Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

The reference for a preliminary ruling with which we are concerned today raises questions relating to the interpretation of Regulation (EEC) No 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170).

According to Article 1 thereof For the purpose of applying the Common Customs Tariff, the value for customs purposes of the goods imported shall be taken to be the normal price and this normal price is defined as the price which they would fetch, at the time referred to in Article 5 (that is usually the date of acceptance by the customs authorities of the declarant's statement of his intention that the goods should enter into home use) on a sale in the open market between a buyer and a seller independent of each other. To determine the normal price it must be assumed according to Article 1 (2) that the goods are delivered to the buyer at the place of introduction into the customs territory of the Community, which under Article 6 (1) (c) in the case of goods carried by road is the place where the first customs office is situated, and that the seller bears all costs, charges and expenses incidental to the sale and to the delivery of the goods at the place of introduction, which are hence included in the normal price. In connexion with the last point Article 7 of the regulation provides that the costs, charges and expenses mentioned in Article 1 (2) (b) include, inter alia, carriage and freight”. Furthermore according to Article 9 the price paid or payable may also be accepted as the value for customs purposes if that price is adjusted, if necessary, to take account of circumstances of the sale which differ from those on which the normal price is based. According to Article 9 (2) such an adjustment may in particular be required with reference to the costs, charges and expenses mentioned in Article 1 (2). Finally Article 8 (2) provides:

The plaintiff in the main action in the period from March to November 1972 bought 15 consignments of deep-frozen fruit and vegetables from a Hungarian firm. The goods were carried in the supplier's lorries and were declared for home use to the Customs Office at Frei-lassing-Saalbriicke, the place of introduction within the meaning of Article 6 of Regulation No 803/68, and for this purpose the plaintiff was represented by a firm of forwarding agents. The Customs Office first levied the import duties which were due on the basis of the value of the goods, as declared by the firm of forwarding agents — free at destination — after deducting part of the internal transport costs as calculated in accordance with the Reichskraftwagentarif [German Road Transport Tariff] by the firm of forwarding agents appointed. The Customs Office subsequently amended these provisional assessments of customs duty and claimed further duty from the plaintiff on the ground that whatever the destination of the goods was they had been supplied at the same prices and that consequently the provisions relating to uniform prices within the meaning of Article 8 of Regulation No 803/68 applied. They ruled out the possibility of simply taking into account the internal transport costs which had been calculated and deducting them from the invoice prices.

The plaintiff objected to this assessment. It relied, in order to support its view that a fixed proportion of the transport costs is to be deducted from the invoice prices, on a statement of the general agent of the Hungarian firm of suppliers of August 1972 confirming that a fixed sum of DM 0.062 per kilogram net for carriage within the Federal Republic of Germany was included by the firm of suppliers in the invoice values. It also produced a letter of the Hungarian firm of suppliers of 30 August 1972 which reads :

The Principal Customs Office however overruled the objection on the ground that the said letter could not be regarded as adequate evidence for the purposes of Article 8 of Regulation No 803/68. On the contrary only documents capable of verification such as, for example, invoices for the cost of carriage or the computation of the proportion of the costs of internal carriage can be treated as adequate.

The Finanzgericht [Finance Court], Munich, dismissed an action brought against this ruling on the ground that according to the evidence of one customs official the fact that uniform free domicile prices apply to all the customers in the Federal Republic of the Hungarian firm of suppliers can be taken as proved. In such circumstances a deduction of costs of internal carriage and freight is only permissible under Article 8 (2) of Regulation No 803/68 if evidence is produced that the free-frontier price would be lower than the uniform free domicile price. But this evidence has not in fact been produced; in particular it is not to be found in the letter of August 1972 which only contained an assertion prompted after the event which cannot be verified.

Thereupon the plaintiff brought the matter by way of appeal to the Bundesfinanzhof [Federal Finance Court]. As far as the application of Article 8 (2) of Regulation No 803/68 is concerned, the plaintiff pointed out that all that has been established is that the same free domicile price applies to all purchasers in the territory of the Federal Republic. The letter of August 1972 states authoritatively that buyers in the Federal Republic of Germany are charged a price lower by DM 62 per tonne for free-frontier purchases. This is not an arbitrary reduction either. The said sum in fact represents statutory transport scheduled charges (Reichskraftswagentarif [German Road Transport Tariff]); it can also be shown that the average amount attributable to internal carriage, which has been fixed by the Frachtprüfungsstelle [Freight Supervision Authority] at DM 70 per tonne, corresponds approximately to this reduction. Further documents are not to be expected since the Hungarian firm has refused to hand over internal documents containing computations.

The Bundesfinanzhof by its order of 24 April 1979 stayed proceedings and, pursuant to Article 177 to the EEC Treaty, referred to the Court of Justice for a preliminary ruling the following questions:

My views on these questions are as follows :

1 Translated from the German.