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Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Kyocera Electronics Europe (Customs union) [2003] EUECJ C-152/01 (20 November 2003)
URL: http://www.bailii.org/eu/cases/EUECJ/2003/C15201.html
Cite as: [2003] EUECJ C-152/01, [2003] EUECJ C-152/1

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.

JUDGMENT OF THE COURT (Fifth Chamber)

20 November 2003 (1)

(Common Customs Tariff - Customs value - Determination of the transaction value - Interest payable under a financing arrangement - Exclusion - Conditions - Interest distinguished from the price actually paid or payable - Declaration not mentioning the interest due or paid)

In Case C-152/01,

REFERENCE to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between

Kyocera Electronics Europe GmbH

and

Hauptzollamt Krefeld,

on the interpretation of Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes (OJ 1980 L 154, p. 14), as amended by Commission Regulation (EEC) No 220/85 of 29 January 1985 (OJ 1985 L 25, p. 7),

THE COURT (Fifth Chamber),

composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans (Rapporteur) and S. von Bahr, Judges,

Advocate General: F.G. Jacobs,


Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- Kyocera Electronics Europe GmbH, by H. Nehm, Rechtsanwalt,

- the Commission of the European Communities, by J.-C. Schieferer, acting as Agent, and M. Núñez-Müller, Rechtsanwalt,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 23 January 2003,

gives the following

Judgment

  1. By order of 1 March 2001, received at the Court on 9 April 2001, the Bundesfinanzhof referred to the Court for a preliminary ruling under Article 234 EC two questions on the interpretation of Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes (OJ 1980 L 154, p. 14), as amended by Commission Regulation (EEC) No 220/85 of 29 January 1985 (OJ 1985 L 25, p. 7; Regulation No 1495/80).

  2. Those questions were raised in proceedings between Kyocera Electronics Europe GmbH (Kyocera) and the Hauptzollamt Krefeld (main customs office of Krefeld) (the Hauptzollamt), concerning the inclusion in the customs value of goods imported by that company into the customs territory of the Community of interest it had paid under a financing arrangement relating to the purchase of those goods.

    Legal background

    Regulation (EEC) No 1224/80

  3. The sixth recital in the preamble to 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) (Regulation No 1224/80), states that the objective of Regulation No 1224/80 is to foster world trade by introducing a fair, uniform and neutral system of customs valuation excluding the use of arbitrary or fictitious customs values. In that regard, that recital states, first, that the customs value must be determined in accordance with criteria which are compatible with trade practice and, second, that the basis for customs valuation of goods will, as a general rule, be the transaction value defined in Article 3 of this regulation.

  4. Article 3(1) of Regulation No 1224/80 provides:

    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, adjusted in accordance with Article 8, provided:

    ...

    (d) that the buyer and seller are not related ....

  5. Article 3(3)(a) of Regulation No 1224/80 further provides:

    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. ...

  6. Article 3(4) of the same regulation provides:

    The customs value of imported goods shall not include the following charges or costs, provided that they are distinguished from the price actually paid or payable for the imported goods:

    (a) charges for construction, erection, assembly, maintenance or technical assistance, undertaken after importation on imported goods such as industrial plant, machinery or equipment;

    (b) customs duties and other taxes payable in the Community by reason of the importation or sale of the goods.

  7. Article 8(1) to (3) of Regulation No 1224/80 provides:

    1. In determining the customs value under Article 3, there shall be added to the price actually paid or payable for the imported goods:

    (a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods:

    (i) commission and brokerage, except buying commissions,

    (ii) the cost of containers which are treated as being one for customs purposes with the goods in question,

    (iii) the cost of packing, whether for labour or materials;

    (b) the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable:

    (i) materials, components, parts and similar items incorporated in the imported goods,

    (ii) tools, dies, moulds and similar items used in the production of the imported goods,

    (iii) materials consumed in the production of the imported goods,

    (iv) engineering, development, artwork, design work, and plans and sketches undertaken elsewhere than in the Community and necessary for the production of the imported goods;

    (c) royalties and licence fees related to the goods being valued that the buyer must pay, either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and fees are not included in the price actually paid or payable;

    (d) the value of any part of the proceeds of any subsequent resale, disposal or use of the imported goods that accrues directly or indirectly to the seller;

    (e) (i) the cost of transport and insurance of the imported goods, and

    (ii) loading and handling charges associated with the transport of the imported goods

    to the place of introduction of the goods into the customs territory of the Community.

