Avis juridique important

Judgment of the Court of 24 April 1980. - Procureur de la République v René Chatain. - Reference for a preliminary ruling: Tribunal de grande instance de Nanterre - France. - Active ingredients - Value for customs purposes. - Case 65/79. European Court reports 1980 Page 01345 Greek special edition Page 00017

Summary Parties Subject of the case Grounds Decision on costs Operative part

1 . COMMON CUSTOMS TARIFF - VALUE FOR CUSTOMS PURPOSES - NORMAL PRICE OF GOODS - DETERMINATION - INVOICE PRICE - REDUCTION BY THE NATIONAL AUTHORITIES - NOT PERMISSIBLE

( REGULATION NO 803/68 OF THE COUNCIL ; REGULATION NO 375/69 OF THE COMMISSION )

2 . COMMON CUSTOMS TARIFF - VALUE FOR CUSTOMS PURPOSES - NORMAL PRICE OF GOODS - DETERMINATION - SCOPE - DUTY OF NATIONAL ADMINISTRATIVE AUTHORITIES TO ACCEPT FOR OTHER PURPOSES THE VALUATION FOR CUSTOMS PURPOSES - NONE - SUPPRESSION OF ILLEGAL TRANSFERS OF CAPITAL - APPLICATION OF NATIONAL FINANCIAL OR FISCAL LEGISLATION

( REGULATION NO 803/68 OF THE COUNCIL ; REGULATION NO 375/69 OF THE COMMISSION )

3 . INTERNATIONAL AGREEMENTS - AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION - QUANTITATIVE RESTRICTIONS - MEASURES HAVING AN EQUIVALENT EFFECT - PROHIBITION - INFRINGEMENT - NONE - APPLICATION OF PENAL SANCTIONS TO AN IMPORTER WHO HAS STRICTLY OBSERVED THE COMMUNITY RULES RELATING TO VALUE FOR CUSTOMS PURPOSES

( AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION , ART . 13 ; REGULATION NO 375/69 OF THE COMMISSION )

1 . APART FROM A POSSIBLE EXCEPTION RESULTING FROM EITHER THE VERY STRUCTURE OF THE COMMON CUSTOMS TARIFF OR COMMUNITY RULES PURSUING SPECIAL OBJECTIVES OTHER THAN THOSE CONTEMPLATED BY THE COMMON CUSTOMS TARIFF , THE ADJUSTMENTS TO THE VALUE FOR CUSTOMS PURPOSES WHICH ARE REFERRED TO IN REGULATIONS NO 803/68 AND NO 375/69 ARE UPWARD ADJUSTMENTS DESIGNED BOTH TO PREVENT DEFLECTION OF TRADE OR ACTIVITIES AND DISTORTION OF COMPETITION WHICH WOULD BE THE CONSEQUENCE OF AN UNDERVALUATION OF IMPORTED GOODS AND ALSO TO ENSURE FOR THE COMMUNITY THE FULL COLLECTION OF CUSTOMS DUTIES .

THE REDUCTION BY THE COMPETENT AUTHORITIES OF A MEMBER STATE OF THE INVOICE PRICE OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY DOES NOT ACCORD WITH THE AIMS OF THE RULES RELATING TO THE DETERMINATION OF THE VALUE OF THE GOODS FOR CUSTOMS PURPOSES .

2 . THE DETERMINATION OF THE VALUE FOR CUSTOMS PURPOSES IN ACCORDANCE WITH REGULATIONS NO 803/68 AND NO 375/69 CANNOT HAVE THE EFFECT OF REQUIRING THE FISCAL AND FINANCIAL AUTHORITIES OF THE MEMBER STATES TO ACCEPT THAT VALUATION FOR PURPOSES OTHER THAN THE APPLICATION OF THE COMMON CUSTOMS TARIFF .

THUS IF IT WERE ESTABLISHED THAT AN UNDERTAKING WHICH FORMS PART OF A COMPANY OR A GROUP OF COMPANIES OF WHICH THE CENTRE OF MANAGEMENT IS OUTSIDE THE MEMBER STATE CONCERNED ADOPTED , IN ITS RELATIONS WITH THAT CENTRE OF MANAGEMENT OR WITH OTHER UNDERTAKINGS BELONGING TO THE SAME GROUP , PRICES , THE APPLICATION OF WHICH MIGHT IMPLY AN ILLEGAL TRANSFER OF CAPITAL OR PROFITS , IT WOULD BE FOR THE MEMBER STATE CONCERNED TO TAKE APPROPRIATE MEASURES , WITH A VIEW TO PROVING , AND WHERE NECESSARY SUPPRESSING , SUCH ACTIVITIES , UNDER ITS OWN FINANCIAL OR FISCAL LEGISLATION AND NOT BY APPLYING COMMUNITY RULES RELATING TO VALUATION FOR CUSTOMS PURPOSES .

