OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 28 July 2016 (1)
(Case C‑173/15)
GE Healthcare GmbH
v
Hauptzollamt Düsseldorf
(Request for a preliminary ruling from the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany))
(Reference for a preliminary ruling — Customs Union — Community Customs Code — Regulation (EEC) No 2913/92 — Regulation (EEC) No 2454/93 — Customs value — Inclusion in the customs value of royalties or licence fees for trade marks — Payment of royalties or licence fees for trade marks to a company related to the seller and the buyer of goods — Royalties or licence fees in respect of the sale of goods as well as the provision of services and the use of a protected name — Appropriate apportionment on the basis of objective and quantifiable data)
I – Introduction
1. Can royalties or licence fees for trade marks be included in the customs value of imported goods even if their amount is not known when the customs debt is incurred? If the answer is yes, must those royalties or licence fees for trade marks be paid, and if so under what conditions, where they are not exclusively related to the imported goods and where both the buyer and the seller belong to the same group of companies as the undertaking to which the royalties and licence fees are to be paid?
2. Those are, in essence, the questions referred for a preliminary ruling by the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany). They are concerned with the interpretation of the provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, (2) as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (3) (‘the Customs Code’), (4) and of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, (5) as amended by Commission Regulation (EC) No 1792/2006 of 23 October 2006 (6) (‘the Implementing Regulation’). (7)
3. Those questions arise in the context of a dispute between GE Healthcare GmbH and the Hauptzollamt Düsseldorf (Principal Customs Office, Düsseldorf) concerning GE Healthcare’s application for a refund of import duty on the ground that the amount of the royalties for trade marks, paid to company M., should not have been added to the customs value of the goods imported by GE Healthcare into the Community from third-country sellers belonging to the same group of companies, namely the General Electric group (‘the GE group’).
4. Specifically, it is apparent from the documents in the case that on 1 January 2003, the company of which GE Healthcare became universal successor concluded a trade mark agreement with company M., an undertaking which also belonged to the GE group. Under Article II A of the agreement, company M. granted GE Healthcare a non-exclusive licence to use the GE group trade mark, subject to a royalty, for products manufactured and placed on the market and for services provided to third parties matching quality standards exactly. (8) On 31 December of each year, the royalties chargeable on that basis were 0.95% of GE Healthcare’s turnover for the use of the trade mark and 0.05% of its turnover for the use of the business name GE. For the calculation of royalties, the agreement specified, inter alia, the manner in which GE Healthcare was to report to company M. concerning prices and how that company could audit the calculations.
5. In addition, company M. granted GE Healthcare a royalty-free, non‑exclusive licence to display the trade mark at its unfettered discretion on products used by GE Healthcare for routine tests, samples of goods, scrap or waste. GE Healthcare was also permitted, without royalties, to make use of products under the trade mark in its commercial dealings with (group) companies entitled to use the licence on similar conditions to those set out in the trade mark agreement.
6. According to the referring court, company M. had extensive powers of supervision under the trade mark agreement and, if quality standards were not met, could terminate the agreement at short notice.
7. In a customs inspection covering the period between 2007 and 2009, the Principal Customs Office, Düsseldorf found, in particular, that GE Healthcare had acquired third-country goods from companies belonging to the GE group but had, wrongly, not shown royalties in the customs value declarations for those goods. Consequently, the Principal Customs Office, Düsseldorf issued a post-clearance recovery notice in respect of unpaid import duties.
8. Following payment of those duties, GE Healthcare applied for their refund, in accordance with the procedure laid down in Article 236 of the Customs Code. That application was based on the argument that the royalties paid under the trade mark agreement were not royalties that had to be added to the customs value of the imported goods, pursuant to Article 32(1)(c) of the Customs Code. According to GE Healthcare, those royalties were not related to the imported goods and, in any event, did not constitute ‘a condition of sale of the goods’ within the meaning of that article.
9. The Principal Customs Office, Düsseldorf refused that application and GE Healthcare brought an action before the referring court.
10. Taking the view that the resolution of the case in the main proceedings depends on the interpretation of the provisions of the Customs Code and of the Implementing Regulation, the national court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Can royalties or licence fees within the meaning of Article 32(1)(c) of [the Customs Code] be included in the customs value even though it is not possible, either at the time the contract is concluded or at the relevant date as regards the incurring of the customs debt (the latter date being determined in the event of any dispute in accordance with Articles 201(2) and 214(1) of th[at] Code), to determine whether a debt for royalties or licence fees will occur?
