61970J0027

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COMMON CUSTOMS TARIFF - APPLICATION - VALUE FOR CUSTOMS PURPOSES DETERMINED BY THE NORMAL PRICE - CONCEPT - DETERMINATION - TAKING INTO ACCOUNT THE TRANSPORT COSTS ACTUALLY PAID

( REGULATION NO 803/68 OF THE COUNCIL, ARTICLES 1 AND 8 )

THE NORMAL PRICE WHICH CONSTITUTES THE VALUE FOR CUSTOMS PURPOSES IS IN PRINCIPLE THE PRICE ACTUALLY PAID FOR A SPECIFIC ITEM OF GOODS AT THE TIME OF SALE IN CONDITIONS OF FREE COMPETITION; IT IS UNNECESSARY TO DISTINGUISH BETWEEN THE VARIOUS MEANS OF TRANSPORT EVEN IF THE CHOICE OF ONE OF THEM MAY APPEAR UNUSUAL WITH REGARD TO THE GOODS IN QUESTION .

IT INCLUDES THE CARRIAGE AND FREIGHT REFERRED TO IN ARTICLE 7 OF REGULATION NO 803/68 . UNLESS EXCEPTIONS ARE EXPRESSLY LAID DOWN SUCH COSTS ARE THOSE ACTUALLY INCURRED EVEN WHERE THE CHOICE OF THE MEANS OF TRANSPORT SEEMS UNUSUAL IN RELATION TO THE GOODS IN QUESTION AND THEY RESULT IN FIXING A NORMAL PRICE HIGHER THAN THE CIF PRICE FOR THE SAME GOODS TRANSPORTED BY A MORE USUAL MEANS OF TRANSPORT .

IN CASE 27/70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

C . W . EDDING AND COMPANY, HAMBURG

AND

HAUPTZOLLAMT HAMBURG-ST . ANNEN

ON THE INTERPRETATION OF VARIOUS PROVISIONS OF REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ( OJ SPECIAL EDITION 1968, ( I ) P . 170 )

1 BY AN ORDER OF 12 MAY 1970, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 12 JUNE 1970, THE FINANZGERICHT HAMBURG PUT TO THE COURT OF JUSTICE TWO QUESTIONS, UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY, ON THE INTERPRETATION OF ARTICLES 1 AND 7 OF REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ( OJ SPECIAL EDITION 1968 ( I ) P . 170 ).

2 IN THE FIRST QUESTION THE COURT IS ASKED TO RULE WHETHER, IN DETERMINING THE NORMAL PRICE FORMING THE BASIS OF THE VALUE FOR CUSTOMS PURPOSES FOR THE APPLICATION OF THE COMMON CUSTOMS TARIFF, THE CARRIAGE AND FREIGHT REFERRED TO IN ARTICLE 7 OF REGULATION NO 803/68 CONSIST IN PRINCIPLE OF THE CARRIAGE AND FREIGHT ACTUALLY PAID FOR THE IMPORT IN QUESTION .

3 IF AN AFFIRMATIVE ANSWER IS GIVEN TO THE FIRST QUESTION THE COURT IS ASKED SECONDLY TO RULE WHETHER IT FOLLOWS FROM ARTICLE 1 ( 1 ) OF REGULATION NO 803/68 THAT SUCH CARRIAGE AND FREIGHT MUST NOT BE INCLUDED IN THE NORMAL PRICE IF SUCH INCLUSION WOULD RESULT IN FIXING A NORMAL PRICE HIGHER THAN THE CIF PRICE FOR THE GOODS, TAKING INTO ACCOUNT THE LOWER COSTS OF ORDINARY TRANSPORT, WHICH CORRESPONDS TO THE PRICE WHICH ANY BUYER IN THE PLACE OF IMPORTATION WOULD BE PREPARED TO PAY .

4 UNDER ARTICLE 1 OF REGULATION NO 803/68 THE VALUE FOR CUSTOMS PURPOSES OF THE GOODS IMPORTED SHALL BE TAKEN TO BE THE NORMAL PRICE, THAT IS TO SAY, THE PRICE WHICH THEY WOULD FETCH ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER .

5 IT IS ASSUMED IN PURSUANCE OF ARTICLE 1 ( 2 ) THAT THERE ARE INCLUDED IN THE NORMAL PRICE AS SO DEFINED ALL THE COSTS, CHARGES AND EXPENSES INCIDENTAL TO THE SALE AND TO THE DELIVERY OF THE GOODS AT THE PLACE OF INTRODUCTION AND IN PARTICULAR, AS ARTICLE 7 OF THE SAME REGULATION EXPRESSLY PROVIDES, THE CARRIAGE AND FREIGHT .

6 THE QUESTIONS WHICH HAVE BEEN PUT ENQUIRE WHETHER THE CARRIAGE AND FREIGHT REFERRED TO IN ARTICLE 7 ARE THOSE ACTUALLY PAID EVEN IF, AS A RESULT OF THE BUYER' S CHOICE OF AN UNUSUAL AND PARTICULARLY EXPENSIVE MEANS OF TRANSPORT, INCLUSION OF THE ACTUAL TRANSPORT COSTS RESULTS IN A NORMAL PRICE HIGHER THAN THE CIF PRICE HAVING REGARD TO THE USUAL MEANS OF TRANSPORT .