3 . WHERE AN IMPORTER HAS ACCURATELY AND FULLY COMPLETED THE FORM OF QUESTIONNAIRE ANNEXED TO REGULATION NO 375/69 AND IT IS NOT DISPUTED THAT THE GOODS HAVE ACTUALLY BEEN DELIVERED TO THE PURCHASER IN THE QUALITY AND QUANTITY STATED IN THE INVOICE AND THE SELLER HAS RECEIVED THE WHOLE OF THE INVOICE PRICE AND IT IS NOT ALLEGED AGAINST HIM THAT HE HAS NOT ANSWERED MORE DETAILED INQUIRIES WHICH THE CUSTOMS AUTHORITIES MAY HAVE PUT TO HIM , HE HAS NOT FAILED TO FULFIL ANY DUTIES IMPOSED ON HIM BY THE COMMUNITY RULES ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES OR BY ARTICLE 13 OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION OF 22 JULY 1972 . ON THE OTHER HAND , THE CONSEQUENCES IN OTHER RESPECTS - SUCH AS THOSE RELATING TO THE FINANCIAL OR FISCAL LAWS OTHER THAN CUSTOMS LAWS - WHICH ARE NOT GOVERNED BY THE COMMUNITY RULES ARE A MATTER FOR THE LEGAL ORDER OF THE MEMBER STATE CONCERNED .

IN CASE 65/79

REFERENCE TO THE COURT OF JUSTICE UNDER ARTICLE 177 OF THE EEC TREATY BY THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), NANTERRE , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR )

AND

RENE CHATAIN , MANAGER OF THE LIMITED LIABILITY COMPANY LABORATOIRES SANDOZ , RUEIL-MALMAISON ,

ON THE INTERPRETATION OF REGULATIONS NOS 803/68 , 1581/74 , 375/69 AND 603/72 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , AND OF REGULATION NO 2840/72 ON THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION ,

1 BY ORDERS DATED 7 MARCH AND 14 MAY 1979 , WHICH WERE RECEIVED AT THE COURT ON 18 APRIL AND 16 MAY 1979 , THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE , NANTERRE , SUBMITTED TO THE COURT FOR A PRELIMINARY RULING PURSUANT TO ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS ON THE INTERPRETATION OF REGULATIONS NOS 803/68 OF 27 JUNE 1968 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 170 ), 375/69 OF 27 FEBRUARY 1969 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1969 ( I ), P . 63 ) AND 1581/74 OF 24 JUNE 1974 ( OFFICIAL JOURNAL L 168 , P . 15 ) AND OF CERTAIN PROVISIONS OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION CONCLUDED PURSUANT TO REGULATION NO 2840/72 OF THE COUNCIL OF 19 DECEMBER 1972 ( OFFICIAL JOURNAL , L 300 , ENGLISH SPECIAL EDITION 1972 , ( 31 DECEMBER ) P . 3 ).

2 THOSE QUESTIONS HAVE ARISEN IN THE CONTEXT OF A CRIMINAL INVESTIGATION INSTITUTED AGAINST THE MANAGER OF LABORATOIRES SANDOZ , A LIMITED LIABILITY COMPANY , ( HEREINAFTER REFERRED TO AS ' ' SANDOZ-FRANCE ' ' ), WHO IS ACCUSED OF HAVING MADE A CUSTOMS DECLARATION IN RESPECT OF GOODS BOUGHT FROM THE PARENT COMPANY , SANDOZ A.G ., ESTABLISHED IN SWITZERLAND ( HEREINAFTER REFERRED TO AS ' ' SANDOZ-SWITZERLAND ' ' ) AT A HIGHER VALUE THAN THE NORMAL PRICE . THOSE PURCHASES ARE SPREAD OVER THE PERIOD FROM 4 JANUARY 1971 TO 9 NOVEMBER 1973 AND AMOUNT TO A TOTAL OF FF 89 929 024 WHEREAS THE VALUE RECOGNIZED BY THE CUSTOMS AUTHORITIES WAS ONLY FF 53 142 943 . THE CUSTOMS AUTHORITIES INFERRED FROM THEIR ASSESSMENT THAT THE DECLARED PRICE WAS INCREASED BY COMPARISON WITH THE NORMAL PRICE IN ORDER TO ALLOW SANDOZ-FRANCE IRREGULARLY TO TRANSFER CAPITAL TO THE PARENT COMPANY IN SWITZERLAND .

