1.

The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is seized of a dispute between Company X BV and the Staatssecretaris van Financiën (Secretary of State for Finances, Netherlands; ‘the Secretary of State’) concerning the rejection by the latter of applications for reimbursement of duty paid by that company when importing vehicles into the customs territory of the European Union.

2.

In that context, that court asks the Court, firstly, as to the interpretation of Articles 29 and 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ( 2 ) (‘the Customs Code’) and of Article 145(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 (‘the implementing regulation’). ( 3 ) The referring court asks the Court, secondly, to rule on the validity of Article 145(3) of the implementing regulation.

3.

Article 29 of the Customs Code provides:

‘1.   The customs value of imported goods 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, where necessary, in accordance with Articles 32 and 33, provided:

4.

Under Article 78 of the Customs Code:

‘1.   The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.

…

3.   Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’

5.

Article 236 of that Code is worded as follows:

‘1.   Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed …

Import duties or export duties shall be repaid in so far as it is established that when they were taken into account the amount of such duties was not legally owed ’

2.   Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.

…’

6.

Article 145(2) and (3) of the implementing regulation provides:

‘2.   After release of the goods for free circulation, an adjustment made by the seller, to the benefit of the buyer, of the price actually paid or payable for the goods may be taken into consideration for the determination of the customs value in accordance with Article 29 of the Code, if it is demonstrated to the satisfaction of the customs authorities that:

3.   The price actually paid or payable for the goods, adjusted in accordance with paragraph 2, may be taken into account only if that adjustment was made within a period of 12 months following the date of acceptance of the declaration for entry to free circulation of the goods.’

7.

X purchased, from a manufacturer established in Japan, three different types of passenger car, designated, in the order for reference and below, by the letters A, C and D, and released them for free circulation on the EU customs territory. Accordingly, X paid the import duties set by the Inspecteur van de Belastingdienst (Inspector of Taxes, Netherlands; ‘the Inspecteur’). In order to calculate the amount of those duties, the customs value of those cars was established, in accordance with Article 29 of the Customs Code, on the basis of the purchase price paid by X to the manufacturing seller. Thereafter, X sold those cars to dealers, who sold them on to final purchasers.

8.

The manufacturing seller subsequently asked X to request all the owners of type A cars to make an appointment with a dealer in order to have the steering coupling replaced free of charge. The recall was due to the possibility that the steering coupling bolts were not correctly tightened. In those circumstances, the manufacturing seller believed that there was a risk that the steering coupling assembly would become detached from the steering column, which would make the vehicle impossible to steer.

9.

X reimbursed the costs associated with that recall to the dealers. The manufacturing seller then reimbursed those costs to X pursuant to a warranty obligation included in the contract of sale concluded with X. That reimbursement took place within a period of 12 months following the date of acceptance of the declaration for entry of those cars into free circulation.

10.

The type C and D cars showed rubber seal and door hinge defects respectively. The dealers concerned repaired those defects on the basis of the warranty which they give to the final purchasers. X reimbursed the costs of those repairs to the dealers. Once again, the manufacturing seller reimbursed those costs to X pursuant to its contractual obligation under the warranty. That reimbursement took place more than 12 months following the date of acceptance of the declaration for entry of the cars concerned into free circulation.

11.

In those circumstances, X applied, under Article 236 of the Customs Code, for partial repayment of the customs duties which it had paid on the ground that the customs value of the type A, C and D cars had turned out to be lower than the customs value originally established, the difference being the amount of the reimbursements made by the manufacturing seller.

12.

The Inspecteur took the view that the application concerned an adjustment in favour of X of the price actually paid for those cars, within the meaning of Article 145(2) of the implementing regulation. However, he rejected it as regards the type A cars, on the ground that they were not defective for the purposes of that provision, and as regards the type C and D cars, on the ground that the payment by the manufacturing seller to X was not made within the time limit of 12 months laid down in Article 145(3) of that regulation.

