Hans Sommer GmbH & Co. KG v Hauptzollamt Bremen.

• Jurisdiction: European Union
• Celex Number: 61999CC0015
• ECLI: ECLI:EU:C:2000:123
• Docket Number: C-15/99
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 14 March 2000

Important legal notice

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61999C0015

Opinion of Mr Advocate General Mischo delivered on 14 March 2000. - Hans Sommer GmbH & Co. KG v Hauptzollamt Bremen. - Reference for a preliminary ruling: Finanzgericht Bremen - Germany. - Common Customs Tariff - Customs value - Cost of analysing goods - Post-clearance recovery of import duties - Remission of import duties. - Case C-15/99.

European Court reports 2000 Page I-08989

Opinion of the Advocate-General

The legal background

1. Article 3 of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes, as amended by Council Regulation (EEC) No 3193/80 of 8 December 1980, provides:

(1) The customs value of imported goods determined under this article shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community ...

(2) ...

(3) (a) The price actually paid or payable is the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods and includes all payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller ....

2. Article 15 of Regulation No 1224/80 lays down:

(1) The customs value of imported goods shall not include the cost of transport after importation into the customs territory of the Community provided that such cost is distinguished from the price actually paid or payable for the imported goods.

(2) ...

3. Article 5 of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties, provides:

(1) ...

(2) The competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as the result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned.

...

4. Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986, provides:

(1) Import duties may be repaid or remitted in special situations other than those referred to in sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

The situations in which the first subparagraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined according to the procedure laid down in Article 25 ...

5. The procedural arrangements to be followed are prescribed, since 1 January 1994, in Article 905 et seq. of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code. Accordance to those provisions, when the decision-making customs authority which has received a claim for repayment or remission is not in a position to decide the matter itself, the Member State is to transmit the case to the Commission. The Commission addresses its decision to the Member State. The customs authority then determines the claim on the basis of that decision.

Facts and issues in the main proceedings

6. The plaintiff in the main proceedings, Hans Sommer GmbH & Co. KG (hereinafter Sommer) had, before it had been cleared through customs, bought honey coming from the former USSR from Kessler & Co. Agrarproduckten-Handelsgesellschaft mbH (hereinafter Kessler).

7. The goods were delivered pursuant to contracts of sale c.i.f. Hamburg.

8. The deliveries were also the subject of supplementary agreements. They stipulated the costs of completing the transaction, calculated at a flat rate per tonne of honey. Those costs, invoiced separately by Kessler, included the expenses of unloading, taking possession of the goods until storage, removal from the warehouse by lorry, FOT costs, the costs of taking and analysing samples, and warehousing charges.

9. In its declarations of value for customs purposes, Sommer declared the c.i.f. prices which had been agreed with Kessler in the sale contracts, but not the costs of completing the transaction provided for in the supplementary agreements.

10. On a previous inspection at Sommer's offices, the customs authorities had raised no objection to this practice. Following a later inspection by the customs authorities in 1992, the defendant in the main proceedings, the Hauptzollamt (Main Customs Office) Bremen, Germany (hereinafter the HZA) decided that the flat-rate charges invoiced under the supplementary agreements should be included as an element of the price for the purposes of customs valuation. By an amended demand dated 29 July 1992, the HZA required payment by Sommer of DEM 96 352.77 by way of customs duties on importations made between 1989 and 1991.

11. Sommer lodged an objection against the amended demand and then, after that had been dismissed, appealed to the Finanzgericht (Finance Court) Bremen, Germany. By a judgment dated 12 April 1994, that court quashed the contested demand. The court decided that the flat-rate charges for completing the transaction were included in the customs value, but that post-clearance recovery of the customs duties was precluded by Article 5(2) of Regulation No 1697/79.

12. After delivery of the judgment of 12 April 1994, the HZA decided that it was not in a position to withdraw four other post-clearance recovery demands dated 29 April, 26 August and 9 September 1992, for a total of DEM 33 948.72, against which Sommer had also lodged objections. At the request of the HZA, the Federal Ministry of Finance, by a letter dated 27 March 1995, sought a decision by the Commission on the interpretation of Article 13(1) of Regulation No 1430/79.

13. In Decision C(95) 2325 dated 28 September 1995, the Commission stated that the repayment of import duties was not justified in the absence of a special situation within the meaning of the said article, and that it had been established that Sommer's conduct had shown obvious negligence.

14. By decisions dated 20 February 1996, the HZA rejected the objections lodged by Sommer against the four post-clearance recovery demands of 29 April, 26 August and 9 September 1992, and also against a fifth demand of the same kind dated 2 December 1994.

15. Sommer appealed against those decisions to the Finanzgericht Bremen. That court considered that it could be deduced from the sale contracts that the seller had undertaken to deliver to Sommer honey which satisfied the quality requirements of the German regulations and that the completion of the analyses was a condition of sale within the meaning of Article 3(3)(a) of Regulation No 1224/80, as amended. However, it considered it appropriate to refer this question to the Court of Justice since it needed to be settled before consideration of the questions which arose in the context of the proceedings for post-clearance recovery and remission. The Finanzgericht Bremen therefore decided to stay proceedings and to refer the following four questions to the Court of Justice for a preliminary ruling:

(1) Does the transaction value, within the meaning of Article 3(1) of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1,) as amended by Council Regulation (EEC) No 3193/80 of 8 December 1980 (OJ 1980 L 333, p. 1), of consignments of honey imported from 1989 to 1991 from the USSR include the "expenses" (Spesen) or the "costs of completing the transaction" (Abwicklungskosten), which the German importer invoices to the purchaser on the basis of separate contractual agreements, if the importer is obliged to take samples after importation in order to establish the quality of the honey in accordance with the applicable German regulations and to supply the chemical results of those analyses?

(2) If Question 1 is answered in the affirmative:

Is Commission Decision C(95) 2325 dated 28 September 1995 null and void?

(3) If Question 2 is answered in the affirmative:

Must the authorities refrain from post-clearance recovery of duty pursuant to Article 5(2) of Regulation (EEC) No 1697/79 if, at a previous on the spot inspection of importations, they raised no objection to the exclusion of flat-rate expenses from the customs value of similar transactions and it is not clear that the trader could have been in doubt about the correctness of the result of the inspection?

(4) If Question 3 is answered in the negative:

Do the circumstances described in Question 3 amount to a special situation within the meaning of Article 13 of Regulation No 1430/79 justifying the remission of duties?

The first question

16. Both the Commission and the referring court consider that the expenses of the analyses at issue should be included in the customs value. By contrast, Sommer reaches the opposite conclusion, relying on a variety of arguments.

17. Sommer points out firstly that the sums at issue do not include any element which is for the benefit of Kessler, and thus capable of forming part of the price; in reality, they merely reimburse the expenses incurred by Kessler in employing third parties to undertake the services in question.

18. Sommer adds that it could itself have purchased the services in question from transport and warehouse undertakings and from food chemists. That is, moreover, what it had done until 1984, and the authorities then had always accepted the c.i.f. Hamburg price as...