61989J0011

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Common Customs Tariff - Customs value - Transaction value - Determination - Parties to the contract of sale established in the Community - Not material - Successive sales at different prices - Choices open to importer - Demurrage charges - Included in the cost of transport - "Buying commission" paid by the buyer to the seller - Included in the transaction value - Quantity of goods unloaded smaller than quantity purchased, without affecting stipulated purchase price - Not material

( Council Regulation No 1224/80, Arts 3(1 ) and 8(1)(e ); Council Directive 79/695, Art . 8(1 ) )

The definition of the transaction value in Article 3(1 ) of Regulation No 1224/80 on the valuation of goods for customs purposes, according to which that value corresponds to the "price actually paid or payable for the goods when sold for export in the customs territory of the Community", takes no account of the place of establishment of the parties to the contract of sale . The price stipulated in a contract of sale concluded between persons established in the Community may, therefore, be regarded as the transaction value within the meaning of that provision .

Where, in successive sales of goods, more than one price actually paid or payable fulfils the requirements laid down in Article 3(1 ) of Regulation No 1224/80, any of those prices may be chosen by the importer for the purposes of determining the transaction value . If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1 ) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation .

Demurrage charges, in other words compensation payable for keeping vessels in port, form part of the cost of transport within the meaning of Article 8(1)(e ) of Regulation No 1224/80 and, consequently, are to be added to the price actually paid or payable in order to determine the customs value .

A payment made by the buyer to the seller, invoiced separately and described as a "buying commission", forms part of the price actually paid or payable for the imported goods .

The price actually paid or payable should not be reduced proportionately where a discrepancy is found between the quantity of goods unloaded and the quantity purchased which does not exceed the weight discrepancy allowance agreed upon between the parties and does not lead to a reduction of the stipulated purchase price .

In Case C-11/89

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

Unifert Handels GmbH, Warendorf

and

Hauptzollamt Muenster,

on the interpretation of Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ( Official Journal 1980, L 134, p . 1 ),

THE COURT ( First Chamber )

composed of : M . Zuleeg, President of Chamber, for the President of the Chamber, R . Joliet and C . G . Rodríguez Iglesias,

Advocate General, G . Tesauro

Registrar : J.-G . Giraud

after considering the observations submitted on behalf of

Unifert Handels GmbH, by Dietrich Ehle, of the Cologne Bar,

the Commission of the European Communities, by its Legal Adviser, Joern Sack, acting as Agent,

having regard to the Report for the Hearing and further to the hearing on 7 February 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 28 March 1990,

gives the following

Judgment

1 By an order of 6 December 1988, which was received at the Court on 13 January 1989, the Bundesfinanzhof referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions on the interpretation of Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ( Official Journal 1980, L 134, p . 1 ).

2 Those questions arose in proceedings between Unifert Handels GmbH ( hereinafter referred to as "Unifert ") and the Hauptzollamt ( Principal Customs Office ) Muenster concerning certain assessments to duties in respect of imports of fertilizer .

3 The fertilizer in question was purchased in non-member countries by a company belonging to the same group as Unifert, Ferdis SA ( hereinafter referred to as "Ferdis "), whose registered office is in Brussels . Ferdis resold the fertilizer, before its arrival in the customs territory of the Community, to Unifert, which, in its customs value declarations, indicated Ferdis to be the seller on the basis of invoices which Ferdis had issued to it .

4 Upon each import transaction, the sum declared by Unifert as the customs value of the goods was not the price actually paid but a reconstructed price which it established by multiplying the total weight unloaded ( which was less than the weight stipulated in the contract ) by the price per tonne agreed with Ferdis . The sum declared as the customs value did not include demurrage charges ( charges for keeping vessels in port beyond the normal period ) or the so-called buying commission which it had paid to Ferdis, and which amounted to 6% of the sum invoiced for each specific consignment .

5 As the result of an inspection, the Hauptzollamt Muenster adopted a series of decisions requesting Unifert to pay an additional sum amounting to DM 172 099.60 . By those decisions, the Hauptzollamt incorporated the demurrage charges and the so-called buying commissions in the customs value and rejected the reconstructed price established by Unifert as a basis for customs valuation . The reconstructed price was replaced by the full price agreed between Unifert and Ferdis .

