Opinion of the Advocate General — ECLI:EU:C:2022:46
Date: 2022-01-20
Language of the case: Lithuanian
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of receipt:  
13 November 2020  
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the request for a preliminary ruling:  
3 November 2020  
Applicant:  
UAB ‘Baltic Master’  
Other party:  
Muitinės departamentas prie Lietuvos Respublikos finansų 
ministerijos 
      
Subject matter of the main proceedings 
Determination of the customs value of imported goods. Recognition of the buyer 
and the seller of the goods as related persons. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of provisions of Council Regulation No 2913/92 and of 
Commission Regulation No 2454/93; third paragraph of Article 267 TFEU. 
 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE-599/20 
 
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Questions referred 
1. Must Article 29(1)(d) of Council Regulation (EEC) No 2913/92 of 
12 October 1992 establishing the Community Customs Code and Article 
143(1)(b), (e) or (f) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 
laying down provisions for the implementation of Council Regulation (EEC) 
No 2913/92 establishing the Community Customs Code be interpreted as meaning 
that the buyer and the seller are deemed to be related persons in cases where, as in 
the present case, in the absence of documents (official data) proving business 
partnership or control, the circumstances surrounding the conclusion of 
transactions are, however, on the basis of objective evidence, characteristic, not of 
the performance of economic activities under normal conditions, but rather of 
cases in which (1) there are particularly close business relations based on a high 
level of mutual trust between the parties to the transaction, or (2) one party to the 
transaction controls the other or both parties to the transaction are controlled by a 
third party? 
2. Must Article 31(1) of Regulation (EEC) No 2913/92 be interpreted as 
prohibiting determination of the customs value on the basis of information 
contained in a national database relating to one customs value of goods which 
have the same origin and which, although not similar, within the meaning of 
Article 142(1)(d) of Regulation (EEC) No 2454/93, are ascribed to the same 
TARIC heading? 
Provisions of EU law cited 
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the 
Community Customs Code (OJ 1992 L 302, 19.10.1992, p. 1) (‘the Community 
Customs Code’): Article 29(1)(d), Article 30(2)(b) and Article 31.  
Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down 
provisions for the implementation of Council Regulation (EEC) No 2913/92 
establishing the Community Customs Code (OJ 1993 L 253, 11.10.1993, p. 1) 
(‘the Implementing Regulation’): Article 142(1)(d), Article 143(1)(b), (e), and (f), 
Article 151(3) and Annex 23. 
Commission Regulation (EC) No 1031/2008 of 19 September 2008 amending 
Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff (OJ 2008 L 291, 31.10.2008, 
p. 1). 
Commission Regulation (EC) No 948/2009 of 30 September 2009 amending 
Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff (OJ 2009 L 287, 31.10.2009, 
p. 1). 
BALTIC MASTER 
 
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Provisions of national law cited 
Rules for the application of Regulation No 2913/92 and Regulation No 2454/93 in 
the Republic of Lithuania, approved by Resolution No 1332 of the Government of 
the Republic of Lithuania of 27 October 2004 (hereinafter also ‘the Rules 
approved by Resolution No 1332’):  
Point 12 
‘In applying the methods for determining the customs value by reference to the 
transaction value of identical or similar goods and Article 31 of the Community 
Customs Code, the customs authorities shall use the data on the customs value of 
goods collected in the database for the valuation of goods for customs purposes 
operated by the Customs Department. The procedure for the selection of data from 
that database, use of those data and formalisation of the decision to determine the 
customs value of the goods in accordance with the data collected in the specified 
database shall be established by the General Director of the Customs Department.’ 
The Rules governing control of the customs valuation of imported goods, 
approved by Order No 1B-431 of the Director of the Customs Department 
attached to the Ministry of Finance of the Republic of Lithuania of 28 April 2004 
(hereinafter also ‘the Rules of the Customs Department’): 
Point 7 
‘Customs officers shall use the database for the customs valuation of goods for 
customs purposes, which is to be compiled in accordance with the procedure 
established by the Customs Department, for the following purposes: 7.1. to 
compare the customs value of the goods being imported and that of previously 
imported goods and to verify the reality of the customs value of the goods; 7.2. to 
choose information about the values and prices of the goods for the application of 
other methods of customs valuation or for the calculation of any additional 
guarantee or security.’ 
Point 24 
‘If the decision referred to in Point 20.4 of the Rules [of the Customs Department] 
is adopted (to apply the method for determining the customs value by reference to 
the transaction value of identical or similar goods), it is mandatory to follow 
Article 150 of the provisions implementing the Community Customs Code. If it is 
impossible to give effect to the requirements of Article 150 of the provisions 
implementing the Community Customs Code during customs clearance, the 
customs value of the goods shall be determined in accordance with Article 31 of 
the Community Customs Code (Method 6). When determining the customs value 
of the goods using Method 6, the applicable price of the goods shall be close to 
the price of identical or similar goods; however, more flexible application of the 
requirements established for these methods is permissible (for example, the “90 
days” requirement could be applied more flexibly, the goods may also be 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE-599/20 
 
