1 BY AN ORDER DATED 23 JANUARY 1973, RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 19 FEBRUARY, THE BUNDESFINANZHOF REFERRED, UNDER ARTICLE 177 OF THE EEC TREATY, TWO PRELIMINARY QUESTIONS ON THE VALIDITY AND THE INTERPRETATION OF REGULATION NO 803/68/EEC OF THE COUNCIL OF 27 JUNE 1968 ( OJ L 148, P . 6 ) ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES . THE FIRST QUESTION
2 BY THE FIRST QUESTION IT IS ASKED WHETHER THE NECESSARY AUTHORITY FOR THE VALIDITY OF THE REGULATION IS TO BE FOUND IN ARTICLE 235 OF THE TREATY, ON WHICH IT IS BASED, OR IN ANY OTHER PROVISION OF THE TREATY .
3 THE FIRST RECITAL IN THE PREAMBLE TO THE REGULATION DECLARES THAT IT IS ADOPTED BY VIRTUE OF " THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, AND IN PARTICULAR ARTICLE 235 THEREOF ". THUS IT IS PROPER TO EXAMINE FIRST OF ALL WHETHER THIS ARTICLE CONSTITUTES A SUFFICIENT LEGAL BASIS . ARTICLE 235 AUTHORIZES THE COUNCIL TO TAKE THE APPROPRIATE MEASURES IF ACTION BY THE COMMUNITY SHOULD PROVE NECESSARY TO ATTAIN, IN THE COURSE OF THE OPERATION OF THE COMMON MARKET, ONE OF THE OBJECTIVES OF THE COMMUNITY AND IF THE TREATY HAS NOT PROVIDED THE NECESSARY POWERS . THE ESTABLISHMENT OF A CUSTOMS UNION BETWEEN THE MEMBER STATES IS ONE OF THE OBJECTIVES OF THE COMMUNITY UNDER ARTICLE 3 ( A ) AND ( B ) OF THE TREATY . THE FUNCTIONING OF A CUSTOMS UNION REQUIRES OF NECESSITY THE UNIFORM DETERMINATION OF THE VALUATION FOR CUSTOMS PURPOSES OF GOODS IMPORTED FROM THIRD COUNTRIES SO THAT THE LEVEL OF PROTECTION EFFECTED BY THE COMMON CUSTOMS TARIFF IS THE SAME THROUGHOUT THE WHOLE COMMUNITY . SUCH A UNIFORM DETERMINATION DOES NOT FOLLOW TO THE EXTENT NECESSARY FROM THE FACT THAT THE MEMBER STATES ARE ALL ADHERENTS OF THE BRUSSELS CONVENTION ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES SIGNED ON 15 DECEMBER 1950 . THIS IS BECAUSE THE PROVISIONS OF THIS CONVENTION HAVE TO GIVE THE SIGNATORY STATES THE POWER TO AMEND CERTAIN SPECIFIC MATTERS . AS THE PROCEDURE PRESCRIBED BY ARTICLE 100 FOR THE APPROXIMATION OF LEGISLATION BY MEANS OF DIRECTIVES DOES NOT PROVIDE A REALLY ADEQUATE SOLUTION, ONE MUST EXAMINE IF THE PROVISIONS ON THE IMPLEMENTATION OF THE CUSTOMS UNION AND THE COMMON COMMERCIAL POLICY COULD HAVE POSSIBLY FURNISHED THE COUNCIL WITH AN ADEQUATE BASIS FOR ACTION .
4 IF IT IS TRUE THAT THE PROPER FUNCTIONING OF THE CUSTOMS UNION JUSTIFIES A WIDE INTERPRETATION OF ARTICLES 9, 27, 28, 111 AND 113 OF THE TREATY AND OF THE POWERS WHICH THESE PROVISIONS CONFER ON THE INSTITUTIONS TO ALLOW THEM THROUGHLY TO CONTROL EXTERNAL TRADE BY MEASURES TAKEN BOTH INDEPENDENTLY AND BY AGREEMENT, THERE IS NO REASON WHY THE COUNCIL COULD NOT LEGITIMATELY CONSIDER THAT RECOURSE TO THE PROCEDURE OF ARTICLE 235 WAS JUSTIFIED IN THE INTEREST OF LEGAL CERTAINTY . THIS IS THE MORE SO AS THE REGULATION IN QUESTION WAS ADOPTED DURING THE TRANSITIONAL PERIOD . BY REASON OF THE SPECIFIC REQUIREMENTS OF ARTICLE 235 THIS COURSE OF ACTION CANNOT BE CRITICIZED SINCE, UNDER THE CIRCUMSTANCES, THE RULES OF THE TREATY ON THE FORMING OF THE COUNCIL' S DECISIONS OR ON THE DIVISION OF POWERS BETWEEN THE INSTITUTIONS ARE NOT TO BE DISREGARDED .
