UAB „Lifosa“ v Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:320
• Docket Number: C-75/20
• Date: 22 April 2021
• Celex Number: 62020CJ0075
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

22 April 2021 (*)

(Reference for a preliminary ruling – Customs union – Community Customs Code – Regulation (EEC) No 2913/92 – Article 29(1) – Article 32(1)(e)(i) – Union Customs Code – Regulation (EU) No 952/2013 – Article 70(1) – Article 71(1)(e)(i) – Determination of the customs value – Transaction value – Adjustment – Price including delivery at the border)

In Case C‑75/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), made by decision of 29 January 2020, received at the Court on 13 February 2020, in the proceedings

‘Lifosa’ UAB

v

Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos,

third parties:

Kauno teritorinė muitinė,

‘Transchema’ UAB,

THE COURT (Eighth Chamber),

composed of N. Wahl (Rapporteur), President of the Chamber, L.S. Rossi and J. Passer, Judges,

Advocate General: E. Tanchev,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– ‘Lifosa’ UAB, by A. Seliava and E. Sinkevičius, advokatai,

– the Lithuanian Government, by V. Kazlauskaitė-Švenčionienė, acting as Agent,

– the European Commission, by F. Clotuche-Duvieusart and J. Jokubauskaitė, 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 29(1) and Article 32(1)(e)(i) 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’) and Article 70(1) and Article 71(1)(e)(i) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1; ‘the Union Customs Code’).

2 The request has been made in proceedings between ‘Lifosa’ UAB (‘the importer’) and the Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos (Customs Department under the Ministry of Finance, Lithuania) concerning the decision of the customs authorities to impose on the importer inter alia an adjustment of the customs value of the imported goods.

Legal context

EU law

The Community Customs Code

3 Article 29(1) of the Community Customs Code provided:

‘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 Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided:

…

(b) that the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued;

…’

4 Article 29(3)(a) of the Community Customs Code was worded as follows:

‘The price actually paid or payable is the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods and includes all payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller. The payment need not necessarily take the form of a transfer of money. Payment may be made by way of letters of credit or negotiable instrument and may be made directly or indirectly.’

5 Article 32(1) to (3) of the Community Customs Code stated:

‘1. In determining the customs value under Article 29, there shall be added to the price actually paid or payable for the imported goods:

…

(e) (i) the cost of transport and insurance of the imported goods, …

…

to the place of introduction into the customs territory of the Community.

2. Additions to the price actually paid or payable shall be made under this Article only on the basis of objective and quantifiable data.

3. No additions shall be made to the price actually paid or payable in determining the customs value except as provided in this Article.’

Regulation (EEC) No 2454/93

6 Article 164(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), which was in Chapter 4, headed ‘Provisions concerning transport costs’, of Title V of Part I of the regulation, provided:

‘In applying Article 32(1)(e) … of the [Community Customs] Code:

…

(c) where transport is free or provided by the buyer, transport costs to the place of introduction, calculated in accordance with the schedule of freight rates normally applied for the same modes of transport, shall be included in the customs value.’

The Union Customs Code

7 Article 70 of the Union Customs Code, headed ‘Method of customs valuation based on the transaction value’, states:

‘1. The primary basis for the customs value of goods shall be the transaction value, that is the price actually paid or payable for the goods when sold for export to the customs territory of the Union, adjusted, where necessary.

2. The price actually paid or payable shall be the total payment made or to be made by the buyer to the seller or by the buyer to a third party for the benefit of the seller for the imported goods and include all payments made or to be made as a condition of sale of the imported goods.

3. The transaction value shall apply provided that all of the following conditions are fulfilled:

…

(b) the sale or price is not subject to some condition or consideration for which a value cannot be determined with...