Contents
Judgment of the Court (Fourth Chamber)11 March 2020note(Reference for a preliminary ruling — Customs Union and Common Customs Tariff — Regulation (EC) No 1234/2007 — Regulation (EC) No 1484/95 — Import of frozen poultrymeat originating in Brazil — Post-clearance recovery of additional import duties — Verification mechanism — Method for calculating additional duties)In Case C‑160/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 23 February 2018, received at the Court on 28 February 2018, in the proceedingsX BVvStaatssecretaris van Financiën,THE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Fourth Chamber, D. Šváby, K. Jürimäe (Rapporteur) and N. Piçarra, Judges,Advocate General: M. Szpunar,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 6 March 2019,after considering the observations submitted on behalf of:– X BV, by A. Baert and P. Heeren, advocaten, and by R. Ramautarsing, K. Winters, and L. Gilhuijs,– the Netherlands Government, by M.K. Bulterman and C.S. Schillemans, acting as Agents,– the European Commission, by W. Roels and B. Hofstötter, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 June 2019,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 3(2), (4) and (5) of Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC (OJ 1995 L 145, p. 47), as amended by Commission Regulation (EU) No 248/2010 of 24 March 2010 (OJ 2010 L 79, p. 1) (‘Regulation No 1484/95’).
2The request has been made in proceedings between X BV and the Staatssecretaris van Financiën (State Secretary for Finance, Netherlands) concerning a request for payment of additional import duties in respect of frozen poultrymeat originating in Brazil.
Legal context
The Single CMO Regulation
3Article 141 of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), as amended by Council Regulation (EU) No 491/2009 of 25 May 2009 (OJ 2009 L 154, p. 1) (‘the Single CMO Regulation’), provided:1.An additional import duty shall apply to imports, subject to the rate of duty laid down in Articles 135 to 140a of one or more products of the cereals, rice, sugar, fruit and vegetables, processed fruit and vegetables, beef and veal, milk and milk products, pig meat, sheep meat and goat meat, eggs, poultry and bananas sectors, as well as of grape juice and grape must, in order to prevent or counteract adverse effects on the [internal] market which may result from those imports, if:(a) the imports are made at a price below the level notified by the [European Union] to the [World Trade Organisation] (the trigger price); or(b) the volume of imports in any year exceeds a certain level (the trigger volume).The trigger volume shall be based on market access opportunities defined, where applicable, as imports as a percentage of the corresponding domestic consumption during the three previous years.2. Additional import duties shall not be imposed where the imports are unlikely to disturb the [internal] market, or where the effects would be disproportionate to the intended objective.3. For the purposes of paragraph 1(a), import prices shall be determined on the basis of the c.i.f. [(cost, insurance and freight) (“CIF”)] import prices of the consignment under consideration.[CIF] import prices shall be checked against the representative prices for the product on the world market or on the [internal] import market for that product.’
Regulation No 1484/95
4The third recital of Regulation No 1484/95 states:‘Whereas the import prices to be taken into consideration for imposing an additional import duty should be checked against the representative prices on the world market or on the Community import market for the products in question; whereas it is necessary that Member States communicate the prices at various stages of marketing at regular intervals in order to be able to determine the representative prices and the corresponding additional duties’.
5Article 2(1) of that regulation provides:‘The representative prices referred to in Article 141(3) of Council Regulation (EC) No 1234/2007 … and in the second subparagraph of Article 3(3) of Regulation (EEC) No 2783/75 [of the Council of 29 October 1975 on the common system of trade for ovalbumin and lactalbumin (OJ 1975 L 282, p. 104)] shall be determined at regular intervals on the basis of data collected under the Community surveillance system governed by Article 308d of Commission Regulation (EEC) No 2454/93 [of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)].’
