Avis juridique important

Judgment of the Court (Second Chamber) of 4 December 1980. - Procureur de la République v Samuel Wilner. - Reference for a preliminary ruling: Tribunal de grande instance de Paris - France. - Value for customs purposes. - Case 54/80. European Court reports 1980 Page 03673 Greek special edition Page 00447

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 NATIONAL AUTHORITIES - NOT PERMISSIBLE - DUTY TO ACCEPT VALUE FOR CUSTOMS PURPOSES FOR PURPOSES OTHER THAN THOSE OF CUSTOMS - ABSENCE

( REGULATION NO 803/68 OF THE COUNCIL )

2 . COMMON CUSTOMS TARIFF - VALUE FOR CUSTOMS PURPOSES - NORMAL PRICE OF GOODS - DETERMINATION - REFERENCE TO THE PRICE DECLARED BY THE SELLER ' S FORWARDING AGENT , WHICH IS LESS THAN THE PRICE INVOICED AND PAID - NOT PERMISSIBLE

( REGULATION NO 803/68 OF THE COUNCIL )

1 . 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 RULES CANNOT HAVE THE EFFECT OF REQUIRING THE FISCAL AND FINANCIAL AUTHORITIES OF THE MEMBER STATES TO ACCEPT THAT VALUE FOR PURPOSES OTHER THAN THE APPLICATION OF THE COMMON CUSTOMS TARIFF .

2 . IT IS NOT IN ACCORDANCE WITH REGULATION NO 803/68 FOR THE VALUE FOR CUSTOMS PURPOSES OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY TO BE DETERMINED , FOR THE REQUIREMENTS OF CUSTOMS , BY THE NATIONAL AUTHORITIES BY REFERENCE TO A DECLARATION MADE BY THE FORWARDING AGENT TO THE CUSTOMS AUTHORITY OF THE EXPORTING COUNTRY AT A LEVEL WHICH IS LESS THAN THE PRICE INVOICED AND PAID FOR THE GOODS .

IN CASE 54/80

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE JUGE D ' INSTRUCTION ( EXAMINING MAGISTRATE ) AT THE TRIBUNAL DE GRANDE INSTANCE ( REGIONAL COURT ), PARIS , FOR A PRELIMINARY RULING IN THE PROCEEDINGS BROUGHT BEFORE HIS OFFICE BY THE

PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR )

AGAINST

SAMUEL WILNER , THE CHAIRMAN AND MANAGING DIRECTOR OF VICTORY FRANCE SA ,

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 ),

1 BY ORDER OF 31 JANUARY 1980 , WHICH WAS RECEIVED AT THE COURT ON 12 FEBRUARY 1980 , THE JUGE D ' INSTRUCTION ( EXAMINING MAGISTRATE ) AT THE TRIBUNAL DE GRANDE INSTANCE , PARIS , SUBMITTED FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTEPRETATION 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 ).

2 THIS QUESTION HAS BEEN RAISED IN THE CONTEXT OF A CRIMINAL INVESTIGATION AGAINST THE CHAIRMAN AND MANAGING DIRECTOR OF VICTORY FRANCE SA , WHO IS ACCUSED OF HAVING DECLARED TO THE CUSTOMS , AT A VALUE IN EXCESS OF THE NORMAL PRICE , GOODS BOUGHT FROM VICTORY JOBBING HOUSE , A COMPANY INCORPORATED IN THE UNITED STATES OF AMERICA , THE DIRECTOR OF WHICH IS THE BROTHER OF THE CHAIRMAN AND MANAGING DIRECTOR OF VICTORY FRANCE . THE PURCHASES IN DISPUTE ARE SPREAD OVER THE PERIOD BETWEEN 10 MARCH 1972 AND 7 MARCH 1974 AND AMOUNT TO A SUM OF USDOLLARS 1 520 093.39 . ON THE BASIS EXCLUSIVELY OF THE EXPORT DECLARATION MADE BY THE AMERICAN FORWARDING AGENT WHEN THE GOODS LEFT THE UNITED STATES , EVEN THOUGH THAT DECLARATION WAS NOT ACCOMPANIED BY ANY DOCUMENT EMANATING FROM THE AMERICAN COMPANY , THE FRENCH CUSTOMS AUTHORITIES MAINTAIN THAT , ON IMPORTATION OF THE GOODS IN QUESTION , VICTORY FRANCE SA MARKED UP THE VALUE BY FF 3 965 540 FOR THE PURPOSE OF ENABLING IT IRREGULARLY TO TRANSFER CAPITAL TO THE UNITED STATES .

3 ON THE BASIS OF THESE FACTS , THE EXAMINING MAGISTRATE CHARGED THE CHAIRMAN AND MANAGING DIRECTOR FIRST WITH BEING RESPONSIBLE FOR MAKING A FALSE DECLARATION OF VALUE , COMMITTED WITH THE ASSISTANCE OF FORGED DOCUMENTS , SECONDLY , IN TERMS OF CUSTOMS LAW , WITH MARKING UP THE VALUE ON IMPORTATION AND , THIRDLY , IN TERMS OF EXCHANGE-CONTROL LEGISLATION , WITH MAKING IRREGULAR TRANSFERS OF CAPITAL TO THE UNITED STATES . THE ACCUSED IN THE MAIN PROCEEDINGS DISPUTED THE PRICE TAKEN BY THE FRENCH CUSTOMS AND SUBMITTED , ON THE ONE HAND , THAT IN THIS CASE THE DECLARATION BY THE AMERICAN FORWARDING AGENT DID NOT CONSTITUTE A MEANS OF DETERMINING THE NORMAL PRICE OF THE GOODS AND , ON THE OTHER HAND , THAT THE INVOICED PRICES WERE CLEARLY LESS THAN THE AVERAGE VALUES DECLARED FOR SIMILAR GOODS BY ALL FRENCH IMPORTERS . HAVING REGARD TO THE FACT THAT THE MATTER WAS GOVERNED BY REGULATION NO 803/68 , THE MAGISTRATE CONSIDERED THAT INTERPRETATION OF THAT REGULATION WAS NECESSARY AND SUBMITTED A QUESTION WORDED THUS :

