1 BY AN ORDER OF 24 APRIL 1979 , WHICH WAS RECEIVED AT THE COURT ON 25 MAY 1979 , THE BUNDESFINANZHOF , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , REFERRED TO THE COURT FOR A PRELIMINARY RULING , THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 8 ( 2 ) OF REGULATION ( EEC ) 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 ): THIS PARAGRAPH PROVIDES :
' ' WHERE GOODS ARE INVOICED AT A UNIFORM FREE DOMICILE PRICE WHICH CORRESPONDS TO THE PRICE AT THE PLACE OF INTRODUCTION , TRANSPORT COSTS WITHIN THE COMMUNITY SHALL NOT BE DEDUCTED FROM THAT PRICE . HOWEVER , SUCH DEDUCTION SHALL BE ALLOWED IF EVIDENCE IS PRODUCED TO THE CUSTOMS AUTHORITIES THAT THE FREE-FRONTIER PRICE WOULD BE LOWER THAN THE UNIFORM FREE DOMICILE PRICE . ' '
2 THE QUESTIONS HAVE BEEN RAISED DURING AN ACTION BROUGHT AGAINST THE GERMAN CUSTOMS AUTHORITIES BY A GERMAN UNDERTAKING , THE PLAINTIFF IN THIS MAIN ACTION , WHICH IN 1972 WAS NOT ALLOWED TO DEDUCT FROM THE VALUE FOR CUSTOMS PURPOSES OF DEEP-FROZEN FRUIT AND VEGETABLES , IMPORTED FROM HUNGARY BY ROAD AND INVOICED AT A FREE DOMICILE PRICE CHARGED THROUGHOUT THE FEDERAL REPUBLIC OF GERMANY , THE AMOUNT OF THE TRANSPORT COSTS WITHIN THE COMMUNITY .
3 THE UNDERTAKING PRODUCED IN SUPPORT OF ITS OBJECTION TO THIS DISALLOWANCE WHICH IT RAISED BEFORE THE PRINCIPAL CUSTOMS OFFICE , BAD REICHENHALL , THE DEFENDANT IN THE MAIN ACTION , A CERTIFICATE OF THE GENERAL AGENT OF ITS HUNGARIAN SUPPLIER AND ALSO A LETTER FROM THEIR SUPPLIER CERTIFYING THAT THE INVOICED PRICES INCLUDED A FIXED SUM OF DM 62 PER TONNE FOR TRANSPORTATION WITHIN THE FEDERAL REPUBLIC . DURING ITS SUBSEQUENT ACTION BEFORE THE FINANZGERICHT ( FINANCE COURT ), MUNICH , IT ALSO PRODUCED DOCUMENTS IN WHICH A FREIGHT SUPERVISION AUTHORITY ( FRACHTENPRUFUNGSSTELLE ) HAD CALCULATED THAT AVERAGE INTERNAL TRANSPORT COSTS WERE DM 70.30 PER TONNE . THE OBJECTION AS WELL AS THE COURT ACTION OF THE UNDERTAKING HAVE BEEN DISMISSED ON THE GROUND THAT THE SUPPLIER HAD CHARGED UNIFORM PRICES WITHIN THE MEANING OF THE FIRST SENTENCE OF ARTICLE 8 ( 2 ) OF REGULATION NO 803/68 AND THAT THE EVIDENCE REQUIRED BY THE SECOND SENTENCE OF ARTICLE 8 ( 2 ) THAT THE FREE-FRONTIER PRICE WOULD BE LOWER THAN THE UNIFORM FREE DOMICILE PRICE HAD NOT BEEN PRODUCED .
4 THE UNDERTAKING THEN APPEALED TO THE BUNDESFINANZHOF . IN ORDER TO BE ABLE TO DETERMINE THE ISSUE THE LATTER COURT HAS CONSIDERED IT NECESSARY TO REFER TO THE COURT FOR A PRELIMINARY RULING , THE FOLLOWING QUESTIONS :
' ' 1 . MUST THE WORDS ' UNIFORM FREE DOMICILE PRICE ' IN ARTICLE 8 ( 2 ) OF REGULATION ( EEC ) NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES BE INTERPRETED AS MEANING THAT SUCH PRICE MUST BE UNIFORM FOR ALL DESTINATIONS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY?