(2) If the reply to question 1 is in the affirmative: can royalties or licence fees for trade marks within the meaning of Article 32(1)(c) of the [Customs] Code relate to the imported goods notwithstanding the fact that those royalties or licence fees are also paid for services and for the use of the key part of the name of the common group of companies?
(3) If the reply to question 2 is in the affirmative: can royalties or licence fees for trade marks within the meaning of Article 32(1)(c) of the [Customs] Code be a condition of the sale for export to the Community of the imported goods within the meaning of Article 32(5)(b) of th[at] Code even though payment was demanded by an undertaking related to the seller and to the buyer, and was made?
(4) If the reply to question 3 is in the affirmative and the royalties or licence fees relate, as here, partly to the imported goods and partly to post-importation services: does it follow from the appropriate apportionment made only on the basis of objective and quantifiable data, in accordance with Article 158(3) of [the Implementing Regulation] and the interpretative note on Article 32(2) of the [Customs] Code in Annex 23 to the Implementing Regulation, that only a customs value in accordance with Article 29 of the [Customs] Code may be corrected, or, if a customs value cannot be determined in accordance with Article 29 of the [Customs] Code, is the apportionment laid down in Article 158(3) of the Implementing Regulation also possible, in so far as those costs would not otherwise be taken into account, when determining a customs value to be established in accordance with Article 31 of the [Customs] Code?’
II – Proceedings before the Court
11. The parties to the main proceedings, the German and Italian Governments and the European Commission submitted written observations on these questions. At the end of the written part of the procedure, the Court considered that it had sufficient information to proceed to judgment without a hearing, in accordance with Article 76(2) of its Rules of Procedure.
III – Assessment
A – Preliminary considerations
12. The objective of EU legislation on the customs valuation of imported goods is to introduce a fair, uniform and neutral system which excludes the use of arbitrary or fictitious customs values. (9)
13. The customs value must thus reflect the real economic value of an imported good and take into account all of the elements of that good that have economic value. (10)
14. Thus, under Article 29 of the Customs Code, the customs value of imported goods is, in principle, 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 where necessary in accordance with, inter alia, Article 32 of that code. (11)
15. Article 32(1)(c) of the Customs Code states that, in determining the customs value ‘under Article 29’, there is to be added to the price actually paid or payable for the imported goods ‘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’.
16. Pursuant to Article 157(1) of the Implementing Regulation, ‘royalties and licence fees’ for the purposes of Article 32(1)(c) of the Customs Code are to be taken to mean, in particular, payment for the use of rights relating ‘to the sale for exportation of imported goods (in particular, trade marks, registered designs)’ or ‘to the use or resale of imported goods (in particular, copyright, manufacturing processes inseparably embodied in the imported goods)’.
17. Article 157(2) of the Implementing Regulation lays down the conditions for the application of Article 32(1)(c) of the Customs Code to the effect that royalties or licence fees are to be added to the price actually paid or payable only when that payment ‘is related to the goods being valued’ and ‘constitutes a condition of sale of those goods’.
18. It follows that the adjustment required under Article 32(1)(c) of the Customs Code, concerned with the payment of royalties or licence fees, is conditional on the following three cumulative conditions being met: (i) the royalties or licence fees must not have been included in the price actually paid or payable; (ii) they must be related to the imported goods; and (iii) the buyer must be required to pay those royalties or licence fees as a condition of sale of the imported goods.
19. In the main proceedings, the first of these conditions is not covered by the questions referred by the national court. Indeed, it is common ground that GE Healthcare did not include the royalties or licence fees relating to the use of the trade mark forming the subject matter of the trade mark agreement with company M. in the customs value of the goods it imported from third countries. (12)
20. By contrast, the other two conditions concerning, first, the requirement that the royalties or licence fees for trade marks be ‘related’ or linked to the imported goods and, secondly, the obligation that such royalties or licence fees be paid as ‘a condition of sale’ of those goods, are central to the first three questions referred by the national court.
21. The first two questions submitted by the national court essentially involve establishing whether the royalties or licence fees are ‘related’ to the imported goods, even though it is not possible to determine, at the time when the trade mark agreement was concluded or when the customs debt was incurred, whether royalties or licence fees would arise, even though the latter were also paid for services provided by GE Healthcare to other undertakings and for the use of the business name of the GE group. By its third question, provided that the reply to the first two questions is in the affirmative, the national court enquires whether royalties or licence fees for trade marks are a ‘condition of sale’ of the imported goods even though, in the main proceedings, their payment was demanded by an undertaking related to both the buyer and the seller of those goods and was made to that same undertaking. As explained below, in order to examine this question it is necessary, in particular, to interpret Article 160 of the Implementing Regulation, which essentially provides that when the buyer of imported goods pays royalties or licence fees to a third party, those royalties or licence fees are not considered to be a condition of sale of the goods unless the seller or a person related to him demands that the buyer make that payment.
