61992J0059

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Common customs tariff ° Customs value ° Decrease in value due to deterioration of goods ° Taking into account without regard to the date of transfer of the risk to the buyer

(Council Regulation No 1224/80 , Arts 1, 3 and 8; Commission Regulation No 1495/80, Art. 4, as amended by Regulation No 1580/81)

Article 4, second sentence, of Regulation No 1495/80, adopting certain provisions for the implementation of Articles 1, 3 and 8 of Regulation No 1224/80 relating to the valuation of goods for customs purposes, must be interpreted as meaning that no distinction should be drawn according to whether a deterioration of goods which decreases their customs value occurs before or after the transfer of the risk to the buyer.

In Case C-59/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof for a preliminary ruling in the proceedings pending before that court between

Hauptzollamt Hamburg-St Annen

and

Ebbe Soennichsen GmbH

on the interpretation of Article 4 (second sentence) of Commission Regulation (EEC) No 1495/80 of 11 June 1980, on measures to implement the provisions of Articles 1, 3 and 8 of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes (OJ L 1980 154, p. 14), as amended by Commission Regulation (EEC) No 1580/81 of 12 June 1981 (OJ 1989 L 154, p. 36), and of Article 3(1) 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),

THE COURT (First Chamber),

composed of: G.C. Rodríguez Iglesias, President of the Chamber, R. Joliet and D.A.O. Edward, Judges,

Advocate General: M. Darmon,

Registrar: J-C. Giraud,

after considering the written observations submitted on behalf of:

° the Commission of the European Communities, by Richard Wainwright, Legal Adviser, and Arnold Ridout, a British official seconded to the Legal Service under the exchange scheme for officials of the Member States, both acting as Agents, assisted by Hans-Juergen Rabe, Rechtsanswalt, Hamburg,

° Ebbe Soennichsen GmbH, by Klaus Landry, Rechtsanwalt, Hamburg,

having regard to the Report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 31 March 1993,

gives the following

Judgment

1 By order of 10 December 1991, received at the Court on 27 February 1992, the Bundesfinanzhof (Federal Finance Court) referred to the Court for a preliminary ruling under Article 177, two questions concerning the interpretation of Article 4 (second sentence) of Commission Regulation (EEC) No 1495/80, on measures for the implementation of Articles 1, 3 and 8 of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes (OJ 1980 L 154, p. 14), as amended by Commission Regulation No 1580/81 (OJ 1981 L 154, p. 36) and Article 3(1) of Council Regulation No 1224/80, on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1).

2 Those questions are worded as follows:

"1. Does the second sentence of Article 4 of Commission Regulation No 1495/80 (OJ 1980 L 154, p. 14) as amended by Commission Regulation No 1580/81 (OJ 1981 L 154, p. 36) apply also where goods purchased already contain defects reducing their value (inherent defects) before the transfer to the buyer of the risk of possible damage (passing of risk)?

2. If not: Is Article 3(1) of Council Regulation No 1224/80 of 28 May 1980 (OJ 1980 L 134, p. 1) to be interpreted as meaning that the transaction value is to be determined simply on the basis of agreement or a new purchase price taking account of the inherent defect found, or is the deciding factor the fact that the agreement altering the original purchase price has in fact also been implemented?"

3 Reference is made to the Report of the Judge-Rapporteur for the facts in the main proceedings, the procedure before and the written observations submitted to the Court.

4 For the reasons indicated in the Advocate-General' s Opinion of 31 March 1993, the reply to the question put by the national court must be that the second sentence of Article 4 of the aforementioned Regulation No 1495/80, as amended by the aforementioned Regulation No 1580/81, is to be interpreted as meaning that in the event of a deterioration of goods which reduces their customs value no distinction is to be made according to whether it occurred before or after the risk passed to the buyer.

Costs

5 The costs incurred by the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the questions referred to it by the order of the Bundesfinanzhof on 10 December 1991, hereby rules:

The second sentence of Article 4 of Commission Regulation (EEC) No 1495/80 of 11 June 1980, on measures for the implementation of Articles 1, 3 and 8 of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes, as amended by Commission Regulation (EEC) No 1580/81 of 12 June 1981, is to be interpreted as meaning that in the event of a deterioration of goods which reduces their customs value no differentiation is to be made according to whether it occurred before or after the risk passed to the buyer.