Keywords

Summary



Keywords

1. Common Customs Tariff – Value for customs purposes – Transaction value – Amendment

(Council Regulation No 2913/92, Art. 29(1) and (3)(a); Commission Regulations No 2454/93, Art. 145(2), and No 444/2002)

2. Common Customs Tariff – Value for customs purposes – Transaction value – Amendment

(Council Regulation No 2913/92, Art. 236(2); Commission Regulations No 2454/93, Art. 145(2) and (3), and No 444/2002)

Summary

1. Article 29(1) and (3)(a) of Regulation No 2913/92 establishing the Community Customs Code and Article 145(2) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 444/2002, must be interpreted as meaning that, when defects affecting goods became apparent after the goods were released for free circulation but it is demonstrated that they existed before such release, and those defects give rise, under a warranty obligation, to subsequent reimbursements by the seller/manufacturer to the buyer, reimbursements which correspond to the costs of repairs invoiced by the buyer’s own distributors, such reimbursements can result in a reduction of the transaction value of the goods and, as a result, of their customs value, which was declared on the basis of the price initially agreed between the seller/manufacturer and the buyer.

First, if it appears, after the date of importation of a commodity, such as a vehicle, that it was defective at the time of its importation, its real economic value is lower than the transaction value declared at the time of its release for free circulation. While Article 29(1) and (3) of the Customs Code does not, admittedly, specify the conditions under which subsequent adjustments to the transaction value, which is the basis for calculation of the customs value, must be treated, the price actually paid or payable is, however, a factor that must potentially be adjusted where necessary in order to avoid the setting of an arbitrary or fictitious customs value. It can, in particular, be reduced in proportion to the reduction in the commercial value of the goods owing to a hidden defect which it is shown was present before their release into free circulation and gave rise to subsequent repayments under a warranty obligation, thus resulting in a subsequent reduction in the customs value of the goods.

Secondly, Article 145(2) of Regulation No 2454/93, which specifies on that point a solution already indicated by Article 29 of the Customs Code itself, defines to the same effect the conditions under which an adjustment made by the seller, to the benefit of the buyer, of the price actually paid for the goods released for free circulation may be taken into consideration for the determination of their customs value. Similarly, the payments made by a seller to a buyer in accordance with a guarantee agreement, in order to reimburse the buyer for repairs invoiced by his own customers, are an ‘adjustment’ to the price actually paid or payable, within the meaning of that provision.

(see paras 22-24, 26-29, operative part 1)

2. Article 145(2) and (3) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 444/2002, does not apply to imports in respect of which the customs declarations were accepted before 19 March 2002.

Although, in general, the principle of legal certainty precludes a Community measure from taking effect from a point in time before that measure was published, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected and in so far as it follows clearly from the terms, objectives or general scheme of the rules of Community law concerned, that such effect must be given to them.

However, neither the wording of the provisions, or the recitals in the preamble to, Regulation No 444/2002 nor the drafting history of that regulation contain any indication that such retroactive effect must be given to that provision. On the contrary, in the light of information given in the minutes of the Customs Code Committee, such an effect seems to have been actually ruled out.

In addition, the retroactive application of Article 145 of the Implementing Regulation would result in undermining the legitimate expectations of economic operators. Although that provision aims to improve legal certainty by expressly including the taking into consideration of the adjustment of the price of goods where they are defective at the time of their importation, in the case of adjustments after importation of the transaction value of goods on account of their defective nature, that legitimate expectation also must be respected, where, in a given case, the customs authorities applied the general time-limit of three years prescribed by Article 236(2) of the Customs Code.

(see paras 32-34, 36, 38, operative part 2)