DELIVERED ON 12 JANUARY 1984 (1)

Mr President,

Members of the Court,

1. In the reference for a preliminary ruling dealt with in this Opinion, the Finanzgericht [Finance Court] Bremen has asked the Court for an interpretation of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (Official Journal, L 134, p. 1), to enable it to resolve a dispute between a customs office in the Federal Republic of Germany and Ospig Textilgesellschaft KG W. Ahlers (hereinafter referred to as “Ospig”), Bremen.

The facts are as follows. On 25 November 1981, Ospig applied to the Hauptzollamt Bremen-Ost [Principal Customs Office, Bremen-East] for the admission into free circulation of 600 pairs of jeans bought in Hong Kong from Wan Tat Industrial Limited. For purposes of customs valuation, Ospig declared the price of the goods invoices by the Hong Kong firm, amounting to 16800 Hong Kong dollars plus the cost of sea transport and insurance. The Hauptzollamt, however, added 3000 Hong Kong dollars to that sum, corresponding to the amount paid by Ospig and separately invoiced by Wan Tat, for the acquisition of export quotas from Hong Kong to the Community. The resultant customs valuation was DM 8438.29 on the basis of which customs import duties of DM 1434.51 were calculated.

After objecting unsuccessfully through administrative channels against the notice of assessment, Ospig applied to the Finanzgericht Bremen maintaining that the expenses for the acquisition of export quotas should not be included in the customs valuation of the goods. By order of 12 January 1983, the Second Senate of that Tribunal stayed the proceedings, deeming it necessary to submit the following question to the Court for a preliminary ruling:

“Are costs which are incurred in the acquisition of free quotas (export quotas) and are charged separately by an exporter in Hong Kong to a German customer (known as quota costs) to be included in the customs value of goods (the transaction value referred to in Article 3 of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes)?”

2. In order to clarify the subject-matter in dispute, it is as well to provide an outline of the rules on importation of textile products from Hong Kong into the Community and then to refer to the relevant Community rules.

Let me begin at the beginning. As everyone knows, the developing countries are able to manufacture with low labour costs. To prevent the export of their textile products from expanding too rapidly and thereby leading the industrialized countries to react with protectionist measures, an agreement was signed at Geneva on 20 December 1973, in the context of the General Agreement on Tariffs and Trade (GATT) on the international trade in textiles (better known as the “Multifibre Arrangement”). According to Article 4 of that agreement, the contracting parties may make bilateral agreements to promote the balanced and orderly development of trade in textile products between supplying countries and industrialized countries. That objective is pursued by the imposition of quantitative limits upon exports from the former.

The participation of the Community in the Multifibre Arrangement and the conclusion of many bilateral agreements between it and the developing countries, including Hong Kong, made it necessary to adopt Community measures applicable to imports of textiles originating in non-member countries. The relevant rules are based on Council Regulation (EEC) No 3589/82 of 23 December 1982 (Official Journal, L 374, p. 106). The observance of the quantitative limits is guaranteed by a duplicate control system, which provides that the competent authorities in the supplying country grant an export licence and that the import authorization by the Member State is subject to possession of such a licence (Articles 10 to 12 and Annex VI).

In Hong Kong, the Chamber of Commerce divides export quotas annually between manufacturers and traders in textile products on the basis of the volume of goods exported in the previous year. The quotas are transferable and their value (in commercial usage called “quota costs”) varies according to market forces. Towards the end of the year, when quotas are almost exhausted the price may reach considerable sums, whilst it is almost negligible in the previous months. Hong Kong exporters who have used up their own quotas and who need to acquire quotas still unused in order to apply for an export licence and to escape the orders of Community firms invoice the cost of the quota separately from the latter.

The Community rules relating to the customs valuation of goods are at present based on the aforementioned Regulation No 1224/80. According to Article 3 (1) thereof the customs value is given by the “transaction value”, that is by “the price actually paid or payable for the goods when sold for export to the customs territory of the Community”. In the amended version in Council Regulation (EEC) No 3193/80 of 8 December 1980 (Official Journal, L 333, p. 1), paragraph (3) of that article specifies that the transaction price 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”.

The same regulation lists the costs borne by the purchaser in addition to the price of the goods which are to be included in calculating the customs value: according to Article 8 they include commission and brokerage, royalties and licence fees and the cost of transport and insurance. On the other hand, other costs are excluded from the calculation because they are separate from the price of the goods: on the one hand charges for construction, erection, assembly, technical assistance or transport undertaken after importation, and on the other, customs duties and other taxes payable in the Community by reason of the importation or sale of the goods (Articles 3 (4) and 15).

3. In the light of the above, I shall proceed to examine the question. I recall that the German court inquires whether the costs of acquiring free quotas in Hong Kong are to be included in the calculation of the value for customs purposes.

As I have already said, according to the Community rules the basis on which that valuation is determined is the price actually paid or payable as a condition of the sale of the imported goods. We must therefore ask whether the costs of acquiring the quotas are connected with the importation of the goods and represent payments which may be included within the concept of “conditions of sale”. The Hauptzollamt Bremen-Ost maintains that that question must be answered in the affirmative. The contract of sale — it states — subjects the delivery of the jeans to the payment for the goods and to the refund of the sum paid by Wan Tat for the purchase of the quotas. The fact that they are separately invoiced is irrelevant; the two costs constitute, in fact, the “total payment” referred to in the aforementioned Article 3 (3) of Regulation No 1224/80.