3 ON THE BASIS OF THOSE FACTS , THE EXAMINING MAGISTRATE CHARGED THE MANAGER RESPONSIBLE WITH MAKING ILLEGAL TRANSFERS OF CAPITAL ABROAD AND WITH IMPORTING PROHIBITED GOODS WITHOUT DECLARATION , BEING AN OFFENCE PUNISHABLE UNDER ARTICLE 414 OF THE FRENCH CUSTOMS CODE BY IMPRISONMENT NOT EXCEEDING THREE MONTHS AND A FINE EQUAL TO TWICE THE VALUE OF THE GOODS INVOLVED IN THE FRAUD . THE ACCUSED IN THE MAIN PROCEEDINGS DISPUTED THE PRICES HELD BY THE FRENCH CUSTOMS TO BE NORMAL , BOTH IN REGARD TO THE PRINCIPLES APPLIED AND IN REGARD TO THE AMOUNT ACTUALLY ASSESSED . HAVING REGARD TO THE FACT THAT THE MATTER IS GOVERNED BY REGULATIONS NOS 803/78 AND 375/79 AS WELL AS BY THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION , THE MAGISTRATE CONSIDERED AN INTERPRETATION OF THOSE PROVISIONS TO BE NECESSARY AND SUBMITTED 11 QUESTIONS , THE FIRST OF WHICH RAISES A POINT OF PRINCIPLE . THE QUESTION IS FRAMED AS FOLLOWS :

' ' DO REGULATION ( EEC ) NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , IN PARTICULAR ARTICLES 1 TO 10 OF THAT REGULATION , AND REGULATION ( EEC ) NO 1581/74 OF THE COMMISSION OF 24 JUNE 1974 ON THE PRICE REDUCTIONS TO BE TAKEN INTO ACCOUNT WHEN DETERMINING VALUE FOR CUSTOMS PURPOSES , ALLOW THE COMPETENT AUTHORITIES OF A MEMBER STATE TO ATTRIBUTE TO GOODS IMPORTED FROM A NON-MEMBER STATE A VALUE FOR CUSTOMS PURPOSES LESS THAN THE VALUE DECLARED BY THE IMPORTER OR , FOR IMPORTS SUBSEQUENT TO THE ENTRY INTO FORCE OF REGULATION ( EEC ) NO 375/69 OF THE COMMISSION OF 27 FEBRUARY 1969 , LESS THAN THE VALUE WHICH RESULTS FROM , THE PARTICULARS RELATING TO VALUE FOR CUSTOMS PURPOSES DECLARED BY THE IMPORTER?

' '

4 THE EXAMINING MAGISTRATE SUBMITTED AN 11TH QUESTION WHICH IS COMPLEMENTARY TO THE FIRST AND OF WHICH THE WORDING IS AS FOLLOWS :

' ' DO ARTICLE 9 OF REGULATION NO 803/68 OF THE COUNCIL AND , FOR THE IMPORTS TO WHICH THEY APPLY , REGULATION NO 375/69 OF THE COMMISSION AND THE ANNEX THERETO ALLOW THE COMPETENT AUTHORITIES OF A MEMBER STATE TO APPLY TO THE INVOICE PRICE , IN ORDER TO DETERMINE THE VALUE FOR CUSTOMS PURPOSES , DOWNWARD ADJUSTMENTS OTHER THAN THOSE WHICH ARE LISTED UNDER NOS 18 TO 21 OF THE AFORESAID ANNEX AND WHICH ARE DETERMINED BY ITEMS SEPARATE FROM THE PRICE OF THE GOODS BUT NEVERTHELESS INCLUDED IN THE INVOICE PRICE?

' '

5 THOSE TWO QUESTIONS , THE ANSWERS TO WHICH GOVERN THOSE TO BE GIVEN TO THE OTHERS , NAMELY , QUESTIONS 2 TO 8 INCLUSIVE AND 10 , RAISE THE ISSUE WHETHER A MEMBER STATE MAY REDUCE THE VALUE FOR CUSTOMS PURPOSES DECLARED BY THE IMPORTER . THIS PROBLEM MUST BE RESOLVED IN THE LIGHT OF THE OBJECTIVES , THE STRUCTURE AND THE WORDING OF THOSE REGULATIONS .