5 NO ONE HAS DISPUTED THE FACT THAT ON THE ADOPTION OF REGULATION NO 803/68 THE PROCEDURE PRESCRIBED BY ARTICLE 235 WAS CARRIED OUT IN THE PROPER MANNER .
6 CONSEQUENTLY, AS THE AUTHORITY FOR THIS REGULATION IS TO BE FOUND IN ARTICLE 235 OF THE TREATY, EXAMINATION OF THE QUESTION RAISED HAS EXPOSED NO FACTOR WHICH IS CAPABLE OF AFFECTING ITS VALIDITY . THE SECOND QUESTION
7 IN THE SECOND QUESTION ON THE INTERPRETATION OF ARTICLE 11 ( 2 ) ( B ) ( SECOND BRANCH OF THE ALTERNATIVE ) OF REGULATION NO 803/68, IT IS ASKED WHETHER IT IS NECESSARY " THAT ANOTHER PRICE OF A DEFINITE AMOUNT HAS BEEN FIXED BETWEEN THE SELLER AND THE BUYER, OR OTHER BUYERS, FOR CASH PAYMENT " OR WHETHER IT IS SUFFICIENT IF THE PRICE FOR FORWARD PAYMENT INCLUDES A CHARGE FOR CREDIT .
8 IT FOLLOWS FROM THE PROVISION IN DISPUTE THAT THE PRICE TO TAKE INTO ACCOUNT IN DETERMINING THE VALUE FOR CUSTOMS PURPOSES IN THE CASE OF DEFERRED PAYMENT IS THE PRICE FOR FORWARD PAYMENT, UNLESS A DISCOUNT FOR CASH PAYMENT WAS PROVIDED OR THE EXISTENCE OF A DIFFERENT PRICE FOR CASH PAYMENT WAS PROVED AT THE CUSTOMS DEPARTMENT .
9 TO INTERPRET THIS LAST PROVISION, ONE MUST TAKE ACCOUNT OF ITS AIM WHICH IS TO ESTABLISH THE VALUE OF GOODS, EXPRESSED AS A SPECIFIC SUM WHICH CAN BE TAKEN AS THE BASIS FOR CALCULATING THE CUSTOMS DUTY TO BE IMPOSED ON THE GOODS . IT FOLLOWS THAT THE DIFFERENT PRICE, THE EXISTENCE OF WHICH COULD BE PROVED IF NECESSARY, IS TO BE EXPRESSED IN FIGURES . THAT IS NOT ONLY BECAUSE THE PRICE FOR FORWARD PAYMENT INCLUDES CREDIT CHARGES AND BECAUSE OF THE ABSENCE OF ANY POWER ON THE PART OF THE BUYER OR OTHER BUYERS IN SIMILAR CIRCUMSTANCES TO CARRY OUT THEIR OBLIGATIONS UNDER THE CONTRACT BY PAYING BEFORE THE STIPULATED TIME A SPECIFIC PRICE LOWER THAN THE PRICE FOR FORWARD PAYMENT .
10 IT IS FOR THE NATIONAL COURT TO JUDGE IN EVERY CASE OF THIS KIND, WHETHER OR NOT PROOF HAS BEEN FURNISHED OF THE EXISTENCE OF A DIFFERENT PRICE WITHIN THE MEANING INDICATED ABOVE .
11 AS REGARDS THIS QUESTION ONE MUST REPLY THAT IT IS INADEQUATE AS PROOF OF THE EXISTENCE OF A PRICE DIFFERENT FROM THE PRICE FOR FORWARD PAYMENT TO SHOW THAT THE PRICE FOR FORWARD PAYMENT PAYABLE INCLUDES CREDIT CHARGES . WHAT MUST BE PROVED IS THE EXISTENCE OF ANOTHER PRICE OF A DEFINITE AMOUNT FOR WHICH THE BUYER OR OTHER BUYERS IN SIMILAR CIRCUMSTANCES ARE ENTITLED TO SETTLE IN THE EVENT OF PAYMENT BEFORE THE AGREED DATE .