Opinion of the Advocate General — ECLI:EU:C:2008:580
Date: 2008-10-21
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of conclusions reached at the meeting of 26 October 2001; TAXUD/906.2001, EN, p. 3) that this ‘provision … did not provide for retroactive application and it was not the intention to build this in, unless the Committee wished to expressly provide for it.’ That was not the case. 35 In any event, as is apparent from paragraphs 31 and 32 of the present judgment, the effect given to a provision of Community law must not jeopardise the fundamental principles of the Community, in particular the principles of legal certainty and the protection of legitimate expectations. 36 Although Article 145 of the Implementing Regulation aims to improve legal certainty in that it expressly includes the taking into consideration of the adjustment of the price of goods where they are defective at the time of their importation, its application, as in the main proceedings, would none the less result in undermining the legitimate expectations of German economic operators to the extent that, as the Advocate General stated in point 50 of his Opinion, the German customs authorities applied the general deadline of three years prescribed by Article 236(2) of the Customs Code to adjustments, after importation, of the transaction value of goods on account of their defective nature, for the purposes of determining their customs value. 37 As a result, it must be held that Article 145(2) and (3) of the Implementing Regulation do not apply to situations arising prior to 19 March 2002. 38 It follows from the foregoing that the answer to the third question is that Article 145(2) and (3) of the Implementing Regulation do not apply to imports in respect of which the customs declarations were accepted before 19 March 2002. The fourth question 39 Given the answer to the third question, there is no need to answer the fourth question. Costs 40 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Second Chamber) hereby rules: 1. Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Article 145(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 444/2002 of 11 March 2002, must be interpreted as meaning that, when defects affecting goods became apparent after the goods were released for free circulation but it is demonstrated that they existed before such release, and those defects give rise, under a warranty obligation, to subsequent reimbursements by the seller/manufacturer to the buyer, reimbursements which correspond to the costs of repairs invoiced by the buyer’s own distributors, such reimbursements can result in a reduction of the transaction value of the goods and, as a result, of their customs value, which was declared on the basis of the price initially agreed between the seller/manufacturer and the buyer. 2. Article 145(2) and (3) of Regulation No 2454/93, as amended by Regulation No 444/2002, do not apply to imports in respect of which the customs declarations were accepted before 19 March 2002. [Signatures] * Language of the case: German.