22. Only if the reply to question 3 is also in the affirmative does the national court enquire, by its fourth question, whether the adjustment provided for in Article 32(1)(c) of the Customs Code — which involves, in accordance with Article 158(3) of the Implementing Regulation, an appropriate apportionment between royalties or licence fees related to the imported goods and those related to the services provided by GE Healthcare — can be made only if the customs value can be determined on the basis of the transaction value set out in Article 29 of the Customs Code, but not on the basis of the alternative method laid down in Article 31 of that code which is not expressly referred to in Article 32 thereof.
23. Having made those observations, it is now appropriate to examine each of the questions in turn.
B – Questions 1 and 2: are the royalties or licence fees for trade marks related to the imported goods?
24. The national court essentially enquires, first of all, whether the royalties or licence fees are ‘related’ to the imported goods within the meaning of Article 32(1)(c) of the Customs Code, even though it is uncertain, at the time the trade mark agreement was concluded or when the customs debt was incurred whether those royalties or licence fees will have to be paid. Secondly, the national court is uncertain whether those royalties or licence fees can still satisfy that condition when they are paid not only for the placement on the market of the imported goods, but also for services provided by GE Healthcare to other undertakings and for the use of the business name of the GE group.
25. While GE Healthcare argues that those circumstances prevent royalties or licence fees being considered to relate to the imported goods, so that the adjustment provided for in Article 32(1)(c) of the Customs Code should not be made, all of the other interested parties take the opposite view.
26. For my part, it should be recalled, first of all, that in the context of a reference for a preliminary ruling, it is for the national court alone and not the Court of Justice to assess the facts in the main proceedings, in particular the terms of the trade mark agreement concluded between GE Healthcare and company M.
27. It is apparent from the explanations provided by the national court that, under the trade mark agreement, while the imported goods bearing the protected trade mark are marketed by GE Healthcare to third parties outside the GE group in return for royalties or licence fees, GE Healthcare is also able to import goods bearing the protected trade mark without royalties, namely goods used for test purposes, as demonstration appliances or as scrap or waste, as well as goods resold to other GE group companies which are under an obligation, like GE Healthcare, to pay royalties or licence fees. Furthermore, according to information supplied by the national court, the amount of royalties or licence fees for trade marks is determined according to GE Healthcare’s annual turnover, which also includes the services provided by it using the imported goods.
28. In the light of these considerations, the national court is unsure whether the royalties or licence fees relate to the imported goods. Payment of the first seems to depend on use of the second, namely a post-importation process, when the customs debt has already been incurred and the goods have been released for free circulation. Furthermore, the amount of royalties and licence fees to be paid is not determined based on the price of each imported good.
29. As regards the first point, it is apparent from the documents in the case that the obligation to pay royalties or licence fees for the use of the trade mark affixed to the goods imported by GE Healthcare is stipulated in the trade mark agreement, except in the specific cases mentioned in point 27 above, where the royalties are waived. Accordingly, those royalties or licence fees indeed relate to the imported goods, even if their precise amount is not determined at the time of conclusion of the trade mark agreement or at a later stage, when the customs declaration is accepted or the customs debt incurred.
30. As the German Government and the Commission correctly pointed out, Article 32(1)(c) of the Customs Code does not require, as one of the conditions for its application, that the amount of royalties or licence fees payable by the buyer of the imported goods be determined before the customs debt is incurred.
31. The provisions of the Implementing Regulation confirm that an ex post adjustment of the price to be paid after the customs debt has been incurred is perfectly possible. Thus, under Article 156a(1) of the Implementing Regulation, the customs authorities may, at the request of the person concerned, authorise certain elements which are to be added to the price actually paid or payable, although not quantifiable at the time the customs debt is incurred, to be determined on the basis of appropriate and specific criteria. Furthermore, Article 254 of the Implementing Regulation allows customs authorities, at the declarant’s request, to accept an incomplete declaration for release for free circulation which, under Article 257 thereof, may include a provisional indication of the customs value. That declaration may be completed or even replaced at a later stage in accordance with the conditions laid down in Articles 256, 257 and 259 of that regulation.
