Czech Republic v European Commission (T-329/23)

Contents

Judgment of the General Court (Tenth Chamber, Extended Composition)9 April 2025^note(Own resources of the European Union — Financial liability of the Member States — Obligation for Member States to make own resources available to the Commission — Payment to the Commission of amounts corresponding to non-recovered own resources — Import duties — Imports of textiles, footwear and sunglasses from Asia — Customs value — No undervaluation — No obligation to lodge a security before release — Unjustified enrichment on the part of the European Union)In Case T‑329/23,Czech Republic, represented by M. Smolek, J. Vláčil and L. Halajová, acting as Agents,vEuropean Commission, represented by P. Němečková and M. Ilkova and by T. Materne, acting as Agents,THE GENERAL COURT (Tenth Chamber, Extended Composition),composed of O. Porchia, President, M. Jaeger, L. Madise, P. Nihoul and S. Verschuur (Rapporteur), Judges,Registrar: R. Ūkelytė, Administrator,having regard to the written part of the procedure,further to the hearing on 24 September 2024,having regard to the partial withdrawal of the Czech Republic received at the Court Registry on 20 December 2024,having regard to the decision of 13 January 2025 to reopen the oral part of the procedure,having regard to the observations on the partial withdrawal lodged by the Commission on 28 January 2025,having regard to the decision of 30 January 2025 to close the oral part of the procedure,gives the following

Judgment

1By its action under Article 268 TFEU and the second paragraph of Article 340 TFEU, the Czech Republic seeks repayment of the sum of 60 435 306.39 Czech koruny (CZK) (approximately EUR 2409000) paid as own resources of the European Union.

Background to the dispute and events subsequent to the bringing of the action

2With effect from 1 January 2005, the European Union abolished all quotas on imports of textiles and clothing from World Trade Organization (WTO) countries, including China.

3Following that abolition, the European Union was exposed to a very large quantity of imports of textiles and footwear from Asia, and in particular from China, and to a risk of an undervaluation of the customs value of those imports.

PCA Discount

4In response to the risk of the customs value of certain imports being undervalued, the priority control action ‘Discount’ (‘PCA Discount’) was undertaken from 21 to 27 November 2011, then from 12 to 18 December 2011, coordinated by the Directorate-General (DG) for Taxation and Customs Union of the European Commission, pursuant to Article 13(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’), which was applicable at that time, according to which a common risk management framework, common criteria and priority control areas were to be determined in accordance with the committee procedure. The priority control action was a joint action of the Member States which provided for more in-depth customs controls on a particular topic using the same risk profiles in all Member States concerned during a given period.

5The PCA Discount, to which all Member States had subscribed, targeted imports of certain textile products, footwear and sunglasses from China, Thailand and Vietnam with a low customs value.

6In the context of the PCA Discount, an operational plan was drawn up, which set risk thresholds allowing Member States’ customs authorities to detect particularly low values declared on import and, consequently, imports at a significant risk of their customs value being undervalued (‘the PCA Discount Operational Plan’).

7Accordingly, 20 Integrated Tariff of the European Union codes (‘TARIC codes’) for textile products and footwear and two TARIC codes for sunglasses were selected and, for each of those TARIC codes, a ‘cleaned average price’ (CAP) was determined by the Commission.

8The CAPs, expressed as prices per kilogram, were calculated on the basis of the import prices into the European Union of goods falling within TARIC codes covering a 48 month period, as extracted from Comext, the reference database for detailed statistics on international trade in goods, managed by the Statistical Office of the European Union (Eurostat).

9Next, an average was calculated for the entire European Union based on the arithmetical average, that is to say, a non-weighted average, of the CAPs of all the Member States. In that calculation, abnormally high or low values were excluded.

10Finally, the ‘lowest acceptable price’ (‘the LAP’), corresponding to 50% of the CAP, was calculated and used as a risk threshold.

PCA Discount Guidelines

11The PCA Discount Operational Plan included, in Annex 2 thereto, ‘Guidelines for preventing and detecting irregularities (under-invoicing) in imports of textiles and footwear’ (‘the PCA Discount Guidelines’).

