Opinion of the Advocate General — ECLI:EU:C:2003:50
Date: 2003-01-23
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union;Value for customs purposes
Procedure: Reference for a preliminary ruling
Origin: Germany

summary declaration and the distinction, if any, may be made in any document in the declarant's possession. 31. In this regard, the wording of the existing language versions of Article 3(2)(a) of Regulation No 1495/80 does not yield any unequivocal answer to the first question referred by the Bundesfinanzhof. Whilst the German (getrennt ausgewiesen sind) and Danish (saerskilt angivet) language versions of that provision do refer to a separate mention of interest - from which it may be inferred that there is an obligation to mention that interest, if any, in the declaration of customs value or in the invoice attached thereto - the Spanish (se distingan), Greek (äéáêñéíåôáé), English (are distinguished), French (sont distincts), Italian (siano distinti), Dutch (onderscheiden zijn) and Portuguese (sejam distintos) language versions of that provision appear more neutral with regard to both the form of the distinction in question and the document in which it must be made. In any event they make no reference to any separate mention of interest in the documents submitted by the declarant to the customs authorities. 32. As the Court has consistently held, inter alia in Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 36, and Case C-257/00 Givane and Others [2003] ECR I-345, paragraph 36, all the language versions of a Community provision must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question. 33. In order to maintain a uniform interpretation of Community law, in the case of divergence between those versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, to that effect, Case C-236/97 Codan [1998] ECR I-8679, paragraph 26; Case C-420/98 W.N. [2000] ECR I-2847, paragraph 21, and Givane and Others, cited above, paragraph 37). 34. Furthermore, as the referring court has rightly pointed out, the Court when seized of references for a preliminary ruling on the interpretation of the regulations in issue in the present case has already had the opportunity to rule on several occasions on both the purpose of those regulations and the scope of the contested requirement to distinguish, which is also contained in other provisions of those regulations (see, inter alia, the judgments cited in paragraph 19 of the present judgment). 35. As is apparent from its very title, the regulation containing the provision which is the subject of the first question referred for a preliminary ruling seeks to implement certain provisions of Regulation No 1224/80 whose objective, as the sixth recital in the preamble thereto states, is to foster world trade by introducing a fair, uniform and neutral system of customs valuation excluding the use of arbitrary or fictitious customs values. Under the same recital in the preamble to Regulation No 1224/80, such an objective must be achieved, as a general rule, by adopting as the basis for customs valuation the transaction value of the imported goods, defined in Articles 3 and 8 of that regulation as the price actually paid or payable for those goods, to the exclusion of all other items not expressly mentioned in Article 8. 36. It follows that interest - which, as was pointed out in paragraph 29 of the present judgment, is not one of the items listed in Article 8 of Regulation No 1224/80 - does not form part of the customs value of imported goods and does not therefore have to appear in the declaration of customs value. As is apparent from paragraph 16 of Wünsche, such interest does not form part of the price paid or payable for those goods, but is payment for a service provided to the buyer on the purchase of those goods, the service in the case in the main proceedings consisting in granting deferral of payment to that buyer. 37. In that context, the condition laid down by Article 3(2)(a) of Regulation No 1495/80 cannot be regarded as establishing a derogation from Regulation No 1224/80. As with the condition that a financing arrangement be made in writing - pursuant to Article 3(2)(b) of Regulation No 1495/80 - the requirement that interest must be distinguished from the price paid or payable for the imported goods must be regarded as a formal condition enabling the customs authorities to verify the real value of those goods and thereby to ensure that the customs duty payable is properly collected. 38. Whilst it is undeniable in this regard that the prevention of expenses which are fictitious or represent a disguised element of the price of goods is, as is apparent from the Court's case-law (see, inter alia, to that effect, Mainfrucht Obstverwertung, paragraphs 34 to 37, and Wünsche, paragraph 20), a primary objective of the Community legislation on the determination of customs value, it does not however follow from that legislation and that case-law that the condition that the expenses excluded from the customs value of goods must be distinguished from the price of those goods implies, in any event, that that distinction be made in the declaration of customs value itself, or even in a document annexed to it. That condition may also be met where the expenses in question are mentioned separately in documents retained by the declarant and he declares to the customs authorities only the net price of the imported goods. 