The present case
34.In its request for a preliminary ruling, the referring court states that, in the case before it, there is no evidence proving the existence of any legal relationship between the seller and the buyer of the kind set out in Article143(1) of Regulation No2454/93.
35.Nevertheless, the referring court indicates that a number of factual elements provide grounds for taking the view that the seller and the buyer enjoy a particularly close connection, as a result of which the transactions between those persons were concluded and executed under conditions that are not characteristic of the ordinary course of business. In the referring court’s view, there does not appear to be any objective conditions capable of justifying the economic logic of such transactions.
36.In that regard, the referring court points to the following facts: (i) the seller and the applicant are linked by a long-term commercial relationship; (ii) the goods were supplied without the conclusion of any contracts of sale that would provide for the delivery, payment or return of the goods and other conditions specific to such transactions; (iii) the fact that goods were delivered without any advance payment and despite the fact that the applicant owed significant amounts to the seller in respect of previous supplies; (iv) no provision was made for enforcement or risk-mitigation measures (advance payments, sureties, guarantees, default interest, and so forth) that are normal in the ordinary course of business, notwithstanding the particularly high value of the disputed transactions; (v) there was no evidence to suggest that the seller in general exercised any control over payment and other obligations; (vi) cases were identified in which persons working for the applicant’s company acted on behalf of the seller under an authorisation and used its corporate stamp.
37.The referring court adds that, in its view, patterns of conduct of economic entities similar to those mentioned are generally typical in cases where one party to the transaction controls the other or both are controlled by a third party. Therefore, although there is no evidence as to the de jure existence of such control, the referring court is of the opinion that the circumstances of the case at issue may possibly justify the seller and the applicant being regarded as de facto related for the purposes of Article29(1)(d) of Regulation No2913/92 and Article143(1)(e) and/or (f) of Regulation No2454/93.
38.At the heart of the present question, therefore, lies the issue of whether the customs authorities are able to conclude that two parties are ‘related’ for the purposes of customs valuation, despite the lack of any legal links between them, on the basis of elements suggesting that, de facto, one party controls the other or a third party controls both of them.
39.In the next sections, I shall explain why I take the view that the answer to this question must be in the affirmative. However, I shall also suggest that the relevant provisions of EU law (in particular, Article29(1)(d) of Regulation No2913/92 and Article143(1)(e) and (f) of Regulation No2454/93) require a relatively cautious approach from the authorities in purely de facto situations. Finally, in order to provide a useful answer to the referring court, I will briefly examine another provision (Article181a of Regulation No2454/93) that– although not mentioned by the referring court– may also be of some relevance in the present case.
(a)Article143(1) of Regulation No2454/93
40.From the outset, it may be worth emphasising that the situations in which two operators are deemed to be ‘related’, for the purposes of customs valuation, are listed exhaustively (‘only if’)(18) in Article143(1) of Regulation No2454/93.
41.That being said, as was pointed out by some of the parties that submitted observations in the present proceedings, the Court has stated that the situations listed therein need not be interpreted restrictively, when to do so would undermine the effectiveness of Article29 of Regulation No2913/92.(19) On that basis, those parties have argued that the case at hand in the main proceedings may be subsumed under points(b), (e) or (f) of Article143(1) of Regulation No2454/93.
42.As far as point(b) of Article143(1) of Regulation No2454/93 is concerned, it appears hardly disputable that mere de facto situations are not caught by that provision. Indeed, only persons that are ‘legally recognised partners in business’,(20) are considered ‘related’ under that provision. An examination of the various language versions of the regulation confirms that reading.(21)
43.Since the referring court states that, on the basis of the evidence available, no legal connection between the two operators may be detected, I am of the view that point(b) of Article143(1) of Regulation No2454/93 is not applicable in the case at hand.
