5.  The applicant company is registered in Vilnius. 6.  It provides heating, cooling, ventilation and air conditioning equipment in Lithuania. 7.  In 2013 the Vilnius territorial customs office (hereinafter “the customs office”) carried out an audit of the applicant company’s accounting data, related to goods imported between 1 July 2009 and 31 August 2012. During that period the applicant company bought some goods and declared them as air conditioning equipment, comprising of one unit and its parts. The goods were bought from a company registered in the United States of America (hereinafter “the seller company”) but the applicant company claimed that it had not concluded purchase agreements with that company and that the goods had been bought on the basis of an order. In April 2013 the customs office found that in twenty‑three import declarations the value of the goods had been three to four times lower than the value of similar goods declared by other importers. In addition, invoices provided by the applicant company had not contained any information on payment for the goods. Moreover, the customs office stated that the applicant company and seller company were related because two of the latter’s logistics managers were also employed by the applicant company. As a result, the applicant company was ordered to pay 618,083 euros (EUR) in total as customs tax, value added tax, late payment interest and a fine. 8.  The applicant company complained about the customs office’s report to the Customs Department. In June 2014 the latter annulled part of the report and ordered the customs office to carry out an additional investigation. The Customs Department held that the customs office had not precisely indicated which legal provisions had not been complied with by the evidence or facts the applicant company had provided. Furthermore, it was not clear which of the grounds specified in Article 143 of Commission Regulation (EEC) No. 2454/93 of 2 July 1993 laying down provisions for the implementation of the Community Customs Code (hereinafter “Regulation No. 2454/93”) (see paragraph 25 below) the customs office had been referring to when stating that the applicant company and seller company were related. Moreover, the mere fact that the buyer and seller companies were related and the declared value of goods was small was not enough to warrant a recalculation of the import taxes. 9.  In December 2013 the customs office carried out an additional investigation. It held that in the absence of any evidence that could prove that employees of the applicant company were not related to the American company, it had to conclude that the buyer and seller were related. The customs office also refused to approve twenty‑three import declarations provided by the applicant company and calculated the value of the imported goods in accordance with Council Regulation (EEC) No. 2913/1992 of 12 October 1992 establishing the Community Customs Code (hereinafter “the Community Customs Code”). The customs office ordered the applicant company to pay 173,005 Lithuanian litai (LTL – approximately EUR 50,106) in customs tax, LTL 1,457,978 (approximately EUR 422,260) in value added tax, LTL 437,675 (approximately EUR 126,759) in late payment interest and a fine of LTL 163,098 (approximately EUR 47,236), the total amount being EUR 646,361. 10.  The applicant company complained about the report drawn up during the additional investigation to the Customs Department with a request for it to be annulled. The applicant company claimed that the refusal of the customs office to approve the value of the goods provided by it in accordance with the transaction value method was unfounded, as was the conclusion that the applicant company and seller company were related. Moreover, the applicant company disagreed with the late payment interest because it had increased due to the protractedness of the investigation of the customs office. 11.  In March 2014 the Customs Department approved the customs office’s report of December 2013 (see paragraph 9 above) and dismissed the applicant company’s complaint. 12.  The applicant company appealed against that decision to the Tax Disputes Commission, providing documents from the seller company proving that none of its employees were also employed by the applicant company. In July 2014 the Tax Disputes Commission held that because the applicant company had provided incomplete data, it had been unable to determine the exact circumstances of the purchase agreement concluded with the seller company. Nevertheless, the Tax Disputes Commission decided to exempt the applicant company from paying LTL 27,118.40 (approximately EUR 7,854) of late payment interest. 13.  The applicant company complained to the Vilnius Regional Administrative Court. It claimed that it was not clear from the customs office’s report of December 2013 on which of the grounds specified in Article 143 of Regulation No. 2454/93 (see paragraph 25 below) the customs office had been relying when stating that the applicant company and seller company were related. The mere fact that the applicant company and seller company had been involved in the purchase agreements was not sufficient to conclude that they were business partners. The applicant company also argued that the customs office had refused to apply the transaction value method without providing any reasons. During the hearing, the applicant company asked the Vilnius Regional Administrative Court to request a preliminary ruling from the Court of Justice of the European Union (hereinafter “CJEU”). 14.  On 22 January 2015 the Vilnius Regional Administrative Court rejected the applicant company’s complaint as unfounded. It held that there was enough information to adopt a decision in the case and that no question as to the interpretation of European Union customs law had arisen (teismas pažymi, kad byloje yra pakankamai duomenų sprendimo priėmimui, teismui jokių papildomų klausimų teisės aiškinimo klausimais nekilo, todėl nėra pagrindo kreiptis į Europos Sąjungos Teisingumo Teismą). 15.  The applicant company appealed against that decision. It stated that the first‑instance court had misinterpreted the provisions of the Community Customs Code and Regulation No. 2454/93. Moreover, the decision of the first‑instance court had lacked reasoning. The applicant company submitted that an interpretation of certain provisions of European Union law was necessary because the case-law of the CJEU regarding the application of Articles 29‑31 of the Community Customs Code was inconsistent. According to the applicant company, it was necessary to refer the following questions to the CJEU:
- (1) Whether the conditions specified in Article 29 § 1 (b) of the Community Customs Code, which influence the sale and price of the goods and whose effect cannot be assessed, include cases such as the one at hand, where at the time of presentation of the goods to customs and the assessment of those goods a debt of buyer to seller exists? If the debt does not have any effect on the sale or price of the goods, is it included in the transaction value defined in Article 29 § 1 (b) of the Community Customs Code?
