Opinion of Mr advocate general Capotorti
Mr. President,
Members of the Court,
1. The determination of the value of goods for customs purposes has been the subject both of international conventions preceding the birth of the Community — in particular the Brussels Convention of 15 December 1950 — and of rules of secondary Community law. I would recall especially the provisions introduced by Regulation No 803/68 of the Council of 27 June 1968 and by Regulation No 375/69 of the Commission of 27 February 1969. It is essentially within the framework of those provisions that the problems of interpretation raised by the present case of Chatain lie.
2. In the first question the French court inquires whether Regulation (EEC) No 803/68 of the Council of 27 June 1968, in particular Articles 1 to 10, and Regulation (EEC) No 1581/74 of the Commission of 24 June 1974 on the price reductions to be taken into account when determining value for customs purposes, allow the competent authorities of a Member State to attribute to goods imported from a non-member State a value for customs purposes less than the value declared by the importer or, for imports subsequent to the entry into force of Regulation (EEC) No 375/69 of the Commission of 27 February 1969, less than the value which results from the particulars relating to value for customs purposes declared by the importer.
3. As I recalled at the outset, the criteria for determining value for customs purposes were laid down, even before the creation of the Community, in the Convention of Brussels of 15 December 1950 (which came into force on 28 July 1953). That Convention was conceived in accordance with the principles set forth in Article VII of GATT and in particular with the principle that value for customs purposes should correspond to the true value of the imported goods.
4. In its observations submitted in the course of the present litigation Laboratoires Sandoz has referred to the necessity for uniformity in the application of the Common Customs Tariff in order to emphasize that it must not be applied so as to protect national interests or to pursue goals which are strictly national, outside and beyond the Community interest in collecting customs duties. This submission calls for some comments.
5. Before I proceed to consider Questions 2 to 10 put by the said order of the Tribunal de Grande Instance, Nanterre, dated 7 March 1979, it is convenient to deal shortly with Question 11 which the national court referred to this Court by order of 14 May 1979 inasmuch as that question is closely linked with the problem which I have just discussed. What the French court asks is whether Article 9 of Regulation No 803/68 of the Council and, for the imports to which they apply, Regulation No 375/69 of the Commission and the annex thereto allow the competent authorities of a Member State to apply to the invoice price, in order to determine the value for customs purposes, downward adjustments other than those which are listed under Nos 18 to 21 of the aforesaid annex and which are determined by items separate from the price of the goods but nevertheless included in the invoice price.
6. In the second question (which is dependent upon the affirmative answer to the first) the French court inquires whether the Community legislation considered above allows the competent authorities of a Member State to reduce the value declared by the importer (or, in the application of Regulation No 373/69 of the Commission, the value resulting from the particulars furnished by that importer) and to rely, for that purpose, upon a comparison between that value and one or more prices charged on other contracts of sale concerning the same product.
7. In the event of an affirmative answer to the foregoing question the court making the reference wishes to know, thirdly, what are the country or countries of exportation and/or importation from and/or to which sales must have been made in order for the competent authorities of a Member State to be empowered by the Community regulations to found, upon the prices charged in those sales, a reduction of the declared value (or the value resulting from the particulars furnished by the importer). In particular, the court asks whether the sales, of which the prices may be used as reference prices, must necessarily have been made between an exporter and an importer respectively established in the same countries as those between which the sale was made in relation to which the importer's declaration of value (or the particulars furnished by him for valuation for customs purposes) is disputed.
8. In the fourth question the French court asks whether the Community legislation considered above allows the national customs authorities to take as reference price for reducing the value declared by the importer (or — in the application of Regulation No 375/69 — the value resulting from the particulars furnished by the importer) prices charged (a) in sales of products coming from countries whose external trade is governed by a State monopoly or by public undertakings; and (b) in sales of imitations of the products coming the subject-matter of the sale in relation to which the value for customs purposes is reduced.
9. The fifth question from the court making the reference is based on the assumption that no reference price may be used either in law or in fact and inquires whether the competent authorities of the importing country are entitled unilaterally to employ other methods or facts and, if so, which.
10. The sixth question put by the French court proceeds upon the hypothesis that the methods applied by the French administration to determine the value for customs purposes ar not permissible and asks according to which criteria that value is correctly to be established where no valid price is available for comparison and where the matter concerns patented products forming the subject-matter of sales between two companies which are not independent of one another.
11. In the seventh question the French court asks whether the authorities of a Member State are entitled to charge an importer with a false declaration of value for customs purposes made by means of a false, incomplete, inaccurate or inapplicable invoice, thereby treating such facts in the same way as importation of goods without declaration, which is prohibited by the national law and is an offence punishable by heavy fines and prison sentences, even where the importer has complied with Regulation No 375/69 of the Commission by correctly furnishing the particulars relating to the value of goods for customs purposes which are the subject-matter of the questionnaire set out in the annex to the said regulation, and where it is not disputed that the goods have actually been delivered to the purchaser in the quality and quantity stated in the invoice and that the seller has received the whole of the invoice price.
12. The eighth question put by the Nanterre court seeks to clarify whether the practice of reducing the declared value and the serious consequences which it entails for importers are compatible with the customs union set up by Articles 12 to 29 of the EEC Treaty, having regard to the deflections of trade and distortions of competition to which that practice may lead.
13. In the ninth question the national court asks, first, whether Article 13 of the Agreement between the European Economic Community and the Swiss Confederation of 22 July 1972, by the fact of prohibiting any measure having an effect equivalent to quantitative restrictions on imports in trade between the Community and Switzerland, does not thereby prohibit the competent authorities of a Member State from reducing the declared value (or the value resulting from the particulars furnished by the importer). The French court also inquires whether the said Article 13 allows heavy fines and prison sentences to be imposed upon an importer of a Member State of the EEC who has duly fulfilled his obligations by correctly and completely giving the national authorities the information required by Regulation No 375/69 of the Commission where it is not disputed that the goods have actually been delivered to the purchaser in the quality and quantity stated in the invoice and that the seller has received the whole of the invoice price.
14. The tenth question from the French court refers to the first paragraph of Article 19 of the above-cited Agreement between the EEC and Switzerland, which prohibits any restrictions on payments relating to trade in goods and the transfer of such payments between the Member States of the European Community and Switzerland. The national court asks whether that provision prevents the national authorities from classifying as unlawful transfers of capital a transaction whereby a purchaser in a Member State of the European Community pays his Swiss supplier the amount of an invoice relating to a sale of goods where it is not disputed that those goods have actually been delivered to the purchaser in the quality and quantity stated in the invoice and that the seller has received the whole of the invoice price.
15. In conclusion, I would suggest that the Court answer the questions referred to it for a preliminary ruling by the Tribunal de Grande Instance, Nanterre, by orders of 7 March and 14 May 1979, by declaring that:
1 Translated from the Italian.