OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 25 May 2005 1( )

Case C-468/03

Overland Footwear Ltd

v

Commissioners of Customs & Excise

(Reference for a preliminary ruling from the Value Added Tax and Duties Tribunal, London (United Kingdom))

(Customs value – Import customs duties – Price of goods and buying commission – Payment of customs duty on full amount declared – Revision of the declaration – Article 78 of the Customs Code)

1. This reference for a preliminary ruling concerns the interpretation of Articles 33(e) and 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Customs Code’), in the context of proceedings between an importer, Overland Footwear Ltd (‘Overland’), and the British customs authorities, the Commissioners of Customs & Excise (‘the Commissioners’). The national court which made the reference, the VAT and Duties Tribunal, London (United Kingdom), is making a reference to the Court for the second time. The first reference gave rise to the judgment of 5 December 2002 in the case of Overland Footwear( ). That judgment left the question unanswered as to whether the power to revise the customs declaration after goods have been released into free circulation exercised by the customs authorities pursuant to Article 78 of the Customs Code binds those authorities or whether, on the contrary, it may be used in a discretionary manner. The Court is now being called on to rule on that issue.

2. Once I have gone over the facts which gave rise to the first order for reference, as well as the reasons which led the national court to make a second reference to the Court, I will explain the content of the judgment in Overland Footwear, delivered following the Opinion of Advocate General Mischo, and then examine the substance of the questions referred for a preliminary ruling.

I – Presentation of the facts, the legal framework and the questions referred for a preliminary ruling

A – Legal framework

3. In order to answer the first two questions, it is appropriate to refer to Articles 29, 32 and 33 of the Customs Code. The concept of customs value of imported goods, as defined in Article 29(1), is ‘the transaction value, that is, the price actually paid or payable for the goods … adjusted … in accordance with Articles 32 and 33 …’.

4. According to Article 33(e) of the Customs Code, buying commissions are not included in the customs value ‘provided that they are shown separately from the price actually paid’. According to Article 32(4) thereof, ‘buying commissions’ means ‘fees paid by an importer to his agent for the service of representing him in the purchase of the goods being valued’.

5. The third question referred for a preliminary ruling concerns the procedure for revising a customs declaration. The Customs Code distinguishes between two procedures for amending a customs declaration, according to whether it takes place before or after the release of the goods.

6. Article 65 of the Customs Code provides that, before the release of the goods, ‘the declarant shall, at his request, be authorised to amend one or more of the particulars of the declaration after it has been accepted by customs’.

7. Article 78(1) of the Customs Code provides that ‘the customs authorities may, on their own initiative or at the request of the declarant, amend the declaration’ after release of the goods. ( ) Article 78(3) sets out the consequences of the revision: ‘[w]here revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them’.

8. Overland sought reimbursement of the customs duties on the basis of Article 236 of the Customs Code. According to that article, import duties are to be repaid ‘in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2). ... No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned’.

B – Facts and questions referred for a preliminary ruling

9. Now that the relevant provisions of the Customs Code have been set out, it is appropriate to describe the facts which gave rise to the dispute pending before the national court. Overland, a company established in the United Kingdom, imports footwear manufactured in Asia through a buying agent, Wolverine Far East (‘Wolverine’). The agent is paid a buying commission representing 4% of the selling price paid by Overland to the manufacturer of the footwear. ( ) The amount billed to Overland includes the selling price and the buying commission because the producer is responsible for paying Wolverine its commission.

10. Before 1 January 1998, the import declarations made by Overland stated as the customs value of the imported goods the amount appearing on the manufacturer’s invoice, including the selling price and the buying commission paid to Wolverine. As from 1 January 1998, after consulting an expert on customs law matters, Overland began declaring only the selling price of the goods as their customs value. Consequently, as from that date, and pursuant to Articles 29 and 33 of the Customs Code, the Commissioners did not levy duty on the amounts shown as buying commission.

11. Overland submitted applications to the Commissioners for repayment under Article 236 of the Customs Code in respect of import duties it had paid on buying commissions paid to its agent before 1998. Overland submitted four applications for repayment, dated 13 March, 16 June, 18 June and 2 September 1998, for a total amount of GBP 38 085.45.

12. The Commissioners allowed the first three applications, by letters of 5 May, 1 July and 24 July 1998, but rejected the last application by letter of 29 October 1998.

13. Subsequently, the Commissioners reversed their repayment decisions. By decisions dated 30 November and 16 December 1998, confirmed on 4 and 5 February 1999, they required Overland to pay back the amount reimbursed, totalling GBP 4 384.29. The Commissioners also confirmed on 5 February 1999 that they were refusing to reimburse the amount of GBP 33 701.16 requested by Overland in its fourth application.

14. Overland brought an action before the VAT and Duties Tribunal first against the decisions of 4 and 5 February 1999 requiring repayment of the sums reimbursed and second against the decision of 5 February 1999 refusing reimbursement.

15. In an order for reference of 24 March 2000, the VAT and Duties Tribunal gave a description to the Court of the abovementioned facts and referred questions concerning the interpretation of Articles 29, 32, 33, 78 and 236 of the Customs Code. The Court gave its judgment in Overland Footwear, referred to above.

16. Following that judgment, the VAT and Duties Tribunal found it necessary to make a fresh order for reference dated 29 October 2003. It appears that, by two letters dated 16 and 18 June 1999, the Commissioners informed Overland that they were withdrawing their decisions of 4 and 5 February 1999 to demand repayment, so that the dispute pending before the VAT and Duties Tribunal now concerned only the decision of 5 February 1999 to refuse reimbursement. That fact had not been brought to the attention of the Court in the initial order for reference. In the view of the VAT and Duties Tribunal, that fact may have led the Court to answer differently in its judgment in Overland Footwear. For that reason, the VAT and Duties Tribunal chose, in its order for reference of 29 October 2003, to refer to the Court the same questions as those referred in the previous order for reference of 24 March 2000:

‘On the basis of Council Regulation (EEC) No 2913/92 (the Customs Code), in particular Articles 29, 32 and 33 thereof, and the case-law of the Court, where, at the time of customs clearance, an importer inadvertently declares as the price paid or payable for the goods an amount inclusive of buying commission and inadvertently fails to show the buying commission separately on the import declaration from the price actually paid or payable but, after the goods have been released into free circulation, shows to the satisfaction of the Customs authorities that the declared price paid or payable for the goods included bona fide buying commission, which could have been properly deducted at importation, and makes a claim for repayment of the duty paid on the buying commission within three years of the date on which the amount of customs duty was communicated:

(1) Could the bona fide buying commission be dutiable as part of the price actually paid or payable for the goods under Article 29 of the Customs Code?

(2) If the answer to the first question is negative, could the bona fide buying commission be deductible from the declared transaction value bearing in mind the provisions of Articles 32(3) and 33 of the Customs Code?

(3) In such circumstances are the customs authorities obliged under the Customs Code, and in particular Article 78(3) thereof, to accept the amendment to the price paid or payable for the imported goods and thereby reduced customs value?

(4) Is the importer therefore entitled under the Customs Code, and in particular Article 236 thereof, to a refund of the duty paid on the buying commission?’

C – The proceedings which gave rise to the judgment in Overland Footwear and the present proceedings

17. It is appropriate to begin by referring to the content of the judgment in Overland Footwear, because in that case the Court answered questions identical to those referred in this case.

18. With respect to the first two questions, the Court held in paragraph 17 of Overland Footwear that ‘Articles 29, 32 and 33 of the Customs Code can be construed only as meaning that a buying commission which is included in the customs value declared and is not shown separately from the selling price of the goods in the import declaration must be considered to be part of the transaction value within the meaning of Article 29 of that code and is, therefore, dutiable’.

