Hans Sommer GmbH & Co. KG v Hauptzollamt Bremen.
Date: 2000-10-19
22 In answering the first question, it should be borne in mind that under the system established by Regulation No 1224/80 the concept of transaction value, that is to say, as a general rule, the price actually paid or payable for the goods, forms the basis for calculating the customs value. That calculation must therefore be made on the basis of the conditions on which the individual sale was made (Case 65/85 Hauptzollamt Hamburg-Ericus v Van Houten [1986] ECR 447, paragraph 13).
24 The costs pertaining to those analyses must therefore be regarded as part of the payments made or to be made as a condition of sale of the imported goods by the buyer to the seller ... to satisfy an obligation of the seller within the meaning of Article 3(3)(a) of Regulation No 1224/80 and, accordingly, as an integral part of the customs value.
25 That interpretation is in conformity with the objective of the Community legislation on customs valuation, which, as may be seen from the sixth recital in the preamble to Regulation No 1224/80, 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).
27 The answer to the first question must therefore be that the costs of analyses designed to establish the conformity of imported goods with the national legislation of the importing Member State, which the importer invoices to the buyer in addition to the price of the goods, must be regarded as an integral part of their transaction value within the meaning of Article 3(1) of Regulation No 1224/80.
The second and third questions
31 The Court has already held that when the Commission has delivered a decision addressed to a Member State holding that there was, in a specific case, no justification for granting remission of import duties pursuant to the provisions of Regulation No 1430/79, and when that decision does not contain any legal or factual indication relating to the legal basis for effecting post-clearance recovery of the import duties concerned under Regulation No 1697/79, a national court may rule on the latter question, having recourse, if appropriate, to the procedure under Article 177 of the Treaty (Case C-413/96 Skatteministeriet v Sportgoods [1998] ECR I-5285, paragraph 43).
35 It should be pointed out in that regard that Article 5(2) of Regulation No 1697/79 makes waiver of post-clearance recovery by the national authorities subject to three cumulative conditions (see, in particular, the judgment in Case C-370/96 Covita v Greek State [1998] ECR I-7711, paragraph 24). Provided that all those conditions are fulfilled, the person liable is entitled to waiver of post-clearance recovery (see, in particular, Case C-250/91 Hewlett Packard France v Directeur Général des Douanes [1993] ECR I-1819, paragraph 12).
36 First, non-collection of the duties must have been as a result of an error made by the competent authorities themselves (see, in particular, the judgment in Covita, cited above, paragraph 25). In that regard, the national court refers expressly in its third question to the fact that on the occasion of a previous on-the-spot inspection of the imports, the authorities had raised no objection to the non-inclusion of flat-rate expenses in the customs value of similar transactions.
37 Next, the error made by the competent authorities must be such that it could not reasonably be detected by the person liable acting in good faith, despite his professional experience and the diligence which he ought to show (see, in particular, the judgment in Covita, cited above, paragraph 26). It is for the national court to determine, in the light of those criteria, whether or not the error could have been detected (see, in particular, the judgment in Hewlett Packard France, cited above, paragraph 22).
40 The answer to the third question must therefore be that the customs authorities of a Member State must refrain from post-clearance recovery of duty pursuant to Article 5(2) of Regulation No 1697/79 if, at a previous on-the-spot inspection of importations, they raised no objection to the non-inclusion of flat-rate expenses in the customs value of similar transactions and it does not appear that the trader, who had complied with all of the provisions laid down by the rules in force as far as his customs declaration is concerned, could have been in doubt about the correctness of the results of the inspection.
The fourth question