12The PCA Discount Guidelines laid down the procedures for verification and physical controls to be carried out by the customs authorities in cases of doubts about the declared customs value, in particular when it was below the LAP (see paragraph 5 of those Guidelines).

13According to paragraph 7 of the PCA Discount Guidelines, it could be possible to clear up doubts regarding the declared customs value if the customs authorities possessed prior findings on the declarant’s reliability.

14By contrast, where the customs authorities did not possess such findings, they were required to check the relevant documents and inspect the nature of the goods, including taking samples at random (see paragraph 8 of the PCA Discount Guidelines).

15In addition, there was a requirement that, to the extent that the inspection (to determine the nature of the goods) did not clear up any reasonable doubts which might have arisen, a sample of each item appearing on the customs declaration was required to be taken. If it was impossible to take a sample without destroying the goods, no samples were to be taken and the quality of the goods was to be documented as precisely as possible and substantiated wherever possible with photographs (see paragraph 8 of the PCA Discount Guidelines).

16If there were still doubts following that examination, the customs authorities had to contact the declarant by telephone and verification of the declarations would continue. If, during the telephone conversation, the declarant expressed a wish to remove the goods, additional security would have to be provided. The amount of such security had to be based on the total amount of import duties likely to be payable (see paragraph 9 of the PCA Discount Guidelines).

17Paragraph 11 of the PCA Discount Guidelines listed additional documents which the customs authorities were required to request for the purpose of determining the facts of the case. Those documents included, inter alia, contracts, receipts for transport and insurance expenses and orders.

18Paragraph 12 of the PCA Discount Guidelines listed various circumstances which had to be taken into account in assessing whether, despite the additional documents and explanations provided by the declarant, reasonable doubts continued to exist, such as whether the importer was unable to provide a reasonable explanation for the low invoice price or that the importer was not available for review.

19Where there were still reasonable doubts or in the absence of a reply, the customs authorities were to inform the importer in writing, setting out the reasons for continuing to have doubts and setting a reasonable deadline for a response (see paragraph 13 of the PCA Discount Guidelines).

20If additional documentation and information still failed to clear up the doubts, the transaction value method could not be applied and the customs value had to be determined in accordance with one of the sequential methods specified in Article 30(2) or Article 31 of the Community Customs Code by means of a decision adopted by the customs authorities and communicated to the importer promptly (see paragraphs 14 and 15 of the PCA Discount Guidelines).

Pre-litigation procedure

21From 10 to 14 November 2014, the Commission undertook an inspection mission to the Czech Republic relating to the Czech Republic’s implementation of the PCA Discount.

22Following that mission, the Commission sent the Czech authorities, by letter dated 3 February 2015, Report No 14-25-1 on the results of the review of traditional own resources undertaken in the Czech Republic from 10 to 14 November 2014.

23In that report, the Commission expressed reservations on the implementation of the PCA Discount by the Czech Republic. Accordingly, it concluded that there had been no effective verification of all the customs declarations concerned by the PCA Discount and that all the goods had been released without a request for security under Article 248 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Community Customs Code (OJ 1993 L 253, p. 1), even though there were reasonable doubts that the customs value of those goods had been undervalued. According to the Commission, that had resulted in a loss of traditional own resources of the European Union for which the Czech authorities were responsible, which was equal to the difference between the customs duty calculated on the basis of the declared customs value and the customs value calculated on the basis of the LAP.

24Between 2015 and 2022, exchanges took place between the Czech Republic and the Commission, in which the Czech Republic sent to the Commission the evidence which it had requested, which, however, it did not accept. On a number of occasions, the Commission insisted that the Czech Republic make available to the EU budget, first, the difference between the customs duty calculated on the basis of the declared customs value and the duty calculated on the basis of the LAP, then, from 2017, the difference between the customs duty calculated on the basis of the declared customs value and the duty calculated on the basis of the CAP (rather than the LAP).