19. The Court’s answer to the last two questions was based on the assumption that the Commissioners had already made the reimbursement sought by Overland pursuant to Article 78 of the Customs Code. Consequently, the Court held in paragraph 24 of Overland Footwear that: ‘In a situation where the customs authorities have agreed to undertake revision of an import declaration and have adopted a decision regularising the situation within the meaning of Article 78(3) of the Customs Code taking account of the fact that the declaration was incomplete as a result of an inadvertent error by the declarant, those authorities may not go back on that decision’.

20. In the first set of proceedings, written observations were submitted by Overland, the Italian Government, the United Kingdom Government and the Commission of the European Communities. In the present case, observations have been lodged by the German Government, the United Kingdom Government and the Commission. A hearing was held on 14 April 2005, at which oral argument was heard from Overland, the German Government, the United Kingdom Government and the Commissioners through a common representative, and also the Commission.

21. Like the Court in its judgment in Overland Footwear, I will begin by examining the first two questions referred by the national court, relating to the interpretation of Article 33(e) of the Customs Code, and then deal with the third question relating to the procedures for amending a customs declaration subsequent to the release of the goods, pursuant to Article 78 of the Customs Code. Lastly, I will discuss the fourth question, relating to the consequences of an amendment of a customs declaration and a possible reimbursement by the Commissioners.

II – Interpretation of Article 33(e) of the Customs Code (first two questions referred)

22. In order to answer the first two questions referred by the national court, it is appropriate to interpret Article 33 of the Customs Code as allowing certain items to be excluded from the customs value ‘provided that they are shown separately from the price actually paid or payable’. In the case at hand, that means determining the consequences of the fact that, before 1 January 1998, Overland stated in its customs declarations amounts including the price of the goods and a buying commission.

23. As has been stated in the observations submitted to the Court, the new description of the facts, as given in the order for reference of 29 October 2003, is not such as to change the answer given by the Court on this point in its judgment in Overland Footwear.

24. Using a systematic interpretation of Articles 29, 32 and 33 of the Customs Code, the Court found in that case that the requirement that the items that might be deducted from the price paid must be ‘separate’ was a formal requirement. The penalty for non-compliance with that requirement is the inclusion in the customs value of those items which were not shown separately by the declarant. Thus, the amount declared by Overland certainly includes a buying commission, which may be deducted from the customs value and the price of the goods. However, where these two items are not shown separately, Overland is bound to pay customs duty on the total amount declared.

25. This interpretation is the correct one, since it is the declarant who has the burden of proof for the calculation of the customs value, pursuant to Article 62 of the Customs Code. ( ) In addition, as pointed out by Advocate General Mischo in point 30 of his Opinion in Overland Footwear, ( ) if the customs declaration or the documents attached thereto contain no reference whatsoever to a buying commission, the customs authorities have no way of being aware of it.

26. The judgment in Kyocera, ( ) referred to in the written observations of the Commission and the United Kingdom Government, concur with the interpretation of Article 33 of the Customs Code adopted by the Court in its judgment in Overland Footwear. In Kyocera, the declarant had, pursuant to Article 33 of the Customs Code, subtracted from the declared customs value interest paid under a financing arrangement pertaining to the purchase of the goods acquired. Although the declarant did not declare the reason for which it had deducted the interest from the customs value, the customs authorities were nevertheless able to verify that there was interest by asking the declarant to provide the supporting documents in its possession. Consequently, in order to be considered as ‘separate’ from the price paid for the purposes of Article 33 of the Customs Code, it is sufficient that the declarant not include the items in question with the declared customs value. The formal requirement laid down in Article 33 of the Customs Code is thus reduced to a minimum. The fact remains, however, that when items which might be deducted from the declared customs value have been included, as is the case here, the requirement that they be shown ‘separately’, as laid down in Article 33(e) of the Customs Code, cannot be deemed to be fulfilled.

