Opinion of the Advocate General — ECLI:EU:C:2025:30
Date: 2025-01-23
Language of the case: Lithuanian
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Translation C-782/23 – 1 
Case C-782/23 
Request for a preliminary ruling 
Date lodged: 
19 December 2023 
Referring court: 
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the decision to refer: 
13 December 2023 
Applicant at first instance and appellant: 
‘Tauritus’ UAB 
Defendant at first instance and respondent: 
Muitinės departamentas prie Lietuvos Respublikos finansų 
ministerijos 
Intervener: 
Kauno teritorinė muitinė 
  
[…] 
LIETUVOS VYRIAUSIASIS ADMINISTRACINIS TEISMAS 
(Supreme Administrative Court of Lithuania) 
ORDER 
13 December 2023 
[…] The Chamber, in extended composition, of the Supreme Administrative Court 
of Lithuania [composition of the court], 
has examined, at a sitting of the court under the written appeal procedure, the 
administrative case concerning the appeal lodged by the appellant, the private 
limited company Tauritus, against the judgment of the Vilniaus apygardos 
administracinis teismas (Regional Administrative Court, Vilnius, Lithuania) of 
EN 
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19 January 2022 in the administrative case relating to the action brought by the 
appellant, the private limited company Tauritus, against the respondent, the 
Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos (Customs 
Department under the Ministry of Finance of the Republic of Lithuania), with the 
Kauno teritorinė muitinė (Kaunas Customs Office) acting as intervener, for the 
annulment of decisions. 
The Chamber, in extended composition, 
has established as follows: 
I. 
1 The present case concerns a tax dispute between the appellant, the private limited 
company Tauritus, (‘the Company’) and the respondent, the Customs Department 
under the Ministry of Finance of the Republic of Lithuania (‘the Department’). 
The present dispute relates, inter alia, to the part of inspection report 
No 7KM320048M of 14 September 2017 (‘the Report’) of the Kaunas Customs 
Office by which the Company was made subject to an assessment and ordered to 
pay default interest of EUR 4 853 in respect of import value added tax (‘VAT’). 
Legal basis: European Union law 
2 Article 15(2)(a) of Regulation (EU) No 952/2013 of the European Parliament and 
of the Council of 9 October 2013 laying down the Union Customs Code (‘the 
Union Customs Code’) provides that: 
‘2. The lodging of a customs declaration … shall render the person concerned 
responsible for all of the following: 
(a) the accuracy and completeness of the information given in the declaration, 
notification or application; …’ 
3 Article 70 of the Union Customs Code states, inter alia: 
‘1. The primary basis for the customs value of goods shall 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 Union, adjusted, where necessary. 
2. The price actually paid or payable shall be the total payment made or to be 
made by the buyer to the seller or by the buyer to a third party for the benefit of 
the seller for the imported goods and include all payments made or to be made as 
a condition of sale of the imported goods. 
3. The transaction value shall apply provided that all of the following 
conditions are fulfilled: 
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… (b) the sale or price is not subject to some condition or consideration for which 
a value cannot be determined with respect to the goods being valued; …’ 
4 Article 173(3) of the Union Customs Code provides that ‘upon application by the 
declarant, within three years of the date of acceptance of the customs declaration, 
the amendment of the customs declaration may be permitted after release of the 
goods in order for the declarant to comply with his or her obligations relating to 
the placing of the goods under the customs procedure concerned.’ 
5 Article 128(1) of Commission Implementing Regulation (EU) 2015/2447 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 (‘the Implementing Regulation’) 
provides that ‘the transaction value of the goods sold for export to the customs 
territory of the Union shall be determined at the time of acceptance of the customs 
declaration on the basis of the sale occurring immediately before the goods were 
brought into that customs territory’. 
6 Article 133 of the Implementing Regulation provides that ‘where the sale or price 
of imported goods is subject to a condition or consideration the value of which can 
be determined with respect to the goods being valued, such value shall be 
regarded as part of the price actually paid or payable …’. 
7 According to Article 85 of Council Directive 2006/112/EC of 28 November 2006 
on the common system of value added tax, ‘in respect of the importation of goods, 
the taxable amount shall be the value for customs purposes, determined in 
accordance with the Community provisions in force’. 
