Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In these proceedings the Court has once again been called on to interpret Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes.
2. The appellant in the main proceedings is the German subsidiary of the Unifert group. The group's purchases of fertilizer in nonmember countries are usually made through Ferdis SA of Brussels, which resells the fertilizers, uncleared, to the group's various subsidiaries.
3. The first group of questions concerns mainly the interpretation of Article 3 of Regulation No 1224/80.
4. It is evident from the wording of the provision alone that the essential element for determining the transaction value is the reference to a contract relating to goods intended for import into the customs territory of the Community, while the place of residence of the parties to the contract of sale is entirely irrelevant.
5. Moreover, that appears consistent with Article 6 of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Articles 1, 3 and 8 of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes, as amended by Commission Regulation (EEC) No 1580/81, which states that the fact that the goods which are the subject of a sale are declared for free circulation in the Community must be regarded as adequate indication that they were sold for export to the customs territory of the Community, and that that indication also applies in the case of successive sales before valuation; each price resulting from those sales may be taken as a basis for valuation.
6. In my view, Article 6 also provides a sufficiently clear answer to Question 1(b) since, in the case of successive sales, the importer is in principle at liberty to choose the price which must be taken as a basis for determining the customs value.
7. However, with regard to the possibility of the trader correcting his choice, it must be pointed out that, under Article 8(1 )(a) and (b) of Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation, such corrections must be requested before the goods are released for free circulation and may no longer be allowed where the request is made after the customs authority has informed the declarant that it intends to examine the goods or that it has itself established that the particulars in question are incorrect.
8. Nor do I consider pertinent the reference made by Unifert to Article 2 of Council Regulation (EEC) No 1430/79, which provides that import duties are to be repaid or remitted in so far as it is established that the amount of such duties exceeds the amount lawfully payable, or its reference to Article 10(2) of Directive 79/695/EEC, relating to possible subsequent verification by the competent authorities and to the possible consequences thereof as regards any change in the amount of import duty.
9. With regard to the inclusion of the buying commission — itemized separately in the invoice and calculated as a percentage of the price of the goods — in the price stipulated in the contract of sale, it should be recalled firstly that Article 8(1 )(a) of Regulation No 1224/80 excludes- buying commissions from the list of sums to be added to the price actually paid or payable for the imported goods.
10. In order to apply the Community customs rules correctly, regard must be had to the reality of the relations between the contracting parties and it is for the national authorities, and where applicable for the national court, to determine whether in a particular case, regardless of the words used by the parties themselves, the commission in question actually constitutes a sum paid in return for that specific service or whether it simply represents a part of the purchase price which must, as such, be taken into account for calculating the transaction value of the goods.
11. With regard to the inclusion of demurrage charges in the cost of transport within the meaning of Article 8(l)(e)(i) of Regulation No 1224/80, it must be pointed out that those charges are collected on the basis of the transport contract and are directly connected with the transport of the goods by sea, which could not be effected without payment of such sums.
12. The final question asked by the Bundesfinanzhof must, in my opinion, also be answered in the affirmative. However, further clarification is necessary in that regard.
13. In that second case, Article 4 of Regulation No 1495/80, as amended by Regulation No 1580/81, becomes relevant Article 4 sutes that, in the event that part of the goods are lost or when the goods have been damaged before entry into free circulation, the price actually paid or payable must be apportioned proportionately.
14. Moreover, that interpretation of the provision is borne out by the Court's statement in Repenning, according to which: Article 3(1) of Council Regulation No 1224/80 must be interpreted as meaning that where goods bought free of defects are damaged before being released for free circulation the price actually paid or payable, on which the transaction value is based, must be reduced in proportion to the damage suffered.
15. In the light of the foregoing considerations I therefore propose that the Court should give the following replies to the questions referred by the Bundesfinanzhof:
1 Original language: Italian.
2 OJ 1980, L 134, p. 1.
3 Article 3(1) is based on Article 1(1) of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade (OJ 1980, L 71, p. 107).
4 OJ 1980, L 333, p. 1.
5 OJ 1980, L 154, p. 14.
6 OJ 1981, L 154, p. 36.
7 OJ 1979, L 205, p. 19. Under Article 27 of Directive 79/695/EEC, as amended by Council Directive 81/853/EEC (OJ 1981, L 319, p. 1), the Member States were required to take the measures necessary to comply with the directive not later than 1 July 1982.
8 OJ 1979, L 175, p. 1.
9 See the judgment in Case 183/85 Hauptxollamt Itzrboe v Repenning [1986] ECK 1873. b should be pointed out that the facts of the cue occurred before the entry into force of the abovementioned amendment to Article 4 of Regulation No 1495/80.