1 BY JUDGMENT OF 29 JUNE 1979 , RECEIVED AT THE COURT ON 20 JULY 1979 , THE TRIBUNAL DE PREMIERE INSTANCE , BRUSSELS , REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY SIX QUESTIONS ON THE INTERPRETATION OF REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 170 ) AND REGULATION NO 603/72 OF THE COMMISSION OF 24 MARCH 1972 ON THE BUYER TO BE TAKEN INTO CONSIDERATION WHEN DETERMINING THE VALUE OF GOODS FOR CUSTOMS PURPOSES ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 156 ).
2 THOSE QUESTIONS HAVE BEEN RAISED IN AN ACTION BROUGHT BY CATERPILLAR OVERSEAS , A SWISS COMPANY , AGAINST THE BELGIAN STATE FOR AN ORDER THAT THE LATTER REFUND THE CUSTOMS DUTIES WHICH IT IS ALLEGED TO HAVE LEVIED WRONGLY ON THE IMPORT INTO THE CUSTOMS TERRITORY OF THE COMMUNITY OF SPARE PARTS FOR CATERPILLAR MACHINES AND WHICH THE PLAINTIFF IN THE MAIN ACTION PAID UNDER PROTEST TO AVOID LEGAL PROCEEDINGS .
3 THE ACTION CONCERNS THE QUESTION OF THE VALUE TO BE TAKEN AS BASIS FOR CALCULATING THE CUSTOMS DUTIES ON THE ENTRY INTO THE EEC OF SPARE PARTS MARKETED BY CATERPILLAR OVERSEAS . THAT COMPANY , WHICH IS A SUBSIDIARY OF THE AMERICAN CATERPILLAR TRACTOR COMPANY , HAS ITS REGISTERED OFFICE IN SWITZERLAND AND A BRANCH IN GRIMBERGEN , BELGIUM . ACCORDING TO THE JUDGMENT MAKING THE REFERENCE IT MAINTAINS IN SUBSTANCE THAT THE CUSTOMS LONG ACCEPTED , AND RIGHTLY SO , THAT THE CUSTOMS DUTIES IN QUESTION HAD TO BE CALCULATED ON THE PRICES ACTUALLY CHARGED TO THE BRANCH IN BELGIUM BY THE COMPANIES WHICH SUPPLIED ITS SPARE PARTS ; THE SPARE PARTS WERE ORDERED THROUGH THE BRANCH FROM CATERPILLAR TRACTOR IN THE UNITED STATES OR FROM OTHER SUBSIDIARIES OF CATERPILLAR TRACTOR OR EVEN FROM COMPANIES ASSOCIATED WITH THE LATTER . ON THE OTHER HAND THE BELGIAN CUSTOMS MAINTAINS THAT THE VALUE FOR CUSTOMS PURPOSES OF THE SPARE PARTS MUST BE ESTABLISHED ON ANOTHER BASIS WHICH WOULD LEAD TO AN INCREASE OF 20 % ON THE PRICE CHARGED . THE CONCEPT OF VALUE FOR CUSTOMS PURPOSES
4 THE COURT FIRST OF ALL PUTS THREE QUESTIONS WHICH IT DESCRIBES AS ' ' GENERAL ' ' AND WHICH CONCERN THE RELATIONSHIP BETWEEN THE CONCEPT OF ' ' NORMAL PRICE ' ' , WHICH CONSTITUTES THE VALUE FOR CUSTOMS PURPOSES OF IMPORTED GOODS ACCORDING TO ARTICLE 1 OF REGULATION NO 803/68 AND THAT OF THE ' ' PRICE PAID OR PAYABLE ' ' WHICH IN CERTAIN CIRCUMSTANCES MAY BE ACCEPTED AS THE VALUE FOR CUSTOMS PURPOSES