Contents
Judgment of the Court (Fifth Chamber)21 September 2023note(Reference for a preliminary ruling — Customs union — Regulation (EU) No 952/2013 — Union Customs Code — Articles 70 and 74 — Determination of the customs value — Customs value of fruit and vegetables to which an entry price applies — Regulation (EU) No 1308/2013 — Article 181 — Delegated Regulation (EU) 2017/891 — Article 75(5) and (6) — Declared transaction value higher than the standard import value — Disposal of products under conditions confirming the correctness of the transaction value — Sale by the importer at a loss — Relationship between the importer and the exporter — Judicial review of the decision determining the customs debt)In Case C‑770/21,REQUEST for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Sofia City Administrative Court, Bulgaria), made by order of 23 November 2021, received at the Court on 13 December 2021, in the proceedingsOGL-Food Trade Lebensmittelvertrieb GmbHvDirektor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,Advocate General: J. Richard de la Tour,Registrar: R. Stefanova-Kamisheva, Administrator,having regard to the written procedure and further to the hearing on 25 January 2023,after considering the observations submitted on behalf of:– OGL-Food Trade Lebensmittelvertrieb GmbH, by G. Goranov, advokat, and C. Salder, Rechtsanwalt,– Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’, by E. Dimitrova, E. Harizanova, N. Kancheva and S. Kirilova,– the Bulgarian Government, by M. Georgieva, T. Mitova and E. Petranova, acting as Agents,– the European Commission, by F. Clotuche-Duvieusart, D. Drambozova, M. Morales Puerta and F. Moro, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 20 April 2023,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of:– Articles 22, 44, 70 and 74 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Union Customs Code’);– Articles 127 and 142 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 (OJ 2015 L 343, p. 558) (‘the Union Customs Code Implementing Regulation’);– Article 75 of Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011 (OJ 2017 L 138, p. 4).
2The request was made in proceedings between OGL-Food Trade Lebensmittelvertrieb GmbH (‘OGL-Food’) and the Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’ (Director of the regional head office for the Customs Agency, Plovdiv, Bulgaria; ‘the Director of Customs’) concerning the transaction value declared in respect of the importation of fresh courgettes from Türkiye.
Legal context
The customs legislation
The Union Customs Code
3Article 1(1) of the Union Customs Code states:‘This Regulation establishes the Union Customs Code … laying down the general rules and procedures applicable to goods brought into or taken out of the customs territory of the Union.Without prejudice to international law and conventions and Union legislation in other fields, [that] Code shall apply uniformly throughout the customs territory of the Union.’
4Article 5 of that code, entitled ‘Definitions’, provides:‘For the purposes of [the Union Customs] Code, the following definitions shall apply:(1) “customs authorities” means the customs administrations of the Member States responsible for applying the customs legislation and any other authorities empowered under national law to apply certain customs legislation;…(3) “customs controls” means specific acts performed by the customs authorities in order to ensure compliance with the customs legislation and other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside that territory, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure;…’
5Article 22 of that code, entitled ‘Decisions taken upon application’, provides, in paragraphs 6 and 7:6. Before taking a decision which would adversely affect the applicant, the customs authorities shall communicate the grounds on which they intend to base their decision to the applicant, who shall be given the opportunity to express his or her point of view within a period prescribed from the date on which he or she receives that communication or is deemed to have received it. Following the expiry of that period, the applicant shall be notified, in the appropriate form, of the decision.…7. A decision which adversely affects the applicant shall set out the grounds on which it is based and shall refer to the right of appeal provided for in Article 44.’
6Article 44 of the Union Customs Code, entitled ‘Right of appeal’ is worded as follows:1. Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually.…2.The right of appeal may be exercised in at least two steps:(a) initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;(b) subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.…’
7Article 46 of the Union Customs Code, entitled ‘Risk management and customs controls’, provides in paragraph 1:‘The customs authorities may carry out any customs controls they deem necessary.Customs controls may in particular consist of examining goods, taking samples, verifying the accuracy and completeness of the information given in a declaration or notification and the existence, authenticity, accuracy and validity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts.’
8Under Article 70 of that code, entitled ‘Method of customs valuation based on the transaction value’:1. The primary basis for the customs value of 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 Union, adjusted, where necessary.2. The price actually paid or payable shall be the total payment made or to be made by the buyer to the seller or by the buyer to a third party for the benefit of the seller for the imported goods and include all payments made or to be made as a condition of sale of the imported goods.3.The transaction value shall apply provided that all of the following conditions are fulfilled:…(d) the buyer and seller are not related or the relationship did not influence the price.’
9Article 74 of that code, entitled ‘Secondary methods of customs valuation’, provides:1. Where the customs value of goods cannot be determined under Article 70, it shall be determined by proceeding sequentially from points (a) to (d) of paragraph 2, until the first point under which the customs value of goods can be determined.…2.The customs value, pursuant to paragraph 1, shall be:…(c) the value based on the unit price at which the imported goods, or identical or similar imported goods, are sold within the customs territory of the Union in the greatest aggregate quantity to persons not related to the sellers; ……’
The Union Customs Code Implementing Regulation
10Title II of the Union Customs Code Implementing Regulation, concerning ‘factors on the basis of which import or export duty and other measures in respect of trade in goods are applied’, contains Chapter 3 of that implementing regulation, entitled ‘Value of goods for customs purposes’. In Chapter 3, Article 127 of that implementing regulation, entitled ‘General provisions’, relating to Article 70(3)(d) of the Union Customs Code, is worded as follows:1.For the purposes of this Chapter, two persons shall be deemed to be related if one of the following conditions is fulfilled:…(b) they are legally recognised partners in business;…’
11Article 134 of that implementing regulation, entitled ‘Transactions between related persons’, relating to Article 70(3)(d) of the Union Customs Code, provides:1. Where the buyer and the seller are related, and in order to determine whether such relationship did not influence the price, the circumstances surrounding the sale shall be examined as may be necessary, and the declarant shall be given an opportunity to supply further detailed information as may be necessary about those circumstances.2.However, the goods shall be valued in accordance with Article 70(1) of the [Union Customs] Code where the declarant demonstrates that the declared transaction value closely approximates to one of the following test values, determined at or about the same time:…(b) the customs value of identical or similar goods, determined in accordance with Article 74(2)(c) of the [Union Customs] Code;…’
12Article 142 of the Union Customs Code Implementing Regulation, entitled ‘Deductive method’, laying down detailed rules for the application of Article 74(2)(c) of the Union Customs Code, provides:1. The unit price used to determine the customs value under Article 74(2)(c) of the [Union Customs] Code shall be the price at which the imported goods or imported identical or similar goods are sold in the Union, in the condition as imported, at or about the time of importation of the goods being valued.…4.The following sales shall not be taken into account for the purposes of determining the customs value under Article 74(2)(c) of the [Union Customs] Code:…(b) sales to related persons;…’
The legislation relating to the importation of fruit and vegetables to which an entry price applies
Regulation (EU) No 1308/2013
13Article 181 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671), entitled ‘Entry price system for certain products of the fruit and vegetables, processed fruit and vegetables and wine sectors’, provides:1. For the application of the Common Customs Tariff duty rate for products of the fruit and vegetables and processed fruit and vegetables sectors and for grape juice and musts, the entry price of a consignment shall be equal to its customs value calculated in accordance with [the Union Customs Code] and [the Union Customs Code Implementing Regulation].2. In order to ensure the efficiency of the system, the [European] Commission shall be empowered to adopt delegated acts in accordance with Article 227 to provide that the veracity of the declared entry price of a consignment is to be checked using a flat-rate import value, and to provide the conditions under which the lodging of a security is required.3. The Commission shall adopt implementing acts establishing rules for the calculation of the flat-rate import value referred to in paragraph 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 229(2).’