    2. Additions to the price actually paid or payable shall be made under this article only on the basis of objective and quantifiable data.

    3. No additions shall be made to the price actually paid or payable in determining the customs value except as provided in this article.

  8. Article 10(1) of Regulation No 1224/80 provides:

    With a view to determining value for customs purposes and without prejudice to national provisions which confer wider powers on the customs authorities of Member States, any person or undertaking directly or indirectly concerned with the import transactions in question shall supply all necessary information and documents to those authorities within the time-limits prescribed by the latter.

  9. Article 15(1) of Regulation No 1224/80 provides:

    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.

    Regulation No 1495/80

  10. Article 3 of Regulation No 1495/80 provides:

    1. Provided that they are distinguished from the price actually paid or payable, the following shall not be included in the customs value determined under Article 3 of Regulation (EEC) No 1224/80:

    (a) a charge for the right to reproduce the imported goods in the Community;

    (b) a buying commission.

    2. Charges for interest under a financing arrangement entered into by the buyer and relating to the purchase of imported goods shall not be included in the customs value determined under Regulation (EEC) No 1224/80 provided that:

    (a) the charges are distinguished from the price actually paid or payable for the goods:

    (b) the financing arrangement has been made in writing;

    (c) where required, the buyer can demonstrate that:

    - such goods are actually sold at the price declared as the price actually paid or payable, and

    - the claimed rate of interest does not exceed the level for such transactions prevailing in the country where, and at the time when, the finance was provided.

    Regulation (EEC) No 1496/80

  11. Article 1(1) of Commission Regulation (EEC) No 1496/80 of 11 June 1980 on the declaration of particulars relating to customs value and on documents to be furnished (OJ 1980 L 154, p. 16), as amended by Commission Regulation (EEC) No 3272/88 of 24 October 1988 (OJ 1998 L 291, p. 49; Regulation No 1496/80), provides:

    Where it is necessary to establish a customs value for the purposes of Regulation (EEC) No 1224/80, a declaration of particulars relating to customs value shall accompany the customs entry made in respect of the imported goods. The declaration shall be drawn up on a form D.V.1 corresponding to the specimen in Annex I hereto, supplemented where appropriate by one or more forms D.V.1bis corresponding to the specimen in Annex II hereto.

  12. At the material time, the form D.V.1 set out in Annex I to Regulation No 1496/80 was essentially made up of three parts. In Part A, entitled Basis of calculation, the declarant was requested to declare, in the currency of invoice and in national currency, the net price of the imported goods together with any indirect payments (Boxes 11 and 12 of Form D.V.1). In Part B, concerning Additions, the declarant was required to declare any costs not included in Part A, such as commissions and brokerage, royalties and licence fees or costs of delivery to the place of introduction of the goods into the customs territory of the Community (Boxes 13 to 18 of Form D.V.1). Finally, in Part C relating to Deductions, the declarant was requested to declare certain costs included in Part A, such as the costs of transport after importation to the customs territory of the Community, charges for construction, erection, assembly, maintenance or technical assistance undertaken after that importation, customs duties and taxes payable in the Community by reason of the importation or sale of the goods or Other charges (Boxes 19 to 23 of Form D.V.1). The customs value declared was obtained by subtracting the amounts declared in Part C from the total of the amounts declared in Parts A and B.

  13. Article 4(1) of Regulation No 1496/80 provides:

    The declarant shall furnish the customs authorities with a copy of the invoice on the basis of which the [customs] value of the imported goods is declared. Where the customs value is declared in writing this copy shall be retained by the customs authorities.