Relevant facts 
8 In accordance with an order of 26 May 2017, the Kaunas Customs Office carried 
out a tax inspection of the Company for the period from 1 October 2015 to 
30 April 2017, in the course of which it established that, during the period covered 
by the inspection, the Company, inter alia, purchased various quantities of diesel 
and jet fuel from various suppliers and imported them into the territory of the 
Republic of Lithuania. 
9 The contracts concluded with the suppliers and the pro forma invoices issued to 
the Company set out the price provisionally payable by the Company for the 
purchase of the goods (‘the provisional price’). 
10 When declaring the release for free circulation and domestic use of the fuel 
purchased and imported, the Company declared the provisional price in its import 
declarations as the customs value of the goods. Accordingly, in its declarations the 
Company specified a customs valuation code ‘6’ for the goods at issue, that is to 
say, it determined the value by applying the ‘fall-back’ method set out in 
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Article 74(3) of the Union Customs Code and in Article 144 of the Implementing 
Regulation. 
11 Under the terms of the contracts with the suppliers, the provisional price was 
subsequently adjusted to take account of circumstances that arose after the 
importation of the goods, such as the average fuel prices on the market for the 
relevant period and the average exchange rate for the relevant period. That revised 
price (‘the final price’) was agreed between the Company and its suppliers by 
means of supplementary agreements (annexes to the contracts), on the basis of 
which the suppliers issued revised invoices (depending on the abovementioned 
fluctuations in the market prices, the final price was in some cases higher than the 
provisional price and in other cases lower). 
12 After receiving those revised invoices from the suppliers, the Company, on its 
own initiative, applied for an adjustment of the value of the goods declared in the 
abovementioned import declarations. 
13 The inspection also established that during the period from 29 September 2016 to 
1 February 2017, the Company submitted thirteen import declarations (‘the 
declarations at issue’) to the Customs Office, in which the provisional price 
agreed with the suppliers was indicated as the customs value of the imported fuels 
(‘the goods at issue’). On 6 February 2017 and 15 March 2017, the suppliers 
issued to the Company revised invoices (‘the revised invoices’) indicating final 
prices for the imported fuels that were higher than the customs value declared in 
the declarations at issue. 
14 Unlike in other cases, the Company did not apply to the customs authorities for an 
adjustment of the customs value of the goods in the declarations at issue and did 
not pay the additional import VAT to the State budget before the start of the tax 
inspection (26 May 2017). 
15 For its part, the Kaunas Customs Office, applying the method of customs 
valuation referred to in Article 70(1) of the Union Customs Code, accepted the 
final price indicated in the revised invoices as the customs value of the goods at 
issue and, inter alia, made the Company subject to an additional assessment and 
ordered it to pay default interest in respect of import VAT for the period from the 
date of acceptance of the declarations at issue by the customs authorities to the 
date of the Report (14 September 2017). 
16 The tax dispute regarding that decision of the local tax authority was examined by 
the Department, the Mokestinių ginčų komisija prie Lietuvos Respublikos 
Vyriausybės (Tax Disputes Commission under the Government of the Republic of 
Lithuania) and the Regional Administrative Court, Vilnius, which all held that the 
calculation of the default interest at issue was justified. 
17 By decision of 17 June 2020, the Supreme Administrative Court of Lithuania, 
which heard the appellant’s appeal, referred the tax dispute back to the 
Department for re-examination, holding, in essence, that the tax authority had 
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unjustifiably calculated the customs value of the goods at issue by applying the 
‘transaction value’ method. That court held, in essence, that the application of 
Article 70(1) of the Union Customs Code could not be based on a final price that 
was not and could not have been known at the time of the importation of the 
goods at issue and at the time of lodging the original declarations. 
18 By decision of 31 December 2020, the Department, after re-examining the 
appellant’s complaint against the part of the Report at issue, upheld that part of the 
decision of the Kaunas Customs Office, that is to say, upheld the appellant’s 
obligation to pay the default interest at issue. 