6Article 3 of Regulation No 1484/95 provides:1. The additional duty shall be established on the basis of the [CIF] import price of the consignment in question in accordance with the provisions of Article 4.2.When the [CIF] import price per 100 kg of a consignment is higher than the applicable representative price referred to in Article 2(1), the importer shall present to the competent authorities of the importing Member States at least the following proofs:– the purchasing contract, or any other equivalent document,– the insurance contract,– the invoice,– the certificate of origin (where applicable),– the transport contract,– and, in the case of sea transport, the bill of lading.3. In the case referred to in paragraph 2, the importer must lodge the security referred to in Article 248(1) of Regulation (EEC) No 2454/93, equal to the difference between the amount of additional import duty calculated on the basis of the representative price applicable to the product in question and the amount of additional import duty calculated on the basis of the [CIF] import price of the consignment in question.4. The importer shall have two months from the sale of the products in question, subject to a limit of nine months from the date of acceptance of the declaration of release for free circulation, to prove that the consignment was disposed of under conditions confirming the correctness of the prices referred to in paragraph 2. Failure to meet one or other of these deadlines shall entail the loss of the security lodged. However, the time limit of nine months may be extended by the competent authorities by a maximum of three months at the request of the importer, which must be duly substantiated.The security lodged shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities. Otherwise, the security shall be forfeit by way of payment of the additional duties.5. If on verification the competent authorities establish that the requirements of this Article have not been met, they shall recover the duty due in accordance with Article 220 of [Council] Regulation (EEC) No 2913/92 [of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1)]. The amount of the duty to be recovered or remaining to be recovered shall include interest from the date the goods were released for free circulation up to the date of recovery. The interest rate applied shall be that in force for recovery operations under national law.’
7Article 4 of Regulation No 1484/95 provides:1.If the difference between the trigger price in question referred to in Article 1(2) and the [CIF] import price of the consignment in question:(a) is less than or equal to 10% of the trigger price, no additional duty shall be imposed;(b) is greater than 10% but less than or equal to 40% of the trigger price, the additional duty shall equal 30% of the amount by which the difference exceeds 10%;(c) is greater than 40% but less than or equal to 60% of the trigger price, the additional duty shall equal 50% of the amount by which the difference exceeds 40%, plus the additional duty allowed under (b);(d) is greater than 60% but less than or equal to 75%, the additional duty shall equal 70% of the amount by which the difference exceeds 60% of the trigger price, plus the additional duties allowed under (b) and (c);(e) is greater than 75% of the trigger price, the additional duty shall equal 90% of the amount by which the difference exceeds 75%, plus the additional duties allowed under (b), (c) and (d).’
The Customs Code
8Article 4 of Regulation No 2913/92, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1) (‘the Customs Code’), provided:‘For the purposes of this Code, the following definitions shall apply:…(9) “Customs debt” means the obligation on a person to pay the amount of the import duties (customs debt on importation) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force.(10) “Import duties” means:– customs duties and charges having an effect equivalent to customs duties payable on the importation of goods,– import charges introduced under the common agricultural policy or under the specific arrangements applicable to certain goods resulting from the processing of agricultural products.…(16) “Customs procedure” means:(a) release for free circulation;……’
9Article 29(1) of the Customs Code provided:‘The customs value of imported goods 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 [European Union], adjusted, where necessary, in accordance with Articles 32 and 33, provided:(a) that there are no restrictions as to the disposal or use of the goods by the buyer, other than restrictions which:– are imposed or required by a law or by the public authorities in the [European Union],– limit the geographical area in which the goods may be resold,or– do not substantially affect the value of the goods;(b) that the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued;(c) that no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with Article 32;and(d) that the buyer and seller are not related, or, where the buyer and seller are related, that the transaction value is acceptable for customs purposes under paragraph 2.’
10Under Article 30(1) and (2) of that code:1. Where the customs value cannot be determined under Article 29, it is to be determined by proceeding sequentially through subparagraphs (a), (b), (c) and (d) of paragraph 2 …2.The customs value as determined under this Article shall be:(a) the transaction value of identical goods sold for export to the [European Union] and exported at or about the same time as the goods being valued;(b) the transaction value of similar goods sold for export to the [European Union] and exported at or about the same time as the goods being valued;(c) the value based on the unit price at which the imported goods [or] identical or similar imported goods are sold within the [European Union] in the greatest aggregate quantity to persons not related to the sellers;(d) the computed value, consisting of the sum of:– the cost or value of materials and fabrication or other processing employed in producing the imported goods,– an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the [European Union],– the cost or value of the items referred to in Article 32(1)(e).’