44.The situation may, however, be different with regard to points(e) and (f) of Article143(1) of Regulation No2454/93. Indeed, these provisions allow the authorities to consider two operators to be ‘related’ in situations of mere de facto control. That is so when one of the operators ‘directly or indirectly controls the other’ (point(e)), and when both operators are ‘directly or indirectly controlled by a third person’ (point(f)). The interpretative notes included in Annex23 to Regulation No2454/93 state that, for the purposes of Article143(1)(e), (22) ‘one person shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter’.(23)
45.The disjunctive conjunction ‘or’ indicates that situations of de facto control are also relevant for the purposes of those provisions, in the alternative to purely de jure control. In summary, I would say that two operators are ‘related’ for the purposes of customs valuation when– because of legal, contractual or simply factual links existing between them– the transactions in question (as declared to the authorities) cannot possibly be the result of the dealings of two independent market operators, each of them taking the most economically rational or profit-maximising conduct.
46. It is obviously for the referring court– which alone has jurisdiction to assess the facts of the dispute before it– to determine whether the buyer and the seller are ‘related’ because one of them is capable of exercising restraint or direction over the other, or a third person can exercise a similar form of control over both companies.(24)
47.That said, in order to assist the referring court, I would observe the following.
48.The elements which, according to the referring court, point to the possible links between the two market operators undoubtedly show the existence of a high level of trust between them. However, I wonder whether those elements– both when assessed individually and when considered together– are sufficient to establish a case of de facto control under point(e) or (f) of Article143(1) of Regulation No2454/93.
49.It seems to me that those elements are mostly indicia or, in any case, have led the authorities to rely on certain presumptions.
50.In that regard, I can certainly agree that customs authorities should be able to consider certain facts to be established in the presence of a number of indicia and/or on the basis of some presumptions. Given the sheer number of operations that must be processed by those authorities on a daily basis, clearly one cannot expect them to base their findings on standards of proof which are, for example, as high as those imposed upon authorities investigating crime.
51.At the same time, however, market operators must be able to have confidence that those authorities follow predictable and reliable methods for the verification of their declarations. In particular, indicia must be relevant and consistent, and presumptions based on established experience, so that the risk of false positives is minimised.(25) Indeed, as the preamble to Regulation No2913/92 states, the Customs Code aims at ‘secur[ing] a balance between the needs of the customs authorities in regard to ensuring the correct application of customs legislation, on the one hand, and the right of traders to be treated fairly, on the other…’.
52.Consistent with that principle, Article29(2) of Regulation N2913/92 lays down an ad hoc procedure designed to enable the authorities to clarify whether or not Article29(1)(d) of Regulation No2913/92 is applicable to a given situation, whilst protecting the rights of the declarant. The customs authorities are required to communicate their doubts to the declarant so that the latter has the opportunity to provide more information in an attempt to demonstrate that the transaction value declared is acceptable for customs purposes. From my point of view, although mainly there to examine the acceptability of the price declared, nothing precludes the authorities and/or the operators to make use of that procedure in order to clarify the relationship between the buyer and the seller.
53.Without going so far as to establish a presumption according to which the price agreed between related parties generally does not reflect the real economic value of the goods, Article29 of Regulation No2913/92 eases, to a certain extent, the standard of proof required of the authorities. It does so by laying down certain burdens of allegation for the declarant(26) and, in some circumstances, by also placing upon him or her part of the burden of proof.(27)
54.However, the placing of such burdens upon the declarants cannot have the effect of relieving the authorities of their duty to base their findings on the existence of de facto control on specific elements which indicate that one party was capable of determining or influencing the conduct of the other party, or that a third party could exercise a similar power vis-à-vis both parties.