19 That (central) tax authority took the view, inter alia, that the facts examined in the 
judgments of the EU judicature, which were relied upon in the adoption of the 
abovementioned decision of 17 June 2020, were different from the facts of the 
present tax dispute and, therefore, inter alia, considered that, after receiving the 
revised invoices with the final price from the suppliers, the Company was under 
an obligation to apply for an adjustment of the import declarations at issue, that is 
to say, to calculate the customs value of the goods in accordance with 
Article 70(1) of the Union Customs Code, by accepting the final price indicated in 
the revised invoices as the transaction value. According to the Department, since 
the Company failed to fulfil that obligation before the start of the tax inspection, 
the Kaunas Customs Office was justified in adjusting the declarations at issue as 
described above and calculating the default interest from the date of lodging the 
original declarations with the customs authorities. 
20 Since, by its decision of 19 January 2022 the Regional Administrative Court, 
Vilnius, upheld the position of the Department and dismissed the Company’s 
action, the appellant brought an appeal before the Supreme Administrative Court 
of Lithuania. 
The Chamber, in extended composition, 
finds as follows: 
II. 
21 In the light of the administrative practice of the national tax authority, which is 
clearly illustrated by the circumstances of the tax dispute at issue, the present case 
raises the question of the interpretation of Article 70 and Article 173(3) of the 
Union Customs Code. It is therefore necessary, in the present case, to refer the 
matter to the Court of Justice of the European Union (‘the Court of Justice’) for a 
preliminary ruling on the interpretation of those EU rules […] [grounds for 
referral to the Court of Justice]. 
Preliminary remarks 
22 At this stage of the proceedings, it is important to note that, first, although the 
dispute in the present case concerns only the amount of the default interest 
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charged to the appellant, the amount of the default interest directly relates to the 
amount of the tax arrears and the moment when the obligation to discharge the tax 
liability arises. Consequently, for example, if it is found that the customs value, 
that is to say, also the taxable value, has been incorrectly determined, it would not 
be possible in the present case to declare that (part of) the default interest at issue 
is justified. 
23 Second, as mentioned above, in the present case, the Kaunas Customs Office 
regarded the final prices of the goods at issue, as agreed by the appellant with the 
suppliers after the release of the goods at issue, as the transaction value, that is to 
say, accepted the declared provisional price, which was subsequently revised 
(adjusted) to reflect the final price, as the transaction value. 
23.1. That final price, as acknowledged by the Kaunas Customs Office and the 
Department itself, was not and could not have been known on the date of 
acceptance of the declaration by the customs office (the submitted contracts with 
the suppliers and the appellant’s explanations, which are not disputed by the tax 
authority, confirm that, when the final price was determined, the provisional price 
was revised (adjusted) on the basis of the average of the market prices made 
publicly available by specific agencies and the average fluctuations in the 
exchange rates during the period in question). 
23.2. Moreover, the data collected during the tax inspection also objectively 
confirm that the final price increased in some cases and in other cases it decreased 
in relation to the provisional price (the provisional price agreed by the Company 
with its suppliers on the date of acceptance of the declaration could subsequently 
be adjusted downwards or upwards). 
24 Third, there is no evidence in the present case that the transactions at issue 
involved fraud, abuse of rights or any other form of tax evasion. 
The (non-)application of the ‘transaction value’ method of customs valuation 
25 First of all, it is necessary to ascertain whether Article 70 of the Union Customs 
Code must be interpreted as meaning that paragraph 1 thereof does not apply 
where, at the time of acceptance of the customs declaration and on the basis of the 
sale occurring immediately before the goods were brought into the customs 
territory, only the price provisionally payable is known, which is subsequently 
(that is to say, after the declaration has been lodged and the goods have been 
released for free circulation) adjusted upwards or downwards in the light of 
circumstances beyond the control of the parties to the transaction and unknown at 
the time of lodging the declaration. 
26 In that regard, it should be noted that it may reasonably be assumed from 
Article 70 of the Union Customs Code and Article 128(1) of the Implementing 
Regulation that, in order to apply the ‘transaction value’ method of customs 
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valuation, the price actually paid or payable must be known (or capable of being 
ascertained) at the time of lodging the declaration with the customs authority. 