25On 15 June 2018 and 20 December 2022, although it objected on a number of occasions, the Czech Republic, subject to conditions, made available to the EU budget the amounts of CZK 28 307 935.78 (approximately EUR 1128000) and CZK 33 444 448.24 (approximately EUR 1334000). On 22 June 2020, an amount of CZK 641 306.81 (approximately EUR 26000) was the subject of a set-off in favour of the Czech Republic.

26On 15 June 2023, the Czech Republic brought the present action alleging unjust enrichment of the European Union.

Facts subsequent to the bringing of the action

27Since the Commission and the Czech Republic reached an amicable settlement in relation to the fourth plea raised in the application, which concerned an incorrect EUR/CZK exchange rate having been applied, the Commission, by letter dated 12 December 2024, agreed to repay CZK 675 770.82 (approximately EUR 27000) to the Czech Republic.

28Accordingly, by letter dated 20 December 2024, the Czech Republic informed the Court that it was withdrawing the fourth plea and that it was henceforth seeking repayment of the sum of CZK 60 435 306.39 rather than CZK 61 111 071.21.

29By letter dated 28 January 2025, the Commission informed the Court that it had no objection to that partial withdrawal.

Forms of order sought

30Following the partial withdrawal, the Czech Republic claims, in essence, that the Court should:– order the Commission to repay to it the sum of CZK 60 435 306.39 paid in respect of own resources of the European Union;– order the Commission to pay the costs.

31The Commission contends that the Court should:– dismiss the application;– order the applicant to pay the costs.

Law

32In support of its action and following its partial withdrawal, the Czech Republic relies on three pleas in law. In the context of the first plea, it submits that it carried out effective customs verifications, so that it could accept the declared customs value of the goods concerned by the PCA Discount and release them without requiring a security to be lodged. In the context of the second plea, the Czech Republic maintains that, if the Court considered that it could not accept the declared customs value of the goods concerned by the PCA Discount, the statistical value could not be used to estimate the customs value of those goods. Finally, in the context of the third plea, the Czech Republic relies, in any event, on the fact that the CAP could not be used to estimate the customs value.

33The Commission disputes the arguments of the Czech Republic.

Preliminary observations

The subject matter of the action and the conditions for an action based on unjust enrichment

34It should be recalled, as a preliminary point, that the present dispute concerns an action for damages under Article 268 TFEU and the second paragraph of Article 340 TFEU, based on unjust enrichment, which, in the present case, is due to the fact that the amount of the own resources of the European Union has unjustifiably increased from the amount claimed by the Czech Republic, which is of the view that it has been impoverished accordingly, and that that impoverishment is not justified by a legal provision.

35In that regard, the quantum of possible impoverishment and enrichment is not disputed by the parties.

36It is therefore necessary to ascertain whether the payment of the amount in question has a legal justification under EU law.

37In that context, in order to assess the substance of the Czech Republic’s arguments, it is necessary to recall the rules of evidence applicable to an action for damages based on the unjust enrichment of the European Union.

38According to the case-law of the Court of Justice, in an action of that nature brought by a Member State which has made available to the Commission an amount of the European Union’s own resources, expressing reservations as to the validity of the Commission’s position, it is for the General Court to assess, in particular, whether the impoverishment of the Member State having the status of an applicant, which is equivalent to making that amount available to the Commission, and the corresponding enrichment of the Commission, are justified by the Member State’s obligations under EU law governing the European Union’s own resources or, on the contrary, whether no such justification exists (see, to that effect, judgment of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 83).

39Accordingly, it is for the Member State having applicant status to demonstrate that it was not required, under the EU rules governing the system of own resources, to make available to the Commission the amount of own resources which are the subject of the dispute and that it has complied with its obligations in that regard. The burden of proof thereby placed on the Member State does not, however, mean that the Commission may confine itself to stating, in a general manner and without supporting evidence, that the matters raised in that context by the Member State are insufficient.

