Opinion of Mr Advocate General Tesauro delivered on 12 October 1989. - Malt GmbH v Hauptzollamt Düsseldorf. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Value for customs purposes - Certificate of authenticity - Regulation (EEC) Nº 1224/80. - Case C-219/88.



European Court reports 1990 Page I-01481



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Bundesfinanzhof is seeking an interpretation of Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ( 1 ) in order to give judgment in the proceedings pending before that court between the company Malt GmbH ( hereinafter referred to as "the plaintiff ") and the Hauptzollamt Duesseldorf ( hereinafter referred to as "the Hauptzollamt ").

2 . The facts underlying the dispute in the main action are briefly as follows .

In the autumn of 1981 the plaintiff imported Argentinian beef into the Community, free from any import levy, as part of a Community tariff quota opened for beef of high quality by Council Regulation ( EEC ) No 217/81 . ( 2 ) In order to obtain exemption from the levy the plaintiff produced, pursuant to the provisions of Commission Regulation ( EEC ) No 263/81 ( 3 ) a certificate of authenticity for the meat imported .

On importation the plaintiff declared as the customs value the invoiced price less the cost of obtaining the certificates of authenticity .

The Hauptzollamt, on the other hand, included those costs in the invoiced price for the purpose of calculating the customs value .

Both the administrative complaint and the action at law brought by the plaintiff were dismissed . In consequence the plaintiff appealed on a point of law to the Bundesfinanzhof claiming, inter alia, that the costs relating to the certificate were not an integral part of the purchase price of goods, a price which was previously and separately negotiated .

3 . By order of 26 May 1988, the Bundesfinanzhof referred the following questions to the Court for a preliminary ruling :

"( 1 ) Is Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes and in particular Article 3(1 ) and ( 3)(a ), to be interpreted as meaning that in assessing the value of Argentinian beef which entered into free circulation without payment of a levy in 1981 in the framework of a Community tariff quota the amounts paid to the seller in addition to the price of the goods for the certificates of authenticity needed for recourse to the quota rules must be included in the price actually paid or payable ( the transaction value )?

( 2 ) If the answer to Question 1 is in the affirmative :

is the abovementioned regulation, in particular Article 3(4)(b ), to be interpreted as meaning that the amounts paid for the certificates must for purposes of customs valuation be treated as taxes payable in the Community by reason of the importation?

( 3 ) If the answer to Question 2 is in the affirmative :

is the abovementioned regulation, in particular Article 3(4 ), to be interpreted as meaning that the requirement that such charges must be distinguished from the price actually paid or payable for the imported goods is satisfied even if the invoice states the total amount paid for the goods and for the certificates but makes clear the amounts paid for the certificates?"

4 . I come to the relevant legislation . As a result of undertakings entered into by the Community as part of the General Agreement on Tariffs and Trade ( hereinafter referred to as "GATT ") the Council adopted on 20 January 1981 Regulation No 217/81 opening a Community tariff quota for high-quality, fresh, chilled or frozen beef and veal for a total volume of 21 000 tonnes .

The aforesaid regulation provided for the setting up of a system of use of the Community tariff quota, based on the presentation of a certificate of authenticity guaranteeing the nature of the products, where they come from and their origin in order to ensure equal and continuing access to the quota by all interested traders within the Community and the uninterrupted application of the rate laid down for that quota to all imports of the products in question in all the Member States up to the limit of the volume of the quota . ( 4 )

The detailed rules for the application of Regulation No 217/81 were laid down by the Commission by Regulation No 263/81 of 21 January 1981 . The latter regulation provided inter alia that the total suspension of the import levy for the meat in question should be subject to the presentation, at the time when it is put into free circulation, of a certificate of authenticity intended to guarantee the origin and quality of the meat and to the condition that the certificate should be duly completed and signed by one of the issuing authorities listed in the annex .

The certificates are in practice issued and allocated among the slaughterhouses by the national authorities of the non-member countries concerned according to procedures which they adopt .

As appears from the documents before the Court, in Argentina each slaughterhouse is allocated a quota which may not be transferred to any other slaughterhouse, unlike the position in other States .

Nevertheless indirect transfers are practised . A slaughterhouse which has cattle available for slaughter but has exhausted its quota will entrust the slaughter to another slaughterhouse which has available quotas . The latter will at the same time take responsibility for forwarding the certificate of authenticity and requiring payment of the amount relating thereto .

The Commission does not dispute the lawfulness of that practice in relation to the relevant provisions of Community law .

5 . The legal context of Article 3 of Regulation No 1224/80, which the Court is required to interpret, is quite different .

In adopting the above regulation on the valuation of goods for customs purposes the objective of which is to foster world trade by introducing a fair, uniform and neutral system of customs valuation excluding the use of arbitrary or fictitious customs values, ( 5 ) the Council in effect applied the Agreement on the Implementation of Article VII of the GATT, ( 6 ) which was approved on behalf of the Community by Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973-79 trade negotiations . ( 7 )

The agreement in question, which lays down a set of provisions intended to facilitate international trade by removing obstacles to it in the form of different methods of valuation for customs purposes, introduces the transaction value of the goods as the basis of valuation .

Article 3(1 ) of Regulation No 1224/80 provides that the customs value of imported goods is to 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 .

