Opinion of Mr Advocate General Tesauro delivered on 28 March 1990. - Hauptzollamt Frankfurt am Main-Ost v Deutsche Olivetti GmbH. - Reference for a preliminary ruling: Bundesfinanzhof - Germany. - Customs value - Cost of transport - Container transport. - Case C-17/89.



European Court reports 1990 Page I-02301



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . This reference for a preliminary ruling concerns the method of calculating the cost of transport for the purposes of determining the customs value .

2 . Under Article 8(1 ) of Council Regulation ( EEC ) No 1224/80, ( 1 ) in determining the customs value, it is necessary to add to the price actually paid or payable for the imported goods "the cost of transport ... to the place of introduction of the goods into the customs territory of the Community ".

The carriage of goods at issue in the present case includes a journey outside the Community ( Hong Kong to Hamburg ), by sea, and a journey within the Community ( Hamburg to Frankfurt ), for which a different means of transport was used . An all-inclusive price was agreed and invoiced for the entire journey; consequently, there is therefore no separate invoice indicating the transport costs actually incurred in connection with each of the two abovementioned journeys .

The national court has therefore asked the Court of Justice to state the criteria to be used for calculating the transport costs relating to the journey outside the Community, in a case such as the one just described .

3 . The basic objective of Regulation No 1224/80 is to foster world trade by introducing a fair, uniform and neutral form of customs valuation excluding the use of arbitrary or fictitious values ( see the sixth recital in the preamble to the regulation ). Moreover, as I have already pointed out, with regard specifically to calculating the cost of transport, the basic principle must be that, as the case-law of the Court bears out, the customs value includes the costs "actually" incurred by the buyer in transporting the goods to the place of introduction into the customs territory of the Community . ( 2 ) Conversely, costs falling on the goods in connection with transport within the Community must be deducted from the price of those goods . ( 3 )

4 . Where the costs relating to the journeys outside and within the Community are invoiced separately there is no difficulty in establishing the relevant actual costs . The invoices submitted by the person concerned represent, subject to verification, the costs actually incurred .

The problem arises when there is no separate invoicing . In that case, it is necessary to rely on a criterion based on an estimate .

5 . In my view it is not possible to find such a criterion in Article 15(2)(a ) of Regulation No 1224/80, upon which the national authority based its adoption of the measure at issue in the main proceedings . That provision provides that :

"Where goods are carried by the same means of transport to a point beyond the place of introduction into the customs territory of the Community, transport costs shall be assessed in proportion to the distance covered outside and inside the customs territory of the Community, unless evidence is produced to the customs authorities to show the costs that would have been incurred under a general compulsory schedule of freight rates for the carriage of the goods to the place of introduction into the customs territory of the Community ."

It is clear from that provision that assessment of transport costs in proportion to the distance covered outside and inside the customs territory of the Community presupposes a single means of transport and, consequently, a single schedule of rates applied for the entire journey . It is evident - and the parties are, moreover, agreed on this point - that the fact that, as in the present case, the goods were in a container for the entire journey is completely immaterial for the purposes of applying that provision . A container is not a means of transport; what is important is the means by which the container was itself transported . If, as in the present case, the container is conveyed first by sea and then by road, the unit cost of transport cannot be regarded as uniform, because successive ( appreciably ) different schedules of rates apply and it will therefore never be possible to regard assessment of the cost of transport in proportion to distance alone as representative of the actual costs incurred for each part of the overall journey . It cannot therefore be argued that Article 15(2)(a ) applies in the present case .

6 . In the absence of any other provision which is specifically applicable to the facts described by the national court, a rule must be found, if necessary by analogy, which allows the value at issue to be calculated in accordance with the objectives and principles of Regulation No 1224/80 .

The Commission points out in that regard that Article 2 of Regulation No 1224/80 provides that "where the customs value of imported goods cannot be determined under Articles 3, 4, 5, 6 or 7, it shall be determined using reasonable means consistent with the principles and general provisions of the Agreement and of Article VII of the General Agreement on Tariffs and Trade and on the basis of data available in the Community ". Thus the regulation itself has indicated the principles which must be used as guidelines whenever the extreme variety of accepted practices reveals gaps in the rules for determining the customs value .