32. Moreover, if the royalties or licence fees could in no way be regarded as related to the imported goods because the amount of those royalties or licence fees was not determined when the customs debt was incurred, the practical effect of Article 32(1)(c) of the Customs Code would be undermined. As is apparent from paragraph 14 of Commentary No 3 of the Customs Code Committee (Customs Valuation Section) on the incidence of royalties and licence fees in customs value, such royalties and licence fees are in general calculated after importation of the goods to be valued. (13) Precisely because of this it is necessary either to defer the final determination of the customs value, in accordance with, in particular, Article 257 of the Implementing Regulation, or to have recourse to the adjustment provided for in Article 156a thereof.
33. It follows, in my view, that Article 32(1)(c) of the Customs Code does not require the amount of royalties or licence fees for trade marks to be determined, at the latest, at the time the customs debt is incurred in order for the adjustment of the customs value of the imported goods, provided for in that article, to be applicable.
34. As regards the second point, which is concerned with the fact that, under the trade mark agreement, the amount of royalties or licence fees payable is calculated independently of the price of each imported good, I do not think that this prevents royalties or licence fees for trade marks being related or connected to the imported goods.
35. It is true that, under the second paragraph of Article 161 of the Implementing Regulation, payment of the royalty or licence fee is assumed to be related to the goods to be valued where the method for calculating the amount of that royalty or licence fee derives from the price of the imported goods.
36. This provision does not however mean that where, as in the main proceedings, the royalty or licence fee is not determined on the basis of the price of each imported good, there can be no connection between that royalty or licence fee and the imported good.
37. It is apparent from the second paragraph of Article 161 of the Implementing Regulation that payment of the royalty or licence fee ‘may nevertheless be related to the goods to be valued’ even where the amount of that royalty or licence fee ‘is calculated regardless of the price of the imported goods’.
38. In this case, it is common ground that the amount of royalties or licence fees payable corresponds to a percentage of the turnover generated by the sale of the imported goods bearing the trade mark forming the subject matter of the trade mark agreement. Thus, royalties are paid in consideration for the use of the trade mark affixed to the imported goods.
39. The above situation is the same as that reflected in the two criteria listed in Article 159 of the Implementing Regulation, which seek to flesh out, in the specific context of trade marks, the condition requiring the payment of royalties or licence fees for trade marks to be ‘related’ to the imported goods. Thus, that article states that the royalty or licence fee in respect of the right to use a trade mark is to be added to the price actually paid or payable for the imported goods where ‘the royalty or licence fee refers to goods which are resold in the same state or which are subject only to minor processing after importation’ and ‘the goods are marketed under the trade mark, affixed before or after importation, for which the royalty or licence fee is paid’.
40. As is the case in the main proceedings, the payment of royalties or licence fees is indeed ‘related’ to the imported goods bearing the protected trade mark and, in particular, to the annual profits generated by the sale of those goods. (14)
41. As the German Government submitted, the fact that royalties or licence fees may, in part, also relate to services provided after importation of the goods or, to a negligible extent, to the use of the business name GE, does not mean that the royalties or licence fees have no connection whatsoever to the imported goods, for the purpose of Article 32(1)(c) of the Customs Code.
42. In actual fact, as the German Government and the Commission correctly observed, the Implementing Regulation made provision for the situation where the apportionment of royalties or licence fees is necessary in so far as they relate only partly to the imported goods. Under Article 158(3) of the Implementing Regulation, ‘if royalties or licence fees relate partly to the imported goods and partly to other ingredients or component parts added to the goods after their importation, or to post-importation activities or services, an appropriate apportionment shall be made only on the basis of objective and quantifiable data, in accordance with the interpretative note to Article 32(2) of the [Customs] Code in Annex 23 [to the Implementing Regulation]’.
43. Article 158(3) of the Implementing Regulation therefore presupposes that the condition laid down in Article 32(1)(c) of the Customs Code is satisfied even if the royalties or licence fees relate only partly to the imported goods. In that situation, the adjustment to be made to the customs value of those goods will be based on objective and quantifiable data enabling the amount of royalties or licence fees relating only to the imported goods to be determined, excluding other subsequent elements or processes, including the provision of services, which are unrelated to the imported goods.
44. It follows that the condition under Article 32(1)(c) of the Customs Code requiring royalties or licence fees to be related to the imported goods to be valued is satisfied even if those royalties or licence fees relate only partly to the imported goods.
45. I therefore propose that the Court should answer the first two questions referred for a preliminary ruling as follows. Article 32(1)(c) of the Customs Code must be interpreted as meaning that it does not require the amount of royalties or licence fees for trade marks to be determined before the customs debt is incurred in order for the adjustment of the customs value of the imported goods bearing that trade mark, provided for in that article, to be applicable. Article 32(1)(c) of the Customs Code accepts that royalties or licence fees for trade marks are ‘related’ to the imported goods bearing that trade mark, within the meaning of that article and Article 157(2) of the Implementing Regulation, even if the royalties or licence fees relate only partly to the imported goods.