6 ACCORDING TO ITS PREAMBLE , REGULATION NO 803/68 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , WHICH IS PART OF THE FRAMEWORK OF THE PROVISIONS OF THE TREATY RELATING TO THE CUSTOMS UNION , PURSUES A DOUBLE AIM OF AN ECONOMIC AND A FISCAL NATURE .

7 ACCORDING TO THE 6TH RECITAL IN THE PREAMBLE , ' ' THE VALUE FOR CUSTOMS PURPOSES MUST BE DETERMINED IN A UNIFORM MANNER IN MEMBER STATES , SO THAT THE LEVEL OF THE PROTECTION GIVEN BY THE COMMON CUSTOMS TARIFF IS THE SAME THROUGHOUT THE COMMUNITY AND ANY DEFLECTION OF TRADE AND ACTIVITIES AND ANY DISTORTION OF COMPETITION WHICH MIGHT ARISE FROM DIFFERENCES BETWEEN NATIONAL PROVISIONS IS THEREBY PREVENTED ' ' . ACCORDING TO THE 7TH RECITAL IN THE PREAMBLE , ' ' ANY DEFLECTION OF CUSTOMS RECEIPTS SHOULD BE AVOIDED AND WHERE APPROPRIATE ELIMINATED ' ' .

8 WHEN BOTH THOSE OBJECTIVES ARE TAKEN INTO CONSIDERATION IT MAY BE RECOGNIZED THAT THE REGULATION IS DIRECTED ESSENTIALLY TO PREVENTING THE UNDERVALUATION OF GOODS IN CONNEXION WITH THE APPLICATION OF THE COMMON CUSTOMS TARIFF , WHICH APPLIES ALMOST EXCLUSIVELY AD VALOREM CUSTOMS DUTIES . THAT CONCLUSION IS CLEAR IN REGARD TO SAFEGUARDING THE COLLECTION IN FULL OF CUSTOMS REVENUE . IT MAY ALSO BE INFERRED FROM THE RECITALS IN THE PREAMBLE WHICH RELATE TO DEFLECTION OF TRADE AND ACTIVITIES AND DISTORTION OF COMPETITION SINCE THOSE ECONOMIC EFFECTS MAY BE THE RESULT ONLY OF A LOWERING IN THE RELATIVE LEVEL OF CUSTOMS PROTECTION IN CERTAIN MEMBER STATES BY REASON OF DIFFERING CRITERIA FOR ASSESSING THE VALUE FOR CUSTOMS PURPOSES OF IMPORTED GOODS .

9 IT IS IN THE LIGHT OF THOSE OBJECTIVES THAT THE RELEVANT PROVISIONS OF REGULATION NO 803/68 SHOULD BE CONSIDERED , INCLUDING THEREWITH THOSE OF REGULATION NO 375/69 OF THE COMMISSION WHICH , ON THE BASIS OF THE FIRST REGULATION , LAY DOWN THE RULES RELATING TO THE DECLARATION OF THE PARTICULARS GOING TO MAKE UP VALUE FOR CUSTOMS PURPOSES .

10 IN TERMS OF ARTICLE 1 ( 1 ) OF REGULATION NO 803/68 VALUE FOR CUSTOMS PURPOSES IS DETERMINED ' ' FOR THE PURPOSE OF APPLYING THE COMMON CUSTOMS TARIFF ' ' . IT IS THEREFORE WITH A VIEW TO THAT SPECIFIC FUNCTION THAT THE DEFINITION OF THE ' ' VALUE FOR CUSTOMS PURPOSES ' ' AND THE PROVISIONS WHICH SERVE TO DETERMINE IT MUST BE UNDERSTOOD .

11 ACCORDING TO THE SAME PROVISION , THE VALUE FOR CUSTOMS PURPOSES OF IMPORTED GOODS IS ' ' THE NORMAL PRICE , THAT IS TO SAY , THE PRICE WHICH THEY WOULD FETCH . . . ON A SALE IN THE OPEN MARKET BETWEEN A BUYER AND A SELLER INDEPENDENT OF EACH OTHER ' ' . ACCORDING TO ARTICLE 9 , THE PRICE ACTUALLY PAID OR PAYABLE MAY BE REGARDED AS BEING THE BASIS TO BE USED IN DETERMINING THE NORMAL PRICE .