13.

X brought an action against the Inspecteur’s decision before the Rechtbank Noord-Holland (District Court, Noord-Holland, Netherlands). Following the dismissal of that action, that company lodged an appeal in cassation before the referring court.

14.

That court is uncertain, firstly, in so far as the application for repayment concerned type A cars, as to the scope of Article 145(2) of that regulation. It notes that the adjustment to the purchase price of those cars, resulting from the reimbursement of the repair costs incurred by X, follows the finding that their manufacture was such that it was not sufficiently certain that the steering coupling was not defective in use. The manufacturing seller accordingly wished to take the precaution of replacing it.

15.

In that contest, that court wishes to know whether that provision covers solely those cases in which it is established that, at the date of acceptance of the declaration of release for free circulation, the imported product was effectively defective, or also those cases in which it is established that, at that date, the product was at risk, because of its manufacture, of becoming defective in use. It refers, in that regard, to a commentary made by the Customs Code Committee, ( 4 ) according to which that committee is of the view, in essence, that Article 145(2) of the implementing regulation benefits only those goods actually defective at the time of acceptance of the customs declaration. According to that committee, that provision therefore does not apply where a vehicle is recalled to the point of sale for inspection and possible precautionary remedial work.

16.

If that provision were not to apply in the present case, the referring court asks whether, in the light of the judgment in Mitsui & Co. Deutschland, ( 5 ) Article 29(1) and (3) of the Customs Code does not already require of itself that a reduction in the customs value of the type A cars must be found. The existence, at the time of their import, of a risk of a defect appearing before the warranty period had expired and rendering those vehicles useless would reduce their economic value.

17.

Secondly, in so far as the application for repayment related to the type C and D cars, the referring court is doubtful as to compatibility of the time limit of 12 months provided for in Article 145(3) of the implementing regulation with certain provisions of the Customs Code. It notes, in particular, that that time limit differs from the time limit of three years laid down in Article 236(2) of that code for the filing of applications for repayment of customs duties. That court points out, in addition, that Article 29 of that code, read in conjunction with Article 78 thereof, does not lay down any time limit as regards adjustments of the customs value.

18.

In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

19.

X, the Netherlands Government and the Commission have lodged written observations and were represented at the hearing on 30 November 2016.

20.

The questions referred by the referring court concern the establishment of the customs value of imported vehicles, which serves as the base for the calculation of the import duties which are imposed on those vehicles when they are released for free circulation on the EU customs territory. ( 6 )

21.

By virtue of Article 29(1) of the Customs Code, the customs value of goods equates, in principle, to the transaction value thereof. ( 7 ) That takes as the base for calculation the price actually paid or payable for those goods, as defined in paragraph 3 of that article, when sold for export to the EU customs territory.

22.

As has been highlighted in the case-law, ( 8 ) the transaction value represents, however, only a substitute for the true economic value of the goods at the time of import — the reference date in that regard being that of acceptance of the customs declaration of the goods. ( 9 ) Article 29 of the Customs Code seeks, in fact, to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. The customs value must thus reflect all the elements of the goods that have economic value. ( 10 ) Accordingly, the price actually paid or payable, as indicated in the customs declaration, is a factor that must potentially be adjusted where necessary in order to avoid the setting of an arbitrary or fictitious customs value. ( 11 )

23.

It is with that in mind that Article 145(2) of the implementing regulation, with which the first question referred is concerned, enables the customs authorities to take account of a reduction in that price when the commercial value of the goods, after their release for free circulation, proves lower than that price. ( 12 ) Such a reduction is made provided the reduction in the commercial value of the goods is the result of a defect which was present before their release for free circulation but which was not taken into account in the sale contract and led to later reimbursements by the seller to the purchaser under a contractual warranty obligation. The price actually paid or payable is thus reduced, for the purpose of establishing the customs value of the goods, by the amount of those reimbursements, which is considered to reflect the reduction in the commercial value of the goods.