C – Question 3: does payment of royalties or licence fees for trade marks constitute ‘a condition of sale’ of the imported goods?
46. By its third question, provided that the reply to the first two questions is in the affirmative, the national court enquires whether royalties or licence fees are ‘a condition of sale’ of the imported goods, within the meaning of Article 32(1)(c) of the Customs Code, even though, in the main proceedings, their payment was demanded by an undertaking related to both the buyer and the seller of those goods and was made to that same undertaking.
47. I recall that, under Article 32(1)(c) of the Customs Code, royalties or licence fees are included in the customs value of the imported goods if the buyer ‘must’ pay them, either directly or indirectly, as a ‘condition of sale’ of the goods being valued. Article 157(2) of the Implementing Regulation reproduces that condition.
48. However, neither Article 32(1)(c) of the Customs Code nor Article 157(2) of the Implementing Regulation specifies what is meant by ‘condition of sale’ of the imported goods.
49. Paragraph 12 of Commentary No 3 of the Customs Code Committee (Customs Valuation Section) on the incidence of royalties and licence fees in customs value states that the question is whether the seller is prepared to sell the goods without the payment of a royalty or licence fee. That condition may be explicit or implicit and may not necessarily result from the terms of the trade mark agreement.
50. As indicated above, even though the opinions or conclusions of the Customs Code Committee do not have binding force, they constitute an important means of ensuring the uniform application of the Customs Code by the customs authorities of the Member States and as such they may be considered as a valid aid to the interpretation of that code. (15)
51. I am of the view that it is entirely correct to consider that the payment of a royalty or licence fee constitutes a ‘condition of sale’ of the imported goods if the seller (or the person related to him) is not prepared to sell or cannot sell the goods without payment of the royalty or licence fee or, in other words, if the buyer is not able to acquire the imported goods without paying the royalty or licence fee. (16)
52. The assessment as to whether that condition is met is a matter for the national court in the light of all the documents in the case, particularly the trade mark agreement and the contracts for sale of the goods, and the circumstances of the main proceedings.
53. I note that the third question referred by the national court seems to be based on the assumption that the condition in question, laid down in Article 32(1)(c) of the Customs Code and Article 157(2) of the Implementing Regulation, might be, on the face of it, satisfied.
54. The national court nonetheless enquires whether the case in the main proceedings, which is characterised by a triangular relationship (buyer-licensee, seller and licensor) within a single group of companies, reflects the situation referred to in Article 160 of the Implementing Regulation. Under that provision, ‘when the buyer pays royalties or licence fees to a third party, the conditions provided for in Article 157(2) [of the Implementing Regulation] shall not be considered as met unless the seller or a person related to him requires the buyer to make that payment’. (17)
55. It is not in dispute in the main proceedings that the recipient of the royalties or licence fees is the same as the entity which required GE Healthcare to pay them.
56. From the standpoint of the interpretation of Article 160 of the Implementing Regulation, the question is whether the recipient ‘third party’ and ‘the person related’ to the seller can legitimately be one and the same. In practice, if that is the case, the condition laid down in Article 32(1)(c) of the Customs Code and Article 157(2) of the Implementing Regulation, under which payment of the royalty or licence fee must be ‘a condition of sale’ of the imported goods, can be regarded as met.
57. Except the applicant in the main proceedings, who essentially relies on the German version of Article 160 of the Implementing Regulation and contends, in short, that this article applies only to quadrangular relationships where the ‘third party’ is a person separate from the buyer, the seller and the ‘person related’ to the seller, the parties that submitted written observations argue that neither the Customs Code nor the Implementing Regulation prevents the recipient of royalties or licence fees and the person related to the seller of the imported goods from being one and the same entity or person.
58. I agree with that view.
59. I should point out first of all that the national court does not ask the Court about the nature of the relationship or the closeness of the links which must exist between the seller and the person ‘related to him’. It assumes that company M. is linked to the seller(s) of the goods imported by GE Healthcare on account of the fact that all of those undertakings belong to the GE group and are directly or indirectly controlled by the parent company of that group.
60. In the light of the information supplied by the national court, that assumption seems to me to be correct. It is apparent from Article 143(1)(f) of the Implementing Regulation, which is relevant to the interpretation of the provisions of the Customs Code and the Implementing Regulation concerning the customs value of the goods, that persons are deemed to be related if ‘both of them are directly or indirectly controlled by a third person’.