27 Moreover, Article 70(3)(b) of the Union Customs Code explicitly provides that 
the method in question is not applicable where the sale or price is subject to some 
condition or consideration for which a value cannot be determined with respect to 
the goods being valued. In the present case, the subsequent adjustment of the 
provisional price forms (formed) part of the ‘conditions of sale’ of the goods at 
issue for the purposes of, inter alia, that provision of the Union Customs Code 
(see, to that effect, inter alia, judgment of the Court of Justice of 19 November 
2020, 5th AVENUE Products Trading, C-775/19, EU:C:2020:948, paragraphs 38 
to 42). However, as mentioned above, the final price was not known at the time of 
lodging the declarations at issue and could have been increased or decreased 
subsequently, that is to say, it is considered that the impact of the condition of sale 
in question on the final price actually payable was not and could not have been 
assessed at the time of the release of those goods for circulation. 
28 It is also considered that requiring the declarant to apply the ‘transaction value’ 
method where the price actually paid or payable for the goods sold for export 
cannot be established (is not known) at the time of lodging the declaration would 
be incompatible with the obligation laid down in Article 15(2)(a) of the Union 
Customs Code. Moreover, indicating in the declaration a provisional price, which 
is subsequently adjusted downwards or upwards, could result in an arbitrary or 
fictitious customs value, which would be incompatible with the application of the 
method of customs valuation at issue (see, to that effect, for example, judgment of 
the Court of Justice of 9 June 2022, Baltic Master, C-599/20, EU:C:2022:457, 
paragraphs 26 and 27 and the case-law cited). 
29 It should also be noted that, in paragraph 35 of its judgment of 20 December 2017 
in Hamamatsu Photonics Deutschland (C-529/16; EU:C:2017:984), the Court of 
Justice ruled that ‘… an agreed transaction value, composed of an amount initially 
invoiced and declared and a flat-rate adjustment made after the end of the 
accounting period, [may not] form the basis for the customs value, without it 
being possible to know at the end of the accounting period whether that 
adjustment would be made up or down’. Although, as the Department observes, 
the facts underlying the case […] that gave rise to the judgment in Hamamatsu 
Photonics Deutschland are different from the facts of the present case, that 
assessment was based on the general principles of interpretation of law set out in 
paragraphs 24 to 33 of that judgment, which leads to the conclusion that, also in 
the present case, the ‘transaction value’ method could not have been applied to the 
Company at the time of lodging the declarations at issue (the original 
declarations). 
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The obligation to amend the declared customs value of the goods released for free 
circulation 
30 The present case also raises the question whether Article 173(3) of the Union 
Customs Code must be interpreted as meaning that the declarant is not under an 
obligation to apply to the customs authorities for an adjustment of the customs 
value determined and declared in accordance with Article 74 of that code where 
the price actually payable for the goods, as referred to in Article 70(1) of that 
code, which was not and could not have been known at the time of lodging the 
declaration, becomes apparent after those goods have been released for free 
circulation. 
31 In the present case, the Kaunas Customs Office and the Department decided, in 
essence, that, after receiving the revised invoices, the Company was under an 
obligation to apply for the amendment of the declarations at issue and to calculate 
the customs value of the goods in accordance with the procedure laid down in 
Article 70(1) of the Union Customs Code, indicating as the transaction value the 
final price agreed upon after the lodging of the declarations and the release of the 
goods for free circulation. Since the Company did not apply to the competent 
customs office, the Kaunas Customs Office itself adjusted the customs value as 
described above. 
32 In that respect, it should be noted, first of all, that Article 173(2) of the Union 
Customs Code lays down the general rule that after the goods have been released, 
as is the case in the present case, the declarant (importer) is no longer permitted to 
amend the customs declaration. By way of exception, Article 173(3) of that code 
provides that, upon application by the declarant, the amendment of the customs 
declaration may be permitted after release of the goods in order for the declarant 
to comply with his or her obligations relating to the placing of the goods under the 
customs procedure concerned. 