39. As Advocate General Jacobs pointed out in paragraph 19 of his Opinion, that declarant will then be in a position, if so requested, to supply the necessary information and documents to the customs authorities, as is indeed required by both Article 10(1) of Regulation No 1224/80 and Article 3(2)(c) of Regulation No 1495/80. For their part, the customs authorities will be able to check in any particular case both the amount and the rate of interest owed. Furthermore, the Community legislature could always amend the rules applicable to the matter if such checks come up against particular difficulties in practice. 40. The judgment in Wünsche is of particular relevance in this regard. Whilst it is true that the issue in the case giving rise to that judgment concerned more whether there actually was a financing arrangement within the meaning of Article 3(2)(b) of Regulation No 1495/80 than whether the interest paid under such an arrangement was distinguished from the price, as required under Article 3(2)(a), the Court nevertheless held, in paragraph 19 of that judgment, that it is not necessary for the deferred payment to be the subject of a specific agreement between the seller and the buyer, separate from the agreement relating to the sale of the imported goods. It held in the same paragraph that where charges for interest payable as consideration for the deferred payment agreed by the seller are a separate item on the invoice sent to the buyer, it must be considered that, where there is no objection on the part of the buyer, he has in effect agreed to the charges for interest relating to the deferred payment. The Court reached that conclusion notwithstanding the fact that in that case, as in the present case in the main proceedings, the buyer had not mentioned the charges for interest in the declaration of customs value. 41. Similarly, in Case C-299/90 Hepp [1991] ECR I-4301, paragraph 20, which concerned a situation in which the customs authorities had included in the customs value of imported goods the buying commission paid by the importer on the basis of a separate invoice, not referred to in the declaration of customs value, the Court held that the net price alone declared by the importer constituted the customs value for the purposes of Article 3(1) of Regulation No 1224/80 and that the buying commission was not to be included in that value. 42. Since, in order not to be included in the customs value of imported goods, buying commissions paid by an importer to his representative must, pursuant to Article 3(1) of Regulation No 1495/80, be distinguished in the same way as charges for interest paid under a financing arrangement, there is no reason to adopt a different solution in the present case from that adopted in Hepp, cited above. Consequently, where a buyer must pay interest on the basis of a separate invoice as consideration for deferred payment for certain imported goods, but he mentions in the declaration of customs value the net price alone of those goods, that net price alone must be taken into account in determining the customs value of those goods. 43. In the light of the foregoing, the answer to the first question must be that Article 3(2)(a) of Regulation No 1495/80 is to be interpreted as meaning that payments of interest are distinguished from the price of the goods even if, at the time when the customs declaration is accepted, the customs authorities are in possession only of the invoice for the net price of the goods and neither that invoice nor the declaration of customs value reveal expressly or by implication that the buyer paid or must pay interest to the seller in the context of the import transaction in question. Question 2 44. Since the second question was raised only in the event that the first question is answered in the negative, there is no need to provide an answer thereto. Costs 45. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, a step in the proceedings pending before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Bundesfinanzhof by order of 1 March 2001, hereby rules: Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes, as amended by Commission Regulation (EEC) No 220/85 of 29 January 1985, is to be interpreted as meaning that payments of interest are distinguished from the price of the goods even if, at the time when the customs declaration is accepted, the customs authorities are in possession only of the invoice for the net price of the goods and neither that invoice nor the declaration of customs value reveal expressly or by implication that the buyer paid or must pay interest to the seller in the context of the import transaction in question. Jann Timmermans von Bahr Delivered in open court in Luxembourg on 20 November 2003. R. Grass V. Skouris Registrar President 1: Language of the case: German.