61. Secondly, as the German Government acknowledged, the German language version of Article 160 of the Implementing Regulation, in so far as the second part thereof seems to refer to a third party separate from both the seller and the person related to the seller, (18) could support the interpretation favoured by the applicant in the main proceedings.
62. However, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (19)
63. None of the other language versions of Article 160 of the Implementing Regulation contain a second reference to the ‘third party’ to whom royalties or licence fees are paid. (20)
64. This is not, however, the deciding factor. The obligation on the buyer to make ‘that payment’ obviously refers to the payment of royalties or licence fees which the buyer is required to make to the ‘third party’.
65. The fact that a person related to the seller is not classified as a ‘third party’, within the meaning of Article 160 of the Implementing Regulation, does not mean that the payment of royalties or licence fees is not a ‘condition of sale’ of the imported goods, within the meaning of Article 32(1)(c) of the Customs Code.
66. In my view, what matters is not so much the person to whom the payment of royalties or licence fees is made but rather, as indicated above, whether or not the buyer of the imported goods is able to acquire them from the seller without paying royalties or licence fees. In other words, the question whether the relationship is triangular or quadrangular is not determinative of the point in time when the seller or the person related to him compels the buyer of the imported goods, in one way or another, to pay royalties or licence fees. In short, the question is whether the person related to the seller holds a power of coercion or control over the buyer and/or seller of such a kind as to ensure that the goods bearing the trade mark forming the subject matter of the trade mark agreement are imported only in return for royalties or licence fees for trade marks.
67. Certainly, if the buyer is required to pay royalties or licence fees to the seller of the imported goods, the ‘condition of sale’ criterion, within the meaning of Article 32(1)(c) of the Customs Code, is satisfied and the question whether Article 160 of the Implementing Regulation applies does not arise. Similarly, if the payment of royalties or licence fees has to be made to a person related to the seller in order for the seller to agree to supply the goods to the buyer, it can be assumed that such payment is a ‘condition of sale’ of those goods.
68. In the situation at issue in the main proceedings, where it appears that, within a multinational group of interrelated companies, the obligation to pay royalties or licence fees for trade marks is imposed by the person related to the seller for the benefit of that same related person, it can also be assumed that the seller supplies the goods bearing the protected trade mark to the buyer solely because the buyer is required to pay royalties or licence fees for trade marks to the person related to the seller.
69. This interpretation is supported by paragraph 13 of Commentary No 3 of the Customs Code Committee (Customs Valuation Section) on the incidence of royalties and licence fees in customs value, according to which the seller of goods or a person related to him may be regarded as requiring the buyer to pay royalties or licence fees when, in a multinational group, goods are bought from one member of the group and the royalty has to be paid to another member of the same group.
70. As was essentially argued by the German and Italian Governments, only an interpretation such as this one ensures that the relations between subsidiaries of a multinational group of companies, within which those subsidiaries are subject to the internal guidelines of the parent company of the group as part of a strategic sales model, do not fall outside the scope of Article 32(1)(c) of the Customs Code.
71. In this case, the national court confirmed that company M., the licensor and party related to the sellers belonging to the GE group, held broad powers of supervision over GE Healthcare.
72. It is true that, in circumstances such as those in the main proceedings, the buyer is able to generate a degree of competition between the sellers belonging to the group because he can approach several suppliers in order to import the goods bearing the protected trade mark.
73. Under the third indent of Article 159 of the Implementing Regulation, the royalty or licence fee in respect of the right to use a trade mark is only to be added to the price actually paid or payable for the imported goods where ‘the buyer is not free to obtain such goods from other suppliers unrelated to the seller’.
74. That condition is, to my mind, met and the adjustment provided for in Article 32(1)(c) of the Customs Code must be applied if it is the case — and I am sure that it is and it may be assumed to be so, although the national court will have to satisfy itself on this point in the light of all the documents in the case — that those suppliers are themselves bound by the internal guidelines of the group of companies and are able to sell the goods to the buyer only if the buyer pays royalties or licence fees for trade marks. Since the trade mark agreement was concluded with another group company prior to the sale of the goods bearing the protected trade mark, it can be generally assumed that the suppliers of those goods agree to sell them to the buyer only because the buyer is already bound by the trade mark agreement.
75. The fact, mentioned by the applicant in the main proceedings, that the amount of royalties or licence fees is not known when the goods are imported and when the customs debt is incurred, since that amount depends on GE Healthcare’s turnover from marketing imported goods bearing the protected trade mark to third parties, does not alter the fact that the royalties or licence fees are indeed chargeable under the trade mark agreement for those goods. It can therefore be assumed that, within a single group of companies, the seller of the goods would not have agreed to supply those goods to GE Healthcare unless royalties or licence fees were paid.
