Official Journal of the European Union

Series C

C/2023/623

(Case C-770/21, (1) OGL-Food Trade Lebensmittelvertrieb)

(Reference for a preliminary ruling - Customs union - Regulation (EU) No 952/2013 - Union Customs Code - Articles 70 and 74 - Determination of the customs value - Customs value of fruit and vegetables to which an entry price applies - Regulation (EU) No 1308/2013 - Article 181 - Delegated Regulation (EU) 2017/891 - Article 75(5) and (6) - Declared transaction value higher than the standard import value - Disposal of products under conditions confirming the correctness of the transaction value - Sale by the importer at a loss - Relationship between the importer and the exporter - Judicial review of the decision determining the customs debt)

(C/2023/623)

Language of the case: Bulgarian

Referring court

Parties to the main proceedings

Applicant: OGL-Food Trade Lebensmittelvertrieb GmbH

Defendant: Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’

Operative part of the judgment

1.Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011

must be interpreted as:

—precluding an importer who has not chosen, within the time limits laid down by those provisions, to determine the customs value of the lot imported in accordance with Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code, but has, on the contrary, determined that value in accordance with Article 70 of that regulation, from being able validly to rely, in support of its action against a decision of the customs authorities determining the customs debt, on a calculation of the customs value carried out in accordance with Article 74(2)(c) of Regulation No 952/2013 in order to prove, by relying on Article 134(2)(b) of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation No 952/2013, that the prices referred to in Article 70 of Regulation No 952/2013 were correct;

—precluding a judicial authority, hearing an appeal against a decision of a customs authority determining the customs debt, from being able to raise, of its own motion and for the first time in the context of a dispute before it, the question whether the importer and the exporter are related, within the meaning of Article 70(3)(d) of Regulation No 952/2013, and, if so, whether or not any relationship between them influenced the price actually paid or payable, within the meaning of that provision, where the customs control carried out by the customs authority did not relate to the existence of such a relationship, that authority having disregarded the transaction value declared for different reasons, relating to the conditions under which the lot concerned was disposed of on the EU market.

2.Article 75(5) of Delegated Regulation No 2017/891

—must be interpreted as meaning that the disposal of the lot of imported goods by means of a sale at a loss constitutes a serious indication of an artificially high declared transaction value which does not require the importer to provide the customs authorities, in order to demonstrate that that value is correct, with, in addition to the documents relating to transport, insurance, handling and storage, expressly referred to in the fourth paragraph of that provision, and the proof of payment of the declared transaction value, a contract or equivalent document stating the price at which it purchased the lot imported, where the former documents suffice to demonstrate the correctness of the declared transaction value.

3.Article 75(5) of Delegated Regulation No 2017/891

—must be interpreted as meaning that for the purposes of determining the customs value, the customs authorities must disregard the declared transaction value of a lot of imported goods where that value is significantly higher than the standard import value fixed by the European Commission, that lot has been sold at a loss in the customs territory of the European Union, and where, despite the fact that it was invited to submit any document proving that the lot had been disposed of under the conditions confirming the correctness of that value, the importer did not submit sufficient documents for that purpose, even though those authorities do not dispute the authenticity of the invoice issued by the exporter or the actual payment of that invoice by the importer.

(1)

Language of the case: Bulgarian

ELI: http://data.europa.eu/eli/C/2023/623/oj

ISSN 1977-091X (electronic edition)

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(C/2023/623)

Language of the case: Bulgarian