Delegated Regulation 2017/891
14Delegated Regulation 2017/891, which was adopted on the basis, inter alia, of Article 181(2) of Regulation 1308/2013, includes Title III, entitled ‘Trade with third countries entry price system’, containing Articles 73 to 75.
15Article 73 of that delegated regulation states:‘For the purposes of this [title]:(a) “lot” means the goods presented under a declaration of release for free circulation, covering only goods of the same origin falling within one single CN code; ……’
16Article 74 of that delegated regulation, entitled ‘Notification of prices and quantities of products imported’, provides in paragraph 1:‘For each product and for the periods set out in Part A of Annex VII, for each market day and origin, Member States shall notify the Commission, by 12.00 noon (Brussels time) the following working day, of:(a) the average representative prices of the products imported from third countries sold on Member States’ import markets; and(b) the total quantities relating to the prices referred to in point (a).For the purposes of point (a) of the first subparagraph, Member States shall notify the Commission of the import markets they consider representative and which shall include London, Milan, Perpignan and Rungis.Where the total quantities referred to in point (b) of the first subparagraph are less than 10 tonnes, the corresponding prices shall not be notified to the Commission.’
17Under Article 75 of that delegated regulation, entitled ‘Entry price basis’:1. For the purposes of Article 181(1) of Regulation (EU) No 1308/2013, the products of the fruit and vegetables and processed fruit and vegetables sectors referred to in that Article shall be those listed in Annex VII to this Regulation.2. When the customs value of the products listed in Part A of Annex VII is determined in accordance with the transaction value referred to in Article 70 of [the Union Customs Code] and that customs value is higher by more than 8% than the flat-rate calculated by the Commission as a standard import value at the time the declaration of release of the products for free circulation is made, the importer must provide a guarantee as referred to in Article 148 of [the Union Customs Code Implementing Regulation]. For this purpose, the amount of import duty for which the products listed in Part A of Annex VII to this Regulation may be liable, shall be the amount of the duty due if the product in question had been classified on the basis of the standard import value concerned.…3. When the customs value of the products listed in Part A of Annex VII is calculated in accordance with Article 74(2)(c) of [the Union Customs Code], the duty shall be deducted as provided for in Article 38(1) of [Commission Implementing Regulation (EU) 2017/892 of 13 March 2017 laying down rules for the application of Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors (OJ 2017 L 138, p. 57)]. In that case, the importer shall provide a guarantee equal to the amount of duty which he [or she] would have paid if the classification of the products had been made on the basis of the standard import value applicable.4. The customs value of the goods imported on consignment shall be directly determined in accordance with Article 74(2)(c) of [the Union Customs Code], and for this purpose, the standard import value calculated in accordance with Article 38 of Implementing Regulation (EU) 2017/892 shall apply during the periods in force.5. The importer shall have one month from the sale of the products in question, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation, to prove that the lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of [the Union Customs Code], or to determine the customs value referred to in Article 74(2)(c) of that regulation.Failure to meet one of these deadlines shall entail the loss of the guarantee provided, without prejudice to the application of paragraph 6.The guarantee provided shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities. Otherwise the guarantee shall be forfeit by way of payment of the import duties.In order to prove that the lot was disposed of under the conditions set out in the first subparagraph, the importer shall make available, in addition to the invoice, all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question, including documents relating to the transport, insurance, handling and storage of the lot.…6. The time limit of four months referred to in the first subparagraph of paragraph 5 may be extended by the competent authorities of the Member State by a maximum of three months at the request of the importer, which must be duly justified.…’
18Part A of Annex VII to Delegated Regulation 2017/891 contains inter alia the following entry:CN code | Description | Period of application07099070 | Courgettes | From 1 January to 31 December
Regulation (EEC) No 2658/87
19Council 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), as amended by Commission Implementing Regulation (EU) 2018/1602 of 11 October 2018 (OJ 2018 L 273, p. 1) contains in Annex 2 to Section I of the third part of Annex I, inter alia, the following entry:CN code | Description | Conventional rate of duty (%)… | … | …07099310 | – – – Courgettes |… | … | …| From 1 April to 31 May || – – – – – With an entry price per 100 kg net weight of || – – – – – – Not less than € 69,2 | 12,8| – – – – – – Not less than € 67,8 but less than € 69,2 | 12,8 + 1,4 €/100 kg/net| – – – – – – Not less than € 66,4 but less than € 67,8 | 12,8 + 2,8 €/100 kg/net| – – – – – – Not less than € 65 but less than € 66,4 | 12,8 + 4,2 €/100 kg/net| – – – – – – Not less than € 63,7 but less than € 65 | 12,8 + 5,5 €/100 kg/net| – – – – – – Less than € 63,7 | 12,8 + 15,2 €/100 kg/net
The dispute in the main proceedings and the questions referred for a preliminary ruling
20On 23 April 2019, OGL-Food, acting as importer, lodged with the customs office of Svilengrad (Bulgaria) a customs declaration by which it declared, under the procedure for release for free circulation for final consumption, ‘fresh courgettes’, originating from Türkiye, falling within subheading 07099310 of the tariff and statistical nomenclature of goods, weighing 4800 kg and with a customs value, converted into euros, of EUR 90.81 per 100 kg (‘the lot at issue’). The exporter was a company established in Antalya (Türkiye).