76. Finally, if the formal interpretation based on the wording of Article 160 of the Implementing Regulation, put forward by the applicant in the main proceedings, were to be endorsed, only royalties or licence fees paid by the buyer of goods imported from a third undertaking separate from the group of companies could be regarded as a ‘condition of sale’ of the goods within the meaning of Article 32(1)(c) of the Customs Code. I find it difficult to see why that condition would not be met in identical circumstances simply because the payment of royalties or licence fees for trade marks is made within a single group of companies.
77. I take the view that such a formal interpretation of Article 160 of the Implementing Regulation would deprive Article 32(1)(c) of the Customs Code of its practical effect. Indeed, that interpretation would affect, without any economic justification, the objective pursued by the latter article — and even, more generally, the objective pursued by the provisions of the Customs Code concerning the customs value of goods — which, I recall, is to ensure that adjustments to the price paid or payable for imported goods reflects the actual value of those goods, taking into account the economic value of all their constituent elements.
78. I therefore propose that the Court should answer the third question referred for a preliminary ruling by declaring that Article 32(1)(c) of the Customs Code and Articles 159 and 160 of the Implementing Regulation must be interpreted as meaning that the payment of royalties or licence fees for trade marks may constitute a ‘condition of sale’ of the imported goods where, within a single group of companies, the undertaking to which those royalties or licence fees are paid is related to both the seller and the buyer of the goods and the latter is required to pay the royalties or licence fees at the request of the seller or the undertaking related to him, without it being possible for the buyer to purchase the goods from another supplier unrelated to the seller. It is for the national court to verify whether those conditions are met in the case in the main proceedings.
D – Question 4 — does the adjustment provided for in Article 32 of the Customs Code apply only to the customs value determined in accordance with Article 29 thereof?
79. By its fourth question, which is raised only if the reply to the previous question is in the affirmative, the national court essentially enquires whether the adjustment provided for in Article 32(1)(c) of the Customs Code — which involves an appropriate apportionment based on objective and quantifiable data in accordance with Article 158(3) of the Implementing Regulation between royalties or licence fees for trade marks related to the imported goods and those related to the services provided by GE Healthcare — can be made only if the customs value can be determined on the basis of the transaction value set out in Article 29 of the Customs Code, but not on the basis of the alternative method laid down in Article 31 of that code, which is not expressly referred to in Article 32 thereof.
80. Based purely on the reference for a preliminary ruling, the origin of this question is unclear, as is the usefulness of any reply which the Court might give to it.
81. However, the documents in the case and the observations of the interested parties provide helpful information as to how the Court’s answer should be expressed. Thus, it is apparent from that information that, as regards the 2009 tax year, the Principal Customs Office, Düsseldorf, after learning of the breakdown of GE Healthcare’s turnover between imported goods bearing the protected trade mark and services provided by it, was able to apply the adjustment based on Article 32(1)(c) of the Customs Code (and therefore increase the transaction value under Article 29 of that code), in respect of only a percentage of the turnover generated by the sale of the imported goods.
82. By contrast, as regards a number of earlier tax years, it seems that the Principal Customs Office, Düsseldorf did not receive sufficient information to be able to make such an adjustment to the transaction value. Since the Principal Customs Office, Düsseldorf was not therefore able to rely on Article 29 of the Customs Code or, it seems, on the method referred to in Article 30 thereof, it apparently applied the alternative method for determining the customs value laid down in Article 31 of the Customs Code.
83. In so far as the introduction to Article 32 of the Customs Code, relating to the adjustments to be made, expressly refers only to the determination of the ‘customs value under Article 29’ of that code and not to that established in accordance with Article 31 thereof, the national court enquires, in short, whether the impossibility of determining the transaction value, on account of GE Healthcare’s refusal to supply complete information on the breakdown of its turnover for the tax years in question, prevents the Principal Customs Office, Düsseldorf from increasing the customs value of imported goods bearing the protected trade mark based on the data available to it for the 2009 tax year.
84. That being so, it should be recalled that it is common ground that the customs value of the imported goods must, as a matter of priority, be determined on the basis of the transaction value laid down in Article 29 of the Customs Code. If it cannot be so determined under that article, the customs valuation is to be carried out in accordance with the provisions of Article 30 of that code. If it is not possible to determine the customs value of the imported goods on the basis of Article 30 of the Customs Code either, the customs valuation is to be carried out in accordance with the provisions of Article 31 thereof. These three provisions are therefore subordinately linked to each other. (21)
85. As an alternative method, Article 31(1) of the Customs Code enables the customs value of the imported goods to be determined ‘on the basis of data available in the Community, using reasonable means consistent with the principles and general provisions of’, in particular, ‘the provisions of … Chapter [3 of the code on the value of goods for customs purposes]’.
