Judgment_paragraph 3. · Wilfried Wolf v Hauptzollamt Düsseldorf (221/81)

3.In the statement of grounds of the order making the reference, the Finanzgericht mentions that in the judgment of 5 February 1981 cited above the Court held that “the introduction of the Common Customs Tariff no longer leaves a Member State the power to apply customs duties to drugs which have been smuggled in and destroyed as soon as they were discovered but it does leave it full freedom to take criminal proceedings in respect of offences committed, with all the attendant consequences, including fines”.The Finanzgericht wishes to know whether the principle enunciated in that judgment extends also to those cases in which the smuggled drugs were not discovered and could not therefore be confiscated and destroyed. It is not clear from the grounds of the judgment whether, and if so for what reason, the confiscation and destruction constitute one of the factors on which the solution adopted was based or whether such circumstances represent merely one possible factual variation to which the principle enunciated applies. In that respect, the Finanzgericht points out that if confiscation and destruction are of decisive importance, the question of when the customs duties become payable, and by whom, would often be decided by chance.The Finanzgericht then points out that Regulation No 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition, 1968 (I), p. 170) relates only to normal trade. Moreover, the recitals in the preamble to Council Directive 79/623 of 25 June 1979 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (Official Journal 1979, L 179, p. 31), clearly indicate that a customs debt is of an economic nature and does not serve the aims of criminal law. The absolute prohibition of the importation of drugs therefore falls outside the scope of customs law and the powers to adopt rules thereunder.In the event of a negative reply to the first question, the first questions referred to the Court by the Finanzgericht Hamburg in its order of 15 January 1980 in Case 50/80 cited above become important to determine the value for customs purposes of the smuggled drugs. Those questions are worded as follows :1. Are the provisions of Regulation (EEC) No 803/68 of the Council of 27 June 1968 and of Regulation (EEC) No 603/72 of the Commission of 24 March 1972 to be interpreted as meaning that, with the exception of those provisions which require goods subject to customs control to be formally presented, they also apply directly to the valuation for customs purposes of goods smuggled into the customs territory of the Community?2. Are the provisions of Regulation (EEC) No 803/68 of the Council, especially Articles 1, 2, 4, 6, 7 and 8 thereof, to be interpreted as meaning that the value for customs purposes of the goods smuggled into the customs territory of the Community is fixed with reference to the time and place of their introduction into the customs territory of the Community, even if according to the national substantive legal provisions from time to time applicable the liability to the customs arises at another time and is payable by a person other than the first buyer residing in Community territory?3. Are the provisions of Regulation (EEC) No 375/69 of the Commission of 27 February 1969 and of Regulation (EEC) No 1343/75 of the Commission of 26 May 1975 to be interpreted as meaning that they apply also in the event of goods being smuggled into the customs territory of the Community with the attendant condition that any buyer subsequent to the first residing in that territory who is found to be in possession of the smuggled goods has to supply particulars of the price which he has paid so that the price paid by that person is the relevant value for customs purposes, or do the competent national authorities, have to take the purchase price paid by the first buyer residing in Community territory as the basis of the value of the smuggled goods for customs purposes in accordance with the rules laid down in Articles 1, 2, 4, 6, 7 and 9 of Regulation (EEC) No 803/68?”