11Article 31 of that code provided:1.Where the customs value of imported goods cannot be determined under Articles 29 or 30, it shall be determined, on the basis of data available in the [European Union], using reasonable means consistent with the principles and general provisions of:– the agreement on implementation of Article VII of the General Agreement on Tariffs and Trade of 1994– Article VII of the General Agreement on Tariffs and Trade of 1994and– the provisions of this chapter.…’
12Article 220(1) of the Customs Code provided:‘Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time limit may be extended in accordance with Article 219.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
13X is a company which markets products derived from poultrymeat. It is part of an international group of which E SA, a company which produces products also derived from poultrymeat and which is established in Brazil, is also a member. Undertakings related to that producer, such as X, buy and sell those products and organise the distribution thereof on the EU market.
14X bought frozen poultrymeat from F Ltd, to whom it is related. That meat was then sold on the EU market, both to undertakings related to X and to independent third parties.
15Frozen poultrymeat, classified under subheading 02071410 of the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), is subject to a specific customs duty of EUR 102.40 per 100 kilograms. In addition, that meat is subject to the system of additional duties laid down by Regulation No 1484/95 and the Single CMO Regulation. Thus, additional duties may be payable on the import of that meat, where the CIF import price of the poultrymeat is less than the trigger price referred to in Article 141(1)(a) of the Single CMO Regulation.
16It is apparent from the order for reference that, in the present case, the Netherlands customs authorities concluded agreements with X regarding the method for calculating the customs value of frozen poultrymeat originating in Brazil and sold by E. It was agreed to use the price E was invoicing undertakings established in the European Union and to whom it was related as a basis, increased by 15% in order to cover direct and indirect costs, other than production costs, and profit.
17The Netherlands customs authorities considered that this was an acceptable method for calculating the CIF import price. Nevertheless, they indicated that they reserved the right to take the measures necessary to precisely determine the customs value in the event that that value had been calculated on the basis of inaccurate data.
18During the period from 1 January 2009 to 30 June 2010, X made 709 declarations of release for free circulation in respect of the poultrymeat concerned, in accordance with the agreements referred to in paragraph 16 above. The CIF import price reported in those declarations was always greater than the trigger price. Consequently, on each occasion, the Netherlands customs authorities released that meat for free circulation, without collecting additional import duties. In addition, by way of derogation from Article 3(3) and (4) of Regulation No 1484/95, those authorities did not require X to lodge a security for the release of that meat for free circulation; nor did they require it to prove, following that release, that that consignment of poultrymeat had been disposed of under conditions confirming the correctness of the declared CIF import price.
19In November 2011, a Netherlands customs authorities inspector (‘the inspector’) carried out a post-clearance check to confirm whether the CIF import price reported by X in those declarations was accurate. It found, in that regard, that X had sold that poultrymeat at the same price to companies to whom it was related and to independent third parties. In addition, the inspector found that the sale price applied by X was in almost all cases less than both the CIF import price reported in those declarations, increased by specific import duties, and the trigger price.
20Accordingly, the inspector considered that, for 705 of the declarations made, the poultrymeat concerned had not been resold by X under normal commercial circumstances and that, consequently, the reported CIF import prices were not acceptable, with the result that additional duties were payable.
21Applying Article 4 of Regulation No 1484/95 ‘by analogy’, the inspector calculated the amount of additional duties payable on the basis of the difference between the trigger price and the representative price, determined in Article 141(3) of the Single CMO Regulation, read in conjunction with Article 2(1) of Regulation No 1484/95. In that regard, the inspector sent X a request for payment of additional duties in the amount of EUR 2163 793.55.
22X contested that request for payment before the rechtbank Noord-Holland (District Court, North Holland, Netherlands). After its action was dismissed as unfounded, X brought an appeal against the decision of that court before the Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands), then, after that court dismissed its appeal, brought an appeal in cassation before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).
