JUDGMENT OF 10. 6. 1975 —CASE 91/74 HAUPTZOLLAMT HAMBURG-ERICUS v HAMBURGER IMPORT-KOMPANIE

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

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart (Presidents of Chambers), A. M. Donner (Rapporteur), R. Monaco, P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Written observations submitted to the Court

III — Oral procedure

Law

Costs

I —. Facts and procedure

II —. Written observations submitted to the Court

III —. Oral procedure

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:

3. It appears from the file that the firm concerned, having on 16 June 1970 submitted for customs clearance a consignment of 1248 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.

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.

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.

On those grounds, THE COURT in answer to the question referred to it by the Bundesfinanzhof by order of 23 October 1974, hereby rules: