Conclusion on the first question
66.In the light of the foregoing, the answer to the first question should, in my view, be that Article29(1)(d) of Regulation No2913/92 and Article143(1)(e) and (f) of Regulation No2454/93 are to be interpreted as meaning that the buyer and the seller are deemed to be ‘related persons’ where, despite the absence of elements proving business partnership or control, on the basis of the circumstances surrounding the conclusion of transactions, it can be reasonably inferred that, de facto, one person controls the other or that both persons are controlled by a third person.
B.Second question
67.By its second question, the referring court essentially asks whether Article31(1) of Regulation No2913/92 precludes the customs value being determined based on information contained in a national database relating to a customs value of goods which have the same origin and which, although not similar, are ascribed to the same TARIC heading.
68.In that regard, it should be recalled that Articles30 and 31 of Regulation No2913/92 provide for methods of customs valuation, in circumstances where it is not possible to determine the actual transaction value, and thus the default method for customs valuation set out in Article29 of the same code cannot be used.
69.These ‘subsidiary’ valuation methods are set up in a strict hierarchical order and are subordinately linked to each other. Therefore, they are applicable sequentially: when the customs value cannot be determined by applying a given method, the method which comes immediately after it in the order established by the Customs Code should be used, where feasible.(32)
70.Article30 of Regulation No2913/92 lists four specific, rule-based, methods of evaluation. For its part, Article31 of Regulation No2913/92 provides for a valuation method of last resort– which can only be used if no other option is possible– permitting the value to be determined, ‘on the basis of data available in the Community, using reasonable means’, provided that those means are ‘consistent with the principles and general provisions’ of the EU customs legislation and of the General Agreement on Tariffs and Trade (‘the GATT’).
71.Given its rather open-ended wording and its nature of extrema ratio, Article31 of Regulation No2913/92 leaves it to the authorities to identify, in each set of circumstances, the methods that can be used in order to determine the value of the goods in question. Those methods should, in principle, be those set out in Articles29 and 30 of the same regulation, applied with a certain degree of flexibility.(33)
72.What matters, under Article31 of Regulation No2913/92, is that the means chosen are (i) ‘reasonable’, (ii) based on available data, and (iii) consistent with the relevant (EU and international) legal framework.
73.These requirements imply, in my view, the following. First, the means chosen must be adequate under the circumstances (that is, capable of producing a fair and sound valuation) and practical for the authorities (that is, not overly complicated and time-consuming). Second, the means chosen must be based on actual data– where possible, ‘based on previously determined customs values’(34)– that are verifiable by the declarants and, if need be, by the competent jurisdictions. Third, the means must fit harmoniously in the EU system of customs valuation and not be at odds with the relevant international instruments.
74.In the present case, as mentioned in point19 above, the customs authorities took the view that neither the default method of valuation set out in Article29 of Regulation No2913/92, nor the subsidiary methods set out in Article30 of the same regulation could be applied. They thus decided that the customs value of the goods in question had to be determined in accordance with the ‘fall-back’ method set out in Article31 of Regulation No2913/92. To that end, those authorities determined the customs value of the goods imported by the applicant using the transaction data for goods imported by a different company under the same designation (‘parts of air-conditioning machines’) and TARIC code (8415900090), with the same origin (Malaysia) and originating from the same manufacturer. The referring court notes that the transaction taken as the reference was the only case of exports from Malaysia under the same TARIC code recorded in the national database in 2010.
75.It is obviously not for this Court to consider whether, in the case at hand, the customs authorities were correct in resorting to the method of customs valuation set out in Article31(1) of Regulation No2913/92, on the ground that neither Article29 nor Article30 of that code could be applied.
76.That said– coming back to the issue raised by the referring court– I take the view that Article31 of Regulation No2913/92, in principle, does not preclude the determination of the value of goods on the basis of the transaction data, recorded in a national database, relating to an import of goods, classified under the same TARIC code, with the same origin and having taken place in the previous years.
77.Although the shipment used as reference did not necessarily concern ‘identical goods’ or ‘similar goods’, within the meaning of Article30(2)(a) and (b) of Regulation No2913/92, the fact that both shipments concerned goods classified under the same TARIC code is indicative of a reasonable degree of commonality between those goods. In my view, such commonality may well be sufficient when some goods are valuated under Article31 of Regulation No2913/92, if no other characteristics of the products in question are known. In practice, the authorities applied the method of determination of the customs value on the basis of the transaction value of similar goods,(35) interpreting the concept of ‘similar goods’ in a flexible manner.(36)
78.I hardly need to recall, in this context, that the TARIC is ‘based on the combined nomenclature’ which, building on the World Customs Organization’s Harmonized System (‘the HS’), constitutes the main tool for classifying goods in the European Union. TARIC codes are thus meant to reflect the manner in which a product is classified in all countries that adopt the HS.(37) With the digitalisation of the customs, the TARIC is also easily accessible to both traders and authorities via a public database, thereby enhancing transparency and legal certainty.