24.

As is apparent from paragraph 28 of the judgment in Mitsui & Co. Deutschland, ( 13 ) Article 145(2) of that regulation applies, in particular, when, as in the main proceedings, the seller compensates the purchaser, under a contractual warranty obligation, for the costs of repairs invoiced to the latter by its own purchasers. In paragraph 27 of that judgment, the Court considered that that provision ‘specified … a solution already indicated by Article 29 of the Customs Code itself’. ( 14 )

25.

Article 145(3) of that regulation, to which the second question relates, makes the application of paragraph 2 of that article subject to the additional condition that the adjustment of the price must be made within a period of 12 months from the date of acceptance of the customs declaration.

26.

By the first part of its first question, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) asks the Court regarding the meaning of the concept of defective goods within the meaning of Article 145(2) of the implementing regulation, read in the light of Article 29(1) and (3) of the Customs Code. The referring court asks, in essence, whether that concept covers goods which carry a manufacture-related risk that they might become defective during use.

27.

It is not in dispute that Article 145(2) of the implementing regulation applies only provided that the goods are affected by a defect at the date of acceptance of the customs declaration. However, is the concept of defectiveness restricted to defects which show as an actual failure from that date, as alleged by the Netherlands Government? Or does it include the existence of a risk, related to the manufacture of goods (as opposed to normal wear and tear), that the goods will become defective in actual use even if that risk has not (yet) become apparent, as argued by X and the Commission?

28.

I will state from the outset that it is apparent from the order for reference that the type A cars, because of their manufacture, carried a risk of failure of their steering coupling. ( 15 ) It is therefore not in dispute that that risk did not arise from normal use, but from the manufacturing process of those cars.

29.

As the Commission has observed, the implementing regulation does not define the notion of defective goods. Nor does that regulation refer to the national laws of the Member States for the purpose of determining its meaning and scope. In those circumstances, it is appropriate, in order to ensure compliance with the principle of equal treatment and the uniform application of EU law, to give an autonomous and uniform meaning to that concept throughout the European Union. ( 16 ) That meaning must take account of the usual meaning of that concept in common language and of the context in which it occurs and the objectives pursued by the rules of which it is part. ( 17 )

30.

According to its usual meaning, the concept of defective goods covers, as the Commission has observed, any goods which do not possess the qualities which may legitimately be expected having regard to their nature and all the relevant circumstances. Thus, the qualifier ‘defective’ is attached to an object which is ‘incomplete, imperfect (in some respect); faulty’. ( 18 )

31.

That definition, drawn from common language, corresponds to that of defective products laid down in Article 6(1) of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products. ( 19 ) Under that provision, a defective product is a product which ‘does not provide the safety which a person is entitled to expect, taking all circumstances into account, including the presentation of the product, the use to which it could reasonably be expected that the product would be put and the time when the product was put into circulation’.

32.

In the present case, having regard to the nature of the goods (functioning passenger cars) and components (steering coupling) concerned, it is legitimate and reasonable to require a high degree of safety in the light of the serious risks to the physical integrity and life of drivers, passengers and third parties connected with their use. That requirement for safety is assuredly not met when there is a risk, relating to the manufacture, of failure of the steering coupling. The existence of that risk therefore implies that those goods do not have the qualities which may legitimately be expected.

33.

In other words, the risk of failure itself constitutes, in such a scenario, a defect. ( 20 ) Given that that defect arises from the manufacturing process of the goods, they must be regarded as having been defective within the meaning of Article 145(2) of the implementing regulation from their manufacture and, therefore, a fortiori, at the time of their import.

34.

