# C_2018182EN.01001001.xml

| 28.5.2018 | EN | Official Journal of the European Union | C 182/10 |
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28.5.2018

EN

Official Journal of the European Union

C 182/10

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Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 28 February 2018 — X BV v Staatssecretaris van Financiën

(Case C-160/18)

(2018/C 182/11)

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Appellant: X BV

Appellant:

Respondent: Staatssecretaris van Financiën

Respondent:

Questions referred

Questions referred

| 1. | Must paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95, (1) read in conjunction with Article 141 of Regulation (EC) No 1234/2007, (2) be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the cif import price reported is correct and could constitute grounds for a supplementary inspection?
  Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the Community market at a price below the reported cif import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the Community market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies? |
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1.

Must paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95, (1) read in conjunction with Article 141 of Regulation (EC) No 1234/2007, (2) be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the cif import price reported is correct and could constitute grounds for a supplementary inspection?

1

2

ex post

Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the Community market at a price below the reported cif import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the Community market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies?

ex post

| 2. | If it follows from the answers to the questions set out under 1 above that reselling at a loss constitutes a sufficient ground for rejecting the reported cif import price, how should the level of the additional duties due be determined? Should that basis be established in accordance with the methods for determining customs value laid down in Articles 29 to 31 of Council Regulation (EEC) No 2913/92 (3) establishing the Community Customs Code? Or must it be established solely on the basis of the applicable representative price? Does Article 141(3) of Regulation (EC) No 1234/2007 preclude use of the representative price determined prior to 11 September 2009? |
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2.

If it follows from the answers to the questions set out under 1 above that reselling at a loss constitutes a sufficient ground for rejecting the reported cif import price, how should the level of the additional duties due be determined? Should that basis be established in accordance with the methods for determining customs value laid down in Articles 29 to 31 of Council Regulation (EEC) No 2913/92 (3) establishing the Community Customs Code? Or must it be established solely on the basis of the applicable representative price? Does Article 141(3) of Regulation (EC) No 1234/2007 preclude use of the representative price determined prior to 11 September 2009?

3

| 3. | If it follows from the answers to Questions 1 and 2 that the decisive factor in additional duties being owed is the resale of imported products at a loss on the Community market, and the representative price must then be taken as a basis for calculating the level of those additional duties, are paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95 compatible with Article 141 of Regulation (EC) No 1234/2007 in the light of the judgment of the Court of Justice of the European Union of 13 December 2001, Kloosterboer Rotterdam B.V., C-317/99, EU:C:2001:681? |
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3.

If it follows from the answers to Questions 1 and 2 that the decisive factor in additional duties being owed is the resale of imported products at a loss on the Community market, and the representative price must then be taken as a basis for calculating the level of those additional duties, are paragraphs 2, 4 and 5 of Article 3 of Regulation (EC) No 1484/95 compatible with Article 141 of Regulation (EC) No 1234/2007 in the light of the judgment of the Court of Justice of the European Union of 13 December 2001, Kloosterboer Rotterdam B.V., C-317/99, EU:C:2001:681?

Kloosterboer Rotterdam B.V.

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(1)  Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing additional import duties in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC (OJ 1995 L 145, p. 47).

1

(2)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1).

2

(3)  OJ 1992 L 302, p. 1.

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