79.It is true that the relevant TARIC code used in the present case is residual and generic.(38) However, the attribution of the specific TARIC code by the customs authorities was based on the information provided by the importer itself. In this regard, it must be borne in mind that the system of EU customs valuation is based on the premiss that the information necessary for the application of customs rules to goods is mainly determined on the basis of the information provided by the declarant, and not on the basis of the customs authorities’ findings.(39) More generally, self-assessment of the liabilities in relation to the goods covered by a declaration submitted to the customs authorities is generally considered to be one of the principles underpinning the EU legislation in this field. In this context, the role of the authorities is mostly confined to checking and verifying the declarations and, if necessary, rectifying them.(40) The authorities cannot be expected to carry out time-consuming tasks in order to ‘do the job’ of the declarants and re-calculate their dues on the basis of information and data that is not readily available.
80.In this regard, it should also be added that the Court has already held that the price indicated in a single sale which took place before that sale, on the basis of which the customs declaration was made in a case, may constitute ‘data available’ in the European Union which Article31(1) of Regulation No2913/92 allows to be used as a basis for determining customs value. The Court has found that reference to that price constitutes a means of determining a customs value which is both ‘reasonable’ within the meaning of Article31(1) and consistent with the principles and general provisions of the international agreements and the provisions referred to in Article31(1).(41)
81.I do not see any reason why those findings could not also be applicable in the case at hand.
82.That said, I agree with Baltic Master that the examination of EU-wide data, relating to imports of the relevant goods in the relevant period, would have been preferable.(42) It is, however, for the referring court to ascertain whether any such data was available and, if so, whether that data may cast doubt on the customs authorities’ findings.
83.In the light of the foregoing, the second question should, in my view, be answered to the effect that Article31(1) of Regulation No2913/92 does not preclude the determination of the customs value on the basis of information contained in a national database relating to a customs value of goods which have the same origin and which, although not identical or similar, are ascribed to the same TARIC heading.
V.Conclusion
84.In conclusion, I propose that the Court answer the questions referred for a preliminary ruling by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania, Lithuania) as follows:
–Under Article29(1)(d) of Regulation No2913/92 and Article143(1)(e) and (f) of Regulation No2454/93, the buyer and the seller are deemed to be ‘related persons’ where, despite the absence of elements proving business partnership or control, on the basis of the circumstances surrounding the conclusion of transactions, it can be reasonably inferred that, de facto, one person controls the other or that both persons are controlled by a third person;
–Article31(1) of Regulation No2913/92 does not preclude the determination of the customs value on the basis of information contained in a national database relating to a customs value of goods which have the same origin and which, although not identical or similar, are ascribed to the same TARIC heading.
1Original language: English.
2Smith, A., An Inquiry into the Nature and Causes of the Wealth of Nations, 1776, BookV, ChapterII, PartII.
3See Asakura, H., ‘World History of the Customs and Tariffs’, World Customs Organization, 2003, pp.19-20; and Wolffgang, H-M., ‘Emerging Issues In European Customs Law’, World Customs Journal, Vol.1, No. 1, 2007, pp.3-4.
4The Agreement on Implementation of ArticleVII of the GATT (or WTO Customs Valuation Agreement) to name just one of those agreements. Generally, on this topic, see Rosenow, S., O’Shea, B.J., A Handbook on the WTO Customs Valuation Agreement, World Trade Organization and Cambridge University Press, 2010.
5OJ 1992 L302, p.1.
6Regulation No2913/92 ceased to have effect on 30April 2016, having been repealed and replaced by Regulation (EC) No450/2008 of the European Parliament and of the Council of 23April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L145, p.1). In turn, the latter regulation was repealed and replaced by Regulation (EU) No952/2013 of the European Parliament and of the Council of 9October 2013 laying down the Union Customs Code (OJ 2013 L269, p.1), which is currently in force.
7OJ 1993 L253, p.1.
8That regulation has been repealed by Commission Implementing Regulation (EU) 2016/481 of 1April 2016 repealing Commission Regulation (EEC) No2454/93 laying down provisions for the implementation of Council Regulation (EEC) No2913/92 establishing the Community Customs Code (OJ 2016 L87, p.24).
9The term TARIC stands for the ‘Integrated Tariff of the European Union’; see Article2 of Council Regulation (EEC) No2658/87 of 23July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L256, p.1), as amended.
10According to Baltic Master, those codes were 8415200090, 8415820090, and 8415101000.
11Code 8415900090.
12ECtHR, 16April 2019, Baltic Master Ltd. v. Lithuania, CE:ECHR:2019:0416JUD005509216.
