C-29/93 · GlobalLawDB

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Judgment of the Court (Third Chamber)19 May 1994^noteIn Case C-29/93,REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht Bremen (Germany) for a preliminary ruling in the proceedings pending before that court betweenKG in Firma Ospig Textil-Gesellschaft W. Ahlers GmbH & Co. KG.andHauptzollamt Bremen-FreihafenTHE COURT (Third Chamber),composed of: J. C. Moitinho de Almeida (Rapporteur), President of the Chamber, F. Grévisse and M. Zuleeg, Judges,Advocate General: C. Gulmann,Registrar: R. Grass,after considering the written observations submitted on behalf of:— the Commission of the European Communities, by Maria Blanca Rodriguez Galindo, of its Legal Service, acting as Agent, assisted by Hans-Jürgen Rabe, Rechtsanwalt, Hamburg,having regard to the report of the Judge-Rapporteur,after hearing the Opinion of the Advocate General at the sitting on 2 February 1994,gives the following

Judgment

1By order of 19 January 1993, received at the Court on 1 February 1993, the Finanzgericht (Finance Court) Bremen referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1).

2That question arose in proceedings between Ospig Textil-Gesellschaft W. Ahlers GmbH&Co. (‘Ospig’) and the Hauptzollamt (Principal Customs Office) Bremen-Freihafen (‘the Hauptzollamt’) arising from the latter's decision to include in the value of goods for customs purposes the costs incurred in the acquisition of export quotas from third parties (‘third-party quotas’) in a nonmember country with which the Community has concluded an export restraint agreement.

3It appears from the documents in the case that on 13 March 1989 Ospig declared to the Hauptzollamt, for the purpose of release into free circulation, 1000 men's jackets purchased from the Bai Lucky Industrial Company in Taiwan and declared their customs value to be DM 30000, the net price invoiced to it by the company less DM 7000 quota charges. As proof of those charges, Ospig produced the invoice sent to it by the Taipan Oceanic Company, an exporter in Taiwan and holder of quotas, relating to the goods imported.

4The Hauptzollamt took the view that the quota charges ought to be included in the value for customs purposes and therefore requested Ospig, by a decision of 14 March 1989 assessing the duty owed, to pay DM 5187.77.

5The objection lodged by Ospig against that decision was rejected by the Hauptzollamt on the ground that the quota charges were directly linked to the purchase of the goods and thus formed part of the purchase price. It also pointed out that according to the judgment of the Court of Justice in Case 7/83 Ospig v Hauptzollamt Bremen-Ost [1984] ECR 609 only charges in respect of third-party quotas which are available and transferable under the law of the country of export are not included in the valuation for customs purposes. According to the Hauptzollamt, the sale of quotas is not protected by law in Taiwan and the quota charges incurred had for that reason to be included in the valuation of the goods for customs purposes.

6Ospig brought proceedings before the Finanzgericht Bremen in which it argued that the value for customs purposes came to DM 30000, which was the only amount paid for the goods imported and the purchase price which it would have paid if it had imported the goods from a country not subject to the voluntary restraint agreement on textile imports.

7The Finanzgericht Bremen accordingly stayed the proceedings and referred the following question to the Court for a preliminary ruling:‘Do quota charges arising from the acquisition of export quotas also not constitute part of the customs value of goods imported into the Community within the meaning of the provisions of Council Regulation (EEC) No 1224/80 of 28 May 1980 (OJ 1980 L 134, p. 1) in cases where export licences cannot be the subject of lawful trade in the relevant country of export (in this case, Taiwan)?’

8Basing itself on expert evidence, the national court expresses doubts as to whether third-party quota charges ought to be included in the customs value where quotas cannot be the subject of lawful trade in the country of export. It notes in this regard that, from the point of view of the economic result, lawful trade in export quotas is no different from trade in quotas in countries where such trade has no legal basis. In the latter case, the inclusion of quota charges in the value for customs purposes is contrary to the requirements of uniformity and neutrality of customs rules and gives rise to distortion of competition among Community importers.

9On the other hand, according to the national court, the inclusion of the quota charges in the value for customs purposes where trade in quotas is not officially sanctioned may be justified on the ground that it is difficult to establish that the alleged quota charges were in fact incurred in the acquisition of third-party quotas rather than representing commission paid to intermediaries in the course of an export transaction, which must be added to the customs value under Article 8(1 )(a) of Regulation No 1224/80. The national court asks whether the Court, by affirming in its judgment in Case C-219/88 Malt v Hauptzollamt Düsseldorf [1990] ECRI-1481 that certificates of authenticity for beef and veal, contrary to the case with regard to the system of quotas applicable to textiles, could not lawfully be traded, did not restrict its decision not to include quota charges in the customs value to export licences which are the subject of lawful trade.

