of the basic the entry price of a product imported from regulation. 40 The reference price is equal to the arithmetic mean of producer prices in each Member State plus an amount 41 —Article 23(2) and (4) of the basic regulation. Producer prices are the average of the prices recorded during the three years prior to the date for fixing the reference price for a home-grown product on the representative market or markets situated in the production areas where prices are 36 — Nineteenth recital in the preamble to the basic regulation. lowest, for the products or varieties which represent a 37 — Stability of the markets is one of the objectives or the considerable proportion of production marketed through- common agricultural policy (see Article 39(1) of the HC out the whole year (Article 23(2) of the basic regulation). Treaty (now Article 33(1)(c) EC)). 42 — Article 23(2) of the basic regulation. 38 — Twentieth recital in the preamble to the basic regulation. 43 — Article 24(2) of the basic regulation. 39 — Idem. 44 — Ibid., paragraph 3. 40 — Apples are amongst the products governed by the basic 45 — Ibid. regulation (Article 1(2)). 46 — Article 24(2) of the basic regulation.

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51 — The Final Act and the W T O agreements are available on the W T O website at the following a d d r e s s : 31. That machinery was called in question http://www.wto.org. following the signature on 15 April 1994 of 52 — For an analysis of that agreement see, in particular, Gadbin, 'L'agriculture et le GATT', La Communauté the Final Act embodying the Uruguay européenne et le GATT, edited by T. Flory, Ed. Apogée, round of multilateral trade negotiations Rennes, 1995 (pp. 95 to 112). 53 — See preamble to the Agreement on Agriculture (first and (the 'Final Act'), the agreement establishing fourth recitals). the World Trade Organisation (the 54 — That conversion operation is commonly referred to as tarification. 'WTO'), and Annexes 1 to 4 of the agree- 55 — See footnote to Article 4(2) of the Agreement on Agricul- ture. 56 — The Agreement on Agriculture was approved by the Council by Decision 94/800/EC of 22 December 1994 by 4 7 — Article 25(1) of the basic regulation. Decision 94/800/EC of 22 December 1994 concerning the 48 — Ibid. conclusion on behalf of the European Community, as regards matters within its competence, of the agreements 49 — Article 25(3) of the basic regulation. reached in the Uruguay Round multilateral negotiations 50 — Commission's written observations (paragraph 10). (1986-1994) (OJ 1994 L 336, p. 1).

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eluded during the Uruguay Round of multi- 37. For each product and for each origin, lateral trade negotiations. 57 the Commission fixes a standard import value. 61 That value is calculated on:

34. Pursuant to the Agreement on Agricul- ture, Regulation No 3290/94 abolished the — the average representative prices of variable import levies. 5 8The Council products imported from third coun- established the principle that rates of cus- tries 62 and marketed on the import toms duties were to be fixed in the Com- markets of the Member States. 63Those mon Customs Tariff. 59 However, for fruit prices must be established at the and vegetables the Council introduced a importer/wholesaler stage after deduc- mechanism supplementary to that invol- tion of certain items, 64 such as a sales ving the collection of fixed customs margin of 15% and the costs of freight duties. 60 and insurance of the goods within the Community;

39. Furthermore, Regulation No 3223/94 value, the imported products are subject to contains the rules for determining the entry a specific customs duty. The specific duty is price for fruit and vegetables. Article 5 sets in inverse proportion to the entry price. 68 out three methods of calculation amongst That means the lower the entry price the which the importer may choose. Under that higher the specific duty. Conversely, if the provision the entry price is entry price is greater than the standard import value, the imported products are not subject to specific duties. In that case only the ad valorem duties provided for in the customs tariff are applicable. 69 (a) either the fob price of the products in their country of origin plus the costs of insurance and freight up to the borders of the Community customs territory, where that price and those costs are known at the time the declaration of release of the products for free circu- lation is made (Article 5(l)(a) of Regu- lation No 3223/94);

41. On 28 October 1996 the Council adopted Regulation (EC) No 2200/96 on the common organisation of the market in fruit and vegetables. 70 That regulation (b) the customs value calculated in accord- replaced the basic regulation and the ance with Article 30(2)(c) of the Cus- amended regulation owing to the changes toms Code, that is to say the unit price which had occurred in that sector. 71 How- corresponding to sales in the Commu- ever, it did not alter the system of trade nity of the imported products or of with third countries in the sector of fruit i d e n t i c a l or s i m i l a r p r o d u c t s and vegetables. 72 The rules provided for in (Article 5(l)(b) of Regulation (EEC) the new basic regulation are therefore No 3223/94); or identical to those set out at paragraphs 34 to 39 above. 73

— the manner in which the customs value of fruit and vegetables coming within 'Where the entry price is calculated on the the scope of Regulation No 3223/94 is basis of the price fob of the products in the to be calculated; 79 country of origin, the customs value shall be calculated on the basis of the relevant sale at that price.