23The referring court indicates that the grounds of appeal in cassation raised before it allege, first, an incorrect application of Articles 3 and 4 of Regulation No 1484/95 inasmuch as the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) held that the inaccuracy of the CIF import prices reported in the customs declarations concerned could be inferred from the fact that the sales prices were lower than the reported CIF import prices and the applicable representative prices. Second, it is alleged that the inspector erred in accepting, in the agreements in question, that it is possible for X to calculate the CIF import price without requiring a profit from the sale of the goods concerned.
24According to the referring court, those grounds raise issues relating to the criteria to be used where the accuracy of a CIF import price is verified or checked post-clearance as described in Article 3(4) and (5) of Regulation No 1484/95 and to the consequences to be drawn by the authorities concerned where it is impossible to determine that price on the basis of those criteria.
25That court questions whether the sale of a product at a price lower than the reported CIF import price or the applicable representative price is sufficient for a finding that additional duties are payable. In that regard, it questions, in particular, the meaning to be given to the concept of ‘conditions’ or ‘requirements’ referred to in Article 3(4) and (5) of Regulation No 1484/95. It also questions whether, for the purpose of interpreting that concept, it is necessary to take account of the fact that the imported goods have been bought and then resold to an undertaking related to the undertaking concerned.
26According to the referring court, a positive response to that question can be justified by the fact that the sale of goods at a price lower than the representative price disturbs the EU market, which justifies the application of additional duties. According to that interpretation, used by the Gerechtshof Amsterdam (Court of Appeal, Amsterdam), it is unnecessary to examine whether the CIF import price reported by the importer is accurate. The additional import duties can thus be applied solely on the basis of the representative price. However, the referring court questions whether it is possible to combine such an approach with Article 141(3) of the Single CMO Regulation, as interpreted by the Court of Justice in the judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681), according to which the representative price for the product in question is to be taken into account only for the purpose of verifying whether the CIF import price is accurate.
27In addition, the referring court does not rule out the possible existence of situations where the sale price may be lower than the CIF import price, or even the representative price. An operator on the market concerned may thus be constrained, in difficult market conditions, to sell products at a loss for a limited period in order to retain its position on that market. Nevertheless, that court indicates that, in particular in the case of related undertakings, transactions may be set up artificially, primarily in order to evade or avoid the payment of additional duties. Thus, it is necessary to examine the transactions that preceded and followed the import transaction concerned, together with the economic and commercial reasons given for those transactions.
28In that regard, it is possible to interpret Article 3(2), (4) and (5) of Regulation No 1484/95 as meaning that the control mechanism laid down therein is intended to ensure that the competent authorities are made aware of transactions which may give rise to doubts as to the accuracy of reported CIF import prices. It is then for the competent authorities to carry out a complementary check, as in the case which gave rise to the judgment of 19 October 2017, A (C‑522/16, EU:C:2017:778), in order to verify the accuracy of the CIF import price which, as the Court of Justice held in the judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681), is the only possible basis for determining the additional duties.
29If it is not possible, following that additional check, to establish that the CIF import price reported by the undertaking concerned is inaccurate, the price mentioned by the importer must be accepted. That solution is in line with the principle of legal certainty, as it enables the importer to calculate, at the time of importing the goods, the amount of additional duties payable.
30In those circumstances the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Must paragraphs 2, 4 and 5 of Article 3 of Regulation … No 1484/95, read in conjunction with Article 141 of [the Single CMO Regulation], be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the [CIF] import price reported is correct and could constitute grounds for a supplementary inspection?Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the [EU] market at a price below the reported [CIF] import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the [EU] market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context, is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies?(2) If it follows from the answers to the questions set out under 1 above that reselling at a loss constitutes a sufficient ground for rejecting the reported [CIF] import price, how should the level of the additional duties due be determined? Should that basis be established in accordance with the methods for determining customs value laid down in Articles 29 to 31 of [the Customs Code]? Or must it be established solely on the basis of the applicable representative price? Does Article 141(3) of [the Single CMO Regulation] preclude use of the representative price determined prior to 11 September 2009?(3) If it follows from the answers to Questions 1 and 2 that the decisive factor in additional duties being owed is the resale of imported products at a loss on the [EU] market, and the representative price must then be taken as a basis for calculating the level of those additional duties, are paragraphs 2, 4 and 5 of Article 3 of Regulation … No 1484/95 compatible with Article 141 of [the Single CMO Regulation] in the light of [the judgment of 13 December 2001, Kloosterboer Rotterdam, C‑317/99, EU:C:2001:681]?’
