4.

In answering Question 2, it is necessary to bear in mind that, as I have already indicated, the Court ruled in Schul II that the pan of the VAT paid in the exporting Member State with which the goods are still burdened at the time of importation ‘does not form part of the taxable amount for the purposes of VAT payable on importation, since the taxable amount for similar domestic products is also an amount net of tax’(Schul II at paragraph 21 of the decision; see also paragraph 23). However, that answer alone does not deal with all the issues raised by the tribunal d'instance of Bordeaux; there are two problems outstanding. In the first place, the tribunal d'instance, both in the wording of Question 2 and in the grounds of its judgment, raises the question whether the taxable amount must be established on the basis of the value of the goods in the importing Member State. According to the observations of the plaintiff in the main proceedings, which were not disputed on this point, the practice of the French customs administration is to determine the value of the imported vehicle on the basis of the ‘argus’ price (a published price quotation for secondhand cars) in France. Secondly, since no selling price was fixed in this case because the imported article was a gift, it is necessary to consider how to determine the price of the imported article. That difficulty is dealt with expressly by Article 11 (B) of the Sixth Directive, the relevant part of which provides as follows: ‘(1) The taxable amount shall be: ... (b) the open market value, where no price is paid .... “Open market” value of imported goods shall mean the amount which an importer at the marketing stage at which the importation takes place would have to pay to a supplier at arm's length in the country from which the goods are exported at the time when the tax becomes chargeable under conditions of fair competition to obtain the goods in question.’ In such circumstances, the Member States are given an alternative by Article 11 (B) (2), which provides that they ‘may adopt as taxable amount the value defined in Regulation (EEC) No 803/68’, namely the customs value of the goods. The regulation referred to was subsequently replaced by Regulation No 1224/80, which entered into force on 1 July 1980 (Article 22 (1) and (2) of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes, Official Journal 1980, L 134, p. 1). Articles 2 to 7 of that regulation set out the various ways of determining that value. Those provisions make it possible to resolve the other difficulty which was raised: whether the value of the imported goods is the ‘open market’ or ‘customs’ value, it is determined in the exporting Member State, in this case Belgium. That criterion is consistent with the logic of the tax which is levied on consumption. Furthermore, that is the reasoning which underlies the Court's judgments in Schul I and Schul II. The Court decided that, for the purposes of determining the taxable amount, the residual VAT paid in the State of exportation should be deducted from the value of the imported goods. That method implies that the value to be taken as a point of reference is the value in the Member State of exportation. Having said this, I should add that as the Court stated, ‘it is for the person who seeks exemption from or a reduction in the value-added tax normally levied on importation to establish that he satisfies the conditions for such exemption or reduction. Accordingly it is open to the Member State of importation to require such an importer to provide the necessary documentary proof that the value-added tax was levied in the Member State of exportation and still burdens the product on importation’(Schul I, at paragraph 36 of the decision).