12 THE REGULATION PROVIDES FOR A NUMBER OF ADJUSTMENTS WHICH MAY BE MADE TO THE PRICE AS THUS DEFINED . ALL SUCH ADJUSTMENTS ARE SPECIFIED IN SUCH A WAY AS TO PREVENT THE DECLARED PRICES BEING UNDERVALUED BY REASON OF ECONOMIC RELATIONS EXISTING BETWEEN THE SELLER AND THE PURCHASER OR FROM BEING REDUCED BY THE DEDUCTION OF COSTS OR CHARGES OTHER THAN THOSE ALLOWED BY THE REGULATION .

13 THE DETAILED RULES FOR THE APPLICATION OF REGULATION NO 803/68 WERE LAID DOWN , IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR IN ARTICLE 17 THEREOF , BY REGULATION NO 375/69 OF THE COMMISSION . THE PURPOSE OF THE LATTER REGULATION IS TO SPECIFY THE DUTIES OF IMPORTERS IN THIS REGARD AS WELL AS THE POWERS OF THE CUSTOMS ADMINISTRATION . UNDER ARTICLE 1 , THE DECLARANTS ARE TO FURNISH ' ' THE PARTICULARS RELATING TO THE VALUE FOR CUSTOMS PURPOSES ' ' AS REQUIRED BY THE FORM OF QUESTIONNAIRE SET OUT IN THE ANNEX TO THE REGULATION . ACCORDING TO THE PARAGRAPH ( 2 ) OF THAT ARTICLE , MORE DETAILED INFORMATION MUST BE FURNISHED ONLY AT THE REQUEST OF THE CUSTOMS AUTHORITIES , IN PARTICULAR WHERE IMPORTATION IS EFFECTED PURSUANT TO A TRANSACTION BETWEEN A BUYER AND A SELLER WHO ARE NOT INDEPENDENT OF EACH OTHER . IT FOLLOWS FROM THOSE PROVISIONS THAT THE IMPORTER IS BOUND TO DECLARE , IN GOOD FAITH , TO THE CUSTOMS ADMINISTRATION THE PARTICULARS WHICH MAY SERVE TO DETERMINE THE VALUE FOR CUSTOMS PURPOSES , FURTHER CHECKS BEING A MATTER FOR ACTION BY THE ADMINISTRATION .

14 THE FORM OF QUESTIONNAIRE REFERRED TO IN ARTICLE 1 OF REGULATION NO 375/69 SPECIFIES THE PARTICULARS TO BE FURNISHED BY THE IMPORTERS :

A . THE INVOICE PRICE , AS A BASIS OF CALCULATION ;

B.ITEMS WHICH GO TO MAKE UP THE VALUE FOR CUSTOMS PURPOSES BUT ARE NOT INCLUDED IN THE INVOICE PRICE AND WHICH ARE TO BE BORNE BY THE SELLER ;

C.ITEMS WHICH DO NOT GO TO MAKE UP THE VALUE FOR CUSTOMS PURPOSES BUT ARE INCLUDED IN THE INVOICE PRICE AND WHICH ARE TO BE BORNE BY THE IMPORTER ;

D.A RATE OF ADJUSTMENT WHICH APPLIES ONLY TO THE PRICE AND IS PROVIDED FOR ONLY IN THE FORM OF AN INCREASE .

IT APPEARS FROM THESE PARTICULARS THAT , IN ORDER TO CALCULATE THE VALUE FOR CUSTOMS PURPOSES , THE CUSTOMS ADMINISTRATION STARTS WITH THE INVOICE PRICE ( A ) - POSSIBLY ADJUSTED , BUT ONLY BY WAY OF AN UPWARD ADJUSTMENT ( D ) - AND THEREAFTER CHECKS THE PARTICULARS EXTRINSIC TO THE PRICE - WHICH IT MAY INCREASE OR REDUCE - BY ADDING THEM TO THE INVOICE PRICE WHERE COSTS TO BE BORNE BY THE SELLER ARE INVOLVED ( B ) OR BY SUBTRACTING THEM FROM THE INVOICE PRICE WHERE COSTS TO BE BORNE BY THE IMPORTER ARE INVOLVED ( C ). CONSEQUENTLY , THE VALUE FOR CUSTOMS PURPOSES IS MADE UP ESSENTIALLY OF THE INVOICE PRICE , WHICH IS ONLY CAPABLE OF BEING ADJUSTED UPWARDS , AND THE EXTRINSIC ITEMS CAPABLE OF UPWARD OR DOWNWARD ADJUSTMENT , WHICH THE CUSTOMS AUTHORITIES MAY ADD TO OR SUBTRACT FROM THE INVOICE PRICE .