27. For the reasons set out above, I propose that the Court should answer the first two questions referred in the same manner as in Overland Footwear: ‘Articles 29, 32 and 33 of Regulation No 2913/92 must be construed as meaning that a buying commission which is included in the customs value declared and is not shown separately from the selling price of the goods in the import declaration must be considered to be part of the transaction value within the meaning of Article 29 of that regulation and is, therefore, dutiable.’

III – Revision of a customs declaration pursuant to Article 78 of the Customs Code (third question referred)

28. The third question referred by the VAT and Duties Tribunal to the Court relates to the possible application of Article 78 of the Customs Code where, at the time of customs clearance, an importer inadvertently declares as the price paid for the goods an amount inclusive of buying commission and then, after the goods have been released into free circulation, makes a claim for repayment for the duty paid on that commission. It is therefore appropriate to define the limits of the revisionary powers held by the customs authorities whilst maintaining a balance between the protection of traders’ interests and the need to check their declarations and combat fraud. ( )

A – Customs authorities’ discretion in allowing revision of a customs declaration

29. The Commissioners, in their observations lodged in Overland Footwear, and the German Government in the present case, maintain that Article 78 of the Customs Code is not applicable because the initial declaration filed by Overland did not contain any ‘inaccurate or incomplete’ information. In their view, Overland made a choice not to declare the buying commission that it had paid. Consequently, it may not now change its mind.

30. Such reasoning cannot be accepted. First, as rightly pointed out by the Commission in its observations, it is clear from paragraphs 23 and 24 and the second paragraph of the operative part of the judgment in Overland Footwear that the Court considered, at least implicitly, that the Commissioners had correctly reimbursed customs duties paid on the buying commissions, pursuant to Article 78 of the Customs Code. ( ) In that case, the Court found that that article could apply to the situation in question. Next, it is common ground that the inclusion of the buying commission by Overland in its customs declaration was the result of an inadvertent omission on its part and not the result of a choice. ( )

31. The margin of discretion that customs authorities have in applying Article 78 of the Customs Code remains to be defined. Overland and the Commission suggest that the customs authorities do not have any discretion under that provision. According to the observations lodged by Overland in Overland Footwear, if the declarant has shown that it included an inaccurate or incomplete item in its initial declaration, the customs authorities are obliged to revise that declaration. The Commission also maintains that the customs authorities are bound to accept a revision, except where circumstances make it impossible for them to verify the item corrected.

32. Several arguments weigh against such an interpretation of Article 78 of the Customs Code. First, the wording of that article does not lead to the conclusion that the revisionary power is without discretion. The article merely provides that the customs authorities ‘may’ revise the customs declaration. Thus, regardless of whatever arguments may be made by the declarants in support of their claim or whatever may be the results of a post-clearance inspection by the customs authorities, those authorities will allow a revision only after assessing the circumstances in question, and there is no automatic element. ( )

33. Following a systematic approach, it should be borne in mind that revision of a declaration after release of the goods is an exception to the principle of the immutability of customs declarations. The principle of immutability of customs declarations is a fundamental principle of customs law, ( ) and is a corollary to the obligation to make a proper declaration which is incumbent on any declarant, pursuant to Article 62 of the Customs Code. ( ) If the declarant was allowed to amend its declaration at any time, the customs authorities could not be sure of the reliability of the information provided at the time of the initial declaration. In order to ensure promptness of customs operations, as well as effective control by customs authorities, ( ) and consequently the protection of the Community’s financial interests, it is imperative that the declaration be immutable once it has been registered. Thus the customs declaration renders the declarant liable for its contents. ( )

34. The principle of the immutability of declarations carries some limitations, however. Thus, Article 65 of the Customs Code allows a customs declaration to be rectified at the mere request of the declarant. In order to prevent the risk of fraud, this may not be done if the customs authorities ‘have informed the declarant that they intend to examine the goods’ ( ) or if they ‘have established that the particulars in question are incorrect’. ( ) Declarants may no longer request rectification once the goods have been released. After that phase, and in order to guarantee effective control by customs authorities, it is once again necessary that the declaration be immutable.