ACCORDING TO ARTICLE 9 OF THE SAME REGULATION . THE FIRST OF THOSE GENERAL QUESTIONS IS WORDED AS FOLLOWS : ' ' IN SO FAR AS ARTICLE 9 OF REGULATION NO 803/68 PROVIDES THAT ' THE PRICE PAID OR PAYABLE MAY BE ACCEPTED ' ( ON CERTAIN CONDITIONS ) ' AS THE VALUE FOR CUSTOMS PURPOSES ' , DOES IT GIVE A DEFINITION OF THE VALUE FOR CUSTOMS PURPOSES THAT IS INDEPENDENT OF OR DIFFERENT FROM THE DEFINITION GIVEN IN ARTICLE 1 AS ' THE NORMAL PRICE ' , OR DOES IT DEROGATE FROM ARTICLE 1? ' '
5 THE AIM OF REGULATION NO 803/68 IS TO ENSURE THE UNIFORM APPLICATION OF THE COMMON CUSTOMS TARIFF . TO THIS END ITS PROVISIONS AIM TO AVOID ARBITRARY OR FICTITIOUS VALUES AND TO BASE THE VALUE FOR CUSTOMS PURPOSES OF IMPORTED GOODS ON THEIR REAL VALUE . ARTICLE 1 OF THE REGULATION TRANSLATES THAT IDEA BY PROVIDING THAT THE VALUE FOR CUSTOMS PURPOSES SHALL BE THE NORMAL PRICE , THAT IS TO SAY , THE PRICE WHICH THE GOODS IMPORTED WOULD FETCH ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER .
6 THE MAIN AIM OF THE CONCEPT OF NORMAL PRICE IS TO ALLOW THE CUSTOMS AUTHORITIES TO ESTABLISH , IN THE INTERESTS OF THE PROPER LEVYING OF CUSTOMS DUTIES , THE TRUE PRICES OF GOODS WHERE THE TERMS OF THE TRANSACTIONS TO WHICH THEY RELATE HAVE BEEN INFLUENCED BY FACTORS AFFECTING THE TERMS OBTAINING BETWEEN CONTRACTING PARTIES IN THE OPEN MARKET .
7 ALTHOUGH ARTICLE 9 OF REGULATION NO 803/68 PROVIDES THAT THE PRICE PAID OR PAYABLE MAY BE ACCEPTED AS THE VALUE FOR CUSTOMS PURPOSES , IT IS MERELY ACCEPTING A METHOD FOR CALCULATING THE NORMAL PRICE OF THE GOODS . IT IS APPARENT FROM ARTICLE 9 ( 1 ) THAT THE PRICE PAID OR PAYABLE MAY BE ACCEPTED ONLY IF IT CORRESPONDS , AT THE TIME IT IS AGREED UPON , TO PRICES ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER , AND THAT PRICE IS TO BE ADJUSTED , IF NECESSARY , TO TAKE ACCOUNT OF CIRCUMSTANCES OF THE SALE WHICH DIFFER FROM THOSE ON WHICH THE NORMAL PRICE IS BASED .
8 IT IS THEREFORE RIGHT TO REPLY TO THE FIRST GENERAL QUESTION PUT BY THE NATIONAL COURT THAT WHEN ARTICLE 9 OF REGULATION NO 803/68 PROVIDES THAT IN CERTAIN CIRCUMSTANCES AND SUBJECT TO CERTAIN ADJUSTMENTS THE PRICE PAID OR PAYABLE MAY BE ACCEPTED AS THE VALUE FOR CUSTOMS PURPOSES , IT DOES NOT GIVE A DEFINITION INDEPENDENT OF , OR DIFFERENT FROM , THE VALUE FOR CUSTOMS PURPOSES BY REFERENCE TO THE NORMAL PRICE TO WHICH ARTICLE 1 OF THAT REGULATION REFERS .