The system of own resources of the European Union

40As EU law currently stands, the management of the system of own resources is entrusted to the Member States and is their responsibility alone (judgments of 9 July 2020, Czech Republic v Commission, C‑575/18 P, EU:C:2020:530, paragraph 62, and of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 345).

41Accordingly, it follows from Article 8(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), that the own resources of the European Union referred to in Article 2(1)(a) of that decision are to be collected by the Member States and that they are under an obligation to make those resources available to the Commission.

42To that end, under Article 2(1) and Article 6 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1), which was applicable at that time, the Member States were, as soon as the conditions provided for by the customs regulations for the entry of the entitlement in the accounts and the notification of the debtor had been met, to establish the European Union’s entitlement to the own resources and enter that entitlement in the accounts concerned. As was apparent from Articles 217 and 218 of the Community Customs Code, those conditions were met when the customs authorities had the necessary particulars and, therefore, were in a position to calculate the amount of duties and to determine the debtor (see, to that effect and by analogy, judgment of 15 November 2005, Commission v Denmark, C‑392/02, EU:C:2005:683, paragraphs 57 to 59).

43The Member States then had to make the own resources of the European Union available to the Commission under the conditions laid down in Articles 9 to 11 of Regulation No 1150/2000, by crediting those resources, within the prescribed period, to the account opened in the name of that institution.

44In that regard, under Article 17(1) and (2) of Regulation No 1150/2000, Member States were required to take all requisite measures to ensure that the amounts corresponding to the entitlements established under Article 2 of that regulation were made available to the Commission. If insufficient measures were taken, the Member States were required to make available to the Commission the own resources lost.

The obligations of the Member States under the customs regulations

45As a preliminary point, it must be recalled that, according to the Court’s settled case-law, EU customs regulations seek to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (see judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 23 and the case-law cited).

46In particular, under Article 29 of the Community Customs Code, the customs value of imported goods was the transaction value, that is to say, the price actually paid or payable for the goods when they were sold for export to the customs territory of the European Union, which had to reflect the real economic value of imported goods (see judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraphs 24 and 26 and the case-law cited).

47Where the customs value could not be determined, under Article 29 of the Community Customs Code, by the transaction value of the imported goods, the customs valuation was carried out in accordance with the provisions of Article 30 of that code, by applying, in sequence and each paragraph being subordinate to the previous paragraph, the methods laid down in Article 30(2)(a) to (d) of that code, as well as Article 31 of that code (see judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraphs 27 to 29 and the case-law cited).

48In addition, Article 13(1) of the Community Customs Code provided that the customs authorities could, in accordance with the conditions laid down by the provisions in force, carry out all the controls they deemed necessary to ensure that customs rules and other legislation governing the entry, exit, transit, transfer and end-use of goods moved between the customs territory of the Community and third countries were applied correctly.

49In that regard, Article 248(1) of Regulation No 2454/93 provided that the goods concerned were to be released by the customs authorities, in principle, on the basis of the transaction value as provided for in Article 29 of the Community Customs Code, that is to say, on the basis of the import duties determined in accordance with the statements in the declaration. However, where the customs authorities considered that the checks which they had undertaken could enable an amount of customs duties higher than that resulting from the particulars stated in the declaration to be assessed, they were, further, to require the lodging of a security sufficient to cover the difference between the amount according to the particulars stated in the declaration and the amount which could finally be payable on the goods. However, the Member States were required to repay that security where the additional verifications and checks carried out by the customs authorities had not led to the assessment of an amount of duties higher than that resulting from the particulars stated in the declaration.

50It followed that, in carrying out controls under Article 13(1) of the Community Customs Code and in requiring a security which they considered necessary under Article 248(1) of Regulation No 2454/93, the Member States had a certain latitude and freedom of choice as to the measures to be taken as regards, in particular, the way in which they used the means at their disposal. However, that latitude or that freedom of choice was limited by the principle of effectiveness, which required that the measures taken should be effective and dissuasive, subject, however, to the necessary observance of the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union and general principles of EU law (judgment of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 213).