In the Commission' s opinion, the method which would be most consistent with those principles would be to deduct from the total cost of transport the costs relating to the journey within the Community, which in turn would have to be calculated by applying the schedules of charges generally applied for the means of transport employed . That amount, fixed on the basis of standard rates, could then be corrected, if necessary, upon presentation of documents proving that the costs actually incurred for the part of the journey outside the Community amounted to a different sum . The Commission emphasizes that the criterion which it proposes not only enables transport costs incurred outside the Community to be determined in a reasonable manner, but can also be applied simply and with certainty in so far as it is based on evidence ( the schedules of charges normally charged in the Community ) which are available to the customs authorities in question .

It is true, as the national court pointed out, that that criterion, at least in theory, could give rise to distortions since it assumes that the cost of transport within the Community is always calculated on the basis of the same schedule of charges, without taking account of the fact that the longer the total journey, the smaller the unit cost for the part of the journey covered within the Community . However, that risk does not appear to be very great in practice . The case at issue concerns a journey in which various means of transport were used - if one means had been used it would have been covered by Article 15(2)(a ) - and in such cases the change of means of transport often takes place upon entry into the Community . Therefore, and at least in so far as the part of the journey within the Community is made with a different means of transport than was employed for the earlier part, it is to be assumed that the cost of the journey within the Community is determined independently, on the basis of the generally applicable schedules of charges and that, consequently, the actual unit cost of the journey is not substantially changed because of the length of the total journey .

Consequently, the criterion proposed by the Commission falls, in my view, within the scope of Regulation No 1224/80 and may be used for determining the cost of transport to be included in the customs value .

7 . Nevertheless, it should be pointed out that the regulation also proposes a different solution to the problem at issue . In the present case the source of the difficulty is the fact that, in the absence of separate invoices, it is not possible to determine precisely the charges falling on the goods for the journey outside the Community . That situation could be treated in the same way as cases in which transport is free or provided by the buyer, which are covered and treated identically by Article 15(2)(c ) of the regulation . In particular, it is of assistance to point out that where transport is provided by the buyer it is also impossible to determine the precise cost of the journey outside the Community and it is precisely for that reason that the regulation provides that the costs to the place of introduction into the Community are to be calculated by way of an estimate "in accordance with the schedule of freight rates normally applied for the same modes of transport ".

The rule in Article 15(2)(c ) could, because the rationale is the same, be extended by analogy to the facts of the present case, without prejudice of course to the right of the person concerned to put forward a different valuation if he is able to produce documents establishing the actual costs incurred .

8 . Moreover, it should be pointed out that there is no substantial difference between the two criteria examined; in both cases the valuation is estimated on the basis of the standard schedule of freight rates; furthermore, it is reasonable to assume that they should, in practice, lead to the same results . Therefore, in my view the Court should rule that the national authority can apply one or other of those criteria, giving preference in each particular case to the one which enables the most complete and accurate information to be used and, therefore, the most reliable estimate to be made of the actual cost of the journey outside the Community .

9 . In the light of the foregoing observations I propose that the following reply should be made to the national court :

"In a case such as the one described by the national court, the costs actually incurred for the journey outside the Community which are to be included in the customs value are to be calculated either by subtracting the cost of the journey within the Community ( determined on the basis of the schedules of freight rates normally applicable within the Community ) from the total cost of transport, or by determining the cost of transport outside the Community directly on the basis of the schedule of freight rates normally applied .

It is for the national authority to select the criterion which appears most suitable for obtaining an estimate which is close to the cost of transport actually incurred ."

(*) Original language : Italian .

( 1 ) Council Regulation ( EEC ) No 1224/80 of 28 May 1980 ( OJ 1980, L 134, p . 1 ).

( 2 ) See the judgment of 10 December 1970 in Case 27/70 Edding v Hauptzollamt Hamburg (( 1970 )) ECR 1035 .

( 3 ) See the judgment of 14 February 1980 in Case 84/79 Meyer-Uetze v Hauptzollamt Bad Reichenhall (( 1980 )) ECR 291 .