- (2) Can the difference between the price of imported goods and the list of comparative prices collected by customs be independent grounds not to apply the transaction value method, and is this difference considered a circumstance whose effect on the sale or price of goods cannot be assessed, within the meaning of Article 29 § 1 (b) of the Community Customs Code?
- (3) If the seller authorises the buyer’s employees to perform certain actions related to the transportation and the customs procedures of the goods, can this be considered a relationship between buyer and seller, within the meaning of Article 29 § 1 (d) of the Community Customs Code, and can it be grounds not to apply the transaction value method?
- (4) Can a national customs office rely on Article 31 § 1 of the Community Customs Code independently, without applying the methods set out in Articles 29 and 30 of the Community Customs Code? If the national customs office has to rely on one of the methods set out in Articles 29 and 30 of the Community Customs Code, comparative data relating to which period is considered relevant? Does the use of the only case of export as a comparative correspond to the criterion of “at the same time or almost at the same time” when applying it to establish the value of goods declared within a period of three years? Can cases of export from other States (for example, Malaysia) be assessed and can this data be considered comparative? Does the national customs office have to rely on the data collected by it and involving cases of export to Lithuania only or does it have to send other member States a request of information?
- (5) Is the provision of domestic law that the customs office use data existing in the Customs Department database when applying the transaction value method of similar and identical goods in accordance with Article 31 § 1 of the Community Customs Code, which provides that where the customs value of imported goods cannot be determined under Articles 29 or 30, it must be determined on the basis of data available in the Community?
- (6) Can the transaction value of similar goods be compared by comparing not the transaction value of similar goods but the price of one kilogram, which is determined by dividing the transaction value existing in the national customs database by the amount of kilograms? 16.  On 22 March 2016 the Supreme Administrative Court upheld the first‑instance decision. The court referred to the case‑law of the Court that Article 6 § 1 of the Convention could not be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applied could vary according to the nature of the decision. Moreover, it was necessary to take into account, inter alia, the diversity of the submissions that a litigant could bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. This was why the question of whether a court had failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, could only be determined in the light of the circumstances of the case. The Supreme Administrative Court relied on the following authorities: Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303‑B; Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‑A; and Suominen v. Finland, no. 37801/97, § 34, 1 July 2003, Series A no. 303‑A. It held that the first‑instance decision had been adequately reasoned. It was established in domestic case‑law that the court could refer the issue to the competent judicial institution of the European Union (see paragraph 18 below). However, the Supreme Administrative Court stated that the request of a party to the proceedings to refer a certain question to the judicial institution of the European Union was not obligatory if the application of European Union law was so obvious that no doubts could arise (bylos šalies prašymas teismui nėra privalomas ir jei Europos Sąjungos teisės taikymas yra toks akivaizdus, kad dėl pateikto klausimo sprendimo negali kilti jokių pagrįstų abejonių, galutinės instancijos nacionalinis teismas neprivalo kreiptis į Europos Sąjungos Teisingumo Teismą su prejudiciniu klausimu). Also, the mere fact that a party to the proceedings did not agree with the interpretation of the law provided by the first‑instance court did not mean that the substance of the European Union law was not clear and that there was a necessity to refer the question to the CJEU (Pastebėtina, kad vien faktinė aplinkybė, jog ginčo šalis nesutinka su pirmosios instancijos teismo pateiktu teisės aiškinimu, savaime nereiškia, jog nėra aiškus Europos Sąjungos teisės turinys, ir, atitinkamai, kad yra pagrindas kreiptis į ESTT prejudicinio sprendimo). The Supreme Administrative Court also held that the application of European Union law was clear enough in the present case and that there was no need to refer a question to the CJEU for a preliminary ruling (Šio ginčo apimtyje teismui nekyla neaiškumų dėl Bendrijos muitinės kodekso 29-31 straipsnių taikymo, todėl pareiškėjo prašymas kreiptis į Europos Sąjungos Teisingumo Teismą su prejudiciniu klausimu netenkintinas). It quoted another of its cases regarding the interpretation of certain provisions of a directive regulating markets in financial instruments, where it held that the applicant company in that case had failed to indicate specific uncertainties as to the interpretation of that directive and had not indicated why the referral to the CJEU was necessary (case no. A858-48/2011 of 14 April 2011). 17.  In April 2017 the Supreme Administrative Court dismissed a request lodged by the applicant company to reopen the proceedings.