21For 23 April 2019, the Commission had established the standard import value for courgettes of any origin at EUR 53.80 per 100 kg. As the transaction value declared for the lot at issue was higher than the flat-rate import value by more than 8%, OGL-Food provided a guarantee amounting to 982.17 leva (BGN) (approximately EUR 502) in accordance with Article 75(2) of Delegated Regulation 2017/891.
22In view of the transport, unloading, treatment and insurance costs incurred up to the point of entry of the lot at issue into the European Union, the transport costs after arrival at that entry point and the costs incurred from the Bulgarian Food Safety Agency, the Bulgarian customs authorities determined the total price which OGL-Food paid to purchase the lot at issue as EUR 109.6 per 100 kg.
23By letter of 24 April 2019, the Bulgarian customs authorities informed OGL-Food that, in accordance with Article 75(5) of Delegated Regulation 2017/891, it was required to prove, within the time limits laid down in that provision, that the lot at issue had been disposed of under conditions confirming the correctness of the declared transaction value. To that end, OGL-Food was requested to provide, inter alia, a customs declaration from the exporting State, a transport invoice, a sales contract, ‘tax’ invoices relating to the sale of the lot at issue at the first level of trade, a statement of the sale price of that lot, based on the purchase price, bank statements, bank statements showing payment to the seller, the register of purchases and sales, the register for recording of transactions and delivery notes for the products. OGL-Food was also informed of the consequences of the failure to submit the evidence requested, namely loss of the guarantee pursuant to the second subparagraph of Article 75(5) of Delegated Regulation 2017/891.
24On 23 May 2019, OGL-Food provided the Bulgarian customs authorities with an invoice for the purchase of the lot at issue, a transport invoice, an international consignment note, a sales invoice for the lot at issue at the first level of trade in the European Union, delivery notes, confirmations of receipt of the lot at issue, a statement of the sale price based on the purchase price and extracts from accounts concerning imports and sales. It also produced value-added tax (VAT) statements relating to the period from January to April 2019, the registers of purchases and sales and VAT returns for intra-Community supplies for the same period. OGL-Food requested, on the basis of the evidence submitted, the release of the guarantee provided.
25According to the account of the sale price provided by OGL-Food, OGL-Food sold the lot at issue for EUR 106 per 100 kg. In view of the fact that the latter price was lower than the total price of EUR 109.6 per 100 kg that OGL-Food had paid to purchase the lot at issue, the Bulgarian customs authorities considered that OGL-Food had not provided proof of disposal of that consignment under conditions confirming the correctness of the declared transaction value, and that, therefore, in accordance with the third subparagraph of Article 75(5) of Delegated Regulation 2017/891, the guarantee should be forfeit by way of payment of the import duties.
26Pursuant to Article 22(6) of the Union Customs Code, OGL-Food was informed of those grounds, on which the Director of Customs intended to base his decision, and was invited to make known its views within 30 days.
27In its observations on those grounds, OGL-Food submitted, first of all, that Article 75 of Delegated Regulation 2017/891 does not require proof of resale of the goods at a profit to prove that the transaction value declared as a customs value was correct. Next, it maintained that the sale of the lot at issue was part of a long-standing commercial relationship with an international supermarket chain and that an examination of that relationship over a longer period would have revealed that such a relationship enabled it to make a profit. Finally, OGL-Food observed that the price at which it sold the lot at issue was significantly higher than the standard import value calculated on 23 April 2019 by the Commission for products identical to those forming part of the lot at issue.
28By decision of 30 October 2020 (‘the decision determining the customs debt’), the Director of Customs decided, inter alia, that the guarantee provided was to be forfeit by way of payment of import duties, determined as BGN 982.17. That decision relies, first, on the fact that OGL-Food did not provide any evidence capable of explaining the significant difference between the declared transaction value of EUR 90.81 per 100 kg and the flat-rate import value of EUR 53.80 per 100 kg, such as exceptional quality or the organic origin of the lot at issue, which was described merely as being ‘top quality’. Secondly, the Director of Customs took into account the loss made at the time of the sale of the lot at issue in considering that OGL-Food had not proved that that lot had been disposed of under conditions confirming the correctness of the declared transaction value, within the meaning of Article 75(5) of Delegated Regulation 2017/891.
29OGL-Food brought an action for annulment of that decision determining the customs debt before the Administrativen sad Sofia-grad (Sofia City Administrative Court, Bulgaria), which is the referring court, in which it claims that the information which it submitted to the Director of Customs, which is not disputed, confirms that the declared transaction value satisfies the conditions of Article 70 of the Union Customs Code. In that context, OGL-Food submits, first, that the existence of profit resulting from the sale of products comparable to those of the lot at issue to a specific customer should be determined on a monthly basis and not at the level of each individual transaction. Secondly, OGL-Food asserts that the value of that lot, as calculated, in accordance with Article 74(2)(c) of the Union Customs Code, by a court expert, confirms, albeit indirectly, that there was no artificial increase in the price of that lot. OGL-Food adds, moreover, that it and the international supermarket chain to which it sold the lot at issue are not partners in business within the meaning of Article 127(1)(b) of the Union Customs Code Implementing Regulation.
30The Director of Customs, for his part, asserts, first, that OGL-Food did not provide any evidence to justify the high level of the declared transaction value compared to the standard import value, such as the exceptional quality of the products concerned or the fact that they resulted from organic farming. Secondly, the fact of OGL-Food’s selling the lot at issue at a loss is not consistent with the logic of the market, whereby OGL-Food would seek to make a commercial profit. Thirdly, the Union Customs Code applies without prejudice to Delegated Regulation 2017/891. The latter excludes the possibility of taking account of other import operations in order to assess the correctness of the transaction value declared for the purposes of importing the lot at issue. In addition, fourthly, the method for determining the customs value laid down in Article 74(2)(c) of the Union Customs Code is not applicable in the present case.
