Opinion of the Advocate General — ECLI:EU:C:2006:68
Date: 2006-01-26
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, therefore, the key issue in this case is whether the portable computer and the operating system form a single product, that is, whether the operating system is in economic and practical terms a constituent part of the imported product. As is the case with other components – tangible components included – that would not necessarily mean that the portable computer is entirely incapable of functioning without that intangible component. 54. Also to be considered in the present case is the fact that the contracting parties stipulated that the portable computers were to be delivered with a pre-installed operating system – in this case the operating system produced by Microsoft. Accordingly, the goods ordered by the buyer in this case consist of the portable computer together with the operating system and delivery would therefore be incomplete without the operating system. 55. In CCIC’s view, it would be contrary to the scheme of the Customs Code for the value of the operating system in the present case to be included in the customs value on the basis of Article 32(1)(b) of the Customs Code, whereas it would not be included, according to Article 34 of the Customs Code and Article 167 of the implementing regulation, if the software were stored on a carrier medium and its value stated separately from that of the carrier medium. 56. That argument does not hold here in so far as this case concerns primarily the import of portable computers on which an operating system has been installed, and not the import of software for sale as such. Moreover, the provisions of Article 34 of the Customs Code and Article 167 of the implementing regulation clearly constitute exceptions to the rule and must accordingly be strictly construed. Under Article 167(2) of the implementing regulation, software contained in products incorporating integrated circuits, semiconductors or similar devices is excluded from the scope of the article. That clearly excludes portable computers from the scope of Article 34 of the Customs Code and Article 167 of the implementing regulation. The exception seems thus to apply only to the sale of software which is stored on a carrier medium for purposes of supply and not, as in the present case, to software which is supplied as an intangible component of a portable computer. The limited scope of the provisions of Article 34 of the Customs Code and Article 167 of the implementing regulation in my view prevents the application of the rules for software stored on carrier media to software installed on the hard drives of portable computers. 57. In the light of all this, it is my view that, on a proper interpretation, the category of ‘materials, components, parts and similar items incorporated in the imported goods’ in Article 32(1)(b)(i) also includes, where the specified conditions are met, an operating system pre-installed on a portable computer by the manufacturer. 58. Accordingly, the answer to be given to the question referred is that where computers are imported with operating systems pre-installed by the seller, the value of the operating system supplied to the seller free of charge by the buyer must be added to the transaction value of the computers in accordance with Article 32(1)(b) of the Customs Code where that value is not included in the transaction value. 59. In that light, the parties’ arguments based on an interpretation of Article 32(1)(c) and Article 34 of the Customs Code do not need to be considered further. V – Costs 60. The costs incurred by the Netherlands, United Kingdom, German and Spanish Governments and by the Commission are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court. VI – Conclusion 61. In the light of the foregoing, I am of opinion that the Court should answer the question referred in the following terms: Where computers are imported with operating systems pre-installed by the seller, the value of the software supplied to the seller free of charge by the buyer must be added to the transaction value of the computers in accordance with Article 32(1)(b) of the Customs Code (Regulation (EEC) No 2913/92) where that value is not included in the transaction value. 1 – Original language: German. 2 – Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (hereinafter ‘the Customs Code’ or ‘CC’). 3 – OJ 1993 L 253, p. 1. 4 – Article 29(2) of the Customs Code. 5 – Case 111/79 [1980] ECR 773. 6 – Article 1 of Regulation (EEC) No 603/72 of the Commission of 24 March 1972 on the buyer to be taken into consideration when determining the value of goods for customs purposes (OJ, English Special Edition 1972 (I), p. 156) provides: ‘For the purposes of applying the provisions of Council Regulation (EEC) No 803/68 of 27 June 1968 on the valuation of goods for customs purposes, and without prejudice to the other conditions set out in that regulation , the price paid or payable shall be accepted as the value for customs purposes only if it has been made on a sale to a buyer established in the customs territory of the Community.’ 7 – Convention on the Valuation of Goods for Customs Purposes, signed in Brussels on 15 December 1950. This used a notional concept of value, the ‘normal price’, as the basis for customs valuation. The GATT Valuation Code was then drawn up during the GATT Tokyo Round (1973–1979). This introduced ‘transaction value’ as the basis for customs valuation. The GATT Valuation Code was adopted by the EEC on 17 March 1980 and immediately enacted into Community law by Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1). The Customs Code in force as of 1 January 1994 re-enacted the provisions of this regulation in identical terms. 8 – The Customs Code explicitly requires only that the declarant be established in the Community, subject to certain exceptions. 9 – Regulation No 1224/80 (cited in footnote 7). 10 – Case C-11/89 [1990] ECR I‑2275. 11 – The judgment in Unifert (cited in footnote 10) refers to Article 3(1) of Regulation No 1224/80, which was re-enacted in essentially the same terms in Article 29(1) of the Customs Code. 12 – Unifert (cited in footnote 10), paragraphs 16 and 21. 13 – Unifert (cited in footnote 10), paragraph 11. These statements of the Court are essentially based on the wording of Article 6 of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Articles 1, 3 and 8 of Regulation No 1224/80 (OJ 1980 L 154, p. 14), re-enacted in the same terms by Article 147(1) of the implementing regulation. 14 – Unifert (cited in footnote 10), paragraph 9. 15 – Unifert (cited in footnote 10), paragraphs 9 to 11. 16 – See to that effect Unifert (cited in footnote 10), paragraph 16. 17 – Case C-15/99 Sommer [2000] ECR I‑8989, paragraph 25. 18 – Case 1/77 [1977] ECR 1473. 19 – Bosch (cited in footnote 18), paragraph 4. 20 – Case C-79/89 [1991] ECR I‑1853. 21 – Brown Boveri (cited in footnote 20), paragraphs 21 and 22. 22 – According to the facts described, the operating system is installed on the hard drive. It still has to be activated, however, in order to be fully functional.