9 IT FOLLOWS FROM THAT ANSWER THAT THE SECOND AND THIRD GENERAL QUESTIONS WHICH ARE PUT IN THE EVENT OF THE FIRST QUESTION ' S BEING ANSWERED IN THE AFFIRMATIVE HAVE LOST THEIR PURPOSE . INTERPRETATION OF REGULATION NO 603/72
10 THE TRIBUNAL DE PREMIERE INSTANCE IS SEEKING IN THE FIRST QUESTION REFERRED TO AS ' ' MORE SPECIFIC ' ' CLARIFICATION ON THE CALCULATION OF THE VALUE FOR CUSTOMS PURPOSES ON THE BASIS OF THE PRICE PAID OR PAYABLE . THUS THE QUESTION AT ( B ), WHICH THE COURT WILL EXAMINE FIRST , ASKS FOR AN INTERPRETATION OF ARTICLE 1 OF REGULATION NO 603/72 , ACCORDING TO WHICH THE PRICE PAID OR PAYABLE SHALL BE ACCEPTED AS THE VALUE FOR CUSTOMS PURPOSES ONLY IF IT HAS BEEN MADE ON A SALE TO A BUYER ESTABLISHED IN THE CUSTOMS TERRITORY OF THE COMMUNITY . THE COURT WISHES IN PARTICULAR TO KNOW WHETHER THERE IS SUCH A SALE WHERE THE SALE IS BETWEEN TWO COMPANIES ESTABLISHED OUTSIDE THE CUSTOMS TERRITORY OF THE COMMUNITY BUT WHERE THE BUYER , A SUBSIDIARY OF THE SELLER , HAS A BRANCH ESTABLISHED IN THAT TERRITORY RESPONSIBLE FOR ORDERING THE GOODS FROM THE SELLER , MANAGING THE STOCK AND DISTRIBUTING THE GOODS TO CUSTOMERS AND IN PARTICULAR TO DISTRIBUTORS OF THE GOODS SOLD UNDER THE TRADE-MARK OF THE PARENT BODY .
11 IN THE PREAMBLE TO THE QUESTIONS THE COURT STRESSES THAT IT IS ASSUMING THAT THE BRANCH IS ESTABLISHED IN THE CUSTOMS TERRITORY OF THE COMMUNITY AND HAS A LARGE MEASURE OF INDEPENDENCE IN ITS OPERATIONS ; THAT IT IS ENTERED IN THE COMMERCIAL REGISTER IN THE MEMBER STATE IN WHICH IT IS ESTABLISHED AND CONSTITUTES A BRANCH WITHIN THE MEANING OF THE COMPANY LAW OF THAT COUNTRY ; THAT IT HAS ALL THE CHARACTERISTICS OF A PERMANENT ESTABLISHMENT WITHIN THE MEANING OF THE FISCAL LAW OF THE COUNTRY WHERE IT IS ESTABLISHED AND THE DOUBLE TAXATION AGREEMENTS OF THE OECD TYPE . IT IS MOREOVER TREATED AS A PERMANENT ESTABLISHMENT BY THAT COUNTRY , WHICH LEVIES DIRECT TAXATION ON THE INCOME ARISING FROM ITS ACTIVITIES AS A BRANCH . FOR THAT REASON IT KEEPS SEPARATE ACCOUNTS AS IF IT HAD SEPARATE PERSONALITY .
12 ACCORDING TO ITS RECITALS REGULATION NO 603/72 ASSUMES THAT THE CONCEPT OF THE NORMAL PRICE IMPLIES A SALE CONCLUDED WITH A VIEW TO THE IMPORTATION OF THE GOODS INTO THE CUSTOMS TERRITORY OF THE COMMUNITY AND THEIR INTEGRATION IN THE ECONOMY OF THAT TERRITORY AND THAT ACCORDINGLY THE FACTS NECESSARY FOR THE PRACTICAL APPLICATION OF SUCH PRINCIPLES CAN BE ESTABLISHED ONLY IF THE PRICE PAID OR PAYABLE WHICH IS DECLARED AS A BASIS FOR DETERMINING THE VALUE FOR CUSTOMS PURPOSES IS MADE TO A BUYER ESTABLISHED IN THE CUSTOMS TERRITORY OF THE COMMUNITY , THAT IS TO SAY , A BUYER WHO HAS HIS RESIDENCE OR PLACE OF BUSINESS THEREIN .