31The referring court appears to take the view that the analysis on which the decision determining the customs debt is based, which is to the detriment of OGL-Food, is not consistent with the national case-law on the assessment of evidence relating to the correctness of the declared transaction value pursuant to Article 75(5) of Delegated Regulation 2017/891. That being so, the referring court considers that, for the purposes of resolving the dispute before it, it is necessary to raise of its own motion the possibility that OGL-Food has relationships with the exporter of the lot at issue and with its customer in the European Union which enable them to be classified as ‘related’ persons within the meaning of Article 70(3)(d) and Article 74(2)(c) of the Union Customs Code respectively.
32First, according to the referring court, it is necessary to assess whether, in the absence of a commercial contract or other legal link between the parties, the lasting, periodic and recurrent supply relationships at issue in the main proceedings, as reflected in the invoices and the relevant accounting entries, are sufficient to classify the exporter and OGL-Food as ‘legally recognised partners in business’ within the meaning of Article 127(1)(b) of the Union Customs Code Implementing Regulation, and therefore as ‘related’ persons within the meaning of Article 70(3)(d) of that code, in which case it would be necessary to ascertain, subsequently, whether that relationship influenced the declared transaction value of the lot at issue.
33Secondly, before the referring court, OGL-Food claimed that the declared transaction value should have been accepted by the Director of Customs on the ground that it was close to the customs value of identical or similar goods, determined in accordance with Article 74(2)(c) of the Union Customs Code, as calculated by the court expert. The referring court considers that, in order to assess the relevance of that argument, which relates to Article 134(2)(b) of the Union Customs Code Implementing Regulation, it is necessary to assess whether OGL-Food and its customer in the European Union are related persons, within the meaning of Article 142(4)(b) of that implementing regulation, which lays down detailed rules for the application of Article 74(2)(c) of the Union Customs Code. In that regard, the referring court considers that the concept of ‘related persons’ has the same meaning both in the context of Article 70(3)(d) and Article 74(2)(c) of the Union Customs Code and in the context of Article 127(1) and Article 142(4)(b) of the Union Customs Code Implementing Regulation.
34However, the referring court asks whether an importer may obtain application of the method laid down in Article 74(2)(c) of the Union Customs Code for the first time when an appeal is lodged against the decision determining the customs debt, that is to say, after the expiry of the periods laid down in Article 75(5) and (6) of Delegated Regulation 2017/891. If the answer is in the negative, that court has doubts as to whether, in the light of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), the importer’s rights of defence have been respected and whether it may find that the importer is a person related to the exporter, pursuant to Article 70(3)(d) of the Union Customs Code, where the decision determining the customs debt did not disregard the transaction value on that ground.
35The referring court also asks whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that, in order to prove that the prices referred to in Article 70 of the Union Customs Code are correct, the importer must produce a purchase contract or other equivalent document, whether the customs authority may take into account the fact that the imported goods were sold at a loss on the EU market and whether the circumstances surrounding that sale at a loss are relevant for the purposes of the application of that provision.
36Lastly, the referring court asks whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that, without calling into question the authenticity of the invoice drawn up by the exporter and the proof of payment for the exporter, the customs authority may establish the customs value at the level of the flat-rate import value where the declared transaction value is abnormally high and where no contract has been submitted between the exporter and the importer or other evidence justifying the high level of the declared transaction value.
37In those circumstances, the Administrativen sad Sofia-grad (Sofia City Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) In the light of Article 70(1) of [the Union Customs Code], read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of [Delegated Regulation 2017/891], must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the [Union] Customs Code – “the buyer and seller are not related” – for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:– information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union – regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment;– information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books, or the right of deduction exercised in respect of the specific import;– the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union;– the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties?If those circumstances are relevant, do they permit the importing trader and the exporting trader, or the importer and the buyer at the first level of trade in the EU, to be categorised as “legally recognised partners in business” or as related persons within the meaning of Article 127(1)(b) and Article 142(4)(b) of the Union Customs Code [Implementing Regulation]?If the above circumstances are relevant but are not sufficient to regard the traders as related persons, is there an obligation to assess, for the purposes of the verification under Article 75(6) of [Delegated Regulation 2017/891], whether the relationship between the traders influenced the determination of the higher price of the product subject to the specific importation, in order to counteract the evasion of customs duties and the loss of tax revenue to the EU budget, taking into account also the subsequent sale at a loss at the first level of trade in the [European Union]?(2) Does it follow from [the first subparagraph of] Article 47 and Article 41(2)(c) of the [Charter] – interpreted in conjunction with the importer’s right of appeal under Article 44(1) of [the Union Customs Code], as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of [that code], in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion – that:– the condition laid down in Article 70(3)(d) of [the Union Customs Code] – “the buyer and seller are not related or the relationship did not influence the price” – may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision?– where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of [the Union Customs Code], it would be contrary to Article 75(5) and (6) of [Delegated Regulation 2017/891], and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value?(3) In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, [X (Recovery of additional import duties)], С-160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of [Delegated Regulation 2017/891], according to which “the importer shall make available […] all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question”, that:– the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods – vegetables – were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated – also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value – in order, inter alia, to counteract evasion of customs duty and loss of tax revenue?– the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? or– the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of [Delegated Regulation 2017/891] as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty?(4) In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of [Delegated Regulation 2017/891], and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary (С‑291/15, EU:C:2016:455), that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:– the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector;– the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid;– the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables?’
Consideration of the questions referred
Preliminary observations
38In accordance with Annex 2 to Section I of the third part of Annex I to Regulation No 2658/87, the Common Customs Tariff for the products at issue in the case in the main proceedings are subject to an ad valorem duty at a rate of 12.8% and a variable duty expressed in euros. The amount of that variable duty increases as the customs value of the imported products decreases.