7 THE PRINCIPAL OBJECTIVE OF THE CONCEPT OF THE NORMAL PRICE IS TO ALLOW THE CUSTOMS AUTHORITIES IN THE INTERESTS OF THE EQUITABLE LEVYING OF CUSTOMS DUTIES TO VERIFY THE PRICE OF GOODS IF THE CONDITIONS OF THE TRANSACTIONS TO WHICH THEY HAVE GIVEN RISE WERE INFLUENCED BY FACTORS AFFECTING THE CONDITIONS PREVAILING AMONGST BUSINESS PARTNERS IN A STATE OF FREE COMPETITION .

8 IN PRINCIPLE THE PRICE ACTUALLY FETCHED BY A SPECIFIC ITEM OF GOODS SOLD UNDER THOSE CONDITIONS IS THE BEST GUIDE TO THE NORMAL PRICE FORMING THE BASIS OF THE VALUE FOR CUSTOMS PURPOSES . THIS REMAINS THE POSITION, WITHOUT ITS BEING NECESSARY TO DISTINGUISH BETWEEN THE VARIOUS MEANS OF TRANSPORT, EVEN IF THE CHOICE OF ONE OF THEM MAY APPEAR UNUSUAL WITH REGARD TO THE ITEM OF GOODS IN QUESTION . IN FACT, THE BUYER MAY HAVE GOOD COMMERCIAL REASONS FOR PREFERRING AN UNUSUAL AND MORE EXPENSIVE METHOD OF TRANSPORT BECAUSE IT IS SWIFTER OR SAFER . BY CHOOSING SUCH A METHOD OF TRANSPORT THE BUYER SUGGESTS THAT OWING TO THE EXCEPTIONAL CIRCUMSTANCES OF THE TRANSACTION HE HAD AN INTEREST IN PAYING THIS PRICE AND THAT ANY OTHER BUYER IN THE SAME CIRCUMSTANCES WOULD DO THE SAME .

9 CONSEQUENTLY THE CARRIAGE AND FREIGHT REFERRED TO IN ARTICLE 7, APART FROM EXCEPTIONS EXPRESSLY LAID DOWN BUT INAPPLICABLE TO CASES SUCH AS THE PRESENT ONE, ARE THE COSTS ACTUALLY INCURRED BY THE BUYER, EVEN WHEN THEY RESULT IN FIXING A " NORMAL PRICE " HIGHER THAN THE CIF PRICE FOR THE SAME ITEM OF GOODS TRANSPORTED BY A MORE USUAL MEANS OF TRANSPORT .

10 THIS INTERPRETATION IS CONFIRMED BY ARTICLE 6 OF REGULATION NO 803/68 WHICH, BY DEFINING THE PLACE OF INTRODUCTION OF THE ITEM OF GOODS INTO THE COMMUNITY IN A DIFFERENT MANNER ACCORDING TO THE DIFFERENT MEANS OF TRANSPORT, IMPLIES THAT THE ACTUAL MEANS OF TRANSPORT IS TO BE TAKEN INTO CONSIDERATION . IT IS ALSO CONFIRMED BY ARTICLE 8 OF THE SAME REGULATION, IN PARTICULAR BY PARAGRAPH ( 3 ) THEREOF WHICH PROVIDES THAT EVEN WHERE TRANSPORT IS FREE THE TRANSPORT COSTS TO BE INCLUDED IN THE VALUE FOR CUSTOMS PURPOSES ARE THOSE OF THE NORMAL MODE OF TRANSPORT .

11 FINALLY THE INTERPRETATION PUT FORWARD CORRESPONDS TO THE DATA IN THE CONVENTION SIGNED IN BRUSSELS ON 15 DECEMBER 1950 ON CUSTOMS VALUATION AND THE ACCOMPANYING EXPLANATORY NOTES AND OPINIONS .

IN PARTICULAR OPINION VIII OF THE CUSTOMS VALUATION COMMITTEE DECIDES THAT, EXCEPT IN CERTAIN CASES WHERE FREIGHT IS PROVIDED BY THE SELLER, THE COSTS OF TRANSPORT BY ANY MEANS GUARANTEEING RAPID DELIVERY ARE A FACTOR IN THE NORMAL PRICE IF THE VALUE OF THE GOODS TRANSPORTED FOR THE BUYER IS ESPECIALLY INCREASED IN THIS WAY .

12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES AND THE FEDERAL REPUBLIC OF GERMANY, WHICH HAVE SUBMITTED THEIR OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT HAMBURG, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG, BY THE JUDGMENT OF THAT COURT OF 12 MAY 1970, HEREBY RULES :

THE COSTS ACTUALLY PAID FOR A MORE EXPENSIVE MODE OF TRANSPORT THAN THE USUAL MODE OF TRANSPORT FOR THE SAME ITEM OF GOODS ARE, SAVE WHERE EXCEPTIONS ARE EXPRESSLY PROVIDED, TO BE TAKEN INTO ACCOUNT IN DETERMINING THE NORMAL PRICE AS THE BASIS FOR THE VALUE FOR CUSTOMS PURPOSES, EVEN IF THAT PRICE AS A RESULT EXCEEDS THE CIF PRICE OF THE ITEM OF GOODS TRANSPORTED BY THE USUAL MODE OF TRANSPORT .