13 IT FOLLOWS THAT THE AIM OF ARTICLE 1 OF REGULATION NO 603/72 IS TO ALLOW THE CUSTOMS AUTHORITIES TO CARRY OUT THE NECESSARY INSPECTIONS AND CHECKS FOR APPLYING REGULATION NO 803/68 . THAT PROVISION TAKES AS BASIS THE SALE TO A BUYER ESTABLISHED IN THE CUSTOMS TERRITORY OF THE COMMUNITY AND THEREFORE CONTEMPLATES THE POSITION IN WHICH THE BUYER HAS A GENUINE PLACE OF BUSINESS IN THAT TERRITORY .
14 TO MEET THAT REQUIREMENT IT IS NOT NECESSARY THAT THE REGISTERED OFFICE OF THE BUYER IN THE CASE OF A COMPANY SHOULD BE IN THE CUSTOMS TERRITORY OF THE COMMUNITY . IT SUFFICES THAT THE BUYER HAS AN ESTABLISHMENT THERE WHICH CARRIES ON ACTIVITIES SUCH AS MAY BE EXERCISED BY AN INDEPENDENT UNDERTAKING IN THE SAME SECTOR AND HAS ITS OWN ACCOUNTS ALLOWING THE CUSTOMS AUTHORITIES TO CARRY OUT THE NECESSARY INSPECTIONS AND CHECKS .
15 THE APPROPRIATE ANSWER TO THE FIRST QUESTION AT ( B ) IS THEREFORE THAT ARTICLE 1 OF REGULATION NO 603/72 MUST BE INTERPRETED AS MEANING THAT A BUYER IS ESTABLISHED IN THE CUSTOMS TERRITORY OF THE COMMUNITY WHEN HE HAS A GENUINE PLACE OF BUSINESS THERE . A COMPANY WHOSE REGISTERED OFFICE IS OUTSIDE THAT TERRITORY MEETS THE REQUIREMENT WHEN IT HAS INSIDE THAT TERRITORY AN ESTABLISHMENT WHICH CARRIES ON ACTIVITIES SUCH AS MAY BE EXERCISED BY AN INDEPENDENT UNDERTAKING IN THE SAME SECTOR AND HAS ITS OWN ACCOUNTS ALLOWING THE CUSTOMS AUTHORITIES TO CARRY OUT THE NECESSARY INSPECTIONS AND CHECKS . THE INTERPRETATION OF ARTICLE 9 OF REGULATION NO 803/68
16 THE NATIONAL COURT ASKS IN THE FIRST SPECIFIC QUESTION AT ( A ) IN WHAT CIRCUMSTANCES THE PRICE PAID OR PAYABLE , TO WHICH ARTICLE 9 OF REGULATION NO 803/68 REFERS , CORRESPONDS , AT THE TIME IT IS AGREED UPON , TO THE PRICE ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER .
17 ACCORDING TO THE PLAINTIFF IN THE MAIN ACTION A SALE TO AN IMPORTER OF GOODS OR TO ITS BRANCH BY A SUPPLIER WITH WHICH THAT IMPORTER AND ITS BRANCH ARE ASSOCIATED MUST BE TREATED AS A SALE IN THE OPEN MARKET IN EVERY CASE IN WHICH THE IMPORTER OR ITS BRANCH IS ACTING AS AN INDEPENDENT TRADER BY REASON OF THE FACT THAT IT IS NOT ENJOYING ANY FINANCIAL OR COMMERCIAL ADVANTAGE IN RELATION TO A FULLY INDEPENDENT BUYER BECAUSE OF ITS ASSOCIATION WITH THE SUPPLIER .