Consideration of the questions referred
The first question
31By its first question, the referring court asks, in essence, whether, on a proper construction of Article 3(4) of Regulation No 1484/95, the fact that goods imported into the European Union have been sold at a loss, that is, at a lower price than the CIF import price as set out in the customs declaration, is in itself sufficient grounds for a finding that the correctness of that price has not been proved.
32In order to answer that question, it is necessary, as a first step, to define the meaning to be given to the requirement, laid down in Article 3(4) of Regulation No 1484/95, that ‘the consignment was disposed of under conditions confirming the correctness of the [CIF import] prices’.
33It should be noted, in that regard, that that regulation does not define the concept of ‘conditions of disposal’ as set out in Article 3(4) thereof.
34However, the need for a uniform application of EU law and the principle of equality require that the wording of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union (judgment of 1 October 2019, Planet49, C‑673/17, EU:C:2019:801, paragraph 47 and the case-law cited). In addition, according to the settled case-law of the Court, when a provision of EU law is being interpreted, account must be taken not only of its wording and the objectives it pursues, but also of its context and the provisions of EU law as a whole (see, to that effect, judgments of 4 July 2019, Baltic Media Alliance, C‑622/17, EU:C:2019:566, paragraph 63, and of 8 July 2019, Commission v Belgium (Article 260(3) TFEU — High-speed networks), C‑543/17, EU:C:2019:573, paragraph 49).
35Regarding, in the first place, the literal interpretation of the concept of ‘conditions of disposal’ used in most language versions of Article 3(4) of Regulation No 1484/95, the fact that the term ‘conditions’ is used in the plural indicates the desire of the legislature to refer to a set of conditions, and not simply one condition in particular. In addition, the term ‘disposal’ refers, in principle, to the process of selling a consignment of goods on the EU market after they have been imported.
36Moreover, Article 3(4) of Regulation No 1484/95 specifies that those ‘conditions of disposal’ are capable of confirming the correctness of the CIF import price as set out in the customs declaration. The use of the term ‘confirming’ shows, in that regard, that the elements relating to those conditions are capable of forming a body of evidence confirming the correctness of the CIF import price as set out in the customs declaration.
37It thus follows from the wording of that provision that the concept of ‘conditions of disposal’ is to be understood as designating all the circumstances arising after the goods have been released for free circulation within the European Union which are capable of confirming or calling into question the correctness of the CIF import price as set out in the customs declaration.
38In the second place, it should be noted that that possibility of confirming the correctness of the CIF import price in the light of all the circumstances surrounding a consignment of goods meets the objective pursued by Regulation No 1484/95, which is, as is apparent from Article 3(2) of that regulation, read in the light of the third recital thereof, to introduce a procedure for verifying the correctness of the CIF import price set out in a customs declaration. That procedure is triggered when the CIF import price set out in a customs declaration is higher than the applicable representative price for the product in question, which corresponds, pursuant to Article 2(1) of that regulation, in essence, to the average market price of the product concerned at a given moment.
39In so far as additional duties are calculated on the basis of the CIF import price as set out in a customs declaration, an importer could have an interest in declaring a higher CIF import price in order to evade or reduce the amount of duties payable. As is apparent from Article 4 of Regulation No 1484/95, the higher the CIF import price, the lower the amount of additional duties payable by the importer.
40Accordingly, in a situation where the CIF import price is higher than the applicable representative price, Article 3(4) of Regulation No 1484/95 enables the customs authorities to check, after the goods have been released for free circulation, whether the CIF import price is correct, by verifying whether that price is confirmed in the light of the ‘conditions of disposal’ of that consignment of goods.