39The customs value of imported products must be determined, in accordance with Article 70(1) of the Union Customs Code, by reference primarily to the declared transaction value. However, in accordance with Article 70(3)(d) of that code, the transaction value is to apply provided that the buyer and seller, namely the importer and the exporter, are not related or the relationship did not influence the price.
40It is apparent, moreover, from the first subparagraph of Article 74(1) of the Union Customs Code that, where the customs value of the goods cannot be established on the basis of the declared transaction value under Article 70 of that code, that value must be determined in accordance with the first of the provisions of Article 74(2)(a) to (d) of that code, which will enable it to be determined.
41Among those provisions, Article 74(2)(c) of the Union Customs Code lays down a method for determining customs value, which is referred to as the ‘deductive method’ by Article 142 of the Union Customs Code Implementing Regulation (‘the deductive method’). That method is based on the unit price at which the imported goods, or identical or similar imported goods, are sold within the customs territory of the Union in the greatest aggregate quantity to persons not related to the sellers.
42Article 134(2)(b) of the Union Customs Code Implementing Regulation, which governs transactions between ‘related’ persons, within the meaning of Article 70(3)(d) of that code, provides that, even if the importer and the exporter are related, the goods must be valued in accordance with Article 70(1) of that code where the declarant demonstrates that the declared transaction value closely approximates to the customs value of identical or similar goods determined in accordance with the deductive method.
43It should nevertheless be noted that, in accordance with the second subparagraph of Article 1(1) of the Union Customs Code, that code is to apply without prejudice to EU legislation governing other areas. Regulation No 1308/2013 and Delegated Regulation 2017/891 lay down special customs rules on imports of fruit and vegetables.
44For the application of Common Customs Tariff duty rate for products of the fruit and vegetables sector, Article 181 of Regulation No 1308/2013 provides for a mechanism known as the ‘entry price’, which is based on minimum import price thresholds below which additional specific duties apply, which are higher by the same amount as the import value is low.
45In that context, Article 181(2) of Regulation No 1308/2013 empowers the Commission to adopt delegated acts in order to provide that the veracity of the declared entry price of a consignment is to be checked using a flat-rate import value, and to provide the conditions under which the lodging of a security is required.
46Delegated Regulation 2017/891, which was adopted on the basis of Article 181(2) of Regulation No 1308/2013, contains, first, Article 74 under which, for the purposes of calculating that standard import value, the Member States must notify the Commission, for each market day, of the average representative prices of the products imported from third countries sold on Member States’ import markets and of the total quantities relating to those prices.
47Secondly, Article 75 of Delegated Regulation 2017/891 lays down the detailed rules for determining the entry prices of the products concerned.
48In particular, first, according to Article 75(2) of that delegated regulation, where the customs value of certain products, including products such as those at issue in the main proceedings, is determined in accordance with the transaction value referred to in Article 70 of the Union Customs Code and that customs value is higher by more than 8% than the flat rate calculated by the Commission as a standard import value, within the meaning of Article 181(2) of Regulation No 1308/2013, at the time of the declaration of release of the products for free circulation is made, the importer must provide a guarantee. That guarantee is to be equal to the amount of the duty due if the product in question had been classified on the basis of the standard import value concerned.
49Secondly, in accordance with the first subparagraph of Article 75(5) of Delegated Regulation 2017/891, the importer is to have one month from the sale of the products in question, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation, to prove that the lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of [the Union Customs Code], or to determine the customs value referred to in Article 74(2)(c) of that code. According to the second and third subparagraphs of Article 75(5) of Delegated Regulation 2017/891, failure to meet one of those deadlines is to entail the loss of the guarantee provided for the payment of import duties; that is also the case if the importer does not provide, to the satisfaction of the customs authorities, proof of the conditions of disposal of the lot. By contrast, the guarantee is released to the extent that proof of the conditions of disposal, as set out in the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, is provided to the satisfaction of the customs authorities.
50Given that the first question concerns the information to be taken into account for the purposes of assessing whether the buyer and the seller are related within the meaning of Article 70(3)(d) of the Union Customs Code, whereas the second question concerns, inter alia, the possibility for a national court to apply that provision in circumstances such as those at issue in the main proceedings, the second question should be examined first.
The second question
51The second question is based on the fact that, when an appeal is brought against a decision of the customs authorities determining the customs debt, the referring court is required, under national law, to assess of its own motion the legality of that decision and may obtain new evidence and appoint a court expert on its own initiative.
52In that regard, it is apparent from the request for a preliminary ruling that OGL-Food relied before the referring court on a calculation of the customs value made in accordance with the deductive method in order to prove, on the basis of the proximity between the result of that calculation and the declared transaction value, that the declared transaction value was correct. It is also apparent from the referring court’s reference to Article 134 of the Union Customs Code Implementing Regulation that, as OGL-Food also confirmed at the hearing, OGL-Food wished to have the possibility offered by paragraph 2(b) of that article applied to it to prove that the transaction value was ‘very close’ to the customs value of identical or similar goods, determined in accordance with the deductive method. According to OGL-Food, that proximity should have led the customs authorities to recognise that the declared transaction value was correct.
53The reference to Article 134 of the Union Customs Code Implementing Regulation, which is a provision implementing Article 70(3)(d) of that code, appears, moreover, to have led the referring court to question the possibility of applying, of its own motion, that latter provision, despite the fact that, in the case at issue in the main proceedings, the customs authorities did not disregard the transaction value declared on the ground that OGL-Food and the exporter were ‘related’ within the meaning of the latter provision.
54Thus, by the first part of its second question, the referring court asks, in essence, whether a national court may raise, of its own motion and for the first time in the context of a dispute before it, the question whether the importer and exporter are related within the meaning of Article 70(3)(d) of the Union Customs Code, and, if so, whether or not any existing relationship between them influenced the price actually paid or payable, for the purposes of that provision.
55By the second part of its second question, which it is appropriate to examine in the first place, the referring court seeks to ascertain, in essence, whether Article 75(5) and (6) of Delegated Regulation 2017/891 must be interpreted as precluding an importer who has not chosen, within the time limits laid down by those provisions, to determine the customs value of the lot imported in accordance with the deductive method, but has, on the contrary, determined that value in accordance with Article 70 of the Union Customs Code, from being able validly to rely, in support of its legal action against a decision of the customs authorities determining the customs debt, on a calculation of the customs value carried out in accordance with the deductive method, in order to prove that the prices referred to in Article 70 of that code were correct.