' ' UNDER REGULATION ( EEC ) NO 803/68 OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES , MAY THE NORMAL PRICE OF GOODS ORIGINATING IN AND COMING FROM THE UNITED STATES OF AMERICA WHICH MUST BE TAKEN AS THE VALUE TO BE DECLARED ON IMPORTATION INTO FRANCE , BE EQUAL TO THE VALUE OF THOSE SAME GOODS DECLARED BY THE FORWARDING AGENT OF THE SELLER TO THE CUSTOMS AUTHORITIES OF THE COUNTRY OF ORIGIN , EVEN IF THAT VALUE , WHICH IS MUCH LOWER THAN THE PRICE PAID BY THE FRENCH BUYER AND RECEIVED BY THE AMERICAN SELLER , IS NOT BASED UPON ANY ACCOUNTING DOCUMENT ( SUCH AS AN INVOICE ACCOMPANYING THE GOODS ) AND EVEN IF THAT VALUE IS , MOREOVER , LOWER THAN THE NORMAL PRICE FOR THE SAME GOODS AGREED BETWEEN A BUYER AND A SELLER UNDER CONDITIONS OF FREE COMPETITION?

' '

5 IN THE PRESENT CASE , ALTHOUGH THE QUESTION FROM THE EXAMINING MAGISTRATE IS CONFINED TO AN ISSUE CONCERNING THE ASSESSMENT ON IMPORTATION OF THE VALUE OF GOODS FOR CUSTOMS PURPOSES ON THE BASIS OF A DECLARATION OF VALUE MADE BY THE SELLER ' S FORWARDING AGENT TO THE CUSTOMS AUTHORITIES OF THE COUNTRY OF ORIGIN , THE GROUNDS STATED IN THE ORDER MAKING THE REFERENCE MAKE IT POSSIBLE TO RECOGNIZE THE QUESTION AS ONE WHICH IS TRULY CONCERNED WITH WHETHER , IN THE CONTEXT OF REGULATION NO 803/68 , THE CUSTOMS AUTHORITIES OF A MEMBER STATE MAY REDUCE THE VALUE OF THE GOODS FOR CUSTOMS PURPOSES WITH A VIEW TO PURPOSES OTHER THAN THOSE OF CUSTOMS CONTROL PROPERLY SO TERMED .

6 IN ITS JUDGMENT OF 24 APRIL 1980 IN CASE 65/79 PROCUREUR DE LA REPUBLIQUE V RENE CHATAIN ( 1980 ) ECR 1345 , THE COURT HAD OCCASION TO INDICATE IN DETAIL THE MATTERS OF COMMUNITY LAW WHICH APPLY TO THIS TOPIC .

7 AT THE TIME OF THE EVENTS WHICH LIE AT THE SOURCE OF THE DISPUTE IN THE MAIN PROCEEDINGS , THE FACTORS MAKING UP THE LEGAL POSITION WERE SUBSTANTIALLY THE SAME AS THOSE IN THE CHATAIN CASE .

8 CONSEQUENTLY , IT IS ENOUGH TO RECALL IN THIS CONTEXT THE OPERATIVE PART OF THAT DECISION OF THE COURT IN ORDER TO APPLY IT TO THE ISSUE FACING THE EXAMINING MAGISTRATE IN THIS CASE , NAMELY , 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 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 . ' '

9 FROM THE FOREGOING IT FOLLOWS THAT IT IS NOT IN ACCORDANCE WITH REGULATION NO 803/68 FOR THE VALUE FOR CUSTOMS PURPOSES OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY TO BE DETERMINED , FOR THE REQUIREMENTS OF CUSTOMS , BY THE NATIONAL AUTHORITIES BY REFERENCE TO A DECLARATION MADE BY THE FORWARDING AGENT TO THE CUSTOMS AUTHORITY OF THE EXPORTING COUNTRY AT A LEVEL WHICH IS LESS THAN THE PRICE INVOICED AND PAID FOR THE GOODS .

10 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS 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 PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTION SUBMITTED TO IT BY THE EXAMINING MAGISTRATE AT THE TRIBUNAL DE GRANDE INSTANCE , PARIS , HEREBY RULES :

1 . 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 VALUE FOR PURPOSES OTHER THAN THE APPLICATION OF THE COMMON CUSTOMS TARIFF .

2.IT IS NOT IN ACCORDANCE WITH REGULATION NO 803/68 FOR THE VALUE FOR CUSTOMS PURPOSES OF GOODS IMPORTED FROM A NON-MEMBER COUNTRY TO BE DETERMINED , FOR THE REQUIREMENTS OF CUSTOMS , BY THE NATIONAL AUTHORITIES BY REFERENCE TO A DECLARATION MADE BY THE FORWARDING AGENT TO THE CUSTOMS AUTHORITY OF THE EXPORTING COUNTRY AT A LEVEL WHICH IS LESS THAN THE PRICE INVOICED AND PAID FOR THE GOODS .