Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf.
Date: 2009-03-19
20. In order to answer those questions, it should first be pointed out that, according to the settled case-law of the Court, the objective of the Community legislation on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (Case C-11/89 Unifert  [1990] ECR I-2275, paragraph 35, and Case C-15/99 Sommer [2000] ECR I-8989, paragraph 25). The customs value must thus reflect the real economic value of an imported good and take into account all of the elements of that good that have economic value (see Case C‑306/04 Compaq Computer International Corporation  [2006] ECR I‑10991, paragraph 30).
24. However, the price actually paid or payable is a factor that must potentially be adjusted where necessary in order to avoid the setting of an arbitrary or fictitious customs value (see, to that effect, Case 183/85 Repenning [1986] ECR 1873, paragraph 16).
25. The Court has, in particular, already held that it must be accepted that, where the goods to be valued were bought free of defects but were damaged before their release for free circulation, the price actually paid or payable must be reduced in proportion to the damage suffered, since it is an unforeseeable reduction in the commercial value of the goods (see Repenning , paragraph 18, and Unifert , paragraph 35).
26. Similarly, in the main proceedings, it must be accepted that the price actually paid or payable can 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 which, as a result, may result in a subsequent reduction in the customs value of those goods.
27. As is apparent from the terms of recitals 5 and 6 in the preamble to Regulation No 444/2002, Article 145(2) of the Implementing Regulation specified on that point a solution already indicated by Article 29 of the Customs Code itself. Article 145(2) defines 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. There are three cumulative conditions. They are fulfilled when it can be demonstrated that the goods were defective at the moment of acceptance of the declaration by the customs authorities, the price adjustment derives from the performance of a warranty obligation provided for in the contract of sale, concluded before release for free circulation of the goods, and the defective nature of the goods has not already been taken into account in the sales contract.
31. In that respect, it should be recalled that the principles of the protection of legitimate expectations and legal certainty form part of the Community legal order. They must accordingly be observed by the Community institutions (see, inter alia, Case C‑376/02 ‘Goed Wonen’  [2005] ECR I‑3445, paragraph 32 and the case-law cited).
32. 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 (see, in particular, ‘Goed Wonen’ , paragraph 33) 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 (see, to that effect, Case C‑293/04 Beemsterboer Coldstore Services  [2006] ECR I‑2263, paragraph 21 and case-law cited).
36. Although Article 145 of the Implementing Regulation aims to improve legal certainty in that it expressly includes the taking into consideration of the adjustment of the price of goods where they are defective at the time of their importation, its application, as in the main proceedings, would none the less result in undermining the legitimate expectations of German economic operators to the extent that, as the Advocate General stated in point 50 of his Opinion, the German customs authorities applied the general deadline of three years prescribed by Article 236(2) of the Customs Code to adjustments, after importation, of the transaction value of goods on account of their defective nature, for the purposes of determining their customs value.