2 . IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE MAY THE FACT THAT UNIFORM FREE DOMICILE PRICES APPLY TO ONLY ONE MEMBER STATE BE TAKEN INTO ACCOUNT , AND IF SO HOW?
3 . HOW IS THE SECOND SENTENCE OF ARTICLE 8 ( 2 ) OF REGULATION ( EEC ) NO 803/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE VALUATION OF GOODS FOR CUSTOMS PURPOSES TO BE INTERPRETED IN RELATION TO THE REQUIREMENTS WITH REGARD TO THE EVIDENCE TO BE PRODUCED?
' '
5 IN ORDER TO BE ABLE TO ANSWER THESE QUESTIONS IT IS NECESSARY AS THE SIXTH AND EIGHTH RECITALS IN THE PREAMBLE TO REGULATION NO 803/68 MAKE CLEAR , THAT THE PRINCIPAL OBJECTIVE OF THE SAID REGULATION IS TO ENSURE EQUAL TREATMENT OF IMPORTERS SO THAT THE LEVEL OF THE PROTECTION GIVEN BY THE COMMON CUSTOMS TARIFF IS THE SAME THROUGHOUT THE COMMUNITY .
6 IT IS TO THIS END THAT ARTICLE 1 ( 1 ) OF THE SAID REGULATION PROVIDES THAT THE VALUE FOR CUSTOMS PURPOSES OF THE GOODS IMPORTED SHALL BE TAKEN TO BE 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 1 ( 2 ) THE NORMAL PRICE INCLUDES THE COSTS OF TRANSPORT OF THE GOODS TO THE PLACE OF INTRODUCTION WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY . IN PRINCIPLE TRANSPORT COSTS FROM THE PLACE OF INTRODUCTION TO THE PLACE OF DESTINATION ARE THEREFORE TO BE DEDUCTED FROM THE INVOICE PRICE .
7 ARTICLE 8 ( 2 ), TO WHICH THE QUESTIONS OF INTERPRETATION REFERRED TO THE COURT RELATE , CONTAINS AN EXCEPTION TO THE PRINCIPLE THAT TRANSPORT COSTS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY ARE DEDUCTIBLE FROM THE INVOICE PRICE WHERE THE GOODS ARE INVOICED AS A UNIFORM FREE DOMICILE PRICE WHICH CORRESPONDS TO THE PRICE AT THE PLACE OF INTRODUCTION .
8 SUCH A PRICE , WHICH IS UNIFORM FOR EVERY PLACE OF DESTINATION WITHIN THE AREA WHERE IT IS APPLIED , INCLUDES IN GENERAL A FIXED SUM INTENDED TO COVER THE AVERAGE COSTS OF TRANSPORT OF THE GOODS FROM THE PLACE OF DISPATCH TO THE VARIOUS PLACES OF DESTINATION .
9 IT FOLLOWS THAT WHERE GOODS ARE INVOICED AT A UNIFORM FREE DOMICILE PRICE THE CUSTOMS AUTHORITIES DO NOT KNOW WHAT ARE THE TRANSPORT COSTS WITHIN THE COMMUNITY , WHICH ARE IN FACT A CHARGE ON THE IMPORTATION AND ARE INCLUDED IN THAT PRICE . NOR IS IT POSSIBLE TO CALCULATE THESE COSTS BY ASSESSING THEM IN PROPORTION TO THE DISTANCE COVERED OUTSIDE AND INSIDE THE CUSTOMS TERRITORY OF THE COMMUNITY AS PROVIDED FOR IN ARTICLE 8 ( 1 ). SUCH A CALCULATION WOULD IN FACT LEAD TO THE ESTABLISHMENT OF DIFFERENT VALUES FOR CUSTOMS PURPOSES IN RESPECT OF THE SAME GOODS , VARYING ACCORDING TO THE DISTANCE BETWEEN THE PLACE OF INTRODUCTION AND THE PLACE OF DESTINATION , AND THIS WOULD NOT BE IN KEEPING WITH THE OBJECTIVE OF ENSURING EQUAL TREATMENT OF IMPORTERS WHICH IS SET OUT IN THE EIGHTH RECITAL IN THE PREAMBLE TO THE REGULATION AND INCORPORATED IN ARTICLE 1 THEREOF . THESE ARE THE CONSIDERATIONS WHICH JUSTIFY THE EXCEPTION PROVIDED FOR IN THE FIRST SENTENCE OF ARTICLE 8 ( 2 ) TO THE GENERAL PRINCIPLE LAID DOWN IN ARTICLE 1 THAT TRANSPORT COSTS WIHTIN THE COMMUNITY ARE TO BE DEDUCTED .