33 In the light of those provisions, it should be noted that, on the one hand, the 
customs value must reflect the real economic value of imported goods and take 
into account all of the elements of those goods that have economic value (see, to 
that effect, inter alia, judgment of the Court of Justice of 22 April 2021, Lifosa, 
C-75/20, EU:C:2021:320, paragraph 24 and the case-law cited). On the other 
hand, it is not apparent from Article 173(3) of the Union Customs Code that that 
provision establishes an obligation on the part of the declarant and not a right to 
apply for the amendment of the declaration, and the word ‘amendment’ also 
implies that there are errors or inaccuracies in the declaration that need to be 
corrected. In that respect, it is uncertain whether the non-application of a method 
of customs valuation that could not have been used at the time of lodging the 
declaration can be regarded as such an error or inaccuracy. 
34 It is also apparent from the case-law of the Court of Justice, inter alia, that, in 
accordance with the principle of the irrevocability of a declaration once it has 
been accepted, the details of the declaration may be amended only in the cases 
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strictly defined by EU legislation (see, to that effect, for example, judgment of 
17 September 2014, Baltic Agro, C-3/13, EU:C:C:2227, paragraph 43 and the 
case-law cited), and the possibility of amending a declaration provided for in 
Article 173(3) of the Union Customs Code must be interpreted strictly (judgment 
of 8 June 2023, Zes Zollner Electronic, C-640/21, EU:C:2023:[457], 
paragraph 43). 
35 In that regard, it should be noted that Article 176[(1)](c) of the Union Customs 
Code entrusts the European Commission with the task of laying down the 
procedure for amending a customs declaration after the release of the goods in 
accordance with Article 173(3). However, the Implementing Regulation, which, 
as follows from recital 39 thereof, was adopted, inter alia, for the purpose of 
specifying ‘… the situations in which a customs declaration can be amended after 
the release of the goods …’, does not provide for the amendment of the 
declaration in a situation such as that in the present case, namely where changes 
made to supply contracts after the lodging of the declaration result in the price 
actually payable for the goods becoming apparent. On the contrary, by way of 
example, Article 130(3) of the Implementing Regulation explicitly prohibits the 
taking into account of discounts arising from amendments to the contract 
subsequent to the time of acceptance of the customs declaration. 
III. 
1. […] [obligation to make the request pursuant to the third paragraph of 
Article 267 TFEU] 
2. In those circumstances, in order to dispel the doubts that have arisen as to 
the interpretation and application of the provisions of EU law relevant to the legal 
relationships at issue in the present dispute, it is appropriate to request the Court 
of Justice to interpret the EU provisions in question. An answer to the questions 
set out in the operative part of the present order is crucial for the present case 
because it would make it possible, while in particular ensuring the primacy of EU 
law, to assess the scope of the appellant’s import VAT liability and the moment 
when that liability arose, that is to say, the circumstances to which, inter alia, the 
tax authority’s ability to impose default interest in respect of that tax is directly 
linked. 
In the light of the foregoing considerations […] [reference to provisions of 
procedural law] […] the present Chamber 
orders as follows: 
[…] [standard procedural wording] 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling: 
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(1) Must Article 70 of Regulation (EU) No 952/2013 of the European 
Parliament and of the Council of 9 October 2013 laying down the Union Customs 
Code be interpreted as meaning that paragraph 1 thereof does not apply to a 
situation, such as that in the present case, where, at the time of acceptance of the 
customs declaration and on the basis of the sale occurring immediately before the 
goods were brought into the customs territory, only the price provisionally 
payable is known, which is subsequently (that is to say, after the declaration has 
been lodged and the goods have been released for free circulation) adjusted 
upwards or downwards in the light of circumstances beyond the control of the 
parties to the transaction and unknown at the time of lodging the declaration? 
(2) Must Article 173(3) of Regulation (EU) No 952/2013 be interpreted as 
meaning that the declarant is not under an obligation to apply to the customs 
authorities for an adjustment of the customs value determined and declared in 
accordance with Article 74 of that regulation where, as in the present case, the 
price actually payable for the goods, as referred to in Article 70(1) of that 
regulation, which was not and could not have been known at the time of lodging 
the declaration, becomes apparent after those goods have been released for free 
circulation? 
[…] [standard procedural wording and composition of the court] […]