    The dispute in the main proceedings and the questions referred for a preliminary ruling

  14. Kyocera is a company established in Germany importing into that Member State various electronic goods purchased from its Japanese parent company, Kyocera Corporation (KC). For the amounts invoiced to it by KC, which, according to the order for reference, were not affected by the links between the two companies, Kyocera initially had 120 days from the date of shipment of the goods within which to pay. Subsequently - and yet without that period of payment being altered - KC and Kyocera none the less agreed on the additional payment of interest for 90 days at an annual rate of 4.5%, to be calculated monthly. Pursuant to that agreement, KC therefore drew up, in addition to the invoices for the sale of the goods itself, separate monthly invoices setting out, for each delivery made, the interest owed by Kyocera to its parent company.

  15. The dispute in the main proceedings concerns eight import transactions carried out during 1990 and 1991. It is apparent from the order for reference that, for those transactions, the imported goods were in fact declared to the competent customs authorities by a forwarding agent acting on behalf of Kyocera in a bonded warehouse - from where they were subsequently removed by the same forwarding agent with a view to placing them in free circulation - but that the interest paid or owed by Kyocera to KC was not mentioned in the declarations made when the goods were placed in bonded storage or in the declarations made upon removal from that storage or in any other way. In those circumstances, the Hauptzollamt took the view that those declarations were incomplete and so it issued, on 17 February 1994, and amended, on 2 August 1994, an adjustment notice, in which it requested Kyocera to pay additional customs duty calculated on the amount of interest actually paid by that company.

  16. The complaint made against that adjustment notice was rejected by decision of the Hauptzollamt of 15 September 1994 and so Kyocera brought an action before the Finanzgericht (Finance Court) Düsseldorf (Germany). By judgment of 17 February 1999, that action was rejected by that court on the ground that the interest paid by Kyocera to KC in the transactions at issue in the main proceedings formed part of the customs value of the goods removed from bonded storage and placed in free circulation. According to the Finanzgericht, that interest constituted a condition of the sale of those goods and therefore formed part of the transaction value referred to in Article 3(1) and (3) of Regulation No 1224/80. It would be otherwise, in the view of that court, only if the conditions of Article 3(2) of Regulation No 1495/80 were met, in particular that set out in paragraph (a) that distinct mention be made of the interest owed or paid. In the case in the main proceedings, although it was in possession of monthly invoices for that interest, Kyocera did not submit those invoices to the customs authorities any more than it made distinct mention of that interest in the customs declarations and so the Hauptzollamt was entitled to consider that the charges for interest formed part of the customs value and consequently to claim payment of additional customs duty.

  17. Considering, in those circumstances, that the Finanzgericht Düsseldorf had infringed Article 3(2)(a) of Regulation No 1495/80 in that it had set up an additional condition in that provision, namely the requirement that the customs authorities must be in possession of invoices for the interest when the customs declaration is accepted, Kyocera brought an appeal on a point of law against that judgment before the Bundesfinanzhof (Federal Finance Court). In that connection, it submits inter alia, that it suffices, for there to be distinction for the purposes of that provision, if the amount of the interest can be distinguished in some way from the purchase price of the imported goods. That would be the case, inter alia, where, at the time the customs authorities clear the goods, they possess only the invoice showing the net price of the goods without interest provided that the distinction is made on a document other than that invoice.

  18. For the Hauptzollamt, on the other hand, the mere indication of the net price of the imported goods cannot in any circumstances satisfy the requirements of Article 3(2)(a) of Regulation No 1495/80, since the customs authorities would not be able to ascertain whether or not interest had been paid in respect of those goods and, if it had, to determine whether the conditions for the exclusion of that interest from the customs value were met. Interest, like any other item which may be distinguished from the purchase price, should therefore be separately indicated when the customs declaration is accepted and the customs authorities should, in addition to that declaration, be in possession of a document relating to the item to be separately indicated. Therefore only those authorities can decide, after taking cognisance of all relevant items, whether or not costs indicated separately and declared as such should be included in the customs value.