There are two arguments, it is claimed, in support of that contention. The first is based on a literal interpretation of Regulation No 1224/80, which does not mention the “quota charges” among costs excluded from the calculation of customs value (see Section 2 above, in fine). The second is an a contrario argument and relies on the opinion which the Customs Valuation Committee (a body established by Articles 17 and 18 of the same regulation) issued at its 33rd meeting, held in Brussels between 19 and 21 January 1983. In that document it is stated that the supplementary costs sustained by the purchaser for the issue of the export licence may not be considered part of the price paid for the goods when the payment is effected to a third party who is not connected with the vendor of the goods. In this case, the customs office argues, it is clear that the quota costs were paid to the vendor: therefore, they are to be included in the calculation of the value for customs purposes.

4. I do not find those arguments persuasive. I will consider them specifically in a moment. However, first, I should like to observe that there is no link between “quota costs” and the importation of goods or there is a very slender and indirect link because it may be maintained that the charges constitute “conditions of sale”.

There is a series of factors which tend to show that. Above all the acquisition of the quotas is a transaction between the vendor of the goods or the Community purchaser and a third party and is therefore clearly independent of the contract of sale. Next, that acquisition is not a function of a transaction relating to specific goods: the export licence which may be obtained as a result may in fact be used by the vendor for any goods of the same type intended for the same Member State of the Community. Finally, the price of the quotas: as has been seen, that is determined by the link between the need to export and quantitative restrictions on imports. The type and value of the goods are irrelevant.

In the light of the above, let us turn to the Hauptzollamt's arguments. The literal interpretation which it places upon Articles 3 (4) and 15 of Regulation No 1224/80 is inadequate. One might rebut them by saying that whereas such rules may not include the “quota charges” among costs which may be excluded from the calculation of value for customs purpose, Article 8 certainly does not list them among the costs which must be included therein. But the truth is that such problems are not resolved by recourse to hackneyed and discredited maxims such as ubi lex tacuit, noluit. One must delve below the surface of the point upon which the Hauptzollamt relies: in other words, ask whether there is a reason which does not exist in the case of quota charges for the express mention of costs which may be excluded.

Such a reason does indeed reside in the possibility that they form part of the price paid or payable. In that respect, as I have already noted, the two rules specify them one by one requiring that they be distinguished from that price; Commission Regulation (EEC) No 1495/80 of 11 June 1980 (Official Journal, L 154, p. 14), implementing certain provisions of the regulation on valuation of goods for customs purposes, does the same. Article 3 of that regulation in fact provides that certain costs borne by the purchaser (such as those relating to the right to reproduce the goods, a buying commission, etc.) are not taken into account in the calculation of the customs value “provided that they are distinguished from the price actually paid or payable”. Obviously, the Community legislature fears that the value of imported goods may be artificially reduced by means of arbitrary or fictitious separate invoicing. It seems to me that that suffices to explain why the two provisions are silent on quota charges. The lack of any association with the price of the goods, and thereby the genuineness of their separate invoicing, is in fact beyond doubt.

As to the opinion of the Customs Valuation Committee (which, however, has only the force of a recommendation), I do not see how an argument contrary to the one which I have suggested can be based on it. It is true that in the circumstances to which it refers the quota charges were paid to a third party, whereas in this case the recipient of the payment is the vendor. But, in the context with which we are concerned, that fact is irrelevant. Whether the Community purchaser negotiates directly with the owner of the quota or charges the vendor with the acquisition thereof and reimburses him later, does not alter the fundamental fact: the person who benefits from the transaction is in every case the aformentioned owner and the relevant costs bear no relation to the consideration for the goods transferred from the vendor to the purchaser.

A definitive confirmation of the interpretation which appears to me more convincing may however be seen in the objectives of the rule on valuation for customs purposes. Regulation No 1224/80 has two immediate objectives: to ensure conformity of the Community system with the principles of the Geneva Agreement of 12 April 1979 for the implementation of Article 7 of GATT and to anticipate the entry into force of that agreement within the Community. But it also has a broader purpose: the development of world trade by means of the establishment of a “fair, uniform and neutral system for the valuation of goods for customs purposes that precludes the use of arbitrary or fictitious customs values” (see the sixth recital in the preamble).

If the quota charges were included in the valuation for customs purposes, the transaction value would be higher and so would lead to an increase in the customs duties on import. We should in fact have a more marked protectionism and the international textile trade would suffer from it, particularly the trade with developing countries: and that, in the light of what has just been said, is certainly not an outcome which is compatible with the objectives of Regulation No 1224/80.

5. In conclusion, I suggest that the Court give the following reply to the question submitted by the Finanzgericht Bremen by order of 12 January 1983 in the action brought by Ospig Textilgesellschaft KG W. Ahlers against Hauptzollamt Bremen-Ost.

The costs (called “quota charges”) which an exporter from Hong Kong bears for the acquisition from a third party of available import quotas into the Community for textile products at the request of a Community purchaser and which are invoiced to the latter separately from the price of the goods, are not to be included in the valuation for customs purposes referred to in Article 3 of Council Regulation No 1224/80.

(1) Translated from the Italian.