That reading is corroborated by the objectives pursued by that provision. I recall, in that regard, that it specifies the scope of Article 29 of the Customs Code, ( 21 ) which seeks to ensure that the customs value of goods corresponds to their true economic value. ( 22 ) The present of a manufacture-related risk that a product may fail in use reduces, as such and independently of the risk occurring, the value of that product. There is no doubt that a car which does not meet the safety requirements which may legitimately be expected of it will be difficult to sell, certainly at the same price as a car which does meet those requirements.

35.

The commentary of the Customs Code Committee, to which the referring court and the Netherlands Government have referred, cannot call such an interpretation into question. ( 23 ) It suffices to note, in that regard, that although the commentaries of that committee may contribute to the interpretation of EU customs law, ( 24 ) they are not legally binding. They are intended only to facilitate the definition by the Member States of a common approach in similar cases, in order to ensure the correct and uniform application of the rules on customs valuation. ( 25 )

36.

Having regard to the foregoing, I consider that Article 145(2) of the implementing regulation is applicable where, as in the main proceedings, the seller of a vehicle grants the purchaser, pursuant to a contractual warranty obligation provided for in the sale contract, a price reduction in the form of reimbursement of costs incurred by the purchaser in remedying a manufacture-related risk that the vehicle may become defective in use, such that it does not have the degree of safety which may reasonably be expected of it.

37.

In consequence, there is no need to answer the second part of the first question, referred to the Court in the alternative, by which the referring court asks whether, if that provision does not apply in such a situation, Article 29 of the Customs Code, read in conjunction with Article 78 of the code, alone permits the customs value to be adjusted to take account of such a price reduction. That being the case, I add, for the sake of completeness, that, in the light of paragraph 27 of the judgment in Mitsui & Co. Deutschland, ( 26 ) in my view, the second part of the first question calls for an affirmative answer.

38.

The second question referred concerns the compatibility of Article 145(3) of the implementing regulation, in that it provides for a time limit of 12 months to run from the acceptance of the customs declaration, within which a price adjustment must be made to justify an adjustment of the customs value in the situation referred to in paragraph 2 of that article, with Article 29, Article 78 and Article 236(2) of the Customs Code. This question is likely to be of practical importance in all cases where a sale contract relating to goods intended for export to the EU customs territory provides for a warranty period greater than 12 months. ( 27 )

39.

I emphasise, as a preliminary point, that legal basis of the implementing regulation is a former version of Article 249 of the Customs Code, ( 28 ) which authorised the Commission to adopt all the provisions required for the implementation of that code. ( 29 ) It is also apparent from the case-law that the Commission is authorised to adopt all implementing measures necessary or appropriate for the implementation of that code, provided that they are not contrary to it. ( 30 )

40.

In addition, in accordance with the case-law, the concept of implementation must be given a wide interpretation. ( 31 ) Furthermore, the Court has previously pointed out the margin of discretion which the Commission has for the implementation of the provisions of the Customs Code. ( 32 )

41.

In the light of those principles, it is appropriate to ascertain, firstly, whether the time limit laid down in Article 145(3) of the implementing regulation is necessary or appropriate for the implementation of that code and, secondly, whether that time limit complies with the provisions of that code. For the reasons set out below, I consider that those conditions are not satisfied.

42.

According to the Commission, the time limit laid down in Article 145(3) of the implementing regulation is useful, even necessary, for the implementation of Article 29 of the Customs Code since it permits the risk of errors or fraud in the application of Article 145(2) of that regulation to be minimised. They would lead to the setting of arbitrary or fictitious customs values in breach of Article 29 of that code. The Commission points out, in that regard, the difficulty to ascertain in practice whether the defect affecting goods was already present at the time of its import or whether it occurred afterwards due to normal use. Since that difficulty and, accordingly, the risk of errors or fraud increase with time, it is appropriate to restrict the taking into account of price adjustments made subsequent to the release for free circulation under Article 145(2) of that regulation to a reasonable period. ( 33 )

43.