— the validity of Regulation No 1498/98; 80

When the entry price is calculated in accordance with one of the procedures provided for in paragraph 1(b) or (c)..., the customs value shall be calculated on the — whether an importer may give a pro- same basis as the entry price.' visional indication of the customs value of fruit and vegetables coming within the scope of Regulation No 3223/94. 81 74 — OJ 1998 L 198, p. 4. Regulation No 322 J/94 has also been amended in other respects which are not directly relevant to the present case. 75 — Second recital in the preamble to Regulation No 1498/98. 78 — See third preliminary question. 76 — Idem. 79 — First, second and fourth questions. 77 — Article 5(1 )(b) of Regulation No 3223/94. as amended by 80 — Third question. Regulation N o 1498/98. 81 — Fifth question.

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A — Calculation of the customs value of lation whilst adapting them to the specific fruit and vegetables nature of fruit and vegetables.

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— Aiticle 5(1 )(b) of Regulation No 3223/94 — Article 5(1) of Regulation No 3223/94 expressly provides that the entry price contains no method comparable to corresponds to the customs value cal- those set out in Article 30(2)(a) and culated under Article 30(2)(c) of the (b) of the Customs Code. 87 However, Customs Code, that is to say the unit those methods are rarely used for price relating to sales in the Commu- determining the customs value of fruit nity of imported goods or identical or and vegetables. In fact, they presuppose similar products; that the sales price is known before the products concerned or similar products are exported to the Community. How- ever, as has been seen, 88 fruit and vegetables are frequently exported to the Community under the consignment system, that is to say before their sale has been effected;

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53. Moreover, there are several grounds for given in the Annex in accordance with taking the view that one of the objectives this Regulation, the unit value within pursued by Regulation No 3223/94 was the meaning of Articles 173 to 176 of precisely to amend the rules of the Customs [the implementing Regulation] shall Code and the implementing regulation for not apply. It shall be replaced by the calculating the customs value of fruit and standard import value referred to in vegetables. Thus: paragraph 1'. It follows therefrom that Regulation No 3223/94 expressly pro- vides that, during the periods given in the annex thereto, the method for determining customs value provided for by the simplified rules contained in the implementing regulation 9 0is replaced by one of the methods for — in the preamble to Regulation calculating the entry price of fruit and No 3223/94 the Commission states vegetables, namely the standard import that 'most of the perishable fruit and value; 91 vegetables listed in the Annex to this Regulation are supplied on consign- ment and this creates special difficulties for determining their value'. 89 As the United Kingdom pointed out, the expression 'value of the products' — Regulation No 1498/98 confirms that refers to the customs value of the fruit one of the objectives pursued by Regu- and vegetables. The inference may thus lation No 3223/94 was to calculate the be drawn that, when establishing the customs value of fruit and vegetables rules for calculating the entry price, the on the basis of the entry price of the Commission sought to eliminate some products. The amendment made by of the difficulties arising as regards Regulation No 1498/98 was merely to determination of the customs value of make that rule explicit 'in the text of fruit and vegetables from the fact that Regulation... No 3223/94'. 92 By dint the sales price of the products is rarely of a contrario reasoning that means known at the time when they are that Regulation No 3223/94 already imported into the territory of the contained the principle that the cus- Community; toms value of fruit and vegetables must be determined on the basis of the entry price provided for in Article 5(1) thereof.

' 1 . Save as otherwise provided for in this Regulation, the rates of duty in the Com- mon Customs Tariff shall apply to the products listed in Article 1(2).