  19. Whilst it recognises that Community customs law sets out a whole range of costs or items which, when indicated separately from the price of the imported goods, are not to be included in the customs value of those goods and that the Court has already given several rulings on the interpretation of the relevant provisions of Regulations No 1224/80 and No 1495/80 - in particular in Case 290/84 Mainfrucht Obstverwertung [1985] ECR 3909; Case C-79/89 Brown Boveri [1991] ECR I-1853; Case C-21/91 Wünsche [1992] ECR I-3647; Case C-340/93 Thierschmidt [1994] ECR I-3905, and Case C-93/96 ICT [1997] ECR I-2881) - the Bundesfinanzhof states, however, in its order for reference, that analysis of the Community legislation and the relevant case-law of the Court does not yield a clear answer to the question whether interest payments may be considered to be distinguished from the price of the good where, at the material time, namely of the acceptance of the customs declaration, the customs authorities are in possession only of the invoice for the net price of the imported good and that that invoice, like the declaration of customs value, does not reveal either expressly or by implication that the buyer also paid interest in the context of the import transaction in question. That question is also unresolved in recent German legal literature and Community legislation contains elements which support the positions of both Kyocera and the Hauptzollamt.

  20. According to the Bundesfinanzhof, Kyocera's argument is thus undeniably supported by the fact that it did indicate the substantively correct customs value and thereby complied both with the objectives of Regulation No 1224/80, seeking to establish a fair, uniform and neutral system of customs valuation, and the provisions of the General Agreement on Tariffs and Trade (GATT), from which the Regulation takes its inspiration.

  21. On the other hand, the fact that the words getrennt ausgewiesen sind in the German language version of Article 3(2)(a) of Regulation No 1495/80, which mean are indicated separately, presuppose that the amount in question may be distinguished, that is, as the Commission submitted in its observations in the case giving rise to the judgment in Mainfrucht Obstverwertung, cited above, that it may be identified as a separate component of the overall cost, rather supports the Hauptzollamt's case. The Bundesfinanzhof notes in this connection that the risk of a control deficit would be high if declaration of the net price alone of the imported goods were permitted since the customs authorities would not then be in a position to verify whether the substantive conditions for the non-inclusion of a particular item in the customs value had been complied with. Given the uncertainties connected with the subsequent recovery of customs duty, that situation would involve the risk of a significant loss of funds for the Community budget if a deduction proved to have been made erroneously by the importer.

  22. In those circumstances, considering that the resolution of the dispute before it depended on an interpretation of Community law, the Bundesfinanzhof decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

    1. Must Article 3(2)(a) of ... Regulation No 1495/80 ... be interpreted as meaning that payments of interest are distinguished from the price of the goods if at the material time, namely the acceptance of the customs declaration, only the invoice for the net price of the goods has been submitted to the customs office and that invoice - like the declaration of customs value - does not reveal either expressly or by implication that in the context of the transaction to be assessed interest was also paid by the buyer to the seller?

    2. If the answer to Question 1 is in the negative:

    Do the interest payments then form part of the customs value of the goods?

    Question 1

  23. By its first question, the referring court asks the Court about the scope of the condition laid down by Article 3(2)(a) of Regulation No 1495/80. More particularly, it seeks to ascertain whether the charge for interest paid under a financing arrangement entered into by a buyer and relating to the purchase of imported goods may be regarded as distinguished from the price paid for those goods where both the declaration of customs value and the accompanying invoice mention only the net price of those goods without referring to the interest paid to the seller by that buyer in consideration of the deferred payment which he enjoys.

    Observations submitted to the Court

  24. Whilst the persons concerned who have submitted observations to the Court agree that the first question should be answered in the affirmative, they disagree in part, by contrast, on the reasons for such a solution.

