Inspecteur der Belastingdienst – Douanedistrict Arnhem

(Reference for a preliminary ruling from the Gerechtshof te Amsterdam)

(Customs value – Laptop computers equipped with operating systems software)

Summary of the Judgment

Common Customs Tariff – Value for customs purposes – Transaction value – Determination

(Council Regulation No 2913/92, Art. 32(1))

In order to determine the customs value of imports of computers equipped by the seller with software for one or more operating systems made available by the buyer to the seller free of charge, in accordance with Article 32(1)(b) or (c) of Regulation No 2913/92 establishing the Community Customs Code, the value of the software must be added to the transaction value of the computers if the value of the software has not been included in the price actually paid or payable for those computers.

The same is true when the national authorities accept as the transaction value, in accordance with Community law, the price of a sale other than that made by the Community purchaser. In such cases, ‘buyer’ for the purposes of that article must be understood to mean the buyer who concluded that other sale.

(see paras 37-38, operative part)

16 November 2006 (*)

(Customs value – Laptop computers equipped with operating systems software)

In Case C-306/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Gerechtshof te Amsterdam (Netherlands), made by decision of 13 July 2004, received at the Court on 19 July 2004, in the proceedings

Inspecteur der Belastingdienst – Douanedistrict Arnhem,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, E. Juhász, K. Schiemann, M. Ilešič and E. Levits (Rapporteur), Judges,

Advocate General: C. Stix-Hackl,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 22 September 2005,

after considering the observations submitted on behalf of:

– Compaq Computer International Corporation, by R. Tusveld and G. van Slooten, belastingadviseurs,

– the Netherlands Government, by H.G. Sevenster and D.J.M. de Grave, acting as Agents,

– the German Government, by C.‑D. Quassowski, acting as Agent,

– the Spanish Government, by M. Muñoz Pérez, acting as Agent,

– the United Kingdom Government, by M. Bethell, acting as Agent, and P. Harris, Barrister,

– the Commission of the European Communities, by X. Lewis, acting as Agent, and F. Tuytschaever, advocaat,

after hearing the Opinion of the Advocate General at the sitting on 26 January 2006,

gives the following

1 The reference for a preliminary ruling from the Gerechtshof te Amsterdam, douanekamer (Amsterdam Regional Court of Appeal, Customs Chamber), concerns the interpretation of Article 32(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, hereinafter ‘the Customs Code’).

2 This reference was made in the course of proceedings between Compaq Computer International Corporation (hereinafter ‘CCIC’) and the Inspecteur van de belastingdienst – Douanedistrict Arnhem (Head of the Arnhem Customs district, hereinafter ‘the customs authorities’) concerning the customs value of laptop computers put into free circulation in the European Community between 1 January 1995 and 31 December 1997.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

by paragraphs (i) to (iii) of that provision. However, because of the way in which they are presented, and in particular because of the fact that they are incorporated into the imported laptop computers, the referring court is in doubt as to whether the value of those systems should be taken into account when determining the customs value of the computers, given the rationale of Article 32(1)(b) of the Customs Code.

18In that context the Gerechtshof te Amsterdam decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Where computers equipped with operating systems by the seller are imported, must the value of the software made available to the seller by the buyer free of charge be added to the transaction value of the computers pursuant to Article 32(1)(b) of the Community Customs Code where the value of the software is not included in the transaction value?’

The question referred for a preliminary ruling

19At the outset, it should be recalled that, in the words of Article 29(1) of the Customs Code, the customs value of imported goods is to 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 the relevant provisions of the Customs Code.

20As is clear from the findings of the national court, the computers at issue in the main proceedings were the subject of two successive transactions: the first between the Taiwanese manufacturers and CCC, and the second between CCC and CCIC.

21It is apparent from the order for reference that, during the customs procedure, CCIC declared the transaction value of the first sale, in which CCC is the purchaser and the Taiwanese manufacturers are the sellers, as the customs value of the computers.

22It is not disputed that the customs authorities accepted the transaction value of the contract between the Taiwanese manufacturers and CCC as a basis for determination of the customs value in accordance with Article 29 of the Customs Code, and that this decision was not questioned before the national court. In those circumstances, and as is clear from the question referred, the only question on which the Court is asked to rule is whether this transaction value must be adjusted under the provisions of Article 32(1)(b) of the Customs Code.

23Whereas all the Governments which submitted observations to the Court argue that this adjustment is necessary for a variety of reasons, the Commission of the European Communities, maintaining that the transaction between CCIC and CCC is decisive, submits that Article 32(1)(b) of the Customs Code does not apply and that the adjustment provided for therein should not be made. CCIC draws the same conclusion, but for different reasons: it maintains that the operating systems at issue do not fall within any of the categories of Article 32(1)(b) of the Customs Code. It maintains that that provision covers only tangible assets. The operating systems fall within the scope of the provisions relating to the customs value of carrier media, that is to say of Article 34 of the Customs Code and Article 167 of the implementing regulation.