56. It should be recalled that, under Article 40(2) of the T r e a t y and Article 43(3) of the EC Treaty (now, after amendment, Article 37(3) EC), the Council 2. Should the application of the rates of has competence to establish a common duty in the Common Customs Tariff organisation of agricultural markets. More- depend on the entry price of the imported over, Article 40(2) of the Treaty states that consignment, the veracity of this price shall the common organisation of markets may be checked using a flat-rate import value include all measures required to attain the calculated by the Commission depending objectives of the common agricultural pol- on the origin and product on the basis of icy and, in particular, 'common machinery the weighted average prices for the prod- for stabilising imports or exports'. ucts in question on Member States' repre- sentative import markets... .

93 — See paragraphs 13 to 15 and 40 hereof. 94 — See also on this point the United Kingdom's written 95 — See paragraphs 24 to 30 hereof. observations (paragraphs 3.3 to 3.6). 96 — See paragraphs 14 to 41 hereof.

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3. Where the declared entry price of the was authorised to adopt Regulation consignment in question is higher than the No 3223/94. 98 flat-rate import value,... the lodging of a security equal to the import duties deter- mined on the basis of the flat-rate import value shall be required.

98 — It is true, as Capespan asserts (see its written observations at paragraph 4.24), that Regulation N o 3223/94, the implementing regulation, was adopted on 21 December 1994, that is to say the day before adoption of the amended regulation, which constitutes the enabling regu- 59. Article 33 of the amended regulation lation. None the less, I do not believe that that fact has any provides for a specific procedure under implications for resolution of the dispute. In fact, the two regulations became applicable with effect from the same which the Commission is authorised to date: the amended regulation and Regulation N o 3223/94 are applicable as from the 1995/1996 marketing year adopt the necessary implementing measures (Article 6(2)(b) of Regulation N o 3290/94 and second after obtaining the opinion of the Manage- paragraph of Article 7 of Regulation N o 3223/94). That means that, at the time when Regulation N o 3223/94 ment Committee for Fruit and Veg- became applicable, the amended regulation was also. In etables. 9 7 Accordingly, the Commission any event it must be borne in mind that the fruit at issue was imported by Capespan between 18 March 1997 and 24 August 1998. At that time, the amended regulation had undeniably already entered into force. 99 — See also on this point the written observations of the 97 — Regulation N o 3223/94 was adopted in accordance with Commission (paragraph 16) and of the United Kingdom the concurring opinion of the Management Committee for (paragraphs 3.3 to 3.6). Fruit and Vegetables (last recital). 100 — Fourth recital in the preamble to the Customs Code.

63. Lastly, I consider that use of the entry price in order to calculate the customs value of fruit and vegetables is likely 66. Moreover, importers would be able to substantially to reduce the administrative organise their operations in such a way as formalities and the risks of import fraud. to reduce as far as possible the customs duties provided for under the common customs tariff. Thus, they might seek to reduce the customs value of the goods in order to lessen the rate of ad valorem duties. But, at the same time, they would 64. In fact, to uphold Capespan's argu- opt for the method which results in a high ments would be tantamount to accepting entry price so as to reduce the rate of the idea that the customs duties provided specific duties. As the Commission pointed for under the Common Customs Tariff out, 103itcannot be ruled out that practices could be determined on the basis of two by certain traders could deprive the Com- different values. Ad valorem duties would munity of a part of its revenue. 104 be fixed on the basis of the customs value of the goods determined in accordance with Articles 29 to 36 of the Customs Code. On the other hand, specific duties would be fixed on the basis of the entry price established in accordance with Article 5(1) 67. Consequently, I propose that the Court of Regulation No 3223/94. Moreover, should reply to the referring court's first since choice of the method of calculating question by ruling that, in respect of the the entry price is entirely left to the period from 18 March 1997 to 17 July importer, the latter could opt for a method 1998 inclusive, the customs value of the which would not be comparable with the fruit and vegetables coming within the corresponding method under the Customs scope of Regulation No 3223/94 must be Code. 101 determined on the basis of the entry price of the products calculated in accordance with the rules provided for in Article 5(1) of that regulation.

70. In support of its position, Capespan advances three sets of arguments which I will examine in turn. 72. In my view these various arguments are not well founded. As regards the first two arguments I have already established that the Commission was authorised to enact specific rules for calculating the customs value of fruit and vegetables 10 9and that the rules for calculating the entry price 71. First, Capespan maintains that the Commission exceeded the powers con- 106 — Written observations of Capespan (points 4.47 and 4.51 to 4.55). 107 —Ibid. (point 4.49). 105 — In light of the reply which I propose be given to the first 108 — Ibid. (point 4.48). question the second question is no longer relevant. 109 — See paragraphs 55 to 62 hereof.