  25. In the view of Kyocera, interest does not have to appear in the declaration of customs value because, first, it is not included in the list of expenses - liable to increase the price of the goods - set out in Article 8 of Regulation No 1224/80 and, second, as the Court held in Wünsche, cited above, interest constitutes payment made by the buyer not for the goods imported but for another service from the seller, namely, in the present case, deferral of payment. The question of checking whether the conditions for the non-inclusion of interest in the customs value are met is therefore more one of evidence of the real price of the goods imported than one of whether the interest is distinguished from the price and it is quite possible for that condition to be met where, as in the case in the main proceedings, the net price alone of the imported goods appears in the declaration of customs value. A separate mention in that declaration would be justified only if the total amount declared covered both items included in the customs value, such as transport costs outside the customs territory of the Community, and items excluded from that value, such as transport costs within that territory.

  26. In the view of the Commission, on the other hand, the terms used in Article 3(2)(a) of Regulation No 1495/80 come under the substantive rules for determining the customs value rather than the formal and procedural rules applicable thereto so that failure to comply with administrative formalities in connection with the customs declaration or failure to enter/record interest on the form prescribed for that purpose do not fundamentally alter the declarant's legal position. In other words, particular items may be regarded as distinguished from the price paid for imported goods without their having been separately mentioned in the declaration of customs value.

  27. The Commission relies in this regard, first, on the English, French, Spanish and Italian language versions of Regulation No 1495/80 which, unlike the German language version of that regulation requiring interest to be separately mentioned (ausgewiesen), merely require that that interest be distinguished from the price paid for the goods. From that perspective it is therefore sufficient if interest is somehow separated from the price of the goods to which it relates for it no longer to form part of the customs value of those goods, without it being necessary in that regard spontaneously to present to the customs authorities supplementary evidence of the interest.

  28. Second, the Commission refers to the central objective of the Community rules on the determination of customs value, which consist in establishing a fair, uniform and neutral system of customs valuation excluding the use of arbitrary or fictitious customs values. According to the Commission the realisation of that objective does not in the least presuppose that interest paid by the buyer under a financing arrangement entered into with the seller is expressly or separately declared to the customs authorities. The risk of fraud is already excluded where the declarant himself keeps a separate record of that interest; he will then of course always be able to adduce evidence that the conditions for non-inclusion of the interest in the customs value have been met.

    The response of the Court

  29. The Court points out as a preliminary point that interest paid under a financing arrangement entered into by a buyer and relating to the purchase of goods which he imports into the Community is not in principle included in the customs value of those goods. It is apparent from Article 3(1) of Regulation No 1224/80 that the customs value of imported goods is the transaction value of those goods, that is, the price actually paid or payable for those goods adjusted in accordance with Article 8. However, whilst that article does indeed list several items to be added to the price of imported goods, such as commission and brokerage or royalties and licence fees, it makes no mention at all of interest owed or paid under a financing arrangement. Since the list of items mentioned in Article 8 is, as is apparent from paragraph 3 thereof, exhaustive (see, in that regard, Thierschmidt, cited above, paragraph 18), such interest cannot therefore be added to the price of imported goods for the purposes of determining their customs value.

  30. Whilst that conclusion is supported, in principle, by Regulation No 1495/80, adopted by the Commission in order to implement certain provisions of Regulation No 1224/80, the exclusion of interest from the customs value is however there subject, in practice, to compliance with a number of conditions including, in particular - under Article 3(2)(a) of Regulation No 1495/80 - the requirement that charges for interest must be distinguished from the price paid or payable for the imported goods. Since that requirement is not otherwise defined by that article, the referring court is uncertain about the form and the nature of that distinction and the document in which it must be made. It is thus apparent from the information supplied by that court that it is uncertain, more particularly, whether that requirement presupposes a separate mention of the interest on the invoice showing the purchase price of the goods or even in the declaration of customs value, or whether the customs authorities must be content with a summary declaration and the distinction, if any, may be made in any document in the declarant's possession.

