FAWKES Kft. v Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:458
• Docket Number: C-187/21
• Date: 09 June 2022
• Celex Number: 62021CJ0187
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

9 June 2022 (*)

(Reference for a preliminary ruling – Regulation (EEC) No 2913/92 – Community Customs Code – Article 30(2)(a) and (b) – Customs value – Determination of the transaction value of similar goods – Database set up and managed by the national customs authority – Databases set up and managed by the customs authorities of other Member States and by the services of the European Union – Identical or similar goods exported to the European Union ‘at or about the same time’

In Case C‑187/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Supreme Court, Hungary), made by decision of 4 February 2021, received at the Court on 25 March 2021, in the proceedings

FAWKES Kft.

v

Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, I. Jarukaitis, M. Ilešič, D. Gratsias (Rapporteur) and Z. Csehi, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– FAWKES Kft., by L.P. Maruzs, ügyvéd,

– the Hungarian Government, by M.Z. Fehér and K. Szíjjártó, acting as Agents,

– the Spanish Government, by I. Herranz Elizalde and S. Jiménez García, acting as Agents,

– the French Government, by G. Bain and A.-L. Desjonquères, acting as Agents,

– the Finnish Government, by M. Pere, acting as Agent,

– the European Commission, by B. Béres and F. Clotuche-Duvieusart, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 30(2)(a) and (b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1) and Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17; ‘the Customs Code’).

2 The request has been made in proceedings between FAWKES Kft. and Nemzeti Adó- és Vámhivatal Fellebbviteli Igazgatósága (Resources Directorate of the National Tax and Customs Administration, Hungary; ‘the Hungarian customs authority’) concerning the decision by which the latter, in accordance with Article 30(2)(b) of the Customs Code, determined the customs value of textile goods originating in the People’s Republic of China (‘the contested decision’).

Legal context

The Customs Code

3 The Customs Code was repealed and replaced by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90). However, under Article 286(2) of that regulation, read in conjunction with Article 288(2) thereof, the Customs Code remained applicable until 30 April 2016.

4 The eighth recital of the Customs Code states:

‘In adopting the measures required to implement this Code, the utmost care must be taken to prevent any fraud or irregularity liable to affect adversely the General Budget of the European [Union].’

5 Article 6(3) of the Customs Code provides:

‘Decisions adopted by the customs authorities in writing which either reject requests or are detrimental to the persons to whom they are addressed shall set out the grounds on which they are based.’

6 Article 29(1) of that code states:

‘The customs value of imported goods shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the [European Union], adjusted, where necessary, in accordance with Articles 32 and 33 …’

7 Article 30(1) and (2) of that code provides:

‘1. Where the customs value cannot be determined under Article 29, it is to be determined by proceeding sequentially through subparagraphs (a), (b), (c) and (d) of paragraph 2 to the first subparagraph under which it can be determined …

2. The customs value as determined under this Article shall be:

(a) the transaction value of identical goods sold for export to the [European Union] and exported at or about the same time as the goods being valued;

(b) the transaction value of similar goods sold for export to the [European Union] and exported at or about the same time as the goods being valued;

(c) the value based on the unit price at which the imported goods for identical or similar imported goods are sold within the [European Union] in the greatest aggregate quantity to persons not related to the sellers;

(d) the computed value, consisting of the sum of:

– the cost or value of materials and fabrication or other processing employed in producing the imported goods,

– an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the [Union],

– the cost or value of the items referred to in Article 32(1)(e).’

8 Article 31(1) of the Customs Code provides:

‘Where the customs value of imported goods cannot be determined under Articles 29 or 30, it shall be determined, on the basis of data available in the [European Union], using reasonable means consistent with the principles and general provisions of:

– the agreement on implementation of Article VII of the General Agreement on Tariffs and Trade of 1994;

– Article VII of the General Agreement on Tariffs and Trade of 1994;

– the provisions of this chapter.’

9 Article 78 of that code is worded as follows:

‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.

2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced.

3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularize the situation, taking account of the new information available to them.’

10 Article 221(3) and (4) of that code provide:

‘3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.

4. Where the customs debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three-year period referred to in paragraph 3.’

The Implementing Regulation

11 Title V of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1 and corrigendum OJ 1994 L 268, p. 32), as amended by Commission Regulation (EC) No 3254/94 of 19 December 1994 (OJ 1994 L 346, p. 1) (‘the Implementing Regulation’) is entitled ‘Customs value’ and includes Articles 141 to 181a.

12 Article 142 of the Implementing Regulation states:

‘1. For the purposes of this title:

…

(c) “identical goods” means goods produced in the same country which are the same in all respects, including physical characteristics, quality and reputation. Minor differences in appearance shall not preclude goods otherwise conforming to the definition from being regarded as identical;

(d) “similar goods” means goods produced in the same country which, although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable; the quality of the goods, their reputation and the existence of a trademark are among the factors to be considered in determining whether goods are similar;

…’

13 Article 150 of the Implementing Regulation is worded as follows:

‘1. In applying Article 30(2)(a) of the [Customs Code] (the transaction value of identical goods), the customs value shall be determined by reference to the transaction value of identical goods in a sale at the same commercial level and in substantially the same quantity as the goods being valued. …

…

3. If, in applying this Article, more than one transaction value of identical goods is found, the lowest such value shall be used to determine the customs value of the imported goods.

4. In applying this Article, a transaction value for goods produced by a different person shall be taken into account only when no transaction value can be found under paragraph 1 for identical goods produced by the same person as the goods being valued.

5. For the purposes of this Article, the transaction value of identical imported goods means a customs value previously determined under Article 29 of the [Customs Code], adjusted as provided for in paragraphs 1 and 2 of this Article.’

14 Article 151 of that regulation provides:

‘1. In...