Article 3(3)(a ), as amended by Regulation ( EEC ) No 3193/89, ( 8 ) in its turn 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 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 ."

6 . The Court has already had occasion to give a ruling in a case appreciably similar to that with which we are concerned .

As regards quota charges relating to the acquisition of export quotas the Court stated in particular 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 ". ( 9 )

The Court came to that conclusion after stressing that the system of export and import licences formed part of the Community system of authorization and quantitative limitation of imports into the Community of textile products from certain non-member countries and that those rules, which sought only to control the quantities of textile products imported from certain non-member countries, pursued an entirely different objective from that of Regulation No 1224/80, whose purpose was 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, according to the Court, be interpreted without reference to the rules on the system of export and import licences . ( 10 )

7 . However, in the Commission' s opinion the analogy between the present case and the Ospig case is only apparent since there is an important difference between the certificate of authenticity and the export licence required under the system for textile products .

The latter relates not to specific articles but to a specific category . The goods and the certificate may be acquired separately, even by different persons, just as they may also be obtained at the same time from the seller, as happened in the Ospig case .

The Commission points out that, in connection with the importation of beef of high quality, the acquisition of the goods cannot be separated from the acquisition of the certificate of authenticity since the latter relates to very specific goods . The wording for which the certificate provides (" I hereby certify that the beef described in this certificate complies with the specification shown overleaf ") clearly shows that it is impossible for a certificate to be issued without the cattle intended for the slaughterhouse having been examined in order to verify that the information certified with regards their rearing, feed and so forth is correct .

Since, therefore, the certificate relates to goods with which it is inseparably connected the costs relating thereto should be regarded as an integral part of the sale price and the transaction value : the amounts paid for the certificate represent, in the Commission' s view, payments for the goods even if they are separately mentioned in the invoice .

8 . Let me say straight away that those arguments do not appear convincing .

Before considering in detail the similarities and differences between the present case and the Ospig case it seems necessary to set out the ratio decidendi of the latter case . The ratio decidendi, in my opinion, is to be found in the need to ensure that the inclusion in the customs value of charges relating to the acquisition of export licences, whose purpose is solely to check the quantities of textile products imported from certain non-member countries, does not lead to an increase in the import duties and thus reinforce protectionism leading to a result contrary to the objective pursued by Regulation No 1224/80 on the valuation of goods for customs purposes, that is to say the development of international trade .

It seems to me undeniable that the system relating to the opening and use of a Community tariff quota for beef, like the Community system for authorization and quantitative restriction on imports into the Community of textile products, pursues an objective of import control which is quite distinct from that aimed at by the provisions on the valuation of goods for customs purposes and that, from this point of view, which was adopted by the Court in the Ospig case, the two situations do not differ .

9 . Then there is a point on the wording of the provision which must be borne in mind . On a proper view the price paid for the certificate represents not consideration for the goods but rather a payment to acquire the right to import the goods into the Community free from levy .

In theory the goods in question could, it is true, be imported into the Community even without the issue of the certificate in question . In that case it is clear that the goods would not come under the tariff quota granted by the Community and the importer would have to pay the levy on them .

In other words, the price paid to acquire the certificate represents not payment made as a condition for the sale of the goods but rather the consideration paid to acquire a particular legal status with regard to the Community tariff provisions .

That view is moreover corroborated by the observation that the actual price for the certificate of authenticity is not only stated separately on the invoice but is in fact negotiated separately and subject to criteria and fluctuations unrelated to the market price of the meat .

Moreover the mere observation that there is a closer connection between the certificate in question and the imported meat than that between export licences and textile products covered by them does not appear to me sufficient to alter the nature of the problem .

The close connection between the certificate of authenticity and the meat which it accompanies arises from the system set up by Regulations Nos 217/81 and 2263/81 according to which only beef of high quality may enjoy the advantages resulting from the opening of the tariff quota .

The object of the certificate in question is, precisely, to certify that that particular meat has the qualities required by the Community provisions and it is not apparent how it is possible to infer from this that the price of the certificate is an integral part of the valuation of the imported goods for customs purposes .

11 . In the light of the foregoing considerations I thus conclude by proposing that the Court should reply as follows to the question put by the Bundesfinanzhof :

"The amounts paid to sellers for certificates of authenticity required in order to benefit from the Community rules on quotas are not an integral part of the value for customs purposes of the goods imported into the Community within the meaning of the provisions of Council Regulation No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ."

(*) Original language : Italian .

( 1 ) OJ 1980, L 134, p . 1 .

( 2 ) OJ 1981, L 38, p . 1 .

( 3 ) OJ 1981, L 27, p . 52 .

( 4 ) See the second recital in the preamble to Regulation ( EEC ) No 217/81 .

( 5 ) See the sixth recital in the preamble to Regulation ( EEC ) No 1224/80 .

( 6 ) OJ 1980, L 71, p . 107 .

( 7 ) OJ 1980, L 71, p . 1 .

( 8 ) OJ 1980, L 333, p . 1 .

( 9 ) See the judgment of 9 February 1984 in Case 7/83 Ospig Textilgesellschaft KG W . Ahlers v Hauptzollamt Bremen-Ost (( 1984 )) ECR 609, paragraph 18 .

( 10 ) Ibid ., paragraphs 13 and 14 .