10 IT IS BY CONSIDERING THE PROBLEM IN THIS WAY THAT THE FIRST TWO QUESTIONS SHOULD BE ANSWERED . THE DIFFICULTIES WHICH ARE INVOLVED , ON THE ONE HAND , BY CALCULATION OF THE TRANSPORT COSTS ACTUALLY INCLUDED IN THE UNIFORM FREE DOMICILE PRICE AND , ON THE OTHER HAND , BY THE NEED TO ENSURE EQUAL TREATMENT OF IMPORTERS , AND WHICH EXPLAIN THE RULE LAID DOWN IN THE FIRST SENTENCE OF ARTICLE 8 ( 2 ), ARISE IN THE SAME WAY WHETHER THIS PRICE IS CHARGED THROUGHOUT THE WHOLE OF THE CUSTOMS TERRITORY OF THE COMMUNITY OR ONLY IN A PART THEREOF . THE ANSWER TO THE FIRST TWO QUESTIONS MUST THEREFORE BE THAT THE WORDS ' ' UNIFORM FREE DOMICILE PRICE ' ' MENTIONED IN ARTICLE 8 ( 2 ) OF REGULATION NO 803/68 MUST BE INTERPRETED AS MEANING THAT THE PRICE IN QUESTION IS NOT NECESSARILY UNIFORM FOR ALL DESTINATIONS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY .
11 SINCE THE FIRST SENTENCE OF ARTICLE 8 ( 2 ) ONLY CONTAINS A PRESUMPTION AND SINCE THE MAIN IDEA IS STILL THE DEDUCTION OF INTERNAL TRANSPORT COSTS THERE HAD TO BE AN EXCEPTION TO COVER THE CASE WHERE THE FIXED SUM INCLUDED IN THE UNIFORM PRICE FOR TRANSPORT COSTS IS SATISFACTORILY ASCERTAINABLE ; THIS IS THE AIM OF THE SECOND SENTENCE OF ARTICLE 8 ( 2 ).
12 THE ACTUAL WORDING OF THIS SENTENCE , WHICH USES THE CONDITIONAL MOOD , INDICATES THAT IT IS NOT NECESSARY TO PROVE THAT THE SAME SUPPLIER HAS IN FACT SOLD THE GOODS AT A FREE-FRONTIER INVOICE PRICE . MOREOVER , AS THE COMMISSION EXPLAINS IN ITS OBSERVATIONS , IT IS NECESSARY TO DETERMINE THE PRICE WHICH A PROSPECTIVE PURCHASER WOULD HAVE HAD TO PAY FOR A FREE-FRONTIER PURCHASE OF THE GOODS WHICH HAVE TO BE ASSESSED , ALL THE OTHER CONDITIONS OF SALE BEING IDENTICAL , IN THE EVENT OF IMPORTATION THROUGH THE SAME PLACE OF INTRODUCTION .
13 COMMUNITY LEGISLATION RELATING TO VALUE FOR CUSTOMS PURPOSES DOES NOT PROVIDE FOR ANY SPECIFIC PROCEDURE FOR THE PRODUCTION OF EVIDENCE . CONSEQUENTLY NATIONAL RULES ARE TO BE APPLIED IN THIS FIELD IF THE IMPORTER WISHES TO PRODUCE EVIDENCE TO THE CUSTOMS AUTHORITIES THAT THE FREE-FRONTIER PRICE WOULD BE LOWER THAN THE FREE DOMICILE PRICE . HOWEVER , THE CUSTOMS AUTHORITIES MUST TAKE ACCOUNT OF THE OBJECTIVES OF ARTICLE 8 ( 2 ) WHICH , AS THE COMMISSION HAS STRESSED , IS TO PREVENT THE DEDUCTION OF TRANSPORT COSTS WHICH ARE TOO HIGH AND NOT IN FACT INCLUDED IN THE INVOICED PRICE , BUT ALSO TO ALLOW , IN ACCORDANCE WITH THE PRINCIPLE LAID DOWN IN THE PREAMBLE TO THE REGULATION AND ARTICLE 1 THEREOF THE DEDUCTION OF TRANSPORT COSTS IN COMMUNITY TERRITORY WHICH ARE IN FACT INCLUDED IN THIS PRICE .