The Dutch Government and the Commission also submit that such a time limit is necessary in order to ensure legal certainty and the uniform application of that provision. They point, moreover, to the coherence of the time limit of 12 months laid down in Article 145(3) of the implementing regulation with the comparable time limit fixed under Article 238(4) of the Customs Code.

44.

I doubt that Article 145(3) of that regulation is useful or necessary for the achievement of those objectives or, accordingly, the implementation of Article 29 of that code.

45.

Firstly, with regard to the objective of avoiding the setting of arbitrary or fictitious customs values which would arise from errors or fraud in the application of Article 145(2) of that regulation having regard to the difficulty of ascertaining when the defect arose, I note that the material conditions set out in that provision already provide that it must be shown, to the satisfaction of the customs authorities, that the defect was present ‘at the moment of import of the goods concerned’. ( 34 ) The burden of proof lies, in that regard, with the importer. ( 35 ) In those circumstances, it is no longer necessary, or even useful, in order to achieve that objective, to make an adjustment in the customs value subject to the additional requirement that the price adjustment must be made within 12 months of the date of acceptance of the customs declaration.

46.

In the present case, the order for reference states that the defect in the type A cars was related to their manufacture and was therefore present at the time of their import. As X submitted at the hearing, that requirement thus proves to be of no use in such a situation.

47.

The Netherlands Government claims, moreover, that the time limit laid down in Article 145(3) of the implementing regulation is based on the fiction that, if a defect covered by a warranty obligation appears within 12 months of the acceptance of the customs declaration, the customs authorities may work on the basis that the defect already existed at that date. That line of argument amounts, in essence, to a submission that that time limit corresponds to the period during which it may be presumed that the defect was present at that date.

48.

However, that time limit does not in any way proceed from such an assumption. That would imply that it is possible to adjust the customs value for all price adjustments made before the expiry of that time limit on the basis of a contractual warranty obligation, without it having to be established that the defect already existed at the time of import. Yet, on the contrary, Article 145(3) of that regulation excludes such an adjustment for any price adjustment subsequent to the expiry of the time limit which it sets — even if the debtor shows, moreover, that the defect already existed at that time.

49.

Secondly, with regard to the need to ensure legal certainty and the uniform application of Article 145(2) of that regulation, I consider, like X, that the time limit laid down in Article 236(2) of the Customs Code already offers sufficient protection to those interests.

50.

That provision requires, in principle, that any application for repayment or remission of import duties, whatever the grounds, must be lodged within three years of communication of those duties to the debtor. Thus, where that debtor is entitled to a repayment as a result of an adjustment in the customs value of goods under Article 145(2) of the implementing regulation, that repayment will be made only if he makes the application for that repayment within the three-year time limit established in Article 236(2) of the Customs Code.

51.

I see no reason why that time limit should not ensure, in this specific situation as opposed to other cases in which the debtor is entitled to repayment of the customs duties, an adequate degree of legal certainty and uniformity for the customs administration and the EU budget. ( 36 )

52.

Thirdly, the argument based on alignment of the time limit laid down in Article 145(3) of the implementing regulation and that of the time limit of the same duration laid down in Article 238(4) of the Customs Code cannot succeed.

53.

That is the case since that provision covers a situation distinct from that covered in Article 145(3) of the implementing regulation. Article 238(4) of the Customs Code deals with the situation where, due not to a hidden defect but to a defect found at the time of import, the purchaser refuses the goods or claims a price reduction. Unlike such a purchaser, purchasers concerned by Article 145(3) of that regulation are, in theory, unaware of the existence of the defect at the time of import. They are therefore not always in a position, unlike the purchaser covered by Article 238(4) of the Customs Code, to claim repayment or remission of the import duties within a period of 12 months from the acceptance of the customs declaration or the communication of the import duties. ( 37 )

54.

In consequence, I am of the view that the time limit laid down in Article 145(3) of the implementing regulation is not necessary, or even useful, to the implementation of the Customs Code. Although that consideration is sufficient to entail the invalidity of the provision, I explain below, for the sake of completeness, the grounds on which that provision is, moreover, contrary to Article 29 of the Customs Code, read in the light of Article 78 and 236(2) of that code.