15 IT IS BE NOTED , FINALLY , THAT REGULATION NO 1581/74 , REFERRED TO IN THE FIRST QUESTION FROM THE NATIONAL COURT , IS NOT RELEVANT IN THIS CASE SINCE IT IS SUBSEQUENT IN DATE TO THE FACTS OF THE CASE AND MOREOVER DOES NOT GIVE RISE IN ANY WAY TO A POSSIBILITY OF MAKING A REDUCTION .

16 TAKING INTO CONSIDERATION BOTH THE OBJECTIVES OF THE SYSTEM AND THE PRACTICAL MACHINERY OF THE TWO REGULATIONS WHICH APPLY THUS DEMONSTRATES THAT THE DETAILED METHODS OF DETERMINING VALUE FOR CUSTOMS PURPOSES HAVE BEEN CONCEIVED WITH A VIEW TO FULFILLING A SPECIFIC FUNCTION WITHIN THE FRAMEWORK OF THE CUSTOMS UNION . IT FOLLOWS THEREFROM THAT - EXCEPT FOR A POSSIBLE EXCEPTION RESULTING FROM EITHER THE VERY STRUCTURE OF THE COMMON CUSTOMS TARIFF OR COMMUNITY RULES PURSUING SPECIAL OBJECTIVES OTHER THAN THOSE CONTEMPLATED BY THE COMMON CUSTOMS TARIFF - THE ADJUSTMENTS TO THE VALUE FOR CUSTOMS PURPOSES WHICH ARE REFERRED TO IN THE REGULATIONS WHICH HAVE BEEN CITED ARE UPWARD ADJUSTMENTS DESIGNED BOTH TO PREVENT DEFLECTION OF TRADE OR ACTIVITIES AND DISTORTION OF COMPETITION WHICH WOULD BE THE CONSEQUENCE OF AN UNDERVALUATION OF IMPORTED GOODS AND ALSO TO ENSURE FOR THE COMMUNITY THE FULL COLLECTION OF CUSTOMS DUTIES . IT FOLLOWS ALSO FROM THE SPECIFIC NATURE OF THE PROVISIONS IN QUESTION THAT THE DETERMINATION OF THE VALUE FOR CUSTOMS PURPOSES IN ACCORDANCE WITH THE RULES OF REGULATIONS NO 803/68 AND NO 375/69 CANNOT HAVE THE EFFECT OF REQUIRING THE FISCAL AND FINANCIAL AUTHORITIES OF THE MEMBER STATES TO ACCEPT THAT VALUATION FOR PURPOSES OTHER THAN THE APPLICATION OF THE COMMON CUSTOMS TARIFF .

17 IF IT WERE ESTABLISHED THAT AN UNDERTAKING WHICH FORMS PART OF A COMPANY OR A GROUP OF COMPANIES OF WHICH THE CENTRE OF MANAGEMENT IS OUTSIDE THE MEMBER STATE CONCERNED ADOPTS , IN ITS RELATIONS WITH THAT CENTRE OF MANAGEMENT OR WITH OTHER UNDERTAKINGS BELONGING TO THE SAME GROUP , PRICES , THE APPLICATION OF WHICH MIGHT IMPLY AN ILLEGAL TRANSFER OF CAPITAL OR PROFITS , IT WOULD BE FOR THE MEMBER STATE CONCERNED TO TAKE APPROPRIATE MEASURES , WITH A VIEW TO PROVING , AND WHERE NECESSARY SUPPRESSING , SUCH ACTIVITIES , UNDER ITS OWN FINANCIAL OR FISCAL LEGISLATION AND NOT BY APPLYING COMMUNITY RULES RELATING TO VALUATION FOR CUSTOMS PURPOSES .