56It should be borne in mind, first of all, that EU law on customs valuation seeks to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. The customs value must thus reflect the real economic value of an imported good (judgment of 9 June 2022, Baltic Master, C‑599/20, EU:C:2022:457, paragraph 24 and the case-law cited).
57That objective must also prevail where the customs value is determined in accordance with special provisions, such as those laid down in Article 75 of Delegated Regulation 2017/891, which are applicable in the present case.
58In that regard, it is apparent from the first subparagraph of Article 75(5) and from Article 75(6) of that delegated regulation that the importer may either choose to determine the customs value of the imported lot on the basis of the declared transaction value, in which case it is for that importer to prove, within a specific time limit, that that lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of the Union Customs Code, or to determine, within the same time limits, the customs value using the deductive method.
59In addition, in accordance with the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, in order to prove that the imported lot was disposed of under conditions confirming the correctness of the declared transaction value, the importer is to make available, in addition to the invoice, all the documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question, including documents relating to the transport, insurance, handling and storage of that lot.
60It follows that Article 75(5) and (6) of Delegated Regulation 2017/891 requires the importer to choose, within specific time limits, between the application of two different provisions of the Union Customs Code laying down alternative methods for determining customs value. Consequently, a calculation of the customs value carried out in accordance with the deductive method may be validly relied on in support of legal proceedings only if the importer has previously chosen, within the time limits laid down for that purpose by the first subparagraph of Article 75(5) and by Article 75(6) of that delegated regulation, to determine the customs value in accordance with that method. By contrast, if the importer has opted for the transaction value method, the result of such a calculation cannot be relied on in the context of such an action with the aim of proving, in accordance with the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, which, moreover, is after the expiry of those time limits, the correctness of the prices referred to in Article 70 of the Union Customs Code.
61In addition, Article 75(5) of Delegated Regulation 2017/891 requires that the correctness of the prices referred to in Article 70 of the Union Customs Code be confirmed by reference to the conditions under which the lot, as defined in Article 73(a) of that delegated regulation, is disposed of and not by reference to the sales, within the EU customs territory, of goods which do not form part of that lot.
62That requirement precludes the importer from being able, pursuant to Article 134(2)(b) of the Union Customs Code Implementing Regulation, a provision which OGL-Food relied on before the referring court and which raised questions from that court, to determine the customs value on the basis of the transaction value declared on the ground that that value is very close to the customs value of identical or similar goods determined according to the deductive method.
63Moreover, a calculation of the customs value, such as that carried out by the court expert, appointed in the case in the main proceedings, using the deductive method, as is apparent from the request for a preliminary ruling, of the price of the sale of the lot at issue to OGL-Food’s customer chain of supermarkets, does not meet the requirements of Article 134(2)(b) of the Customs Code Implementing Regulation, a provision which precludes a value based on the unit price corresponding to sales in the customs territory of the European Union of the imported goods themselves from being taken into account.
64It is apparent from the above findings that Article 75(5) and (6) of Delegated Regulation 2017/891 does not allow an importer which has not chosen, within the time limits laid down by those provisions, to determine the customs value of the imported goods in accordance with the deductive method, but which has determined that value in accordance with Article 70 of the Union Customs Code, to rely, in support of its action before the courts against a decision of the customs authorities establishing the customs debt, on a calculation of the customs value carried out in accordance with that method, relying on Article 134(2)(b) of that regulation, in order to prove that the prices referred to in Article 70 of that code were correct.
65That conclusion is not called into question by Article 41(2)(c) and the first paragraph of Article 47 of the Charter. The first of those provisions is addressed not to the authorities of the Member States but solely to the institutions, bodies, offices and agencies of the European Union (judgment of 5 November 2014, Mukarubega, C‑166/13, EU:C:2014:2336, paragraph 44). The second of those provisions of the Charter enshrines the right to an effective remedy for everyone whose rights and freedoms guaranteed by EU law have been infringed, so that it does not prejudice the applicability of the provisions of substantive law on which the person concerned relies.
66In the second place, as regards the first part of the second question referred for a preliminary ruling, it is true that Article 75(5) of Delegated Regulation 2017/891 does not prevent the customs authorities from examining whether the importer and the exporter are related, within the meaning of Article 70(3)(d) of the Union Customs Code and, if so, whether the relationship influenced the price.
67However, as regards products to which an entry price applies, the question whether any relationship between the importer and the exporter influenced the price, within the meaning of Article 70(3)(d) of the Union Customs Code, is liable to affect the correctness of the value of the goods, as indicated in the customs declaration.
68In that regard, it is apparent from the second subparagraph of Article 46(1) of the Union Customs Code that customs controls consist, inter alia, in checking the accuracy and completeness of the information given in a declaration. It follows that the verification of the correctness of the declared transaction value, carried out in accordance with the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, constitutes, as is apparent, moreover, from the very wording of the latter provision, an act falling within the scope of customs controls, within the meaning of Article 46(1) of the Union Customs Code.
69Article 5(3) of the Union Customs Code confers the power to carry out customs controls on the customs authorities, that is to say, in accordance with Article 5(1) of that code, on the customs administrations of the Member States responsible for applying the customs legislation and on any other authorities empowered under national law to apply certain pieces of customs legislation. Thus, the judicial authorities responsible for ruling, in accordance with Article 44 of the Union Customs Code, on appeals against decisions taken by the customs authorities following a customs control must be distinguished from those authorities.
70Consequently, when an appeal has been brought before it against a decision of a customs authority determining the customs debt in accordance with Article 75(5) of Delegated Regulation 2017/891, a judicial authority may not raise, of its own motion and for the first time, the issue of the existence of a relationship between the importer and the exporter, within the meaning of Article 70(3)(d) of the Union Customs Code, and whether any such relationship influenced the price, within the meaning of the latter provision, where the customs check carried out by the customs authority did not relate to the existence of such a relationship but to the conditions under which the imported lot was disposed of on the EU market, which, according to that authority, did not confirm that the declared transaction value was correct.