55.

The referring court harbours doubts as to the compatibility of the time limit laid down in Article 145(3) of the implementing regulation with Article 29 of the Customs Codes, read in conjunction with Article 78 of that code, in so far as the two latter provisions do not impose any time limit on adjustments of the customs value. That court also calls into question the conformity of that time limit with Article 236(2) of that code, which sets a separate time limit for the filing of applications for repayment of customs duties.

56.

In my view, the judgment in Mitsui & Co. Deutschland ( 38 ) already provides a certain framework enabling those questions to be answered.

57.

That judgment concerned a situation in which the customs declaration had been accepted before the entry into force of the regulation which inserted unto Article 145 of the implementing regulation the possibility of adjustment by the customs authorities of the customs value of defective goods because of an adjustment in the price following its release for free circulation. ( 39 )

58.

The Court has held that, although Article 145(2) and (3) of the implementing regulation did not apply in such a situation, ( 40 ) the customs authorities could make such an adjustment on the direct basis of Article 29 of the Customs Code, provided that the three conditions set out in Article 145(2) of that regulation were satisfied. In the view of the Court, that provision ‘specified on that point a solution already indicated by Article 29 of the Customs Code itself’. ( 41 )

59.

However, the Court has not held that that possibility of adjustment was also limited by a condition of time such as that laid down in Article 145(3) of the implementing regulation. ( 42 ) In my view, that condition, unlike the conditions set out in paragraph 2 of that article, does not flow directly from Article 29 of the Customs Code.

60.

In the absence of the time limit laid down in Article 145(3) of the implementing regulation, the customs authorities of a Member State would therefore, on the basis of Article 29 of the Customs Code itself, be able to adjust the customs value of goods when the conditions set out in Article 145(2) of that regulation are satisfied, even when more than 12 months have elapsed since acceptance of the customs declaration. On the expiry of such a time limit, application of paragraph 3 of that article excludes, however, any such adjustment. Thus it leads, in breach of Article 29 of that code, to a customs valuation which does not correspond to the transactional value of the goods as adjusted after import.

61.

I should add that a reduction in customs value, in the circumstances provided for in Article 145(2) of the implementing regulation, may be made by way of a revision of the customs declaration under Article 78(1) of the Customs Code. ( 43 ) Since the import duties paid thus exceed, in proportion to that reduction in the customs value, those duties legally due, the customs authorities must, in accordance with paragraph 3 of that article, repay the over-payment to the debtor. That repayment is made pursuant to Article 236 of that code, provided that the conditions laid down therein are satisfied. Those include compliance with the time limit of three years, to run from the communication of the import duties to the debtor, provided for the submission of the application for repayment. ( 44 )

62.

In consequence, on the basis of Article 29 of the Customs Code, read in conjunction with Article 78 and Article 236(2) thereof, the debtor can obtain repayment of import duties, proportionate to the adjustment in the customs value made under the conditions set out in Article 145(2) of the implementing regulation, until expiry of a time limit of three years from the communication of those duties. ( 45 ) Article 145(3) of that regulation restricts that possibility, in practice, to a period of 12 months from acceptance of the customs declaration. That provision thus amends, to the detriment of the debtor, the legal regime applicable to him under the Customs Code.

63.

It follows therefrom that Article 145(3) of the implementing regulation runs counter to Article 29 of the Customs Code, read in conjunction with Article 78 and Article 236(2) of that code.

64.

In the light of all these considerations, the Commission, despite the margin of discretion which it has in order to implement the Customs Code, ( 46 ) was not entitled to adopt Article 145(3) of the implementing regulation, such that that provision must be declared invalid.

65.

Having regard to all the foregoing, I propose the following answers to the questions referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands):