61974J0091

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COMMON CUSTOMS TARIFF - APPLICATION - VALUE FOR CUSTOMS PURPOSES - DETERMINATION - AGREED WEIGHT BY UNIT OF THE GOODS - COMPULSORY GUARANTEE - EXCESS OF TOTAL WEIGHT AS A FORESEEABLE CONSEQUENCE - SUCH EXCESS TO BE TAKEN INTO CONSIDERATION

( COMMON CUSTOMS TARIFF, GENERAL RULES, SECTION C 1; REGULATION ( EEC ) NO 803/68 OF THE COUNCIL )

FOR THE DETERMINATION OF THE VALUE OF GOODS FOR CUSTOMS PURPOSES, THE EXCESS OF TOTAL WEIGHT OF SUCH GOODS, WHICH IS THE FORESEEABLE CONSEQUENCE OF THE OBLIGATION TO GUARANTEE THE AGREED MINIMUM WEIGHT PER UNIT, MUST BE TAKEN INTO CONSIDERATION .

THIS CONSEQUENCE IS ABOVE ALL FORESEEABLE WHEN THE INVOICED PRICE FOR THE GOODS HARDLY EXCEEDS THE VALUE LIMIT IN QUESTION .

IN CASE 91/74 REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

HAUPTZOLLAMT HAMBURG-ERICUS

AND

HAMBURG IMPORT-KOMPANIE GMBH, WINSEN/LUHE,

ON THE INTERPRETATION OF TARIFF SUBHEADINGS 20.07 B II ( A ) 1 AND 20.07 B II ( B ) 1 ( AA ) OF THE COMMON CUSTOMS TARIFF, TOGHETHER WITH THE GENERAL RULES RELATING TO THE COMMON CUSTOMS TARIFF, SECTION C, PARAGRAPHS 1 AND 2 ( B ),

1 BY ORDER OF 23 OCTOBER 1974, RECEIVED AT THE REGISTRY ON 11 DECEMBER 1974, THE BUNDESFINANZHOF HAS ASKED THE COURT, UNDER ARTICLE 177 OF THE EEC TREATY, TO RULE WHETHER, FOR THE PURPOSE OF CLASSIFICATION UNDER TARIFF SUBHEADINGS 20.07 B II ( A ) 1 AND 20.07 B II ( B ) 1 ( AA ) OF THE COMMON CUSTOMS TARIFF, THE DETERMINING FACTOR IS 'IN A CASE WHERE THE INVOICE PRICE IS ADOPTED AS THE BASIS OF VALUATION, THE ACTUAL NET WEIGHT OF THE IMPORTED GOODS OR THE MINIMUM WEIGHT PER UNIT AGREED IN THE CONTRACT OF PURCHASE, WHERE, UNDER SUCH A CONTRACT, IT IS CUSTOMARY IN THE TRADE TO SUPPLY AN ADDITIONAL QUANTITY WITHOUT FURTHER CHARGE '.

2 REGULATION ( EEC ) NO 455/69 OF THE COUNCIL OF 11 MARCH 1969 ( OJ, SPECIAL EDITION 1969 ( I ), P . 103 ), CONSIDERING THAT 'THE CHARGING OF A LEVY ON FRUIT OR VEGETABLE JUICES FALLING WITHIN SUBHEADING NO 20.07 B WHICH HAVE A HIGH CONCENTRATION OF NATURAL SUGAR SHOULD BE AVOIDED' AND THAT 'THAT OBJECTIVE MAY BE ACHIEVED TO A LARGE EXTENT BY EXCLUDING JUICES WITH A VALUE IN EXCESS OF A GIVEN AMOUNT FROM THE LEVY', INTRODUCED INTO THE COMMON CUSTOMS TARIFF A DISTINCTION BETWEEN HEADINGS :

'20.07 B II ( A ) 1 : ORANGE JUICE OF A VALUE EXCEEDING 30 U.A . PER 100 KG NET WEIGHT'

AND

'20.07 B II ( B ) 1 ( AA ): ORANGE JUICE OF A VALUE OF 30 U.A . OR LESS PER 100 KG NET WEIGHT',

SO THAT THE AGRICULTURAL LEVY IN RESPECT OF ADDED SUGAR CONTENT IS DUE ONLY IN THE SECOND CASE .

3 IT APPEARS FROM THE FILE THAT THE FIRM CONCERNED, HAVING ON 16 JUNE 1970 SUBMITTED FOR CUSTOMS CLEARANCE A CONSIGNMENT OF 1 248 CARTONS OF CONCENTRATED ORANGE JUICE EACH, ACCORDING TO THE DECLARATION, CONTAINING 12 BOTTLES OF A NET WEIGHT OF 895 GRAMMES, AT THE PRICE OF DM 11.80 PER CARTON, THAT IS TO SAY, A VALUE OF DM 109.89 PER 100 KG, DECLARED THIS CONSIGNMENT AS COMING UNDER HEADING 20.07 B II ( A ) 1 BECAUSE THE LIMIT OF 30 U.A . WAS AT THAT TIME DM 109.80 PER 100 KG .

HOWEVER, THE CUSTOMS AUTHORITIES ESTABLISHED BY A CHECK THAT THE BOTTLES CONTAINED A NET WEIGHT OF ABOUT 930 GRAMMES, CONSIDERED THAT THE VALUE OF THE CONSIGNMENT OUGHT TO BE CALCULATED ACCORDING TO THE ACTUAL NET WEIGHT OF THE GOODS AND NOT ACCORDING TO THEIR DECLARED NET WEIGHT, CLASSIFIED THE GOODS UNDER HEADING 20.07 B II ( B ) 1 ( AA ) AND REQUIRED PAYMENT OF A LEVY IN RESPECT OF ADDED SUGAR CONTENT OF DM 3 985.48 .

4 ACCORDING TO SECTION C, PARAGRAPH 1, OF THE GENERAL RULES ON THE COMMON CUSTOMS TARIFF 'UNLESS PROVIDED OTHERWISE, THE PROVISIONS RELATING TO VALUE FOR CUSTOMS PURPOSES SHALL BE APPLIED TO DETERMINE, IN ADDITION TO THE VALUE FOR THE ASSESSMENT OF AD VALOREM CUSTOMS DUTIES, THE VALUES BY REFERENCE TO WHICH THE SCOPE OF CERTAIN HEADINGS OR SUBHEADINGS IS DEFINED '.

5 ACCORDING TO THE IMPORTER OF THE CONSIGNMENT IN DISPUTE, ONCE IT IS COMMON GROUND, AS IN THIS CASE, THAT THE PRICE PAID MUST BE ACCEPTED AS THE VALUE FOR CUSTOMS PURPOSES, IN ACCORDANCE WITH ARTICLE 9 OF REGULATION ( EEC ) NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES, IT FOLLOWS THAT BOTH THE PRICE AND THE NET WEIGHT ESTABLISHED BY THE INVOICE ARE TO BE TAKEN INTO ACCOUNT AS THAT PRICE CAN ONLY REFER TO THAT WEIGHT ON A SALE BY WEIGHT OF GENERIC GOODS .

6 HOWEVER, THIS REASONING TAKES INSUFFICIENT ACCOUNT OF THE PARTICULAR FEATURES OF THE QUESTION OF INTERPRETATION PUT BY THE NATIONAL COURT, WHICH STATES THAT UNDER THE TERMS OF THE CONTRACT OF SALE 'A MINIMUM WEIGHT PER UNIT' IS AGREED .

THIS FACT IS CONFIRMED MOREOVER BY THE ADDITIONAL EXPLANATIONS PUT FORWARD BY THE IMPORTER ITSELF ACCORDING TO WHICH THE WEIGHT OF 895 GRAMMES PER BOTTLE WAS NECESSARY FOR THE GOODS TO COMPLY WITH REQUIREMENTS OF GERMAN LEGISLATION RELATING TO WEIGHTS AND MEASURES .

THE CASE ENVISAGED BY THE QUESTION IS CHARACTERIZED THEREFORE NOT BY THE FACT THAT THE TOTAL WEIGHT OF THE CONSIGNMENT IN QUESTION SHOULD SIMPLY CORRESPOND TO A CERTAIN WEIGHT PER UNIT, IN THIS CASE 895 GRAMMES PER BOTTLE, BUT BY THE FACT THAT EACH UNIT INDIVIDUALLY HAD TO HAVE A MINIMUM NET WEIGHT .

WHEN AN EXCESS OF TOTAL WEIGHT OF THE GOODS IS THE FORESEEABLE CONSEQUENCE OF THE OBLIGATION TO GUARANTEE THE AGREED MINIMUM WEIGHT PER UNIT, IT CANNOT BE CONSIDERED AS BEING THE SUPPLY OF AN ADDITIONAL QUANTITY 'WITHOUT FURTHER CHARGE' BY THE VENDOR, IN ACCORDANCE WITH TRADE USAGE, BUT MUST BE TAKEN INTO CONSIDERATION FOR THE DETERMINATION OF THE VALUE OF THE GOODS FOR CUSTOMS PURPOSES .

THIS CONSEQUENCE IS ABOVE ALL FORESEEABLE WHEN THE INVOICED PRICE FOR THE GOODS HARDLY EXCEEDS THE VALUE LIMIT IN QUESTION .

7 THE REPLY TO BE GIVEN MUST THEREFORE BE THAT IN CLEARING THROUGH CUSTOMS GOODS COVERED BY HEADINGS 20.07 B II ( A ) 1 AND 20.07 B II ( B ) 1 ( AA ) OF THE COMMON CUSTOMS TARIFF, WHERE THE PRICE PAID OR TO BE PAID IN RESPECT OF SUCH GOODS IS FIXED TAKING INTO ACCOUNT A GUARANTEE OF A NET MINIMUM WEIGHT PER UNIT SOLD, THAT PRICE MUST RELATE TO THE ACTUAL NET WEIGHT OF THE WHOLE OF THE GOODS .

8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED 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 BUNDESFINANZHOF, COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 23 OCTOBER 1974, HEREBY RULES :

IN CLEARING THROUGH CUSTOMS GOODS COVERED BY HEADINGS 20.07 B II ( A ) 1 AND 20.07 B II ( B ) 1 ( AA ) OF THE COMMON CUSTOMS TARIFF, WHERE THE PRICE PAID OR TO BE PAID IS FIXED TAKING INTO ACCOUNT A GUARANTEE OF A NET MINIMUM WEIGHT PER UNIT SOLD, THAT PRICE MUST RELATE TO THE ACTUAL NET WEIGHT OF THE WHOLE OF THE GOODS .