13Judgment of 12December 2013, Christodoulou and Others (C‑116/12, EU:C:2013:825, paragraph36 and the case-law cited).
14The price may be adjusted in accordance with Articles32 and 33 of the same code. Those provisions set out elements whose value should, or should not, be added to the price actually paid or payable for the goods in question.
15Point(d) of Article29(1) of Regulation No2913/92.
16See also, similarly, Opinion of Advocate General Mengozzi in Stretinskis (C‑430/14, EU:C:2015:701, point15).
17Judgment of 12December 2013, Christodoulou and Others (C‑116/12, EU:C:2013:825, paragraph40 and the case-law cited).
18To that effect, Opinion of Advocate General Mengozzi in Stretinskis (C‑430/14, EU:C:2015:701, point18).
19See judgment of 21January 2016, Stretinskis (C‑430/14, EU:C:2016:43, paragraph27).
20My emphasis.
21See, among others, the French version (‘juridiquement’), the Italian version (‘veste giuridica’), the Spanish version (‘jurídicamente’), the Swedish version (‘juridiskt’) and the Greek version (‘νομική άποψη’).
22Although the note mentioned refers to point(e) of Article143(1) only, I consider the principle set out therein to be, mutatis mutandis, applicable also with regard to point(f) of the same provision.
23My emphasis. As concerns the term ‘operationally’, other language versions of the regulation confirm unequivocally that that term refers to situations of de facto control: see, inter alia, the French version (‘en droit ou en fait’), the Italian version (‘di diritto o di fatto’) and the Greek version (‘de jure ή de facto’).
24See, to that effect, judgment of 9July 2020, Direktor na Teritorialna direktsiya Yugozapadna Agentsiya ‘Mitnitsi’ (C‑76/19, EU:C:2020:543, paragraphs67 and 68).
25In this context, I hardly need to add that, in any event, market operators have the right to challenge the authorities’ assessment before the national courts, as Baltic Master did in the present case. See, to that effect, judgment of 13March 2014, Global Trans Lodzhistik (C‑29/13 and C‑30/13, EU:C:2014:140), and Opinion of Advocate General Cruz Villalón in DP grup (C‑138/10, EU:C:2011:378, point44).
26See Article29(2)(a) (‘If the declarant so requests’), and Article2982)(c) (‘at the initiative of the declarant’).
27See Article29(2)(b) (‘wherever the declarant demonstrates’).
28Consider, for example, that the sale of crude oil in spring 2020, during the peak of the COVID-19 pandemic, recorded negative prices for the first time in history.
29Provided, as mentioned, that their relationship did have an influence on the price of goods (see supra, point31 of the Opinion).
30See, to that effect, judgment of 9March 2017, GE Healthcare (C‑173/15, EU:C:2017:195, paragraphs38 to 40). See also Opinion of Advocate General Mazák in Carboni e derivati (C‑263/06, EU:C:2007:501, points61 to 65).
31In that respect, the interpretative note with regard to Article29(2) states that the examination of the circumstance surrounding the sale is only required where ‘there are doubts about the acceptability of the price’ (my emphasis).
32See, to that effect, judgments of 12December 2013, Christodoulou and Others (C‑116/12, EU:C:2013:825, paragraphs41 to 43), and of 9November 2017, LS Customs Services (C‑46/16, EU:C:2017:839, paragraph43). See also Opinion of Advocate General Wahl in Oribalt Rīga (C‑1/18, EU:C:2019:64, points28 to 30).
33See Interpretative note to Article31(1), supra point13 of this Opinion. To that effect, see also Opinion of Advocate General Wahl in Oribalt Rīga (C‑1/18, EU:C:2019:64, points28 to 30).
34Ibid.
35Article30(2)(b) of Regulation No2913/92.
36Article142(1)(d) of Regulation No2454/93 and interpretative notes to Article31(1).
37For that reason, the Commission– which is responsible for managing and publishing the TARIC– although enjoying some latitude in defining the scope of the customs headings established on the basis of the HS, is not authorised to alter their subject matter. See, to that effect, Opinion of Advocate General Tizzano in CBA Computer (C‑479/99, EU:C:2001:119, point40 and the case-law cited).
38See above, point19 of this Opinion.
39See, to that effect, judgment of 15September 2011, DP grup (C‑138/10, EU:C:2011:587, paragraphs33 and 34).
40On this point, see extensively Walsh, T., European Union Customs Code, Wolters Kluwer, 2015, pp.67 to 73.
41See, for example, judgment of 28February 2008, Carboni e derivati (C‑263/06, EU:C:2008:128).
42In passing, I note that the relevant provisions refer to identical and similar products sold for export ‘to the Community’ (Article30(2) of Regulation No2913/92), and to ‘data available in the Community’ (Article31(1) of the same regulation).