24CCIC’s arguments and the Commission’s claims precluding the application of Article 32(1)(b) of the Customs Code cannot be accepted.

25First, it is apparent from Article 167(2)(a) of the regulation implementing Article 34 of the Customs Code that goods consisting of integrated circuits, semiconductors and similar devices are excluded from the scope of Article 167.

26It follows from the national court’s findings that Article 34 of the Customs Code and Article 167(1) of the implementing regulation do not apply in the main proceedings. According to those findings, the operating systems, which are software, were installed on the hard drives of the imported computers, which are constituent elements of those computers and do not constitute, by themselves, the imported products. Such computers cannot be treated as mere carrier media for transporting that software since the principal function of those computers is the processing of data and they contain devices which, under Article 167(2)(a) of the implementing regulation, cannot be classified as carrier media.

27Following this, it is necessary to point out that, in accordance with paragraph 22 above, in order to answer the referring court’s question, the determination of the transaction value does not form part of the Court’s considerations.

28According to the wording of Article 29(1) of the Customs Code, the transaction value is a value which is ‘adjusted, where necessary, in accordance with Articles 32 and 33 …’. ‘Transaction value’, therefore, must be interpreted as meaning a value which is adjusted once the conditions for an adjustment are met. Consequently, if the judicial and administrative authorities of a Member State have accepted as the transaction value the price which was fixed on the occasion of a sale prior to the one immediately before the determination of the customs value, that is the transaction value on which any adjustment must be made.

29When, in order to determine the customs value, a sale price is substituted for that which applied in the contract concluded by the Community purchaser, the logic of the provisions at issue requires that not only that price, but also the whole contractual relationship be taken into consideration. That means that, in this context, for the purposes of the application of Article 32(1)(b) of the Customs Code, ‘buyer’ must be interpreted as meaning the company that concluded the contract of which the sale price constitutes the transaction value.

30In respect of the determination of the customs value in the main case, according to the case-law the Community legislation on customs valuation seeks to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values (Case C‑11/89 Unifert [1990] ECR I‑2275, paragraph 35, and Case C‑15/99 Sommer [2000] ECR I‑8989, paragraph 25). The customs value must thus reflect the real economic value of an imported good and, therefore, take into account all of the elements of that good that have economic value.

31Furthermore, the Court has held that software is intangible property, the cost of acquiring which, when such property is incorporated in an item of goods, must be regarded as an integral part of the price paid or payable for the goods, and hence of the transaction value (see to that effect Case C‑79/89 Brown Boveri [1991] ECR I‑1853, paragraph 21).

32The operating systems at issue in the main proceedings are software that was made available to the Taiwanese manufacturers free of charge by CCC, in order for it to be installed on the hard drives of the computers at the time of their manufacture. Furthermore, it is accepted that that software has a unitary economic value of USD 31 which was not included either in the value of the transaction between the Taiwanese manufacturers and CCC or in that of the transaction between CCC and CCIC.

33It must therefore be held that, in such circumstances, the adjustment of the transaction value must be made.

34The Spanish and United Kingdom Governments claim that the software containing the operating systems, as ‘materials, components, parts and similar items’, falls under Article 32(1)(b)(i) of the Customs Code, whereas the Netherlands and German Governments are of the opinion that it should fall under subheading (iv) of that provision, as ‘engineering’. However, the United Kingdom Government stated at the hearing that it might also be satisfied with the latter classification.

35Such a classification has not been requested by the referring court, and is not necessary in order to determine the case in the main proceedings.

36On the other hand, it should be noted that, depending on the classification of the contract between CCC and Microsoft, which is a matter for the national court, the application of Article 32(1)(c) of the Customs Code might be relevant.

37Having regard to the foregoing, the answer to the question referred must be that in order to determine the customs value of imports of computers equipped by the seller with software for one or more operating systems made available by the buyer to the seller free of charge, in accordance with Article 32(1)(b) or (c) of the Customs Code, the value of the software must be added to the transaction value of the computers if the value of the software has not been included in the price actually paid or payable for those computers.

38The same is true when the national authorities accept as the transaction value, in accordance with Community law, the price of a sale other than that made by the Community purchaser. In such cases, ‘buyer’ for the purposes of Article 32(1)(b) or (c) of the Customs Code must be understood to mean the buyer who concluded that other sale.

Costs

39Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (First Chamber) hereby rules:

In order to determine the customs value of imports of computers equipped by the seller with software for one or more operating systems made available by the buyer to the seller free of charge, in accordance with Article 32(1)(b) or (c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, the value of the software must be added to the transaction value of the computers if the value of the software has not been included in the price actually paid or payable for those computers.

The same is true when the national authorities accept as the transaction value, in accordance with Community law, the price of a sale other than that made by the Community purchaser. In such cases, ‘buyer’ for the purposes of Article 32(1)(b) or (c) of the Customs Code must be understood to mean the buyer who concluded that other sale.

[Signatures]

*

Language of the case: Dutch.