71That conclusion also remains valid where the question whether the conditions for the application of Article 70(3)(d) of the Union Customs Code are satisfied is likely to arise in the context of the examination of an argument that a party contesting a decision of the customs authorities determining the customs debt draws from Article 134(2)(b) of the Union Customs Code Implementing Regulation.
72The first paragraph of Article 47 of the Charter is irrelevant in that regard. That provision, which enshrines the right to an effective remedy for everyone whose rights and freedoms guaranteed by EU law are violated, does not prejudice the division of powers between, on the one hand, administrative authorities, such as customs authorities, and, on the other, judicial authorities, as that division results from the relevant provisions of EU law, in this case Article 5(1) and Article 44 of the Union Customs Code.
73In the light of the above considerations, the answer to the second question is that Article 75(5) and (6) of Delegated Regulation 2017/891 must be interpreted as:– precluding an importer who has not chosen, within the time limits laid down by those provisions, to determine the customs value of the lot imported in accordance with the deductive method, but has, on the contrary, determined that value in accordance with Article 70 of the Union Customs Code, from being able validly to rely, in support of its action against a decision of the customs authorities determining the customs debt, on a calculation of the customs value carried out in accordance with the deductive method in order to prove, by relying on Article 134(2)(b) of the implementing regulation for that code, that the prices referred to in Article 70 of that code were correct;– precluding a judicial authority, hearing an appeal against a decision of a customs authority determining the customs debt, from being able to raise, of its own motion and for the first time in the context of a dispute before it, the question whether the importer and the exporter are related, within the meaning of Article 70(3)(d) of the Union Customs Code, and, if so, whether or not any relationship between them influenced the price actually paid or payable, within the meaning of that provision, where the customs control carried out by the customs authority did not relate to the existence of such a relationship, that authority having disregarded the transaction value declared for different reasons, relating to the conditions under which the lot concerned was disposed of on the EU market.
The first question
74By its first question, the referring court asks, in essence, for the purposes of the application of Article 70(3)(d) of the Union Customs Code, whether certain factual circumstances, such as the lasting nature of the commercial relationship, the significant difference between the declared transaction value and the applicable standard import value, the subsequent sale at a loss and the failure to submit a contract relating to the importation are relevant for the purposes of assessing the existence of a relationship between the importer and the exporter or between the importer and its customer in the European Union.
75However, it is apparent from the answer given to the second question that Article 75(5) and (6) of Delegated Regulation 2017/891 precludes the application, of its own motion and for the first time, of Article 70(3)(d) of the Union Customs Code by the national court hearing an appeal against a decision of the customs authorities determining the customs debt where the customs control has not related to the existence of a relationship between the importer and the exporter.
76Since it is common ground that, in the main proceedings, the customs control carried out did not relate to the existence of such a relationship, there is no need to answer the first question.
The third question
77By its third question, the referring court asks, in essence, whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that the disposal of the lot of imported goods by means of a sale at a loss constitutes a serious indication of an artificially high declared transaction value, which requires the importer to provide the customs authorities, in order to demonstrate that that value is correct, in addition to the documents relating to transport, insurance, handling and storage, expressly referred to in the fourth subparagraph of that provision, and proof of payment of the declared transaction value, a contract or equivalent document stating the price at which it purchased the imported lot.
78It must be borne in mind that, in accordance with the clear wording of the first, third and fourth subparagraphs of Article 75(5) of Delegated Regulation 2017/891, where the importer chooses to determine the customs value of the imported lot on the basis of the declared transaction value, it is for that person to prove that that lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of the Union Customs Code.
79In that regard, it should be recalled that, as regards the disposal of the lot, the concept of ‘conditions’, within the meaning of the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, refers to all circumstances subsequent to the release for free circulation of goods in the European Union which are capable of confirming or calling into question the correctness of the declared transaction value, as set out in the customs declaration (see, by analogy, judgment of 11 March 2020, X (Recovery of additional import duties), C‑160/18, EU:C:2020:190, paragraph 37).
80The possibility of confirming the correctness of the declared transaction value in the light of all those conditions satisfies the need of the customs authorities to ensure that, in the context of a system under which the higher that value the lower the amount of variable duties payable by the importer, the importer will be prevented from determining the customs value on the basis of an artificially high declared transaction value (see, by analogy, judgment of 11 March 2020, X (Recovery of additional import duties), C‑160/18, EU:C:2020:190, paragraphs 38 to 40).
81The burden of proof on the importer thus relates to all the conditions relating to the conduct of the sale of the lot imported into the European Union, which may form a body of consistent evidence confirming the correctness of the prices referred to in Article 70 of the Union Customs Code (see, by analogy, judgment of 11 March 2020, X (Recovery of additional import duties), C‑160/18, EU:C:2020:190, paragraph 42).
82It is true that, far from confirming the correctness of those prices, a sale at a loss of a lot imported is such as to raise doubts about that sale. Such a sale at a loss, which is not, in itself, a profitable commercial practice, may be a strong indication that the declared transaction value set out 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 sales at a loss are a recurring event or take place over a long period. However, the mere finding that an importer has resold the goods in the European Union at a loss cannot permit the automatic conclusion by the customs authorities that the declared transaction value is not correct (see, by analogy, judgment of 11 March 2020, X (Recovery of additional import duties), C‑160/18, EU:C:2020:190, paragraphs 44 and 45).
83In those circumstances, it is for the importer to show not only that that sale at a loss is explained by circumstances which do not affect the correctness of the prices referred to in Article 70 of the Customs Code, but also that the other conditions for the sale of that lot confirm that those prices are correct.
84To that end, the importer must, in accordance with the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891, make available to the customs authorities, in addition to the invoice, all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot imported, including documents relating to the transport, insurance, handling and storage of the lot.
85Since that list of documents is not, as is apparent from the words ‘including’ used in that provision, exhaustive, there is nothing to prevent an importer, if the documents relating to the transport, insurance, handling and storage of the lot of the products concerned are not sufficient to demonstrate that the declared transaction value is correct, from providing the customs authorities with other documents relating to the sale and disposal of that lot, such as, in particular, a written contract concluded between the importer and the exporter or any other equivalent document capable of establishing the relevant elements of the contractual relationship, including those relating to the conditions surrounding the stipulation of the price at which the imported lot was purchased.
