61983CJ0007_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 7/83,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE TREATY BY THE FINANZGERICHT ( FINANCE COURT ) BREMEN FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
OSPIG TEXTILGESELLSCHAFT KG W . AHLERS, BREMEN,
AND
HAUPTZOLLAMT BREMEN-OST ( PRINCIPAL CUSTOMS OFFICE, BREMEN EAST ),
Subject of the case
ON THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ( OFFICIAL JOURNAL, L 134, P . 1 ),
Grounds
1 BY ORDER DATED 9 DECEMBER 1982, WHICH WAS RECEIVED AT THE COURT ON 13 JANUARY 1983, THE FINANZGERICHT ( FINANCE COURT ) BREMEN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ( OFFICIAL JOURNAL, L 134, P . 1 ).
2 THE QUESTION AROSE IN THE CONTEXT OF A DISPUTE BETWEEN OSPIG AND THE HAUPTZOLLAMT BREMEN-OST FOLLOWING A DECISION BY THE LATTER TO INCLUDE IN THE VALUATION OF GOODS FOR CUSTOMS PURPOSES THE CHARGES RELATING TO THE ACQUISITION OF EXPORT QUOTAS ( HEREINAFTER REFERRED TO AS ' ' QUOTA CHARGES ' ' ) IN A NON-MEMBER COUNTRY WITH WHICH THE COMMUNITY HAD MADE AGREEMENTS FOR THE LIMITATION OF EXPORTS .
3 THE OBSERVANCE OF IMPORT QUOTAS AS DEFINED IN THOSE AGREEMENTS IS ENSURED BY A DOUBLE CHECK CONSISTING OF THE ISSUE OF EXPORT LICENCES IN THE NON-MEMBER EXPORTING COUNTRY AND BY THE GRANT, ON PRESENTATION OF THOSE LICENCES, OF IMPORT LICENCES INTO THE COMMUNITY .
4 WHERE AN EXPORTER/VENDOR NO LONGER POSSESSES SUFFICIENT QUOTAS TO ENABLE HIM TO SELL GOODS WHICH HE INTENDS TO EXPORT TO THE COMMUNITY CUSTOMS TERRITORY, IN CERTAIN NON-MEMBER COUNTRIES THERE EXISTS THE POSSIBILITY OF BUYING EXPORT QUOTAS . THE QUOTA CHARGES ARE PAID BY THE COMMUNITY PURCHASER EITHER DIRECT TO A PERSON WHO IS NOT A PARTY TO THE CONTRACT BINDING THAT PURCHASER TO THE VENDOR OF THE GOODS, BUT WHO POSSESSES SURPLUS QUOTAS, OR TO THE EXPORTER/VENDOR WHO HAS HIMSELF PROCURED QUOTAS FROM A THIRD PARTY . THE PRICE OF THE QUOTAS IS A FUNCTION OF THE RELATIONSHIP BETWEEN THE DEMAND TO EXPORT AND THE EXTENT TO WHICH THE QUOTAS HAVE BEEN EXHAUSTED .
5 ON 25 NOVEMBER 1981, OSPIG APPLIED TO THE HAUPTZOLLAMT BREMEN-OST FOR THE ADMISSION INTO FREE CIRCULATION OF TEXTILE PRODUCTS PURCHASED IN HONG KONG, ENTERING, AS THE VALUE FOR CUSTOMS PURPOSES, THE INVOICE PRICE FOR THE GOODS EXCLUDING THAT PART RELATING TO THE QUOTA CHARGES, WHICH WAS INVOICED SEPARATELY BY THE EXPORTER/VENDOR .
6 UNDER A NOTICE OF ASSESSMENT DATED 26 NOVEMBER 1981, THE HAUPTZOLLAMT BREMEN-OST CHARGED CUSTOMS DUTIES CALCULATED ON THE AGGREGATE OF THE PURCHASE PRICE OF THE GOODS AND THE PRICE PAID FOR THE EXPORT QUOTAS .
7 THE HAUPTZOLLAMT BREMEN-OST DECLINED TO WITHDRAW THAT DECISION AND ON 28 APRIL 1982 DISMISSED THE OBJECTION RAISED BY THE IMPORTING COMPANY TO THAT END .
8 OSPIG APPEALED AGAINST THAT DECISION TO THE FINANZGERICHT BREMEN WHICH HAS REFERRED THE FOLLOWING QUESTION TO THE COURT :
' ' ARE THE COSTS ( KNOWN AS QUOTA CHARGES ) WHICH ARE INCURRED IN THE ACQUISITION OF FREE ( EXPORT ) QUOTAS AND ARE CHARGED SEPARATELY BY AN EXPORTER IN HONG KONG TO A GERMAN CUSTOMER TO BE INCLUDED IN THE VALUE FOR CUSTOMS PURPOSES ( THE TRANSACTION VALUE REFERRED TO IN ARTICLE 3 OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ) ' ' ?
