1.

The central question referred to the Court for a preliminary ruling by the Bundesfinanzhof is whether the transaction value within the meaning of Article 3 (1) of the Customs Value Regulation includes both the price of the goods and the intra-Community transport costs when the buyer has paid both amounts to a foreign seller on the basis of a separate invoice for each amount. Article 3 (1) of the Customs Value Regulation reads as follows: ‘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...’ Article 3 (3) (a) defines the price actually paid or payable as follows : ‘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.’ That definition was extended by Council Regulation No 3193/80 ( 5 ) by adding the following clause to the sentence cited above: ‘... and includes all payments made or to be made as a condition of sale of the imponed goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller.’ Although the Bundesfinanzhof based its reference for a preliminary ruling on that clause and cited it verbatim, it cannot come into consideration in this case since the aforementioned regulation amending it in that regard was only applicable from 1 January 1981, and thus was not in force at the time of the contested importations and of the decision as to their customs value. Article 8 of the Customs Value Regulation, referred to in Article 3 (1), in accordance with which the transaction value is to be adjusted before being used as the customs value, reads as follows: ‘In determining the customs value under Article 3, there shall be added to the price actually paid or payable for the imported goods: ... (e) (i) the cost of transport and insurance of the imported goods ... to the place of introduction of the goods into the customs territory of the Community.’ It is clear from the provisions cited above that as a general rule, intra-Community transport costs should not be included in the customs value. Where goods are sold for export to the customs territory of the Community, the transaction value consists of the full amount that the buyer paid or was liable to pay to the seller for the imported goods. That transaction value is, however, to be adjusted in accordance with Article 8 as, for example, when payment for the imported goods does not include the cost of transport to the place of introduction into the customs territory of the Community, that is to say, the place where the first customs office is situated (Article 14 (1) (c)). It is thus apparent from the terms of Article 3 of the Customs Value Regulation that ‘customs value’ means the full amount paid for the imported goods at the place of introduction into the customs territory of the Community. Article 8 of the same regulation confirms that result. If the cost of transport to the place of introduction of the goods into the customs territory of the Community is not already included in the price of the goods, it must be added to the transaction value in order to obtain the customs value. That necessarily leads to the conclusion a contrario that the cost of transport between the place of introduction of the goods into the customs territory of the Community and the place of destination is not to be included in the customs value. Consideration of the origins of the Customs Value Regulation bears out that interpretation. It is clear from the preamble that the Customs Value Regulation was adopted in order to harmonize the Community provisions on customs valuation with the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade ( 6 ) which was concluded in the context of GATT. In relation to this case, it is immaterial whether that Agreement (the Customs Value Code) can have direct effect within the Community. ( 7 ) It is certain, however, that the Customs Value Code, which has been accepted by the EEC, can provide useful information regarding the interpretation of the Customs Value Regulation. That information shows unequivocally that transport costs within a State or within the Community are not to be included in the customs value. Several different methods of calculation are provided for in the Customs Value Code, of which only the method of calculating the customs value from the transaction value laid down in Articles 1 and 8 is relevant here. The Customs Value Code also defines the transaction value as ‘the price actually paid or payable for the goods when sold for export to the country of importation adjusted in accordance with the provisions of Article 8’. Article 8 (2) of the Customs Value Code empowers the Contracting Parties to include certain costs, either in whole or in part, in the customs value. That provision reads as follows : ‘In framing its legislation, each Party shall provide for the inclusion in or the exclusion from the customs value, in whole or in part, of the following: (a) the cost of transport of the imported goods to the port or place of importation; ...’ The Contracting Parties are thus free to include the cost of transport to the port or place of importation in the customs value but they are not obliged to do so. The conclusion a contrario to be drawn from the Customs Value Code is that transport costs incurred on the territory of the importing party may not be included in the calculation of the customs value. That conclusion is further confirmed by the interpretative notes to Article 1 which form part of the Customs Value Code (Annex 1) and which read as follows: ‘The customs value shall not include the following charges or costs, provided that they are distinguished from the price actually paid or payable for the imported goods : ... (b) the cost of transport after importation; ...’ That interpretative note to Article 1 of the Customs Value Code found its way into Article 15 (1) of the Customs Value Regulation, which reads as follows: ‘The customs value of imported goods shall not include the cost of transport after importation into the customs territory of the Community provided that such cost is distinguished from the price actually paid or payable for the imported goods.’ The conclusion which may be drawn at this point as to the reply to be given to Question 1 (a) is that ‘intra-Community freight costs’ which are distinguished by being invoiced separately from the price of the goods are not part of the transaction value within the meaning of Article 3 (1) of the Customs Value Regulation and are also therefore not to be included in the customs value.