# C_2022138EN.01001001.xml

| 28.3.2022 | EN | Official Journal of the European Union | C 138/10 |
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28.3.2022

EN

Official Journal of the European Union

C 138/10

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Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 13 December 2021 — OGL-Food Trade Lebensmittelvertrieb GmbH v Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’

(Case C-770/21)

(2022/C 138/10)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-grad

Parties to the main proceedings

Applicant: OGL-Food Trade Lebensmittelvertrieb GmbH

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

Questions referred

| 1. | In the light of Article 70(1) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of Commission Delegated Regulation (EU) 2017/891 (2) supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the Customs Code — ‘the buyer and seller are not related’ — for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:






  — | information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union — regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment; |
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1.

In the light of Article 70(1) of Regulation (EU) No 952/2013 (1) of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of Commission Delegated Regulation (EU) 2017/891 (2) supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the Customs Code — ‘the buyer and seller are not related’ — for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:

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information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union — regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment;

| — | information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books, or the right of deduction exercised in respect of the specific import; |
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information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books, or the right of deduction exercised in respect of the specific import;

| — | the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union; |
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the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union;

| — | the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties? |
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the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties?

If those circumstances are relevant, do they permit the importing trader and the exporting trader, or the importer and the buyer at the first level of trade in the EU, to be categorised as ‘legally recognised partners in business’ or as related persons within the meaning of Article 127(1)(b) and Article 142(4)(b) of Commission Implementing Regulation (EU) 2015/2447 (3) of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code?

If the above circumstances are relevant but are not sufficient to regard the traders as related persons, is there an obligation to assess, for the purposes of the verification under Article 75(6) of Delegated Regulation (EU) 2017/891, whether the relationship between the traders influenced the determination of the higher price of the product subject to the specific importation, in order to counteract the evasion of customs duties and the loss of tax revenue to the EU budget, taking into account also the subsequent sale at a loss at the first level of trade in the EU?

| 2. | Does it follow from Article 47(1) and Article 41(2)(c) of the Charter of Fundamental Rights — interpreted in conjunction with the importer’s right of appeal under Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of the UCC, in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion — that:






  — | the condition laid down in Article 70(3)(d) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code — ‘the buyer and seller are not related or the relationship did not influence the price’ — may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision? |
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2.

Does it follow from Article 47(1) and Article 41(2)(c) of the Charter of Fundamental Rights — interpreted in conjunction with the importer’s right of appeal under Article 44(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of the UCC, in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion — that:

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the condition laid down in Article 70(3)(d) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code — ‘the buyer and seller are not related or the relationship did not influence the price’ — may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision?

| — | where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council establishing the Union Customs Code, it would be contrary to Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value? |
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where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of Regulation (EU) No 952/2013 of the European Parliament and of the Council establishing the Union Customs Code, it would be contrary to Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value?

| 3. | In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, BV, С-160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, according to which ‘the importer shall make available ... all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question’, that:






  — | the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods — vegetables — were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated — also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value — in order, inter alia, to counteract evasion of customs duty and loss of tax revenue? |
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3.

In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, BV, С-160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, according to which ‘the importer shall make available ... all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question’, that:

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the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods — vegetables — were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated — also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value — in order, inter alia, to counteract evasion of customs duty and loss of tax revenue?

| — | the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? Or |
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the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? Or

| — | the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891 as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty? |
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the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891 as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty?

| 4. | In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary, С-291/15, EU:C:2016:455, that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:






  — | the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector; |
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4.

In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of Commission Delegated Regulation (EU) 2017/891 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables sectors, and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary, С-291/15, EU:C:2016:455, that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:

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the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector;

| — | the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid; |
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the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid;

| — | the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables? |
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the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables?

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(1)  OJ 2013 L 269, p. 1.

(2)  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 (OJ 2017 L 138, p. 4).

(3)  OJ 2015 L 343, p. 558.

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