41In the third place, regarding the context of that concept, it should be noted that it is apparent from a combined reading of Article 3(4) and (5) of Regulation No 1484/95 that the customs authorities have the possibility of carrying out post-clearance, that is to say, after the goods concerned have been released for free circulation, checks as to whether the CIF import price set out in a customs declaration is correct in order that, where appropriate, additional duties may be applied that were not applied initially because a CIF import price was declared which was not correct.
42It follows from the foregoing that the concept of ‘conditions of disposal’ referred to in Article 3(4) of Regulation No 1484/95 must be interpreted as referring to all the conditions relating to the process of selling goods in the European Union, which may form a body of consistent evidence enabling the correctness of the CIF import price as set out in a customs declaration to be confirmed for the purpose of establishing the amount of additional duties to be recovered or remaining to be recovered.
43On the basis of that interpretation, it is necessary, as a second step, to determine whether the fact that an importer has sold its goods at a loss, namely at a price lower than the CIF import price set out in the customs declaration, within the European Union may, in itself, permit a finding by the customs authorities that the correctness of that price has not been proved and the application of additional duties by those authorities.
44In that regard, it should be noted that it is true that such a sale at a loss, which is not, by nature, a profitable commercial practice, may be a strong indication that the CIF import price set out in the customs declaration has been artificially increased by the importer in order to evade the import duty to be paid or to reduce the amount thereof, particularly where the sale at a loss is a recurring event or takes place over a long period.
45However, as was noted by the Advocate General in point 43 of his Opinion, the mere finding that an importer has sold goods at a loss within the European Union cannot permit the automatic conclusion by the customs authorities that the CIF import price set out in a customs declaration is not correct.
46As has been stated in paragraph 42 above, pursuant to Article 3(4) of Regulation No 1484/95, verification of the correctness of the CIF import price set out in a customs declaration must be carried out having regard to all the conditions of disposal of a consignment of goods. It is only if the elements forming part of a body of consistent evidence relating to all those conditions do not enable the correctness of the CIF import price as set out in that declaration to be confirmed that the customs authorities may consider that that price is not correct and may establish the amount of additional duties to be recovered or remaining to be recovered. Accordingly, the customs authorities cannot confine themselves to verifying the sale price of the goods concerned in order to set aside the CIF import price and apply additional duties.
47As has been asserted by the Netherlands Government and the Commission in their observations, it is possible, in a situation where goods have been imported into the European Union and then sold at a loss, that the CIF import price set out in a customs declaration may be justified in the light of other conditions relating to the disposal of a consignment of goods, including the commercial data relating to that consignment. Thus, it is not inconceivable that an adverse development on the market regarding the price of the goods in question may, in certain circumstances, oblige an importer to sell, during a certain period, those goods at a price lower than the price it actually paid in connection with the transaction in respect of which the customs declarations were made, in order to retain its position on that market.
48However, as can be seen from Article 3(4) of Regulation No 1484/95, it is for the importer to prove to the customs authorities that a consignment was disposed of under conditions confirming the correctness of the CIF import price as set out in the customs declaration.
49Accordingly, as was noted by the Advocate General in points 43 and 45 of his Opinion, in a situation where the CIF import price is lower than the applicable representative price, it is for the importer to prove, by providing all necessary information and explanations in that regard concerning, inter alia, the circumstances surrounding a possible sale at a loss of the goods concerned and the connections that may exist between the importer and the purchasers of those goods on the EU market, that the conditions of disposal of the consignment concerned confirm the correctness of the CIF import price declared by that importer.
50If, after having been put in a position to prove that those conditions of disposal confirm the correctness of the CIF import price set out in the customs declaration, the importer has not provided evidence or information enabling it to be established that that price is correct, it follows from Article 3(5) of Regulation No 1484/95 that the customs authorities are to recover the additional duties payable in accordance with Article 220 of the Customs Code.