18 THAT VIEW IS UNTENABLE . ALTHOUGH THE COMMERCIAL INDEPENDENCE OF THE BUYER IN RELATION TO THE SELLER CONSTITUTES A NECESSARY CONDITION FOR TREATING THE PRICE PAID OR PAYABLE AS THE PRICE CHARGED IN A SALE IN THE OPEN MARKET , IT IS NOT A SUFFICIENT CONDITION . IT IS APPARENT FROM ARTICLE 2 ( 1 ) OF REGULATION NO 803/68 THAT FOR A SALE TO BE TREATED AS A SALE IN THE OPEN MARKET THE PRICE AGREED MUST NOT BE INFLUENCED BY ANY COMMERCIAL , FINANCIAL OR OTHER RELATIONSHIP , WHETHER BY CONTRACT OR OTHERWISE , BETWEEN THE SELLER AND THE BUYER OTHER THAN THE RELATIONSHIP CREATED BY THE SALE ITSELF . SUCH AN INFLUENCE DOES NOT ONLY DEPEND ON RELATIONSHIPS WITHIN AN ORGANIZATION OF UNDERTAKINGS CONTAINING A PARENT BODY WHICH SUPPLIES GOODS TO A SUBSIDIARY WHICH BUYS THEM THROUGH ITS BRANCH , BUT MAY ALSO ARISE FROM A COMPARISON MADE WITH THE PRICE OF IDENTICAL OR SIMILAR GOODS PAID BY ANY BUYER OPERATING IN THE TERRITORY OF IMPORTATION .
19 THAT INTERPRETATION IS IN ACCORD , MOREOVER , WITH THE GUIDELINES FURNISHED BY THE RECOMMENDATION OF THE CUSTOMS CO-OPERATION COUNCIL OF 1 JUNE 1965 CONCERNING THE APPLICATION OF THE BRUSSELS DEFINITION OF VALUE FOR CUSTOMS PURPOSES . ACCORDING TO THE RECOMMENDATION A SALE CANNOT BE TREATED AS A SALE IN THE OPEN MARKET BETWEEN A BUYER AND SELLER INDEPENDENT OF EACH OTHER IF THE PRICE AGREED UPON IS CONSIDERABLY LOWER THAN THOSE AT WHICH IDENTICAL OR , FAILING THAT , SIMILAR GOODS ARE BEING FREELY SOLD BY OTHER SELLERS IN THE SAME COUNTRY , AT THE SAME TIME AND IN THE SAME QUANTITIES , TO ANY BUYER IN THE COUNTRY OF IMPORTATION AT THE SAME COMMERCIAL LEVEL AS THE ACTUAL BUYER .
20 IT IS NECESSARY , THEREFORE , TO ANSWER THE FIRST SPECIFIC QUESTION AT ( A ) TO THE EFFECT THAT THE PRICE PAID OR PAYABLE WITHIN THE MEANING OF ARTICLE 9 OF REGULATION NO 803/68 CORRESPONDS , AT THE TIME IT IS AGREED UPON , TO PRICES ON A SALE IN THE OPEN MARKET ONLY IF THE PRICE IS NOT INFLUENCED BY COMMERCIAL , FINANCIAL OR OTHER RELATIONSHIPS BETWEEN THE SELLER AND BUYER OTHER THAN THE RELATIONSHIP CREATED BY THE SALE ITSELF . TO DETERMINE WHETHER SUCH INFLUENCE EXISTS IT IS NECESSARY TO CONSIDER WHETHER THE BUYER IS COMMERCIALLY INDEPENDENT OF THE SELLER AND WHETHER THE PRICE AGREED BETWEEN THEM IS NOT APPRECIABLY LOWER THAN THE PRICES AT WHICH IDENTICAL OR SIMILAR GOODS ARE FREELY SOLD AT THE SAME TIME TO ANY BUYER IN THE CUSTOMS TERRITORY OF THE COMMUNITY AT THE SAME COMMERCIAL LEVEL . THE SO-CALLED DEDUCTIVE METHOD
21 THE SECOND AND THIRD SPECIFIC QUESTIONS ARE PUT BY THE COURT IN THE EVENT OF ITS DECLINING TO BASE THE VALUE FOR CUSTOMS PURPOSES OF THE CATERPILLAR SPARE PARTS ON THE PRICE PAID OR PAYABLE . THEY CONCERN POSSIBLE RECOURSE TO ANOTHER METHOD OF CALCULATION AND THEY ASK IN SUBSTANCE WHETHER THE VALUE FOR CUSTOMS PURPOSES MAY BE DETERMINED ON THE BASIS OF THE PRICES CHARGED TO DISTRIBUTORS OR TO CERTAIN OTHER CUSTOMERS , IT BEING UNDERSTOOD THAT THOSE PRICES MAY VARY ACCORDING TO THE COMMERCIAL LEVEL OF THE BUYERS , AND IF SO WHETHER IT IS NECESSARY TO TAKE INTO CONSIDERATION WITH A VIEW TO THEIR POSSIBLE DEDUCTION FROM SUCH PRICES AS MAY BE FIXED UPON IN ACCORDANCE WITH THAT METHOD : ( A ) THE COSTS OF WAREHOUSING AND OF PRESERVING THE GOODS ; ( B ) OTHER EXPENSES INHERENT IN THE ACTIVITIES OF THE BRANCH IN THE MEMBER STATE ; ( C ) AN AMOUNT REPRESENTING THE TRADING PROFIT ATTRIBUTABLE TO THE ACTIVITIES OF THE BRANCH IN THE COMMUNITY .