18 THE ANSWER TO QUESTIONS 1 AND 11 SHOULD THEREFORE BE THAT REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , IN PARTICULAR ARTICLES 1 TO 10 OF THAT REGULATION , AND REGULATION NO 375/69 OF 27 FEBRUARY 1969 MUST BE INTERPRETED AS MEANING THAT THE REDUCTION BY THE COMPETENT AUTHORITIES OF A MEMBER STATE OF THE INVOICE PRICE OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY DOES NOT ACCORD WITH THE AIMS OF THE RULES RELATING TO THE DETERMINATION OF THE VALUE OF THE GOODS FOR CUSTOMS PURPOSES .

19 IT FOLLOWS FROM THE ANSWER TO QUESTIONS 1 AND 11 THAT QUESTION 2 TO 8 INCLUSIVE AND 10 , WHICH WERE SUBMITTED ONLY IN CASE THE ANSWER TO QUESTIONS 1 AND 11 SHOULD BE IN THE AFFIRMATIVE , HAVE NO LONGER ANY PURPOSE .

20 IT REMAINS TO ANSWER QUESTION 9 WHICH IS FRAMED AS FOLLOWS :

' ' ( A ) DOES NOT ARTICLE 13 OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION OF 22 JULY 1972 ( REGULATION ( EEC ) NO 2840/72 OF THE COUNCIL OF 19 DECEMBER 1972 ), WHICH PROHIBITS ANY MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON IMPORTS IN TRADE BETWEEN THE COMMUNITY AND SWITZERLAND , THEREBY PROHIBIT THE COMPETENT AUTHORITIES OF A MEMBER STATE FROM REDUCING THE DECLARED VALUE OR THE VALUE RESULTING FROM THE PARTICULARS FURNISHED BY THE IMPORTER?

( B)IN PARTICULAR DOES ARTICLE 13 ALLOW HEAVY FINES AND PRISON SENTENCES TO BE IMPOSED UPON AN IMPORTER OF A MEMBER STATE OF THE EEC WHO HAS DULY FULFILLED HIS OBLIGATIONS BY CORRECTLY AND COMPLETELY GIVING THE COMPETENT NATIONAL AUTHORITIES THE INFORMATION REQUIRED BY REGULATION NO 375/69 OF THE COMMISSION OF 27 FEBRUARY 1969 , WHERE IT IS NOT DISPUTED THAT THE GOODS HAVE ACTUALLY BEEN DELIVERED TO THE PURCHASER IN THE QUALITY AND QUANTITY STATED IN THE INVOICE AND THAT THE SELLER HAS RECEIVED THE WHOLE OF THE INVOICE PRICE?

' '

21 QUESTION 9 ( A ) ASKS WHETHER A REDUCTION BY THE COMPETENT AUTHORITY OF A MEMBER STATE OF THE DECLARED VALUE OR OF THE VALUE RESULTING FROM THE PARTICULARS FURNISHED BY THE IMPORTER , DOES OR DOES NOT AMOUNT TO A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION , WHICH IS A MEASURE PROHIBITED BY THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION . IT MUST BE NOTED THAT , UNDER ARTICLE 13 ( 2 ) OF THAT AGREEMENT , MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ARE ABOLISHED , AND THEREFORE PROHIBITED , ONLY AS FROM 1 JANUARY 1975 AT THE LATEST . IT IS CONSEQUENTLY FOR THE NATIONAL COURT TO DECIDE WHETHER THE FACTS ALLEGED AGAINST THE ACCUSED - WHICH ARE SPREAD OVER THE PERIOD FROM 4 JANUARY 1971 TO 9 NOVEMBER 1973 - ARE GOVERNED BY THE AGREEMENT IN QUESTION .

22 IN REGARD TO THE SUBSTANCE OF QUESTION 9 ( A ), IT SHOULD BE OBSERVED THAT THE QUESTION ENVISAGES A CASE COMPARABLE TO THAT RAISED BY QUESTIONS 1 AND 11 . CONSEQUENTLY , IN ACCORDANCE WITH THE ANSWER GIVEN TO THOSE QUESTIONS AND THE REASONS IN SUPPORT OF IT , THIS QUESTION MUST RECEIVE THE SAME ANSWER IN THE CONTEXT OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION .

23 THE ISSUE PRESENTED BY QUESTION 9 ( B ) IS WHETHER , PURSUANT TO ARTICLE 13 OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION , A MEMBER STATE MAY PENALIZE BY HEAVY FINES AND IMPRISONMENT AN IMPORTER WHO HAS DULY FULFILLED HIS OBLIGATIONS BY ACCURATELY AND COMPLETELY FURNISHING THE INFORMATION REQUIRED BY REGULATION NO 375/69 .