51Having regard to all of the foregoing, the answer to Question 1 is that, on a proper construction of Article 3(4) of Regulation No 1484/95, the fact that goods imported into the European Union have been sold at a loss, that is, at a lower price than the CIF import price as set out in the customs declaration, is not in itself sufficient grounds for a finding that the correctness of the CIF import price has not been proved where the importer proves that all the conditions under which the consignment of those goods took place confirm that that price is correct.
The second question
52By its second question, the referring court questions the Court of Justice as to the method to be used by the customs authorities in order to determine additional duties that may be payable, where the importer is unable to prove, in accordance with the considerations set out in paragraphs 48 to 50 above, that the CIF import price set out in the customs declaration is correct.
53Consequently, it must be held that, by that question, the referring court is asking, in essence, whether, on a proper construction of Article 3(5) and Article 4 of Regulation No 1484/95, in a situation where an importer has been unable to prove the correctness of the CIF import price set out in the customs declaration, the additional duties are to be calculated on the basis of the representative price.
54As a preliminary point, it should be noted that, although the Court of Justice held, in the judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681, paragraph 30), referred to by the referring court, that, where there is a CIF import price, it is that price which must always be used as a basis for determining any additional duty, that judgment concerned the validity of a previous version of Article 3 of Regulation No 1484/95, which provided that that duty could not be established on the basis of the CIF import price unless a request was submitted by the importer to that effect. By contrast, the question as to how additional import duties are to be calculated where the correctness of the CIF import price has not been proved was not examined by the Court in that judgment.
55In that regard, it should be borne in mind that the additional import duties established in accordance with Article 3 of Regulation No 1484/95 must be regarded as constituting ‘import charges introduced under the common agricultural policy’ for the purposes of Article 4(10) of the Customs Code and as falling within the customs debt (see, by analogy, judgment of 19 October 2017, A, C‑522/16, EU:C:2017:778, paragraphs 39 and 57).
56In that context, according to the settled case-law of the Court, the objective of the EU legislation on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (judgment of 15 July 2010, Gaston Schul, C‑354/09, EU:C:2010:439, paragraph 27 and the case-law cited). Thus, the customs authorities cannot rely, in order to calculate additional import duties, on a price which has not been proved to be correct.
57It follows that, in a situation where the correctness of the CIF import price declared by the importer has not been shown, the customs authorities must set aside that price. In such a situation, for the purpose of calculating the amount of additional duties payable, it is necessary to refer to the general provisions of the Customs Code relating to the methods for determining the customs value of goods and, in particular, those laid down in Article 29 of that code.
58As was noted, in essence, by the Advocate General in points 51 to 53 of his Opinion, where it is not possible to determine the customs value under Article 29 of the Customs Code, the customs authorities may use secondary methods to determine the customs value of those goods, as laid down in Articles 30 and 31 of that code, in particular taking account of the sale price of identical goods sold for export to the European Union and exported at or about the same time as the goods being valued (see, by analogy, judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraphs 33 and 35).
59It follows from all of the foregoing that the answer to Question 2 is that, on a proper construction of Article 3(5) and Article 4 of Regulation No 1484/95, in a situation where an importer has been unable to prove the correctness of the CIF import price set out in the customs declaration, the customs authorities must, in order to apply additional duties, set aside that price and make use of the methods for determining the customs value of imported goods laid down in Articles 29 to 31 of the Customs Code.
The third question
60In view of the answer to the first and second questions, there is no need to answer the third question.
Costs
61Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules:
1.On a proper construction of Article 3(4) of Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC, as amended by Commission Regulation (EU) No 248/2010 of 24 March 2010, the fact that goods imported into the European Union have been sold at a loss, that is, at a lower price than the CIF import price as set out in the customs declaration, is not in itself sufficient grounds for a finding that the correctness of the CIF import price has not been proved where the importer proves that all the conditions under which the consignment of those goods took place confirm that that price is correct.
2.On a proper construction of Article 3(5) and Article 4 of Regulation No 1484/95, as amended by Regulation No 248/2010, in a situation where an importer has been unable to prove the correctness of the CIF import price set out in the customs declaration, the customs authorities must, in order to apply additional duties, set aside that price and make use of the methods for determining the customs value of imported goods laid down in Articles 29 to 31 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.