6 The application directed against those decisions before the Finanzgericht ( Finance Court ) was dismissed and Unifert lodged an appeal on a point of law with the Bundesfinanzhof, which decided to stay the proceedings and refer to the Court for a preliminary ruling the following questions :

"( 1 ) ( a ) Can the transaction value within the meaning of Article 3(1 ) of Regulation No 1224/80 also be the price stipulated in a contract of sale between persons resident in the Community?

( b ) If Question 1(a ) is answered in the affirmative :

may the person concerned determine the price to be taken as the basis for customs valuation purposes if prices stipulated in other contracts of sale fulfil the requirements of Article 3(1 ) of Regulation No 1224/80? Is the person concerned bound by his choice once exercised?

( c ) If Question 1(a ) is answered in the affirmative :

does this price also include a so-called buying commission?

( 2 ) Are demurrage charges ( compensation for delays in loading ) transport costs within the meaning of Article 8(1)(e ) of Council Regulation No 1224/80?

( 3 ) Is the full price paid or payable the transaction value within the meaning of Article 3 of Regulation No 1224/80 if before the material time short shipments are found which are within an agreed weight discrepancy allowance and do not lead to a reduction of the purchase price ?".

7 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the observations submitted to the Court, which are referred to or mentioned hereinafter only in so far as is necessary for the reasoning of the Court .

Question 1

8 The first question seeks to establish whether the price stipulated in a contract of sale concluded between persons resident in the Community may be regarded as the transaction value within the meaning of Article 3(1 ) of Regulation No 1224/80 .

9 That provision defines the transaction value as "the price actually paid or payable for the goods when sold for export to the customs territory of the Community ". That definition takes no account of the place of residence of the parties to the contract of sale .

10 However, Unifert claims that only a sale made by a supplier resident in a non-member country may be regarded as a sale "for export" and that, therefore, only the price stipulated for that sale can be the material price for the purposes of the transaction value .

11 That argument cannot be upheld . The criterion which emerges from the term "sold for export" relates to the goods and not to the situation of the seller . Placed in its proper context, the term suggests that it is agreed, at the time of sale, that the goods originating in a non-member country will be transported into the customs territory of the Community . Therefore, there is nothing to prevent both parties to such a sale from being established in the Community .

12 That interpretation is borne out, moreover, by Article 6 of Commission Regulation ( EEC ) No 1495/80 of 11 June 1980 implementing certain provisions of Articles 1, 3 and 8 of Council Regulation ( EEC ) No 1224/80 ( Official Journal 1980, L 154, p . 14 ), as amended by Regulation ( EEC ) No 1580/81 of 12 June 1981 ( Official Journal 1981, L 154, p . 36 ). That article provides that :

"For the purposes of Article 3 of Regulation ( EEC ) No 1224/80 the fact that the goods which are the subject of a sale are declared for free circulation in the Community shall be regarded as adequate indication that they were sold for export to the customs territory of the Community . This indication shall also apply in the case of successive sales before valuation; in such case each price resulting from these sales may, subject to the provisions of Regulation ( EEC ) No 1496/80, be taken as a basis for valuation ."

13 It follows from that provision that, for the purposes of Article 3(1 ) of Regulation No 1224/80, it is permitted to use not only the price of a sale concluded immediately before export from a non-member country, but also any of the prices relating to sales made after export but before release into free circulation in the Community, irrespective of the place where the parties to the contract of sale are established .

14 The reply to the first question must therefore be that the price stipulated in a contract of sale concluded between persons established in the Community may be regarded as the transaction value within the meaning of Article 3(1 ) of Regulation No 1224/80 .

Question 2

15 The second question asks whether, in the event of successive sales of goods, where a number of prices actually paid or payable fulfil the conditions laid down in Article 3(1 ) of Regulation No 1224/80, any of those prices may be chosen by the exporter for the purposes of establishing the transaction value, and whether the importer may change his declaration after he has chosen the price .

16 It is evident from Article 6 of Regulation No 1495/80, cited above, that, in the case of successive sales of goods for export to the customs territory of the Community, the importer is at liberty to select from the prices agreed for each of the sales the price which he will take as a basis for customs value, provided that he can furnish to the customs authorities all the necessary particulars and documents relating to the price he chooses, pursuant to Commission Regulation ( EEC ) No 1496/80 of 11 June 1980 on the declaration of particulars relating to customs value and on documents to be furnished ( Official Journal 1980, L 154, p . 16 ).