55.In my view, the mere fact that a transaction lacks certain features that normally characterise similar transactions– for example, existence of a written sale contract, provision of securities or guarantees, advance payments– does not automatically reveal the existence of a structural or organic link between the two operators. As Baltic Master points out, it cannot be excluded that two long-standing business partners, who have entertained regular and fruitful business dealings, might carry out their transactions in a simplified and speedy manner. Similarly, an unusually low price is not necessarily an indication that the transaction took place between related persons. In fact, a party may have been able to extract a particularly good price because of, for example, the financial difficulties of the other party or due to a particularly favourable market situation.(28) Those are not situations of de facto control but rather the result of normal market forces at play.
56.In my view, to prove de facto control, the authorities cannot limit themselves to observing and recording the effect of the alleged control (the unusually low price), but must actually identify the possible cause of the alleged control. What comes to mind, for example, is the existence of interlocking directorates, cross-shareholdings, or situations of proximity between the shareholders of the two parties. Those are elements that, where appropriate, may provide the authorities with a solid basis for presuming de facto control. Otherwise, the authorities’ reasoning becomes circular: the element that triggers an in-depth investigation into the relationship between the two parties (the unusually low price) becomes also the proof of the existence of a ‘too close’ relationship between them.
57.Having said that, for the sake of completeness, it may be useful to remind the referring court that the fact that the buyer and the seller are ‘related’ within the meaning of Article29(1)(d) of Regulation No2913/92 is by no means the only situation(29) that permits the customs authorities to discard the value of the goods declared on import. Indeed, the applicable EU framework includes other provisions that allow the authorities to estimate that value on the basis of other methods of valuation. One of those provisions seems, at first sight, to be potentially relevant in the present case.
(b)Article181a of Regulation No2454/93
58.Pursuant to Article181a of Regulation No2454/93, ‘the customs authorities need not determine the customs valuation of imported goods on the basis of the transaction value method if… they are not satisfied, on the basis of reasonable doubts, that the declared value represents the total amount paid or payable as referred to in Article29 of the Code’.
59.Article181a of Regulation No2454/93 covers the situations in which the price declared does not correspond to the price actually paid or payable. That provision– which is applicable regardless of whether the buyer and the seller are (de jure or de facto) related– catches, in particular, instances of fraud, false declarations and other misrepresentations.(30) It may be the case, for example, that there are forged documents or declarations that do not accurately reflect the actual transaction. It may also be the case that there are errors in the determination or adjustment of the ‘price actually paid or payable’, on the basis of the criteria provided for in Articles29, 32 and 33 of Regulation No2913/92, or more simply that there are material errors in the filling of the documents required for customs clearance.
60.Article181a of Regulation No2454/93 is, therefore, a provision that is largely complementary to Article29(1) of Regulation No2913/92. Indeed, as the Commission stated at the hearing, the former provision was introduced, in the EU framework, only at a later stage, in order to fill certain gaps.
61.As I see it, Article181a of Regulation No2454/93 applies when the price declared does not correspond to the price actually paid or payable. Article29(1) of Regulation No2913/92 applies when the price declared does correspond to that actually paid or payable, but its amount was influenced by the relationship between the buyer and the seller. As such, in both cases the value declared to the customs authorities does not reflect the real economic value of the goods, therefore appearing arbitrary or fictitious.
62.As the Spanish Government stated at the hearing, despite their different scope, Article181a of Regulation No2454/93 and Article29(1) of Regulation No2913/92 pursue the same objective (permit the correct valuation of the goods) and follow a broadly similar logic.
63.Both provisions require a relatively careful approach by the customs authorities: they must have ‘grounds’ to consider that the price agreed between related operators has been influenced by their relationship (Article29(2) of Regulation No2913/92)(31), and they must have ‘reasonable doubts’ that the price declared is not the price actually paid or payable (Article181a of Regulation No2454/93).
64.Moreover, both provisions require the authorities to hear the operator(s) concerned before deciding to disregard the value declared and proceed to making their own evaluation of the value of the goods.
65.That said, whether Article181a of Regulation No2454/93 is relevant in the case at hand– as an alternative to Article29(1) of Regulation No2913/92– is, once again, for the referring court to decide.
3.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).