14 THIS OBJECTIVE OF THE PROVISION IN QUESTION DOES NOT APPEAR TO PREVENT , FOR EXAMPLE , STATEMENTS MADE A POSTERIORI BY THE SUPPLIER OR BY HIS AGENT BEING ACCEPTED AS EVIDENCE , IF SUCH STATEMENTS SUPPLY RELIABLE PARTICULARS OF THE PRICE SITUATION AT THE TIME OF IMPORTATION , ESPECIALLY IF THEY CORROBORATE MORE OBJECTIVE INFORMATION .
15 THE ANSWER TO THE THIRD QUESTION MUST THEREFORE BE THAT IN THE PRESENT STATE OF COMMUNITY LAW IT IS FOR THE NATIONAL COURT TO DECIDE , IN ACCORDANCE WITH ITS NATIONAL LEGISLATION , WHAT EVIDENCE THE IMPORTER IS TO PRODUCE TO ESTABLISH , AS PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 8 ( 2 ) OF REGULATION NO 803/68 , THAT THE FREE-FRONTIER PRICE WOULD BE LOWER THAN THE UNIFORM FREE DOMICILE PRICE , ALL THE OTHER CONDITIONS OF SALE BEING IDENTICAL , IN THE EVENT OF IMPORTATION THROUGH THE SAME PLACE OF INTRODUCTION . THE NATIONAL COURT MUST HOWEVER TAKE INTO ACCOUNT THE PURPOSE OF THAT COMMUNITY PROVISION WHICH IS TO ALLOW TRANSPORT COSTS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY WHICH ARE ACTUALLY INCLUDED IN THE UNIFORM PRICE - BUT ONLY THOSE TRANSPORT COSTS - TO BE DEDUCTED FROM THE PRICE WHEN THE CUSTOMS VALUATION IS DETERMINED .
COSTS
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE ; SINCE THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION 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 QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 24 APRIL 1979 , HEREBY RULES :
1 . THE WORDS ' ' UNIFORM FREE DOMICILE PRICE ' ' MENTIONED IN ARTICLE 8 ( 2 ) OF REGULATION NO 803/68 MUST BE INTERPRETED AS MEANING THAT THE PRICE IN QUESTION IS NOT NECESSARILY UNIFORM FOR ALL THE DESTINATIONS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY .
2 . IN THE PRESENT STATE OF COMMUNITY LAW IT IS FOR THE NATIONAL COURT TO DECIDE , IN ACCORDANCE WITH ITS NATIONAL LEGISLATION , WHAT EVIDENCE THE IMPORTER IS TO PRODUCE TO ESTABLISH , AS PROVIDED FOR IN THE SECOND SENTENCE OF ARTICLE 8 ( 2 ) OF REGULATION NO 803/68 , THAT THE FREE-FRONTIER PRICE WOULD BE LOWER THAN THE UNIFORM FREE DOMICILE PRICE , ALL THE OTHER CONDITIONS OF SALE BEING IDENTICAL , IN THE EVENT OF IMPORTATION THROUGH THE SAME PLACE OF INTRODUCTION . THE NATIONAL COURT MUST HOWEVER TAKE INTO ACCOUNT THE PURPOSE OF THAT COMMUNITY PROVISION WHICH IS TO ALLOW TRANSPORT COSTS WITHIN THE CUSTOMS TERRITORY OF THE COMMUNITY WHICH ARE ACTUALLY INCLUDED IN THE UNIFORM PRICE - BUT ONLY THOSE TRANSPORT COSTS - TO BE DEDUCTED FROM THE PRICE WHEN THE CUSTOMS VALUATION IS DETERMINED .
