June 15, 2022
European Court of Justice rules on use of statistical data for determination of customs value
On 9 June 2022, the European Court of Justice (ECJ) published its decisions in two court cases "Baltic Master"1 and "Fawkes."2 In these two cases the ECJ ruled on the use of statistical values for determining the customs value.
This Alert summarizes the Court's decisions.
Baltic Master imported various quantities of goods purchased from Gus Group into Lithuania between 2009 and 2012. The goods originated from Malaysia and were presented as "parts of air-conditioning machines" in the customs declaration. In the declaration only one TARIC code3 was used for these goods and the transaction value of the goods was used to determine the customs value.
During an inspection, the Lithuanian customs authorities were of the opinion that the description of the goods was incorrect and that the goods should have been declared under another TARIC code. Additionally, due to the nature of the business relationship between Baltic Master and Gus Group, the transaction should have been regarded as one taking place between related persons. The customs value should then be determined on the basis of the data available in the national authorities' customs information system since the customs value could not be determined by the other valuation methods.
In appeal, the Supreme Administrative Court of Lithuania asked for a preliminary ruling and brought two questions before the ECJ. The first question concerns the interpretation of the related person provision and the second question is whether the customs value can be determined based on the information provided in a national database with regards to the customs value of goods with the same origin and which, although not similar within the meaning of article 142(1)(d) of the Implementing regulation,4 are ascribed to the same TARIC code.
Decision of the ECJ
As a general rule, the transaction value is used to determine the customs value of imported goods. According to article 29(1)(d) of the Community Customs Code (CCC),5 the transaction value of the goods cannot be used for determining the customs value where two cumulative conditions have met:
In accordance with article 143(1)(b), (e) and (f) of the Implementing Regulation, persons may be regarded as being related if they are legally recognized partners in business or when one of them directly or indirectly controls the other or both are directly or indirectly controlled by a third person.
The ECJ ruled that article 29(1)(d) of the CCC and article 143(1)(b), (e) and (f) of the Implementing Regulation should be interpreted as meaning that the buyer and the seller may not be deemed to be related, in a situation in which no documents exists to prove such a relationship, but the buyer and seller may be deemed to be related if, substantiated by objective elements, it can be demonstrated that one of the parties is de facto in control of the other or both are controlled by a third party.
With regards to the determination of the customs value, the general rule should be followed. First, the customs value need to be determined on the basis of the transaction value (article 29 of the CCC). If the transaction value method cannot be applied, the alternative methods in article 30 of the CCC can be applied in hierarchical order. If the customs value still cannot be determined according to these methods, article 31 of the CCC gives the tax authorities the authority to apply the valuation methods set out in article 29 and 30 of the CCC with a certain degree of flexibility. The means that are chosen should be based on the available data, need to be reasonable and in accordance with the relevant legal framework.
Baltic Master did not provide sufficiently accurate or reliable information regarding the customs value of the imported goods. Therefore, the customs authorities determined the customs value by using the national database relating to goods that are declared by another importer, using the same TARIC code and originating from the same manufacturer. The ECJ confirmed that article 31(1) of the CCC must be interpreted as not prohibiting the customs authorities to use the national databases containing the customs value of goods which have the same origin and which, although not similar within the meaning of article 142(1)(d) of the Implementing regulation, are ascribed under the same TARIC code.
In 2012, Fawkes imported textile goods originating in the People's Republic of China into the European Union (EU). The Hungarian customs authorities considered that the declared customs value was significantly low and were of the opinion that an alternative valuation method should be applied to determine the customs value. The customs value was then determined in accordance with the transaction value of similar goods sold for export to the EU by using information from a national database covering a period of 90 days in total (45 days prior and 45 days after the customs clearance) without taking into account the other customs clearances granted to Fawkes.
In this respect Fawkes claimed that the Hungarian customs authorities should have consulted the databases of various EU services to determine the customs value, such as the Directorate-General for Taxation and Customs Union (DG TAXUD) of the European Commission, the European Anti-Fraud Office (OLAF) and Eurostat, the Statistical Office of the EU. Fawkes also claimed that the transaction values of its other imports into Hungary and other Member States have not been challenged by the customs authorities and should have been taken into account. Additionally, the period taken into account for determining the customs value should have been longer than 90 days.
In appeal, the Kúria (Supreme Court, Hungary), asked for a preliminary ruling and brought several questions before the ECJ. In essence, the questions were whose database should be taken into account for determining the customs value, whether the values of other transaction from Fawkes should have been taken into account and whether the 90 days for determining the customs value should be extended.
Decision of the ECJ
Based on precedent court decisions, customs authorities are required to consult all the information sources and databases that are available to them for determining the customs value. In accordance with this obligation, the customs authorities are required to use the national database which contains the necessary information to apply article 30(2)(a) and (b) of the CCC. The ECJ ruled that these articles should be interpreted as meaning that for the determination of the customs value, the customs authorities of a Member State may confine itself to using information contained in the national database which it compiles and manages. Said customs authorities should only request access to the information held by the customs authorities of other Member States or by the EU services and institutions if the information is not sufficient for determining the customs value, in order to obtain additional data for the determination of the customs value.
The ECJ also ruled that a Member State, when determining the customs value, does not have to take into account the transaction values relating to other undisputed imports of the applicant provided these are retroactively disputed by the customs authorities. Also undisputed imports of the applicant in other Member States, do not have to be taken into account. The customs authorities of one Member State are after all not in a position to influence the choices of the customs authorities from other Member States. The customs authorities should however indicate in such cases why the undisputed imports cannot be used as the basis to determine the customs value under the transaction value of identical or similar goods.
Additionally, with regards to the period that covers the use of the data, the ECJ noted that if the customs authorities conclude that the export transactions of goods which are identical or similar to the goods being valued over that period enable the customs authorities to determine the customs value of those goods according to the transaction value of identical or similar goods, the authorities, in principle, cannot be required to extend the cover period of its inquiry.
Action for businesses
The Union Customs Code (UCC) replaced the CCC on 1 May 2016. Nevertheless the relevant provisions of the CCC mentioned in these two court cases are to a large extent similar to the provisions under the UCC.
The Baltic Master and Fawkes case are the result of a new trend, which entails the EU customs authorities using statistical values to detect undervaluation and the use of statistical data to determine the customs value in accordance with the alternative valuation methods. However, these cases also make clear that the customs authorities need to indicate why they did not dispute the customs value of previously imported identical or similar goods.
In light of these court cases, businesses should:
For additional information with respect to this Alert, please contact the following:
Ernst & Young Global Trade
1 ECJ 9 June 2022, C-599/20 (Baltic Master), ECLI:EU:C:2022:457.
2 ECJ 9 June 2022, C-187/21 (Fawkes), ECLI:EU:C:2022:458.
3 The TARIC code (TARif Intégré Communautaire; Integrated Tariff of the European Communities) is designed to show the various rules applying to specific products when imported into the European Union.
4 Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 913/92, OJ L 253, 11.10.1993.
5 Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ L 302, 19.10.1992.