Opinion of Mr Advocate General

Mr President,

Members of the Court,

The central question in the reference for a preliminary ruling in regard to which I deliver my Opinion today is how the customs value of goods imported into the European Economic Community from nonmember countries is to be calculated. The problem is, in particular, whether the cost of transporting the imported goods within the Community is to be included in the customs value and what are the requirements for distinguishing those transport costs if the supplier invoices them separately.

The following facts emerge from the main proceedings:

Between July and September 1980 Mainfrucht Obstverwertung GmbH, the plaintiff and respondent (which I shall refer to as the plaintiff), imported 28 consignments of precooled morello cherries and one consignment of frozen raspberries into the Federal Republic of Germany from Bulgaria and placed those goods in free circulation by way of the customs procedure without clearance. The suppliers invoiced the plaintiff at a net price per tonne for the goods, including carriage paid up to the German border, with additional charges of DM 40 per tonne for the cherries and DM 70 per tonne for the raspberries in respect of internal freight charges in Germany or freight charges from the German frontier to the plaintiff's place of business. Those separately itemized freight charges were shown partly in the invoices for the goods and partly in separate invoices. They were to be paid to the suppliers and not to the carriers.

The Hauptzollamt [Principal Customs Office] Schweinfurt, the defendant and appellant (which I shall refer to as the defendant) initially accepted the plaintiff's customs declarations by notices of assessment dated 5 August, 4 September and 7 October 1980. However, by notices of amendment of 24 November 1980, it changed the customs value and claimed payment of duties in respect of the cost of transport within the Community. It justified the amendment by stating that although the freight costs for the consignments in question had been distinguished, they could not be verified since the invoices for the cost of transport from the frontier to the place of delivery had been issued by the supplier.

After lodging an unsuccessful objection, the plaintiff brought an action before the Finanzgericht München [Finance Court, Munich], which upheld the plaintiff's claim that the cost of transport within the Community should not be included in the customs value. In the Finanzgericht's view, the cost of transport within the Community which the plaintiff had paid formed part of the transaction value within the meaning of Article 3 (3) (a) of Council Regulation No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (which I shall call the Customs Value Regulation). However, the inclusion of those transport costs in the customs value was conditional upon the requirement laid down in Article 15 (1) of the Customs Value Regulation. Since a separate invoice was issued in respect of the transport costs from the German frontier to the place of delivery, those costs had been distinguished within the meaning of the said provision. It could not be inferred from that provision that the buyer must provide verifiable evidence of the actual freight costs charged by the carrier. Article 15 (2) (a) of the Customs Value Regulation was not applicable since it only became relevant when the separately stated transport costs related to a journey partly within and partly outside the customs territory of the Community. The fact that the cost of transport within the Community had been distinguished within the meaning of Article 15 (1) of the Customs Value Regulation did not, however, mean that the amount of such costs must be taken as the basis for customs clearance without any further consideration. It was not the information given by the persons liable to pay duty, or indicated by them in the documents they submitted, which must govern the matter but the true circumstances. According to information obtained by the Finanzgericht from a Chamber of Commerce, the costs indicated by the plaintiff lay within the usual range of transport charges.

The defendant brought an appeal against that judgment before the Bundesfinanzhof [Federal Finance Court], essentially on the following grounds :

The use of the term distinguished [getrennt ausgewiesen] in Article 15 (1) of the Customs Value Regulation meant not merely that a sum must be designated as transport costs but that those costs must be substantiated by the production of verifiable documentation; otherwise the customs value of goods would ultimately be determined by the seller by way of its formal invoice and there would be too great a risk of fraud.

In order to resolve the point of law, the Bundesfinanzhof referred the following questions to the Court of Justice of the European Communities for a preliminary ruling:

The plaintiff.

My Opinion in this case will take the form of a statement of the views of the national court and of the parties to the proceedings before the Court of Justice, followed by a statement of my own opinion on the individual questions.

The plaintiff.

1. The Bundesfinanzhof first states that according to Article 3 (1) of the Customs Value Regulation, the transaction value is the price actually paid or payable for the goods when sold for export to the customs territory of the Community. It is the total payment... for the imported goods and includes all payments made... as a condition of sale of the imported goods by the buyer to the seller. In determining the transaction value it should therefore be immaterial whether payment is made by the buyer to the seller in one or several amounts on the basis of one or several invoices and whether those amounts are paid for the goods themselves or for other services provided by the seller with regard to the goods. In this case the transaction value should therefore include the payments designated as transport costs within Germany as well as the actual price of the goods.

2. The plaintiff and the Commission of the European Communities are largely in agreement in the observations they submitted to the Court on the questions referred to it by the Bundesfinanzhof. Those observations may be summarized as follows:

The plaintiff.

The Commission:

Before giving my opinion on this preliminary reference, let me make a remark that the Commission made in Case 183/85, also a reference for a preliminary ruling from the Bundesfinanzhof on the subject of customs valuation :

Those difficulties may be connected with the fact that although Articles 3 to 7 of Council Regulation No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes form to some extent a general scheme, they group together individual provisions which, like Article 15 in particular, which is at issue in this case, can no longer be understood merely on the basis of the terms in which they are drafted.

1. The central question referred to the Court for a preliminary ruling by the Bundesfinanzhof is whether the transaction value within the meaning of Article 3 (1) of the Customs Value Regulation includes both the price of the goods and the intra-Community transport costs when the buyer has paid both amounts to a foreign seller on the basis of a separate invoice for each amount.

2. Although the Bundesfinanzhof raised the question of the requirements laid down in Article 15 (1) of the Customs Value Regulation regarding the distinguishing of intra-Community transport costs only in the context of its consideration of Article 15 (2), it is necessary to discuss that problem here.

3. I can deal briefly with the other questions referred to the Court by the Bundesfinanzhof because that Court submitted them only in case Question 1 (a) was answered in the affirmative.

4. The conclusion thus arrived at that intra-Community transport costs may be included neither in the transaction value nor in the customs value is further confirmed by other factors. Although Article 15 (2) (b) in principle includes intra-Community transport costs in the customs value in regard to goods invoiced at a uniform free domicile price, that provision none the less permits those costs to be deducted if evidence is produced to the customs authorities that the free-frontier price would be lower than the uniform free domicile price.

On the basis of the foregoing, I propose that the Court of Justice reply to the questions submitted by the Bundesfinanzhof as follows :

1 Translated from the German.

2 OJ 1980, L 134, p. 1.

3 See Council Decision 80/271 of 10 December 1979, OJ 1980, L 71, p. 1, at p. 107 et seq. The Agreement is hereinafter referred to as the Customs Value Code.

4 Judgment of 14 February 1980 in Case 84/79 A. Meyer-Uelze KCv Hauplzollaml Bad Reichenhall [1980] ECR 291.

5 OJ, English Special Edition 1968 (I), p. 170.

6 OJ 1980, L 333. p. 1.

7 OJ 1980, L 71, p. 107.

8 See the judgments of 16 March 1983 in Case 266/81 Società Italiana per l'Oleodotto Transalpino (SIOT) v Ministero delle Finanze, Ministero della Manna Mercantile, Circoscrizione Doganale di Trieste and Ente Autonomo del Porto di Trieste and in Joined Cases 267 to 269/81 Amministrazione delle Finanze dello Stato v Società Petrolifera Italiana SpA and SpA Michelin Italiana [1983] ECR 731 and 801 respectively.

9 See Footnote 3; this judgment, dealing with Article 8 (2) of Regulation No 803/68 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170) can be relied on in regard to the interpretation of Article 15 (2) (c) of Regulation No 1224/80 because of the similarity of the provisions.