  31. In this regard, the wording of the existing language versions of Article 3(2)(a) of Regulation No 1495/80 does not yield any unequivocal answer to the first question referred by the Bundesfinanzhof. Whilst the German (getrennt ausgewiesen sind) and Danish (saerskilt angivet) language versions of that provision do refer to a separate mention of interest - from which it may be inferred that there is an obligation to mention that interest, if any, in the declaration of customs value or in the invoice attached thereto - the Spanish (se distingan), Greek (äéáêñéíåôáé), English (are distinguished), French (sont distincts), Italian (siano distinti), Dutch (onderscheiden zijn) and Portuguese (sejam distintos) language versions of that provision appear more neutral with regard to both the form of the distinction in question and the document in which it must be made. In any event they make no reference to any separate mention of interest in the documents submitted by the declarant to the customs authorities.

  32. As the Court has consistently held, inter alia in Case C-296/95 EMU Tabac and Others [1998] ECR I-1605, paragraph 36, and Case C-257/00 Givane and Others [2003] ECR I-345, paragraph 36, all the language versions of a Community provision must, in principle, be recognised as having the same weight and this cannot vary according to the size of the population of the Member States using the language in question.

  33. In order to maintain a uniform interpretation of Community law, in the case of divergence between those versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see, inter alia, to that effect, Case C-236/97 Codan [1998] ECR I-8679, paragraph 26; Case C-420/98 W.N. [2000] ECR I-2847, paragraph 21, and Givane and Others, cited above, paragraph 37).

  34. Furthermore, as the referring court has rightly pointed out, the Court when seized of references for a preliminary ruling on the interpretation of the regulations in issue in the present case has already had the opportunity to rule on several occasions on both the purpose of those regulations and the scope of the contested requirement to distinguish, which is also contained in other provisions of those regulations (see, inter alia, the judgments cited in paragraph 19 of the present judgment).

  35. As is apparent from its very title, the regulation containing the provision which is the subject of the first question referred for a preliminary ruling seeks to implement certain provisions of Regulation No 1224/80 whose objective, as the sixth recital in the preamble thereto states, is to foster world trade by introducing a fair, uniform and neutral system of customs valuation excluding the use of arbitrary or fictitious customs values. Under the same recital in the preamble to Regulation No 1224/80, such an objective must be achieved, as a general rule, by adopting as the basis for customs valuation the transaction value of the imported goods, defined in Articles 3 and 8 of that regulation as the price actually paid or payable for those goods, to the exclusion of all other items not expressly mentioned in Article 8.

  36. It follows that interest - which, as was pointed out in paragraph 29 of the present judgment, is not one of the items listed in Article 8 of Regulation No 1224/80 - does not form part of the customs value of imported goods and does not therefore have to appear in the declaration of customs value. As is apparent from paragraph 16 of Wünsche, such interest does not form part of the price paid or payable for those goods, but is payment for a service provided to the buyer on the purchase of those goods, the service in the case in the main proceedings consisting in granting deferral of payment to that buyer.

  37. In that context, the condition laid down by Article 3(2)(a) of Regulation No 1495/80 cannot be regarded as establishing a derogation from Regulation No 1224/80. As with the condition that a financing arrangement be made in writing - pursuant to Article 3(2)(b) of Regulation No 1495/80 - the requirement that interest must be distinguished from the price paid or payable for the imported goods must be regarded as a formal condition enabling the customs authorities to verify the real value of those goods and thereby to ensure that the customs duty payable is properly collected.

  38. Whilst it is undeniable in this regard that the prevention of expenses which are fictitious or represent a disguised element of the price of goods is, as is apparent from the Court's case-law (see, inter alia, to that effect, Mainfrucht Obstverwertung, paragraphs 34 to 37, and Wünsche, paragraph 20), a primary objective of the Community legislation on the determination of customs value, it does not however follow from that legislation and that case-law that the condition that the expenses excluded from the customs value of goods must be distinguished from the price of those goods implies, in any event, that that distinction be made in the declaration of customs value itself, or even in a document annexed to it. That condition may also be met where the expenses in question are mentioned separately in documents retained by the declarant and he declares to the customs authorities only the net price of the imported goods.