51The scope of the principle of effectiveness, in so far as it applies to the specific obligation to which Member States are subject under Article 325(1) TFEU to guarantee the effective and comprehensive collection of the European Union’s own resources, in the form of customs duties, cannot be determined in an abstract and fixed manner, since the nature of those measures depends on the characteristics of the activity concerned (see, to that effect, judgment of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 220).

52Lastly, it should be recalled that the present case concerns the implementation, by the Czech Republic, of the PCA Discount, in the context of which the Member States and the Commission had drawn up an operational plan, which set out the risk profiles and thresholds required to alert the Member States when verifying the declared customs values of the goods specifically targeted by that plan and included, in Annex 2 thereto, guidelines laying down the procedures for verification and physical controls in cases of doubts about the declared customs value, in particular when it was lower, or indeed much lower, than the LAP (see paragraph 12 above). Accordingly, it was for the Czech customs authorities to take the steps provided for in the guidelines and, after having undertaken each of them, to assess, on the basis of the information provided by their agents or declarants, whether they could reasonably no longer have doubts, taking into account what was achievable by making efficient use of the resources available to them.

The first and second pleas, relating to the controls carried out by the Czech customs authorities and the use of the statistical value as a customs value

53As a preliminary point, it should be observed that the parties do not dispute that the European Union has been enriched by a corresponding impoverishment of the Czech Republic, since that Member State paid the disputed amount even though it disagreed with the Commission regarding its obligation to do so.

54According to the Commission, the impoverishment of the Czech Republic is, however, justified because it is the result of an infringement by the Czech Republic of Article 13(1) of the Community Customs Code and of Article 248(1) of Regulation No 2454/93.

55The Czech Republic, for its part, submits, in the context of the first plea, that no infringement of those provisions took place, since its customs authorities carried out sufficient controls in accordance with the provisions in force under the operational plan and the PCA Discount Guidelines. In addition, those controls demonstrated that the goods concerned were of such poor quality that their declared customs value could be accepted and their release could be ordered without requesting the lodging of a security.

56It follows, in the light of the principles set out in paragraphs 34 to 51 above, that it is necessary to examine whether the controls carried out by the Czech Republic under Article 13(1) of the Community Customs Code could be regarded as sufficient in the light of the principle of effectiveness laid down in Article 325(1) TFEU, such that it was permitted to release the goods concerned, without requiring the lodging of a security as provided for in Article 248(1) of Regulation No 2454/93.

57In that regard, it should be recalled that the PCA Discount Guidelines provided for procedures for verification and physical controls where the customs authorities had doubts about whether the declared customs value reflected the price actually paid or payable for the goods, in particular where the customs value was lower than the LAP (see paragraph 12 above).

58In the present case, it is common ground between the parties that such doubts did exist, since the present dispute concerns 544 goods items which were spread over 370 customs declarations, the declared customs value of which was below the LAP.

The controls carried out by the Czech customs authorities

59As regards the controls carried out by its customs authorities on account of doubts regarding the declared customs value, the Czech Republic provided, first, proof that a physical control had been carried out for all the goods covered by the 544 items and the 370 customs declarations referred to above, by adducing, in most cases, the relevant inspection reports and, in other cases, a document taken from the customs administration’s computer system relating to the control having been carried out. It is apparent from those documents that all the goods were subject to a control regarding the characteristics of the goods concerned.

60Second, the Czech Republic adduces, by way of example, copies of certain customs declarations, accompanied by photos of the goods concerned, which clearly show defects, as well as reports, contractual documents and inspection reports, which confirm the low to very low quality of those goods.

61Third, the Czech Republic adduces affidavits from a number of agents of its customs authorities who participated in the controls at various customs offices in November and December 2011. Those declarations state that systematic and regular controls of the imported goods were carried out, covering all the characteristics of the goods, such as type, value, quantity, counterfeiting and damage. Those controls showed that the goods reviewed were of poor quality, as regards, for example, fabrics, which were sometimes mouldy or incorrectly labelled, the workmanship, for example goods with uneven stitching, or the fact that footwear containers gave off unpleasant chemical odours when opened. Those agents also stated that, in their view, the goods corresponded to the declared value.