9 IT SHOULD FIRST BE EMPHASIZED THAT ARTICLE 3 ( 1 ) OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 PROVIDES :
' ' THE CUSTOMS VALUE OF IMPORTED GOODS DETERMINED UNDER THIS ARTICLE SHALL BE THE TRANSACTION VALUE, THAT IS, THE PRICE ACTUALLY PAID OR PAYABLE FOR THE GOODS WHEN SOLD FOR EXPORT TO THE CUSTOMS TERRITORY OF THE COMMUNITY, ADJUSTED IN ACCORDANCE WITH ARTICLE 8 . ' '
10 MOREOVER ARTICLE 3 ( 3 ) ( A ) OF THAT REGULATION, AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 3193/80 OF 8 DECEMBER 1980 ( OFFICIAL JOURNAL, L 333, P . 1 ) PROVIDES :
' ' THE PRICE ACTUALLY PAID OR PAYABLE IS THE TOTAL PAYMENT MADE OR TO BE MADE BY THE BUYER TO OR FOR THE BENEFIT OF THE SELLER FOR THE IMPORTED GOODS AND INCLUDES ALL PAYMENTS MADE OR TO BE MADE AS A CONDITION OF SALE OF THE IMPORTED GOODS BY THE BUYER TO THE SELLER OR BY THE BUYER TO A THIRD PARTY TO SATISFY AN OBLIGATION OF THE SELLER . THE PAYMENT NEED NOT NECESSARILY TAKE THE
FORM OF A TRANSFER OF MONEY . PAYMENT MAY BE MADE BY WAY OF LETTERS OF CREDIT OR NEGOTIABLE INSTRUMENTS AND MAY BE MADE DIRECTLY OR INDIRECTLY . ' '
11 IT FOLLOWS FROM THE COMBINED PROVISIONS OF PARAGRAPHS ( 1 ) AND ( 3 ) ( A ) OF ARTICLE 3 OF REGULATION NO 1224/80, AS AMENDED, THAT THE VALUE FOR CUSTOMS PURPOSES INCLUDES ALL SUMS PAID OR PAYABLE AS A CONDITION OF THE SALE OF THE GOODS IMPORTED BY THE PURCHASER TO THE VENDOR OR BY THE PURCHASER TO A THIRD PARTY IN ORDER TO FULFIL ONE OF THE VENDOR ' S OBLIGATIONS .
12 IT MAY BE NOTED, MOREOVER, THAT ARTICLE 8 OF REGULATION NO 1224/80, TO WHICH ARTICLE 3 ( 1 ) REFERS, PROVIDES THAT ' ' THERE SHALL BE ADDED TO THE PRICE ACTUALLY PAID OR PAYABLE FOR THE IMPORTED GOODS ' '
A NUMBER OF CHARGES ANCILLARY TO THAT PRICE, FROM AN ECONOMIC POINT OF VIEW . ARTICLE 8 PROVIDES AN EXHAUSTIVE LIST OF THE CHARGES WHICH MAY THUS BE TAKEN INTO ACCOUNT FOR THE DETERMINATION OF THE VALUE FOR CUSTOMS PURPOSES AND IT SHOULD BE NOTED THAT THE ' ' QUOTA CHARGES ' '
DO NOT APPEAR IN THAT LIST .
13 IT SHOULD BE EMPHASIZED, FOR THE PURPOSE OF THE INTERPRETATION OF THE AFOREMENTIONED PROVISIONS, THAT THE SYSTEM OF EXPORT AND IMPORT LICENCES FORMS PART OF THE COMMUNITY SYSTEM OF AUTHORIZATION AND QUANTITATIVE LIMITATION OF IMPORTS INTO THE COMMUNITY OF TEXTILE PRODUCTS FROM CERTAIN NON-MEMBER COUNTRIES, PROVISIONALLY LAID DOWN BY COMMISSION REGULATION ( EEC ) NO 3019/77 OF 30 DECEMBER 1977 ( OFFICIAL JOURNAL, L 357, P . 1 ) AND COUNCIL REGULATION ( EEC ) NO 265/78 OF 7 FEBRUARY 1978 ( OFFICIAL JOURNAL, L 42, P . 1 ) AND DEFINITIVELY LAID DOWN BY COUNCIL REGULATION ( EEC ) NO 3059/78 OF 21 DECEMBER 1978 ( OFFICIAL JOURNAL, L 365, P . 1 ) REPLACED ON 23 DECEMBER 1982 BY COUNCIL REGULATION ( EEC ) NO 3589/82 ( OFFICIAL JOURNAL, L 374, P . 106 ).