22 IT IS APPARENT FROM THE ABOVE-MENTIONED CONSIDERATIONS THAT THE POSSIBILITY ALLOWED BY ARTICLE 9 OF REGULATION NO 803/68 OF ACCEPTING THE PRICE PAID OR PAYABLE AS THE VALUE FOR CUSTOMS PURPOSES , SUBJECT TO CERTAIN ADJUSTMENTS , IN NO WAY PRECLUDES RECOURSE TO OTHER METHODS OF CALCULATING THE TRUE VALUE OF THE IMPORTED GOODS .
23 THUS IT IS IN ACCORDANCE WITH THAT REGULATION , AND IN PARTICULAR ARTICLES 1 AND 7 THEREOF , TO CALCULATE THE VALUE FOR CUSTOMS PURPOSES ON THE BASIS OF THE PRICE AT WHICH THE GOODS ARE RESOLD IN UNALTERED STATE . SUCH METHOD NEVERTHELESS IMPLIES THAT TO OBTAIN THE VALUE FOR CUSTOMS PURPOSES THE PRICE OF RESALE SHOULD BE REDUCED BY THE COSTS INCURRED BY THE BUYER-RESELLER IN RESPECT OF TRANSACTIONS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY .
24 IT FOLLOWS THAT THE COSTS OF WAREHOUSING AND PRESERVING AND THE OTHER EXPENSES INHERENT IN THE ACTIVITIES OF THE BUYER IN THE CUSTOMS TERRITORY MUST BE DEDUCTED FROM THE RESALE PRICE TO ARRIVE AT A VALUE FOR CUSTOMS PURPOSES WHICH CORRESPONDS TO THE TRUE VALUE OF THE GOODS .
25 FOR THE SAME REASON AN AMOUNT REPRESENTING THE PROFIT MARGIN ATTRIBUTABLE TO THE ACTIVITIES OF THE BUYER-RESELLER MAY BE DEDUCTED WHERE THE BUYER HAS A CERTAIN COMMERCIAL INDEPENDENCE OF THE SELLER AND WHERE THE PROFIT MARGIN CORRESPONDS TO THE AVERAGE PROFIT MARGIN OBSERVED AT THE SAME COMMERCIAL LEVEL IN THE SAME TRADE .
26 THEREFORE THE SECOND AND THIRD SPECIFIC QUESTIONS PUT BY THE NATIONAL COURT CALL FOR AN ANSWER TO THE EFFECT THAT IT IS IN ACCORDANCE WITH REGULATION NO 803/68 TO CALCULATE THE VALUE FOR CUSTOMS PURPOSES ON THE BASIS OF THE PRICE AT WHICH THE GOODS ARE RESOLD IN UNALTERED STATE AFTER DEDUCTION OF ALL THE COSTS INCURRED BY THE BUYER-RESELLER IN RESPECT OF TRANSACTIONS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY AND , WHERE NECESSARY , AN APPROPRIATE PROFIT MARGIN .