62Fourth, as regards the Commission’s allegation that samples ought to have been taken from each consignment, the Czech Republic explained at the hearing that, in accordance with paragraph 8 of the PCA Discount Guidelines, a sample of each item on the customs declarations was taken, which the Commission ultimately did not dispute.

63Fifth, the Czech Republic submits that, in all cases, the declarants cooperated with the customs authorities and provided documents in support of the declared customs value, such as invoices, insurance documents, packing lists, sales contracts and transfer of funds documents, namely, evidence of the price actually paid.

64Sixth, the Czech Republic states that the documents submitted by the declarants contained no irregularities or contradictions, were valid both from a legal and accounting perspective and established the declared customs value.

65Lastly, the Czech Republic states that the shipping costs and the insured values of the goods in relation to the declared customs value raised no doubts as to whether that value reflected the price actually paid.

66In the light of the foregoing, it must be found that the Czech Republic adopted almost all of the measures provided for in the PCA Discount Guidelines. In that context, at the hearing, the Commission admitted that the inspection files were complete and that it was not in a position to identify any missing documents.

67In that regard, it should be recalled, first, that the PCA Discount Guidelines described how the Member States and the Commission believed that the customs authorities ought to have acted when faced with very high amounts of imports of certain goods from Asia with a low, or indeed extremely low, customs value (see paragraphs 4 and 12 above) and, second, that those customs authorities had a margin of discretion when carrying out the verifications and controls of the goods concerned (see paragraph 50 above).

68It must be observed that, throughout the pre-litigation procedure and the present action, the Commission has failed to provide specific evidence to show that the physical and documentary controls carried out by the Czech Republic did not comply with the principle of effectiveness (see paragraph 50 above), despite their compliance with the PCA Discount Guidelines and in view of the margin of discretion available to the Czech customs authorities in choosing which controls they believed to be appropriate in the present case.

69In that context, it is also necessary to reject the argument raised by the Commission at the hearing that the rigour of the controls carried out by the Czech Republic is called into question by the fact that the Czech Republic had not rejected the declared customs value of any of the goods checked, even if that value was below the risk threshold. Also on that point, the Commission fails to indicate which other measures could have been taken by the Czech customs authorities in order to determine whether the declared customs value corresponded to the price actually paid.

The specific context of the present case

70Despite the controls carried out by the Czech customs authorities having been exhaustive, the Commission submits that, in the light of the specific context of the present case, the Czech Republic could not be satisfied with the verifications and controls carried out and ought to have continued to have doubts as to the declared customs value and ought not to have ordered the goods concerned to be released without requesting that a security be lodged.

71In that context, the Commission relies on a number of factors.

72First, it states that, as a result of the measures taken in the context of the ‘Draper’ operation in 2009 and the ‘Trick’ operation in 2010, which concerned undervalued textiles imported from China, the Czech customs authorities knew, at the time of the PCA Discount, how fraudsters used falsified documents to undervalue goods, with the result that they ought not to have accepted the declared customs value.

73In that regard, it must be observed, as the Czech Republic has done, that the ‘Draper’ operation in 2009 and the ‘Trick’ operation in 2010 were carried out on the basis of concrete suspicions of fraud, which had enabled the Czech authorities to use the operational techniques available in criminal proceedings (phone tapping, video recordings, surveillance), which, however, cannot apply in the present case. As the Czech Republic submits, without being challenged by the Commission, in the present case there was no concrete indication of fraud which would have allowed such investigatory methods to be used.

74Second, the Commission refers to events subsequent to the PCA Discount which are indicative of the controls carried out during the PCA Discount being ineffective. In particular, the Commission relies on measures put in place by the Czech authorities from March 2012 and the fact that, from April 2015, the average customs values in the Czech Republic had reached the EU average.