24 FROM THE CONSIDERATIONS ADVANCED IN ANSWER TO QUESTION 1 AND 11 IT IS APPARENT THAT WHERE AN IMPORTER HAS ACCURATELY AND FULLY COMPLETED THE FORM OF QUESTIONNAIRE ANNEXED TO REGULATION NO 375/69 AND IT IS NOT DISPUTED THAT THE GOODS HAVE ACTUALLY BEEN DELIVERED TO THE PURCHASER IN THE QUALITY AND QUANTITY STATED IN THE INVOICE AND THE SELLER HAS RECEIVED THE WHOLE OF THE INVOICE PRICE AND IT IS NOT ALLEGED AGAINST HIM THAT HE HAS NOT ANSWERED MORE DETAILED INQUIRIES WHICH THE CUSTOMS AUTHORITIES MAY HAVE PUT TO HIM , HE HAS NOT FAILED TO FULFIL ANY OF THE DUTIES IMPOSED ON HIM BY THE COMMUNITY RULES ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES OR BY THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION . ON THE OTHER HAND , THE CONSEQUENCES IN OTHER RESPECTS - SUCH AS THOSE RELATING TO THE FINANCIAL OR FISCAL LAWS OTHER THAN CUSTOMS LAWS - WHICH ARE NOT GOVERNED BY COMMUNITY INSTITUTIONS ARE A MATTER FOR THE LEGAL ORDER OF THE MEMBER STATE CONCERNED .

25 THE COSTS INCURRED BY THE FRENCH , GERMAN AND UNITED KINGDOM GOVERNMENTS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE , NANTERRE , BY ORDERS OF 7 MARCH 1979 AND 14 MAY 1979 , RECEIVED AT THE COURT REGISTRY ON 18 APRIL 1979 AND 16 MAY 1979 RESPECTIVELY , HEREBY RULES :

1 . REGULATION NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , IN PARTICULAR ARTICLES 1 TO 10 OF THAT REGULATION , AND REGULATION NO 375/69 OF 27 FEBRUARY 1969 MUST BE INTERPRETED AS MEANING THAT THE REDUCTION BY THE COMPETENT AUTHORITIES OF A MEMBER STATE OF THE INVOICE PRICE OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY DOES NOT ACCORD WITH THE AIMS OF THE RULES RELATING TO THE DETERMINATION OF THE VALUE OF GOODS FOR CUSTOMS PURPOSES . HOWEVER , THE DETERMINATION OF THE VALUE FOR CUSTOMS PURPOSES IN ACCORDANCE WITH THOSE REGULATIONS CANNOT HAVE THE EFFECT OF REQUIRING THE FISCAL AND FINANCIAL AUTHORITIES OF THE MEMBER STATES TO ACCEPT THAT VALUATION FOR PURPOSES OTHER THAN THE APPLICATION OF THE COMMON CUSTOMS TARIFF .

2 . THE SAME ANSWER APPLIES AS REGARDS ARTICLE 13 OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION OF 22 JULY 1972 .

3 . WHERE AN IMPORTER HAS ACCURATELY AND FULLY COMPLETED THE FORM OF QUESTIONNAIRE ANNEXED TO REGULATION NO 375/69 AND IT IS NOT DISPUTED THAT THE GOODS HAVE ACTUALLY BEEN DELIVERED TO THE PURCHASER IN THE QUALITY AND QUANTITY STATED IN THE INVOICE AND THE SELLER HAS RECEIVED THE WHOLE OF THE INVOICE PRICE AND IT IS NOT ALLEGED AGAINST HIM THAT HE HAS NOT ANSWERED MORE DETAILED INQUIRIES WHICH THE CUSTOMS AUTHORITIES MAY HAVE PUT TO HIM , HE HAS NOT FAILED TO FULFIL ANY DUTIES IMPOSED ON HIM BY THE COMMUNITY RULES ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES OR BY ARTICLE 13 OF THE AGREEMENT BETWEEN THE EEC AND THE SWISS CONFEDERATION . ON THE OTHER HAND , THE CONSEQUENCES IN OTHER RESPECTS - SUCH AS THOSE RELATING TO THE FINANCIAL OR FISCAL LAWS OTHER THAN CUSTOMS LAWS - WHICH ARE NOT GOVERNED BY THE COMMUNITY INSTITUTIONS ARE A MATTER FOR THE LEGAL ORDER OF THE MEMBER STATE CONCERNED .