86. The reference to the provisions of Chapter 3 of the Customs Code means that the principles and general provisions of that chapter, of which Article 32 of the code forms part, apply even where the customs value is determined in accordance with Article 31(1) of the Customs Code.
87. The methods of valuing the customs value are therefore to be applied, in the context of that provision, with ‘reasonable flexibility’ in conformity, in particular, with the principles governing the determination of that value. (22)
88. This reminder of the principles of Chapter 3 of the Customs Code signifies that, first, customs valuation excludes the use of arbitrary or fictitious customs values, (23) which is moreover reiterated in Article 31(2)(f) of the Customs Code.
89. From that perspective, it is therefore possible, in my view, as the national court envisages, to have recourse by analogy to the apportionment provided for in Article 158(3) of the Implementing Regulation, according to which if ‘royalties or licence fees relate partly to the imported goods and partly … to post-importation activities or services, an appropriate apportionment shall be made only on the basis of objective and quantifiable data’. As the national court mentioned, the onus is on it to ascertain whether there are ‘objective and quantifiable data’ on the basis of which an apportionment can be made which is similar to that provided for in Article 158(3) of the Implementing Regulation.
90. Secondly, and as a corollary, the determination of the customs value in accordance with Article 31(1) of the Customs Code also has to comply with the principle that this value must reflect the actual value of the imported goods, taking into account all the constituent elements of those goods that have economic value.
91. If an undertaking fails to provide the customs authorities of a Member State with information relating to one or more tax years which is necessary in order to determine the transaction value of imported goods bearing a protected mark, or provides incomplete information, those authorities are entitled, subject to review by the national courts, to have recourse to the method provided for in Article 31(1) of the Customs Code and to take account of data available in the Community in their possession, particularly data concerning other tax years of that undertaking. Such data may, in principle, be regarded as ‘objective and quantifiable’ within the meaning of Article 158(3) of the Implementing Regulation, thereby enabling the appropriate apportionment referred to in that article to be made. As the Commission and the German Government rightly pointed out, to find otherwise would confer an unfair advantage on an economic operator, allowing him to derive benefit from his refusal to submit all of the information required in order for the customs value of the imported goods to be properly valued.
92. I therefore propose that the Court find that the adjustment provided for in Article 32(1)(c) of the Customs Code and the appropriate apportionment on the basis of objective and quantifiable data provided for in Article 158(3) of the Implementing Regulation between royalties or licence fees related to the imported goods and those related to post-importation services can be made if the customs value of the goods cannot be determined on the basis of the transaction value set out in Article 29 of the Customs Code, provided that that value can be established only on the basis of the alternative method laid down in Article 31 of that code.
IV – Conclusion
93. In the light of all of the foregoing considerations, I suggest that the Court give the following reply to the request for a preliminary ruling from the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany):
(1) Article 32(1)(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that it does not require the amount of royalties or licence fees for trade marks to be determined before the customs debt is incurred in order for the adjustment of the customs value of the imported goods bearing that trade mark, provided for in that article, to be applicable.
(2) Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as accepting that royalties or licence fees for trade marks are ‘related’ to the imported goods bearing that trade mark, within the meaning of that article and Article 157(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1792/2006 of 23 October 2006, even if the royalties or licence fees relate only partly to the imported goods.
(3) Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Articles 159 and 160 of Regulation No 2454/93, as amended by Regulation No 1792/2006, must be interpreted as meaning that the payment of royalties or licence fees for trade marks may constitute a ‘condition of sale’ of the imported goods where, within a single group of companies, the undertaking to which those royalties or licence fees are paid is related to both the seller and the buyer of the goods and the latter is required to pay the royalties or licence fees at the request of the seller or the undertaking related to him, without it being possible for the buyer to purchase the goods from another supplier unrelated to the seller. It is for the national court to verify whether those conditions are met in the case in the main proceedings.
(4) The adjustment provided for in Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and the appropriate apportionment on the basis of objective and quantifiable data provided for in Article 158(3) of Regulation No 2454/93, as amended by Regulation No 1792/2006, between royalties or licence fees related to the imported goods and those related to post-importation services, can be made if the customs value of the goods cannot be determined on the basis of the transaction value set out in Article 29 of Regulation No 2913/92, as amended by Regulation No 1791/2006, provided that that value can be established only on the basis of the alternative method laid down in Article 31 of Regulation No 2913/92, as amended by Regulation No 1791/2006.