75In that regard, it should be noted that events which took place from March 2012 and April 2015 cannot be taken into account when examining whether the checks carried out by the Czech customs authorities in the context of the PCA Discount during November and December 2011 were adequate. That examination must be carried out taking into account the factual context of the time and the information which was available to the Czech customs authorities at that time.

76Furthermore, as regards the measures taken by the Czech Republic in March 2012, it should be noted that they concerned the implementation of a method for establishing risk profiles based on the average value of similar goods recently imported into the Czech Republic, which were more precise and targeted than those of the PCA Discount, those risk profiles being calculated on the basis of the import prices throughout the European Union of goods falling within certain TARIC codes which were not necessarily similar to the products subject to the customs control at issue.

77As the Czech Republic states, without being challenged by the Commission, at the time of the PCA Discount, the Czech customs authorities already had data on identical or similar goods recently imported into the Czech Republic. On that basis, those authorities compared the customs value of those goods with the customs value of the goods concerned by the PCA Discount, such that the use of that method, implemented in March 2012, would not have led to a different result.

78Lastly, as regards the evolution of average customs values from April 2015 in the Czech Republic, the Czech Republic states, without being challenged by the Commission, that, at that time, the Commission began to give Member States access to its own database and that international cooperation and the exchange of information with China had improved. In that context, the Czech Republic refers to ANEX CZ s.r.o., a company to which the Commission referred in the defence on account of fraudulent imports allegedly made by it in 2013 and 2014, and explains that the Chinese authorities provided information which had enabled the Czech authorities to discover that certain invoices were fraudulent.

79Accordingly, the increased availability of relevant data, and not the carrying out of controls and verifications, enabled the Czech customs authorities to be more effective in detecting undervalued imports before 2015, but they did not have such data at the time of the PCA Discount.

80Third, the Commission submits that, since the world price per kilogram of cotton t-shirts during the PCA Discount was EUR 12.77 and the average price per unit was therefore EUR 1.50, the average price indicated in the customs declarations, which amounted to less than EUR 0.15, could not correspond to the actual value of a t-shirt.

81In that regard, it must be observed that the comparison made by the Commission does not assist in determining whether the declared customs value reflected the price actually paid or payable for the goods concerned. Such a comparison could, at most, have been used as an indication of risk, which would have given rise to more thorough controls, such as the LAP. Since the customs authorities had carried out verifications and physical controls of all the goods whose declared customs value was below the LAP, the fact that that value of those goods was also below the world average price of cotton per unit is irrelevant.

The relevance of the statistical value as the basis for estimating the customs value

82In the light of the foregoing, the substance of the Commission’s argument is that, as long as the declared customs value is below the LAP, it is unacceptable and, consequently, the lodging of a security must be requested by the national authorities before release.

83Such a situation, according to which any customs value below the LAP must in principle be rejected, irrespective of the extent of the doubts remaining, or not, after verifications and checks carried out by the customs authorities, fails to have regard to the margin of discretion enjoyed by the Member States in carrying out customs controls (see paragraph 50 above) and the customs legislation which lays down a specific procedure in the event of a challenge to the declared customs value (see paragraphs 47 to 89 below).

84Accordingly, as the Commission acknowledged at the hearing, a statistical value, such as the LAP, can only be used as a risk analysis tool, that is to say, a tool for detecting on the basis of risk profiles those imports likely to be undervalued which require verification, not for determining their customs value (see, to that effect, judgment of 8 March 2022, Commission v United Kingdom (Action to counter undervaluation fraud), C‑213/19, EU:C:2022:167, paragraph 373).

The Czech customs authorities’ actual possibilities to determine a higher customs value

85Lastly, even if, as the Commission submits, the Czech customs authorities ought to have determined the customs value in accordance with the secondary methods laid down in Articles 30 and 31 of the Community Customs Code, it is necessary to examine whether, by applying such a method, those authorities could have arrived at a customs value which was higher than the transaction value under Article 29 of the Community Customs Code and whether, therefore, lodging a security before the release of the goods concerned would have contributed to protecting the financial interests of the European Union (see paragraph 49 above).