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were comparable to the methods for deter- with, the methods for determining dutiable mining customs value provided for in value laid down in Article VII of GATT Articles 29 to 36 of the Code and 1994 and the agreement on implementation Articles 173 to 177 of the implementing of Article VII of GATT 1994. regulation. 110

73. Secondly, Capespan maintains that the Yet, at no stage of these proceedings has Commission acted in breach of the Com- Capespan maintained or demonstrated that munity's international obligations. 111 those methods for determining customs Capespan considers that the principle value were incompatible with Article VII whereby the customs value of fruit and of GATT 1994 and the agreement on vegetables must be calculated on the basis implementation of Article VII of GATT of the entry price of the products into the 1994. Consequently, it is difficult to discern Community is contrary to Article VII of the the reasons why the rules for calculating General Agreement on Tariffs and Trade the entry price, which are in conformity (hereinafter 'GATT') 1994 and the agree- with the provisions of the Customs Code ment on implementation of Article VII of and the implementing regulation, conflict GATT 1994. The rules for calculating entry with Article VII of GATT 1994 and the prices laid down in Article 5 of Regulation agreement on implementation of Article No 3223/94 are said to be fundamentally VII of GATT 1994. different from, and therefore inconsistent

112 — The parties dealt with this issue during the written and 110 — See paragraphs 49 to 52 hereof. oral procedures (see, in particular. Commission's written 111 — Written observations of Capespan (points 4.11, 4.39 and observations, paragraph 22 et seq.). 4.56 to 4.59). 113 — See paragraphs 49 to 52 hereof.

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77. In those circumstances I propose that the Court should rule that examination of the referring court's questions has disclosed no factor affecting the validity of Regu- lation No 1498/98. 81. It should be recalled that the first method of calculating the entry price is based on the fob price of the products plus 114 — Written observations of Capespan (points 4.60 and 4.61). 115 — That article is in the same terms as Article 33 of the amended regulation. 117 — In light of the reply which I propose be given to the third 116 — See paragraphs 60 to 62 hereof. question the fourth question is no longer relevant.

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the costs of insurance and freight up to the for calculating the entry price. 120 In that borders of the Community customs terri- case the value of the products may be tory. 118 That being the case, there is no determined on the basis of the unit price interest in allowing a provisional indication relating to sales of identical or similar of the customs value to be given since the imported products. That means that the definitive value of the products is known at price of the products which form the the time of customs clearance. Moreover, subject-matter of the declaration is not Article 5(1 )(a) of Regulation No 3223/94 necessarily known at the time when they expressly provides that that method may be are cleared through customs. used only 'where that price and those costs are known at the time the declaration of release of the products for free circulation is made'.

84. Since the Customs Code expressly allows a provisional indication of the customs value to be given in such a case,121 there would seem to be no reason for prohibiting such indication from being 82. Similarly, the third method of calculat- given where the customs value of the fruit ing the entry price is based on the standard and vegetables is determined on the basis of import value. 119 In that case the definitive Article 5(1 )(b) of Regulation No 3223/94. value of the products will also be known at the time of customs clearance since the standard import value is calculated for each working day. Nor is it therefore necessary to allow the importer to give a provisional indication of the customs value.

(1) In respect of the period between 18 March 1997 and 17 July 1998 inclusive the customs value of the fruit and vegetables coming within the scope of Commission Regulation (EC) N o 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables must be determined in accordance with the rules provided for in Article 5 of that regulation for calculating the entry price.

(2) Examination of the questions raised has disclosed no factor affecting the validity of Commission Regulation (EC) N o 1498/98 of 14 July 1998 amending Regulation N o 3223/94.

(3) Article 5 of Regulation N o 3223/94 must be interpreted as meaning that an importer who is not in a position to make a definitive declaration of customs value at the time when the products are cleared through customs may give a provisional indication of that customs value in accordance with Article 254 of Commission Regulation (EEC) N o 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) N o 2913/92 establishing the Community Customs Code only when the value of the products is determined in accordance with the rules provided for in Article 5(1)(b) of Regulation N o 3223/94.

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