86By contrast, if the documents listed in the fourth subparagraph of Article 75(5) of Delegated Regulation 2017/891 produced by the importer are sufficient to persuade the customs authorities that the prices referred to in Article 70 of the Union Customs Code are correct, the importer cannot be required also to produce a written contract relating it to the exporter or an equivalent document stipulating the price at which the imported lot was purchased by it.
87In the light of the above considerations, the answer to the third question is that Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that the disposal of the lot of imported goods by means of a sale at a loss constitutes a serious indication of the artificially high declared transaction value, which does not require the importer to provide the customs authorities, in order to demonstrate that that value is correct, with, in addition to the documents relating to transport, insurance, handling and storage, expressly referred to in the fourth subparagraph of that provision, and the proof of payment of the declared transaction value, a contract or equivalent document stating the price at which it purchased the lot imported, where the former documents suffice to demonstrate the correctness of the declared transaction value.
The fourth question
88By its fourth question, the referring court asks, in essence, whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that, for the purposes of determining the customs value, the customs authorities must disregard the declared transaction value of a lot of imported goods where that value is significantly higher than the standard import value fixed by the Commission, that lot has been sold at a loss in the customs territory of the European Union and that, despite the fact that it was invited to submit any document proving that that lot had been disposed of under the conditions confirming the correctness of that value, the importer did not submit such documents, even though those authorities do not dispute the authenticity of the invoice issued by the exporter or the actual payment of that invoice by the importer.
89It should be recalled that it is apparent from the first, third and fourth subparagraphs of Article 75(5) of Delegated Regulation 2017/891 that it is for the importer to prove, to the satisfaction of the customs authorities, that the conditions for the disposal of a given lot demonstrate the correctness of the transaction value declared, within the meaning of Article 70 of the Union Customs Code, so that the guarantee provided in respect of the payment of import duties can be released.
90It follows from the case-law of the Court that a difference in price of more than 50%, such as that found, in the present case, between the declared transaction value of a lot of imported goods and the flat-rate import value fixed by the Commission, is sufficient for the customs authorities to have doubts as to whether that declared transaction value is correct (see, by analogy, judgment of 16 June 2016, EURO 2004. Hungary C‑291/15, EU:C:2016:455, paragraphs 38 and 39). That is all the more so where such a difference in price combines the sale at a loss of the lot concerned to the importer’s customer, since such a sale at a loss is not, in itself, a profitable commercial practice, as has already been noted in paragraph 82 of the present judgment.
91It is irrelevant, in that regard, that the authenticity of the documents provided by the importer to attest to the correctness of the declared transaction value is not disputed by the customs authorities. The authenticity of those documents is not the determining factor, but is one of the factors which those authorities must take into account (see, to that effect, judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 41).
92The same applies where the importer can prove that the price it actually paid corresponds to the declared transaction value (see, to that effect, judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 44).
93In those circumstances, on the other hand, it is for that importer, as is already apparent from paragraphs 78 to 87 of the present judgment, to provide the customs authorities with any documentary evidence to show that the lot of imported goods was disposed of under conditions confirming the correctness of the declared transaction value.
94Where no such document is presented within a reasonable period of time, the customs authorities are therefore justified in disregarding the declared transaction value and, therefore, in retaining, in accordance with the third subparagraph of Article 75(5) of Delegated Regulation 2017/891, the guarantee provided in respect of the payment of import duties.
95In the light of the foregoing considerations, the answer to the fourth question is that Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that, for the purposes of determining the customs value, the customs authorities must disregard the declared transaction value of a lot of imported goods where that value is significantly higher than the standard import value fixed by the Commission, that lot has been sold at a loss in the customs territory of the European Union, and where, despite the fact that it was invited to submit any document proving that the lot had been disposed of under the conditions confirming the correctness of that value, the importer did not submit sufficient documents for that purpose, even though those authorities do not dispute the authenticity of the invoice issued by the exporter or the actual payment of that invoice by the importer.
Costs
96Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Fifth Chamber) hereby rules:
1.Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011must be interpreted as:– precluding an importer who has not chosen, within the time limits laid down by those provisions, to determine the customs value of the lot imported in accordance with Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, but has, on the contrary, determined that value in accordance with Article 70 of that regulation, from being able validly to rely, in support of its action against a decision of the customs authorities determining the customs debt, on a calculation of the customs value carried out in accordance with Article 74(2)(c) of Regulation No 952/2013 in order to prove, by relying on Article 134(2)(b) of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation No 952/2013, that the prices referred to in Article 70 of Regulation No 952/2013 were correct;– precluding a judicial authority, hearing an appeal against a decision of a customs authority determining the customs debt, from being able to raise, of its own motion and for the first time in the context of a dispute before it, the question whether the importer and the exporter are related, within the meaning of Article 70(3)(d) of Regulation No 952/2013, and, if so, whether or not any relationship between them influenced the price actually paid or payable, within the meaning of that provision, where the customs control carried out by the customs authority did not relate to the existence of such a relationship, that authority having disregarded the transaction value declared for different reasons, relating to the conditions under which the lot concerned was disposed of on the EU market.
2.Article 75(5) of Delegated Regulation No 2017/891must be interpreted as meaning that the disposal of the lot of imported goods by means of a sale at a loss constitutes a serious indication of an artificially high declared transaction value which does not require the importer to provide the customs authorities, in order to demonstrate that that value is correct, with, in addition to the documents relating to transport, insurance, handling and storage, expressly referred to in the fourth paragraph of that provision, and the proof of payment of the declared transaction value, a contract or equivalent document stating the price at which it purchased the lot imported, where the former documents suffice to demonstrate the correctness of the declared transaction value.
3.Article 75(5) of Delegated Regulation No 2017/891must be interpreted as meaning that for the purposes of determining the customs value, the customs authorities must disregard the declared transaction value of a lot of imported goods where that value is significantly higher than the standard import value fixed by the European Commission, that lot has been sold at a loss in the customs territory of the European Union, and where, despite the fact that it was invited to submit any document proving that the lot had been disposed of under the conditions confirming the correctness of that value, the importer did not submit sufficient documents for that purpose, even though those authorities do not dispute the authenticity of the invoice issued by the exporter or the actual payment of that invoice by the importer.
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