86In that context, it should be recalled that the objective of a security is to enable the customs authorities, first, to authorise the release of the goods while continuing to examine them and the documentation accompanying them and, second, to prevent the situation where a potential customs debt resulting from such an examination is no longer recoverable.

87It follows that it is only where the customs authorities of a Member State have information enabling them to calculate an amount of customs duties higher than that collected on the basis of the declared customs value and, therefore, to establish an additional entitlement to own resources in favour of the European Union (see paragraph 42 above) that lodging a security contributes to protecting the financial interests of the European Union.

88In that regard, it should be recalled, as a preliminary point, that although, following a control and a request for additional information, the customs authorities continued to have reasonable doubts regarding the value of the goods declared, preventing them from accepting the goods on the basis of Article 29 of the Community Customs Code, they could have used one of the secondary methods laid down in Article 30(2)(a) to (d) of the Community Customs Code in order to determine the value of the goods. Those secondary methods were to be applied, in sequence and each being subordinate to the previous method (see paragraph 47 above), and consisted, inter alia, as laid down in Article 30(2)(a) and (b) of that regulation, in assessing the value on the basis of the transaction value of identical or similar goods imported at the same time.

89If, at that stage, it was still not possible to determine the customs value of the goods, the ‘fall-back method’ had to be applied, in accordance with Article 31 of the Community Customs Code.

90It is clear from the documents before the Court that, even though they thought that they were not obliged to do so since they believed that the declared customs value could be accepted in accordance with Article 29 of the Community Customs Code, the Czech customs authorities compared the declared customs value with recent imports of goods of the same type and quality (see paragraph 77 above). As the Czech Republic indicates, without being challenged by the Commission, that comparison demonstrated that applying one of the secondary methods laid down in Article 30(2)(a) or (b) of the Community Customs Code would not have enabled the Czech customs authorities to reach a customs value for the goods concerned by the PCA Discount higher than that declared as provided for in Article 29 of the Community Customs Code.

91Lastly, even if, as the Commission submits, those goods could not be taken into account as a point of comparison in applying Article 30(2)(a) or (b) of the Community Customs Code because of their low customs value, which was below the LAP, it is necessary to examine whether applying the fall-back method, in accordance with Article 31 of the Community Customs Code, would have enabled the Czech customs authorities to reach a higher customs value.

92Under that method, the customs value was assessed on the basis of data available in the European Union, using reasonable means consistent with the general principles and provisions set out in Article 31 of the Community Customs Code.

93In that regard, it should be recalled that, as the Commission acknowledged at the hearing, a statistical value, such as the LAP, is not used to assess the customs value of the goods (see paragraph 84 above), not even in the context of determining the value by the residual method.

94Therefore, and given that Article 30(2) of the Community Customs Code and the case-law rule out the use of arbitrary or fictitious customs values (see paragraph 45 above), it must be found that there is nothing in the file to support the conclusion that the application of the residual method as provided for in Article 31 of the Community Customs Code would have resulted in the collection of an additional amount of customs duties and thereby of the own resources of the European Union.

Conclusion

95In the light of the foregoing, it must be held that the Czech Republic acted in accordance with Article 13(1) of the Community Customs Code and Article 248(1) of Regulation No 2454/93 and it must be concluded that it was not required, under the EU rules governing the system of own resources, to make available to the Commission the amount of own resources which is the subject of the present dispute.

96It follows that the first and second pleas must be upheld, there being no need to examine the third plea.

97Therefore, the Commission must be ordered to repay to the Czech Republic the sum of CZK 60 435 306.39 paid as own resources of the European Union.

Costs

98Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Czech Republic.

Operative part

On those grounds,THE GENERAL COURT (Tenth Chamber, Extended Composition),hereby:

1.Orders the European Commission to repay to the Czech Republic the sum of 60 435 306.39 Czech koruny (CZK) paid as own resources of the European Union;

2.Orders the Commission to pay the costs.

Delivered in open court in Luxembourg on 9 April 2025.