17 Article 1 of Regulation No 1496/80 provides that the declaration relating to customs value must accompany the entry form for release for free circulation made in respect of the goods in question . Under Article 2 of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation ( Official Journal 1979, L 205, p . 19 ), the entry form for release for free circulation must be lodged at a customs office . Article 8(1 ) of the directive authorizes the declarant to correct entries accepted by the customs authority provided inter alia that the correction is requested before the goods are released for free circulation .

18 It follows that once the importer, in his customs value declaration, has chosen the price which will be used as the basis for determining the customs value, he may not correct his declaration or, consequently, the statements relating to customs value after the customs authority has released the goods for free circulation .

19 That conclusion is not undermined by the possibility, provided by the second indent of Article 2(1 ) of Council Regulation ( EEC ) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties ( Official Journal 1979, L 175, p . 1 ), of repayment or remittance of import duties after release for free circulation in so far as it is established that the amount of such duties entered in the accounts exceeds for any reason the amount lawfully payable .

20 Certainly, it is evident from the second recital in the preamble to Regulation No 1430/79 that repayment or remittance of duties is justified where inaccurate or incomplete tax criteria were applied with regard inter alia to the value adopted for determining the amount of duties . However, when the declarant makes a choice from among the various possible bases of assessment, the particulars then furnished in support of that choice cannot be described as inaccurate or incomplete merely because a different choice would have resulted in the collection of a lower amount of import duties than was in fact collected .

21 The reply to the second question must therefore be that where, in successive sales of goods, more than one price actually paid or payable fulfils the requirements laid down in Article 3(1 ) of Regulation No 1224/80, any of those prices may be chosen by the importer for the purposes of determining the transaction value . If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1 ) of Council Directive 79/695/EEC .

Question 3

22 The third question seeks to establish whether a sum paid by the buyer to the seller, invoiced separately and described as a "buying commission", forms part of the price actually paid or payable for the goods within the meaning of Article 3(1 ) of Regulation No 1224/80 .

23 Article 3(3)(a ) of Regulation No 1224/80 provides that "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 ". It follows that all sums paid by the buyer to the seller as consideration for the sales transaction are included in the price actually paid or payable and, therefore, in the transaction value .

24 Article 8(1)(a)(i ) of Regulation No 1224/80 does in fact exclude buying commissions from the customs value . However, Article 8(4 ) provides that the term "buying commission" means a fee paid by an importer to his agent for the service of representing him in the purchase of the goods being valued . It does not include, therefore, an amount paid by the buyer to the seller if the amount is calculated in such a way as to permit the seller to cover his administrative costs and other general costs not directly related to the sale in question .

25 Unifert' s argument that the costs incurred within the Community may not in any circumstances be used to determine customs value cannot be upheld . It is sufficient to point out that Article 8(1)(b)(i ) requires that the value of certain goods supplied by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods is to be added to the price actually paid or payable to the extent that such value has not been included in that price . For that purpose, it is irrelevant whether the costs occasioned in connection with the production of the components, parts and similar items incorporated in the imported goods were incurred in the Community or elsewhere .

26 Unifert also claimed that the inclusion of the so-called buying commission in the customs value would undermine the neutrality of the customs valuation system since it would give rise to unequal treatment between undertakings which import directly and those which belong to a group with centralized purchasing . That argument must also be rejected . Any undertaking in Unifert' s position may legitimately base its customs value declaration on the price actually paid for the imported goods by the member of the group entrusted with the purchase from the supplier in the non-member country . Any inequality in that sphere is therefore the result not of Regulation No 1224/80 but of the choice made by the importer .

27 Consequently, the reply to the third question must be that a payment made by the buyer to the seller, invoiced separately and described as a "buying commission", forms part of the price actually paid or payable for the imported goods within the meaning of Article 3(1 ) of Regulation No 1224/80 .

Question 4

28 The fourth question is whether demurrage charges ( compensation payable for keeping vessels in port ) are part of the cost of transport within the meaning of Article 8(1)(e ) of Regulation No 1224/80 .

29 Article 8(1)(e)(i ) of the regulation provides that, in order to determine the customs value, the cost of transport to the place of introduction of the goods into the customs territory of the Community is to be added to the price actually paid or payable for the imported goods .