10It should first be noted that Article 3(1) of Regulation No 1224/80 provides that‘The customs value of imported goods determined under this article 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 in accordance with Article 8 ...’.

11As amended by Council Regulation (EEC) No 3193/80 of 8 December 1980 (OJ 1980 L 333, p. 1), Article 3(3)(a) of Regulation No 1224/80 provides as follows:‘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 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 instruments and may be made directly or indirectly.’

12As the Court held in Ospig, cited above, it follows from the combined provisions of paragraphs (1) and (3)(a) of Article 3 of Regulation No 1224/80, as amended, that the value for customs purposes includes all sums paid or payable as a condition of the sale of the goods imported by the purchaser to the vendor or by the purchaser to a third party in order to fulfil one of the vendor's obligations (paragraph 11).

13It may also be noted that Article 8 of Regulation No 1224/80, to which Article 3(1) refers, provides that ‘there shall be added to the price actually paid or payable for the imported goods’ a number of charges ancillary to that price, from an economic point of view. Article 8 provides an exhaustive list of the charges which may thus be taken into account for the determination of the value for customs purposes and it should be noted that the ‘quota charges’ do not appear in that list (paragraph 12 of the Ospig judgment).

14The Court also held in that judgment that the Community rules, which seek to control the quantities of textile products imported from certain nonmember countries, pursue an entirely different objective from that of Regulation No 1224/80, the purpose of which is to establish a fair, uniform and neutral system of customs valuation of goods for the application of the Common Customs Tariff. The latter regulation must therefore be interpreted without reference to the rules on the system of export and import licences (paragraph 14 of the Ospig judgment). On the basis of the foregoing, the Court decided that under the rules in question the quota charges incurred in connection with the acquisition of export quotas could not be taken into account for the calculation under Regulation No 1224/80 of the value of the goods for customs purposes.

15Whether the export licences are the subject of lawful trade is immaterial as regards the scope of that judgment since there is no difference in economic terms between the two cases. Importers must in each case pay a certain amount in order to realize the importation transaction and that amount depends on the situation of the market in question. The inclusion, in the customs value, of quota charges which are not the subject of lawful trade would give rise to an unwarranted disparity between Community importers who are none the less in a similar position and would for that reason be contrary to the fair, uniform and neutral system of customs valuation established by Regulation No 1224/80.

16The risk of fraudulent deduction of alleged quota charges which in fact represent commission for intermediaries requiring to be added to the customs value pursuant to Article 8(1 )(a) of Regulation No 1224/80 does not affect that conclusion. Under Article 10(1) of Regulation No 1224/80 the onus is on the importer to supply all necessary information and documents to the customs authorities in order to enable them to determine the value for customs purposes and thereby establish whether the charges in question were in fact incurred in the acquisition of export quotas.

17In the abovementioned judgment in Malt, the Court admittedly held that the amounts paid to the seller, in addition to the price of the goods, for the certificates of authenticity needed for the duty-free importation under a Community tariff quota for beef and veal had to be regarded as an integral part of the value for customs purposes and affirmed in that regard that contrary to what happened under the system for quotas applicable to textiles, certificates of authenticity could not lawfully be traded separate from the goods to which they related (paragraphs 14 and 15 of the judgment in Malt). That remark, however, was made by the Court only in order to stress the difference between the certificates of authenticity required for the importation of beef and veal and the export licences issued for textiles, inasmuch as the latter were not connected with a specific contract of sale but with a specific class of goods and could be sold independently of the goods, in which case the price payable represented consideration for the right to export which was independent of the price payable for the goods (paragraph 13).

18The answer to the question put by the Finanzgericht Bremen must therefore be that quota charges incurred in the acquisition of export quotas do not form an integral part of the value for customs purposes of goods imported into the Community pursuant to Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes and it is for that reason not necessary to determine whether export licences may be the subject of lawful trade in the country of export in question.

Costs

19The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,THE COURT (Third Chamber),in answer to the question referred to it by the Finanzgericht Bremen by order of 19 January 1993, hereby rules: Quota charges incurred in the acquisition of export quotas do not form an integral part of the value for customs purposes of goods imported into the Community pursuant to Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes and it is for that reason not necessary to determine whether export licences may be the subject of lawful trade in the country of export in question.

Delivered in open court in Luxembourg on 19 May 1994.