35. Consequently, it is no longer possible to amend a customs declaration except under Article 78 of the Customs Code. That article, which governs principally post-clearance examination of declarations, provides for the ‘revision’ of customs declarations after the release of the goods, at the initiative of the declarant or of the customs authority. The breach of the principle of the immutability of customs declarations and the risk of fraud is greater when such a declaration is amended at an advanced stage of the customs procedure. Once the goods have been released, the opportunities to ensure that the declarations lodged and the transactions carried out in fact match are lessened because the goods are no longer at the office where they were cleared. This is why, although the customs authorities are obliged to correct declarations pursuant to Article 65 of the Customs Code, they have broad discretion in applying Article 78 thereof.

36. To my mind, though, this does not seem to justify relying on that relationship between Articles 65 and 78 of the Customs Code in order, as advocated by the United Kingdom Government in its written observations, to infer therefrom that the typical scenario in which Article 78 of the Customs Code should be applied is where a typographical error is to be corrected. The respective scopes of application of those two articles cannot be defined by the type of error that one is seeking to correct. As explained by Advocate General Mischo in points 81 to 83 of his Opinion in Overland Footwear, such a distinction, first of all, is not laid down in the Customs Code and, second, is difficult to put into practice. One could add that, as regards the application of Article 220(2)(b) of the Customs Code, the Court explicitly rejected the option of differentiating errors according to their nature: ‘[T]he notion of error is not limited to mere calculation or copying errors but includes any kind of error which vitiates the decision in question, such as, in particular, the misinterpretation or misapplication of the applicable rules of law.’ ( ) That case-law seems applicable by analogy to the application of Article 78 of the Customs Code.

37. Moreover, the fact that the Court implicitly admitted in paragraph 23 of its judgment in Overland Footwear ( ) that a revision could take place in the situation here runs counter to the position advocated by the United Kingdom Government.

38. Thus, regardless of which item it is that the declarant is seeking to have revised, the customs authorities have broad discretion under Article 78 of the Customs Code in allowing or refusing that revision. That discretion is not unlimited: rather, it is contained within certain limits. ( )

B – The limits on the customs authorities’ discretion

39. The customs authorities’ assessment takes account of whether the particulars entered in the declaration may be verified. If the item to be revised relates to the nature of the goods imported, it will no doubt be more difficult to make a check once the goods have been released because, as of that moment, the goods are at the declarant’s disposal. ( ) By contrast, as stated by Overland’s representative at the hearing, if, for example, a request is made to have the amount of a buying commission revised, the customs authorities will be able to check it by requiring the declarant to produce the relevant contract documents. If the trader is refused revision, he must assume the costs resulting therefrom as a normal commercial risk. ( )

40. The trader does have the possibility, however, of appealing against a decision to refuse revision. This is why a refusal to allow a trader revision of his customs declaration must contain reasons, so that the court may review whether the decision is well founded. It follows from the broad discretion which the customs authorities have in granting revision that, when a court rules on decisions made by customs authorities pursuant to Article 78 of the Customs Code, it is limited to ensuring that the decision referred to it is not vitiated by any manifest error of assessment. ( ) In exercising its powers of review, the court must find a link between the reasoning of the decision and the requirements of smooth operation of customs controls. Customs authorities may base their refusal to allow a revision of the declaration inter alia on a risk of fraud. Other reasons may also be relied on, such as the declarant’s lack of diligence having regard to his professional experience. ( )

41. In the present case, it will be for the national court to review the reasons given by the Commissioners in refusing the revision requested by Overland. Thus, that court will be in a position to establish whether or not that refusal was vitiated by any manifest error of assessment. The information on which the Commissioners based their refusal is not included in the order for reference. In its examination of the disputed refusal decision, the national court will of course have to take particular account of the fact that the Commissioners accepted revision for three of Overland’s requests and refused it only with respect to the fourth request.

