61980C0054
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 16 OCTOBER 1980 (
1
)
Mr President,
Members of the Court,
1.
At a space of only a few months from the judgment delivered by the Court on 24 April this year as a preliminary ruling in Case 65/79 Châtain, the Court is faced with another question of interpretation concerning Regulation No 803/69 of the Council of 27 June 1968 on the valuation of goods for customs purposes. On this occasion also, the case involves an importer who is charged with using invoices for a value greater than the true value in order to effect an illegal transfer of currency abroad and it is therefore criminal proceedings which are pending before the national court. However, the salient point in the question framed by that court is not whether the customs authorities have power to reduce the value declared by the importer but really whether it is possible to fix a value for customs purposes which is less than the normal price of the goods. Accordingly, in the light of what is clearly provided for in the aforementioned regulation, and leaving aside the solution found in the Châtain judgment, it appears to me a simple matter to give an answer in the negative.
Let me summarize the facts. Between 1972 and 1974, Victory France SA, a limited company with its head office in Paris, imported secondhand clothing and textiles from the United States and declared a value of roughly US$ 1.5 million, which corresponded to the invoiced price. The French customs refused to have regard to the invoices, especially since they were allegedly made out in France by the importing company itself, and instead regarded as conclusive an export declaration, for a lesser amount, made by the American forwarding agent. On the basis of that, the customs authority held that the goods had a value which was approximately FF 4 million less than that declared and it accused the manager of the company, Mr Wilner, of making false customs declarations and unlawful transfer of capital. The present proceedings for a preliminary ruling arise in the context of the criminal proceedings commenced before the Tribunal de Grande Instance, Paris.
The question put to the Court of Justice has not been felicitously phrased by the national court but in substance it asks whether the value for customs purposes of imported goods may be determined at the same level as the value declared by the forwarding agent in the country of origin even if that latter value is less than the price paid, is not based on any accounting document and is less than the normal price of the goods agreed upon between a buyer and a seller under conditions of free competition.
2.
Article 1 of Regulation No 803/68 stipulates that: “For the purpose of applying the Common Customs Tariff, the value for customs purposes of the goods imported shall be taken to be the normal price, that is to say, the price which they would fetch... on a sale in the open market between a buyer and a seller independent of each other.” Article 9 thereafter confirms that the price paid or payable may be accepted as the value for customs purposes provided that, inter alia, it “corresponds, at the time it is agreed upon, to prices on a sale in the open market between a buyer and a seller independent of each other”.
As I had occasion to observe in my opinion in the Châtain case, “there is... no doubt that what is paramount in the determination of the value for customs purposes of imported goods is the ‘notional’ normal price of the goods, not the price actually agreed upon and paid”. Consequently, in the case of a price agreed and paid in a sale not conducted under conditions of free competition, the national authority may depart from the invoice price in establishing the value for customs purposes. But in doing so it must set out to establish what is the normal price of the goods. Authority for that proposition is to be found in the Court's judgment of 13 March 1980 in Case 111/79 Caterpillar [1980] ECR 773.
As regards the methods of valuation to be employed for the purpose of ascertaining the normal price, I have already had occasion to point out (in my opinion in the Châtain case) that “Community legislation is silent on the methods of valuation which apply when it is not possible to base the valuation on price”. It is therefore on the basis of the system of the Brussels Convention of 15 December 1950 — binding in the Community context — that a national customs authority, which is charged with applying Community rules also in the light of the aforementioned Convention, may proceed to value the goods on a basis other than the invoiced price. The Brussels Convention system is clearly directed towards measuring the customs duty against the objective value of the goods, which it is for the customs authorities to establish without being bound by the price appearing in the commercial documents.
It is well known that a national authority may have recourse to the deductive method based on the price at which the goods are resold (this is treated in the abovementioned Caterpillar judgment at paragraphs 21 to 25 of the decision) and to the comparative method based on a comparison with the price paid for similar goods, but neither the one nor the other method allows the value indicated in a declaration made by the forwarding agent to the custom authorities of the exporting country to be taken as the sole point of reference. It suffices to bear in mind that the forwarding agent is different persona from the seller or the buyer and that his declaration may be prompted by interests and needs which are wholly extraneous to the determination of the objective value of the goods.
In short, therefore, even though the price paid in a given sale does not bind the customs authority and is not automatically translated into the value for customs purposes of the goods, the determination of that value implies an investigation of the normal price of the goods in question under conditions of free competition and cannot be effected by reference to a declaration made by the forwarding agent.
3.
The considerations advanced hitherto are, in my opinion, sufficient to answer the question put by the Tribunal de Grande Instance, Paris, the purpose of which, it is worth repeating, is essentially to ascertain whether a lesser value than the normal price of the goods may be determined for customs purposes on the basis of a declaration made by the forwarding agent. However, in the course or this case the Commission interpreted the question from the national court as if it concerned primarily whether or not it was open to the customs authorities to determine a value less than the price invoiced and paid. Assuming that interpretation to be correct, the issue would be resolved in limine on the basis of the abovementioned judgment in the Châtain case which held that the adjustments to the value for customs purposes declared by the importer which are provided for by the Community regulations are exclusively adjustments in an upward direction and accordingly rejected the proposition that Community law permits national authorities to determine the value for customs purposes below the price declared (and supported by the invoices), even though that price proves to be higher than the normal price of the goods.
If I may be permitted to say so, I still consider that the view adopted in my opinion in the Châtain case is sound; I believe, that is, that the principle that the normal price prevails over the invoice price should apply both where the former is greater than the latter and where it is less than the latter. However, I do not consider it to be necessary to rehearse my arguments to the Court because the present case may be resolved independently, of the solution to the issue presented by the Châtain case. In fact, in the question referred to the Court by the Juge d'Instruction at the Tribunal de Grande Instance, Paris, the issue is not the relationship between the invoiced price and the normal price but, rather, whether it is possible to go below the normal price by identifying the value for customs purposes with the price appearing in a declaration made by a third party.
4.
In conclusion, I suggest that the Court answer the question of interpretation put by the Tribunal de Grande Instance, Paris, by order of 11 Februar 1980 by ruling as follows:
“It is not in accordance with Regulation No 803/68 of the Council of 27 June 1968 for the value for customs purposes of imported goods to be determined by national authorities, by reference to a declaration made by the forwarding agent to the customs authorities of the exporting country, at a level less than the normal price of the goods agreed upon between a buyer and a seller transacting under conditions of free competition.”
(
1
)	Translated from the Italian.