30 The term "cost of transport" must be interpreted as including all the costs, whether they are main or incidental costs, incurred in connection with moving the goods to the customs territory of the Community . Consequently, demurrage charges, which consist in compensation provided for in the shipping contract to compensate the shipowner for any delays arising during the loading of the vessel, must be considered to be covered by the term "cost of transport ".

31 The reply to the fourth question submitted by the Bundesfinanzhof must be therefore that demurrage charges ( compensation payable for keeping vessels in port ) form part of the cost of transport within the meaning of Article 8(1)(e ) of Regulation No 1224/80 .

Question 5

32 The fifth question is whether, in order to determine the transaction value within the meaning of Article 3(1 ) of Regulation No 1224/80, the price actually paid or payable must be reduced proportionately where there is found to be a discrepancy between the quantity of goods unloaded and the quantity purchased which is within the weight allowance agreed between the parties and does not lead to a reduction in the stipulated purchase price .

33 Unifert claims that, in the circumstances described in the question, it is necessary to apply Article 4 of Regulation No 1495/80, as amended by Regulation No 1580/81, cited above, which provides that the price actually paid or payable is reduced when the goods being valued have been damaged or partly lost before entry into free circulation . According to Unifert, the Court gave a ruling to that effect in its judgment of 12 June 1986 in Case 183/85 Hauptzollamt Itzehoe v Repenning (( 1986 )) ECR 1873 .

34 The Commission contends, on the other hand, that the regulation provides a clear answer to the question submitted, because in Article 3(1 ) it refers only to the price actually paid by the importer, so the question whether a different amount had been agreed in the contract or whether the buyer was legally required to pay that price is irrelevant .

35 As emerges from the sixth recital in the preamble to Regulation No 1224/80, the objective of the Community rules on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values . That is why unforeseeable reductions in the commercial value of the goods, after they have been purchased but before they have been released for free circulation, must result in a proportional reduction in the price actually paid or payable . They are the circumstances covered by Article 4 of Regulation No 1495/80 and by the judgment of the Court of 12 June 1986 in Case 183/85 Repenning, cited above .

36 It is quite a different matter when the parties, in their contract of sale, have made express provision for the possibility of a discrepancy between the quantity of goods purchased and the quantity unloaded, and the buyer has accepted that risk within the limits of an agreed allowance . In such a case, the price is not reduced and, in commercial terms, the value of the consignment is unchanged . It is therefore consistent with the objectives of the Community system of customs valuation to take the full price paid or payable as the basis for valuation .

37 Therefore, the reply to the fifth question must be that Article 3(1 ) must be interpreted as meaning that the price actually paid or payable should not be reduced proportionately where there is a discrepancy between the quantity of goods unloaded and the quantity purchased which does not exceed the weight discrepancy allowance agreed upon by the parties and does not lead to a reduction in the stipulated purchase price .

Costs

The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable . Since 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 submitted to it by the Bundesfinanzhof, by an order of 6 December 1988, hereby rules :

( 1 ) The price stipulated in a contract of sale between persons established in the Community may be regarded as the transaction value within the meaning of Article 3(1 ) of Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes .

( 2 ) Where, in successive sales of goods, more than one price actually paid or payable fulfils the requirements laid down in Article 3(1 ) of Regulation ( EEC ) No 1224/80, any of those prices may be chosen by the importer for the purposes of determining the transaction value . If the importer has referred to one of those prices in the customs value declaration, he may not correct the declaration after the goods have been released for free circulation, in accordance with Article 8(1 ) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation .

( 3 ) A payment made by the buyer to the seller, invoiced separately and described as a "buying commission", forms part of the price actually paid or payable for the imported goods within the meaning of Article 3(1 ) of Regulation ( EEC ) No 1224/80 .

( 4 ) Demurrage charges ( compensation payable for keeping vessels in port ) form part of the cost of transport within the meaning of Article 8(1)(e ) of Council Regulation ( EEC ) No 1224/80 .

( 5 ) Article 3(1 ) of Regulation ( EEC ) No 1224/80 must be interpreted as meaning that the price actually paid or payable should not be reduced proportionately where there is a discrepancy between the quantity of goods unloaded and the quantity purchased which does not exceed the weight discrepancy allowance agreed upon between the parties and does not lead to a reduction of the purchase price .