Judgment of the Court (Second Chamber) of  20 October 2005  in Case C-468/03: reference for a preliminary ruling from the VAT and Duties Tribunal, London Overland Footwear Ltd v Commissioners of Customs & Excise (Common customs tariff — Import customs duties — Declared customs value including a buying commission — Payment of customs duty on full amount declared — Revision of the customs declaration — Conditions — Refund of customs duties paid on the buying commission)
Date: 2005-12-10
Institutions: Court of Justice
Subjects: customs duties, customs formalities, customs regulations, customs valuation, import, interpretation of the law

C 315/4

EN

Official Journal of the European Union

10.12.2005

the Court on 29 September 2003,

(Netherlands), made by decision of 28 August 2003, received
at
in the proceedings
pending before that court between Class International BV and
Colgate-Palmolive Company, Unilever NV, SmithKline Beecham
plc, Beecham Group plc — the Court
(Grand Chamber),
composed of V. Skouris, President, P. Jann, C.W.A. Timmer-
mans, A. Rosas and J. Malenovský, Presidents of Chambers,
C. Gulmann (Rapporteur), R. Schintgen, N. Colneric, S. von
J.N. Cunha Rodrigues, A. Borg Barthet, M. Ilešič, and
Bahr,
J. Klučka, Judges; F.G. Jacobs, Advocate General; M. Ferreira,
Principal Administrator, for the Registrar, gave a judgment on
18 October 2005, the operative part of which is as follows:

1. Article 5(1) and (3)(c) of First Council Directive 89/104/EEC of
the Member
21 December 1988 to approximate the laws of
States relating to trade marks and Article 9(1) and (2)(c) of
Council Regulation (EC) No 40/94 of 20 December 1993 on the
Community trade mark must be interpreted as meaning that a
trade mark proprietor cannot oppose the mere entry into the Com-
munity, under the external transit procedure or the customs ware-
housing procedure, of original goods bearing that mark which had
not already been put on the market in the Community previously
by that proprietor or with his consent. The trade mark proprietor
cannot make the placing of the goods at issue under the external
transit procedure or the customs warehousing procedure conditional
on the existence, at the time of the introduction of those goods
into the Community, of a final destination already specified in a
third country, possibly pursuant to a sale agreement.

2.

the goods, within the
‘Offering’ and ‘putting on the market’
meaning of Article 5(3)(b) of Directive 89/104 and Article
9(2)(b) of Regulation No 40/94, may include, respectively, the
offering and sale of original goods bearing a trade mark and
having the customs status of non-Community goods, when the
offering is done and/or the sale is effected while the goods are
placed under the external transit procedure or the customs ware-
housing procedure. The trade mark proprietor may oppose the
offering or the sale of such goods when it necessarily entails the
putting of those goods on the market in the Community.

3. In a situation such as the one at issue in the main proceedings, it
is for the trade mark proprietor to prove the facts which would
give grounds for exercising the right of prohibition provided for in
Article 5(3)(b) and (c) of Directive 89/104 and Article 9(2)(b)
and (c) of Regulation No 40/94, by proving either release for free
circulation of the non-Community goods bearing his mark or an
offering or sale of the goods which necessarily entails their being
put on the market in the Community.

(1) OJ C 304 of 13.12.2003.

JUDGMENT OF THE COURT

(Second Chamber)

of 20 October 2005

in Case C-468/03: reference for a preliminary ruling from
the VAT and Duties Tribunal, London Overland Footwear
Ltd v Commissioners of Customs & Excise (1)

customs duties —
tariff — Import
(Common customs
Declared customs value including a buying commission —
Payment of customs duty on full amount declared — Revision
of the customs declaration — Conditions — Refund of
customs duties paid on the buying commission)

(2005/C 315/07)

(Language of the case: English)

In Case C-468/03: reference for a preliminary ruling under
Article 234 EC from the VAT and Duties Tribunal, London
(United Kingdom), made by decision of 29 September 2003,
received at the Court on 6 November 2003, in the proceedings
between Overland Footwear Ltd and Commissioners of
Customs & Excise — the Court (Second Chamber), composed
of C.W.A. Timmermans and J. Makarczyk, Presidents of Cham-
bers, C. Gulmann (Rapporteur), R. Schintgen and J. Klučka,
Judges; M. Poiares Maduro, Advocate General; K. Sztranc,
Administrator,
for the Registrar, gave a judgment on 20
October 2005, the operative part of which is 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 interpreted as meaning that a buying
commission included in the declared customs value and not distin-
guished from the sale price of the goods in the customs declaration
is to be regarded as forming part of the transaction value within
the meaning of Article 29 of the Code and therefore dutiable.

2. On a proper interpretation of Articles 78 and 236 of Regulation

No 2913/92:

— after the release of the imported goods, the customs authorities,
presented with an application from the declarant seeking revi-
sion of his customs declaration in relation to those goods, are
required, subject to the possibility of a subsequent court action,
either to reject the application by a reasoned decision or to
carry out the revision applied for;

— where they find, at the conclusion of that revision, that the
declared customs value erroneously included a buying commis-
sion, they are required to regularise the situation by reimbur-
sing the import duties applied to that commission.

(1) OJ C 7, 10.01.2004.