14 THOSE RULES, WHICH SEEK ONLY TO CONTROL THE QUANTITIES OF TEXTILE PRODUCTS IMPORTED FROM CERTAIN NON-MEMBER COUNTRIES, PURSUE AN ENTIRELY DIFFERENT OBJECTIVE FROM THAT OF REGULATION NO 1224/80, AS AMENDED, WHOSE PURPOSE IS TO ESTABLISH A FAIR, UNIFORM AND NEUTRAL SYSTEM OF CUSTOMS VALUATION OF GOODS FOR THE APPLICATION OF THE COMMON CUSTOMS TARIFF . THE LATTER REGULATION MUST THEREFORE BE INTERPRETED WITHOUT REFERENCE TO THE RULES ON THE SYSTEM OF EXPORT AND IMPORT LICENCES .
15 IT FOLLOWS FROM THE FOREGOING THAT THE QUOTA CHARGES CONNECTED WITH THE ACQUISITION OF EXPORT QUOTAS IN THE CONTEXT OF THE AFOREMENTIONED REGULATIONS MAY NOT BE TAKEN INTO ACCOUNT FOR THE CALCULATION OF THE VALUATION OF GOODS FOR CUSTOMS PURPOSES CARRIED OUT ON THE BASIS OF COUNCIL REGULATION NO 1224/80 .
16 THE HAUPTZOLLAMT BREMEN-OST HOWEVER, IN SUPPORT OF ITS ARGUMENT, ATTEMPTS TO DRAW A CONTRARY ARGUMENT FROM THE TERMS OF THE OPINION, WHICH IS NOT BINDING, OF THE CUSTOMS VALUATION COMMITTEE, ESTABLISHED PURSUANT TO PROVISIONS OF TITLE II OF REGULATION NO 1224/80, ISSUED AT ITS 33RD MEETING HELD BETWEEN 19 AND 21 JANUARY 1983 . UNDER THAT OPINION, SUPPLEMENTARY COSTS FOR THE ACQUISITION OF AN EXPORT LICENCE BY THE PURCHASER OR HIS REPRESENTATIVE MAY NOT BE CONSIDERED AS FORMING AN INTEGRAL PART OF THE PRICE PAID OR PAYABLE FOR GOODS WHERE THE PURCHASER OR HIS REPRESENTATIVE PAYS THEM TO A THIRD PARTY, INDEPENDENT OF THE VENDOR OF THE GOODS . THE HAUPTZOLLAMT IS CONSEQUENTLY OF THE OPINION THAT THE CONTRARY SOLUTION MUST BE ADOPTED WHEN THE QUOTA CHARGES ARE PAID DIRECTLY BY THE PURCHASER TO THE EXPORTER/VENDOR .
17 THE COURT IS OF THE OPINION HOWEVER THAT THE SOLUTION SUGGESTED BY THE CUSTOMS VALUATION COMMITTEE ALSO APPLIES WHEN THE EXPORTER/VENDOR WHO NO LONGER HAS ANY QUOTAS OBTAINS SOME HIMSELF FROM A THIRD PARTY AND INVOICES THEM TO THE PURCHASER . TO HOLD OTHERWISE WOULD, IN FACT, CREATE AN UNJUSTIFIED DISPARITY BETWEEN IMPORTERS IN THE COMMUNITY PLACED IN AN ANALOGOUS SITUATION AND WOULD THEREFORE BE CONTRARY TO THE FAIR, UNIFORM AND NEUTRAL SYSTEM OF CUSTOMS VALUATION ESTABLISHED BY COUNCIL REGULATION NO 1224/80 .
18 IN THE LIGHT OF THE FOREGOING, THE ANSWER TO BE GIVEN TO THE QUESTION SUBMITTED BY THE NATIONAL COURT MUST BE THAT QUOTA CHARGES RELATING TO THE ACQUISITION OF EXPORT QUOTAS DO NOT FORM AN INTEGRAL PART OF THE VALUE FOR CUSTOMS PURPOSES OF GOODS IMPORTED INTO THE COMMUNITY WITHIN THE MEANING OF THE PROVISIONS OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES, AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 3193/80 OF 8 DECEMBER 1980 .
Decision on costs
COSTS
19 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT BREMEN BY ORDER DATED 9 DECEMBER 1982, HEREBY RULES :
QUOTA CHARGES RELATING TO THE ACQUISITION OF EXPORT QUOTAS DO NOT FORM AN INTEGRAL PART OF THE VALUE FOR CUSTOMS PURPOSES OF GOODS IMPORTED INTO THE COMMUNITY WITHIN THE MEANING OF THE PROVISIONS OF COUNCIL REGULATION ( EEC ) NO 1224/80 OF 28 MAY 1980 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES, AS AMENDED BY COUNCIL REGULATION ( EEC ) NO 3193/80 OF 8 DECEMBER 1980 .