42. In conclusion, I propose that the Court answer the third question referred by the national court to the effect that the customs authorities, on whom Article 78 of the Customs Code confers broad discretion, must state the reasons for their decisions to allow or refuse revision of a declaration, in order to enable a court to ascertain that they are not vitiated by any manifest error of assessment.

IV – Reimbursement of the customs duties paid pursuant to Article 236 of the Customs Code (fourth question referred)

43. By this question, the national court asks essentially whether, once a revision of the customs declaration has been made pursuant to Article 78 of the Customs Code, there must necessarily be a corresponding reimbursement of the customs duties.

44. It should be borne in mind that Article 78(3) of the Customs Code provides that ‘where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them’.

45. Thus, the national court is asking the Court what meaning is to be attached to the obligation of the customs authorities ‘to regularise the situation’ following a revision. There is no doubt that something must be done, the question concerns solely what is to be done. Both a literal interpretation and a teleological interpretation of Article 78(3) of the Customs Code lead to the conclusion that the customs authorities must reimburse the customs duties if the dutiable amount in the revised declaration is lower than the one contained in the initial declaration.

46. If a revision of the initial declaration takes place, the duties legally owed are also changed. ( ) Thus, the initial declaration filed by Overland did not declare separately the buying commission and the selling price, so that, in accordance with the answer given to the first two questions referred by the national court, the customs duties legally owed by Overland had to be calculated on that total amount. However, if the national court were to find that the Commissioners’ refusal to allow the revision requested by Overland was vitiated by a manifest error of assessment, and if the revision of the declaration is ultimately allowed, then the customs duties owed by Overland should be calculated using the amount entered in the revised declaration, excluding the buying commissions paid. ( ) In that case, ‘regularise the situation’ within the meaning of Article 78 of the Customs Code would mean that the Commissioners would have to allow reimbursement of the customs duties paid on the buying commission.

47. The file shows that Overland requested reimbursement of the customs duties paid on the buying commissions only on the basis of Article 236 of the Customs Code and not pursuant to Article 78 thereof.

48. The relationship between those two provisions presents no difficulty. The Commissioners are required to ‘regularise the situation’ within the meaning of Article 78 of the Customs Code only in so far as the provisions of the Customs Code allow them to do so. Thus, pursuant to Article 236(2) of the Customs Code, reimbursement of customs duties may take place only if the request therefor is submitted within ‘a period of three years from the date on which the amount of those duties was communicated to the debtor’.

49. Furthermore, according to Article 236(1) of the Customs Code, reimbursement is impossible ‘when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned’.

50. Subject to the three-year time-limit provided for in that article, and if it is established that the inclusion by Overland of the buying commission in the declared selling price did not result from deliberate action but rather from an inadvertent error, the customs duties should be reimbursed pursuant to that article, if the customs declaration was revised pursuant to Article 78 of the Customs Code.

V – Conclusion

51. For the reasons set out above, I propose that the Court should answer the questions referred as follows:

(1) Articles 29, 32 and 33 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be construed as meaning that a buying commission which is included in the customs value declared and is not shown separately from the selling price of the goods in the import declaration must be considered to be part of the transaction value within the meaning of Article 29 of that regulation and is, therefore, dutiable.

(2) The customs authorities, on whom Article 78 of Regulation No 2913/92 confers broad discretion, must state the reasons for their decisions to allow or refuse revision of a declaration, in order to enable a court to ascertain that they are not vitiated by any manifest error of assessment.

(3) Once revision of a customs declaration has taken place pursuant to Article 78 of Regulation No 2913/92, the obligation of the customs authorities to regularise the situation within the meaning of Article 78(3) includes, where applicable, reimbursement of the customs duties as laid down by Article 236 of the Customs Code.