  39. As Advocate General Jacobs pointed out in paragraph 19 of his Opinion, that declarant will then be in a position, if so requested, to supply the necessary information and documents to the customs authorities, as is indeed required by both Article 10(1) of Regulation No 1224/80 and Article 3(2)(c) of Regulation No 1495/80. For their part, the customs authorities will be able to check in any particular case both the amount and the rate of interest owed. Furthermore, the Community legislature could always amend the rules applicable to the matter if such checks come up against particular difficulties in practice.

  40. The judgment in Wünsche is of particular relevance in this regard. Whilst it is true that the issue in the case giving rise to that judgment concerned more whether there actually was a financing arrangement within the meaning of Article 3(2)(b) of Regulation No 1495/80 than whether the interest paid under such an arrangement was distinguished from the price, as required under Article 3(2)(a), the Court nevertheless held, in paragraph 19 of that judgment, that it is not necessary for the deferred payment to be the subject of a specific agreement between the seller and the buyer, separate from the agreement relating to the sale of the imported goods. It held in the same paragraph that where charges for interest payable as consideration for the deferred payment agreed by the seller are a separate item on the invoice sent to the buyer, it must be considered that, where there is no objection on the part of the buyer, he has in effect agreed to the charges for interest relating to the deferred payment. The Court reached that conclusion notwithstanding the fact that in that case, as in the present case in the main proceedings, the buyer had not mentioned the charges for interest in the declaration of customs value.

  41. Similarly, in Case C-299/90 Hepp [1991] ECR I-4301, paragraph 20, which concerned a situation in which the customs authorities had included in the customs value of imported goods the buying commission paid by the importer on the basis of a separate invoice, not referred to in the declaration of customs value, the Court held that the net price alone declared by the importer constituted the customs value for the purposes of Article 3(1) of Regulation No 1224/80 and that the buying commission was not to be included in that value.

  42. Since, in order not to be included in the customs value of imported goods, buying commissions paid by an importer to his representative must, pursuant to Article 3(1) of Regulation No 1495/80, be distinguished in the same way as charges for interest paid under a financing arrangement, there is no reason to adopt a different solution in the present case from that adopted in Hepp, cited above. Consequently, where a buyer must pay interest on the basis of a separate invoice as consideration for deferred payment for certain imported goods, but he mentions in the declaration of customs value the net price alone of those goods, that net price alone must be taken into account in determining the customs value of those goods.

  43. In the light of the foregoing, the answer to the first question must be that Article 3(2)(a) of Regulation No 1495/80 is to be interpreted as meaning that payments of interest are distinguished from the price of the goods even if, at the time when the customs declaration is accepted, the customs authorities are in possession only of the invoice for the net price of the goods and neither that invoice nor the declaration of customs value reveal expressly or by implication that the buyer paid or must pay interest to the seller in the context of the import transaction in question.

    Question 2

  44. Since the second question was raised only in the event that the first question is answered in the negative, there is no need to provide an answer thereto.

    Costs

    45. 45. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main action, 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 (Fifth Chamber),

    in answer to the questions referred to it by the Bundesfinanzhof by order of 1 March 2001, hereby rules:

    Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of 11 June 1980 implementing certain provisions of Council Regulation (EEC) No 1224/80 on the valuation of goods for customs purposes, as amended by Commission Regulation (EEC) No 220/85 of 29 January 1985, is to be interpreted as meaning that payments of interest are distinguished from the price of the goods even if, at the time when the customs declaration is accepted, the customs authorities are in possession only of the invoice for the net price of the goods and neither that invoice nor the declaration of customs value reveal expressly or by implication that the buyer paid or must pay interest to the seller in the context of the import transaction in question.

    Jann
    Timmermans
    von Bahr

    Delivered in open court in Luxembourg on 20 November 2003.

    R. Grass V. Skouris

    Registrar President

    1: Language of the case: German.

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