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manufactured in a country other than that of the goods for which the customs 
value is being determined, the price of the export country may be applied, and so 
forth)’. 
Brief description of the facts and procedure in the main proceedings 
1 Between 2009 and 2012 the applicant imported into Lithuania various quantities 
of goods of Malaysian origin bought from ‘Gus Group LLC’ (hereinafter also 
referred to as ‘the seller’), which the applicant described in the declarations as 
‘parts of air-conditioning machines’ and which it declared under a single goods 
(TARIC) code, indicating the total weight of those parts in kilograms (hereinafter 
also referred to as ‘the disputed goods’). In those declarations, the applicant 
indicated the transaction value, that is to say, the price indicated in the invoices 
issued to the applicant, as being the customs value of the disputed goods. 
2 After carrying out repeated checks on the applicant’s activities concerning the 
importation of those goods, the Vilniaus teritorinė muitinė (Vilnius Regional 
Customs Authority) (‘the Customs Authority’) refused to accept the transaction 
value indicated in the import declarations. The Customs Authority determined the 
customs value of the goods in accordance with Article 31 of the Community 
Customs Code, referring for this purpose to the data available in the customs 
information system for determining the value of goods for customs purposes 
(hereinafter also referred to as the ‘PREMI database’). 
3 In deciding to determine the matter in this way, the Customs Authority took the 
view, inter alia, that the applicant and the seller had to be treated as being related 
persons for the purposes of the application of Article 29(1)(d) of the Community 
Customs Code, and that the customs value of the disputed goods could not be 
determined by any of the methods indicated in Articles 29 and 30 of that Code. 
4 The applicant appealed against the report of the Customs Authority to the 
Muitinės departamentas prie Lietuvos Respublikos Vyriausybės (Customs 
Department attached to the Ministry of Finance of the Republic of Lithuania) (‘the 
Department’). Having examined the applicant’s complaint, the Department, by its 
decision, upheld the report of the Customs Authority. The applicant appealed 
against that decision to the Mokestinių ginčų komisja prie Lietuvos Respublikos 
Vyriausybės (Tax Disputes Commission attached to the Government of the 
Republic of Lithuania). That body upheld the contested decision of the 
Department. 
5 The applicant brought an appeal against the decision of the Tax Disputes 
Commission before the Vilniaus apygardos administracinis teismas (Vilnius 
Regional Administrative Court), and also asked that a request be submitted to the 
Court of Justice of the European Union for a preliminary ruling on the 
interpretation of certain provisions of Articles 29, 30 and 31 of the Community 
Customs Code and of Article 143 of the Implementing Regulation. 
BALTIC MASTER 
 
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6 The Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative 
Court) rejected the applicant’s complaint. Following an examination of the 
applicant’s appeal, the Lietuvos vyriausiasis administracinis teismas (Supreme 
Administrative Court of Lithuania) upheld the judgment delivered at first instance. 
7 Following a ruling by the European Court of Human Rights that the courts of the 
Republic of Lithuania had failed to provide adequate reasons for their refusal to 
refer a question to the Court of Justice of the European Union for a preliminary 
ruling and had, consequently, breached Article 6(1) of the Convention for the 
Protection of Human Rights and Fundamental Freedoms (Judgment of 16 April 
2019, Baltic Master v Lithuania (application No 55092/16), paragraphs 40 to 43), 
the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court 
of Lithuania) re-opened the procedure in the administrative proceedings. 
Succinct reasons for the request for a preliminary ruling 
The first question referred for a preliminary ruling 
8 In order to establish whether it was reasonable not to rely on the transaction value 
when determining the customs value of the disputed goods in the present case, the 
question first arises as to whether the applicant and the seller of the disputed 
goods can be deemed to be related persons within the meaning of Article 29(1)(d) 
of the Community Customs Code. 
9 It follows from Article 29(1)(d) and 29(2)(a) of the Community Customs Code 
that, where the buyer and the seller are related, the transaction value is to be 
accepted provided that the relationship between the buyer and the seller did not 
influence the price. 
10 As regards the recognition of persons as being ‘related’, Article 143(1) of the 
Implementing Regulation, which clarified the wording of Article 29(1)(d) of the 
Community Customs Code, provides an exhaustive list of cases in which persons 
are deemed to be related. 
11 There is no documentation in the present case which would directly prove the 
existence of any relations between the seller and the applicant referred to in 
Article 143(1) of the Implementing Regulation. There are no official data that 
would allow those entities to be deemed legally recognised partners in business 
within the meaning of Article 143(1)(b) of the Implementing Regulation or that 
would confirm the existence of any of the elements of direct or indirect ownership 
(control) referred to in Article 143(1)(e) and (f) of that regulation. 
12 On the other hand, it has been found in the present case that (1) the seller and the 
applicant are linked by long-term commercial transactions; (2) the goods were 
supplied without the conclusion of any contracts of sale which would provide for 
the delivery, payment or return of the goods and other conditions specific to such 
transactions; (3) the goods were delivered without any advance payment and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE-599/20 
 
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despite the fact that the applicant owed significant amounts to the seller in respect 
of previous supplies; (4) no provision was made for enforcement or risk-
mitigation measures (advance payments, sureties, guarantees, default interest, and 
so forth) that are normal in the ordinary course of business, notwithstanding the 
particularly high value of the disputed transactions; (5) there is no evidence to 
suggest that the seller in general exercised any control over payment and other 
obligations; (6) cases were identified in which persons working for the applicant’s 
company acted on behalf of the seller under an authorisation and used its 
corporate stamp. 
13 In the view of the present Chamber, all of the factual circumstances provide 
reasonable grounds for believing that the seller and the applicant in the present 
case are linked by particularly close connections, as a result of which the 
transactions of those persons were concluded and executed under conditions that 
are not characteristic in the ordinary course of business and there are no other 
objective circumstances capable of justifying the economic logic of such 
transactions. 
14 It should be noted in this regard that patterns of conduct of economic entities 
similar to those in the present case are generally typical in cases where one party 
to the transaction controls the other or both are controlled by a third party. 
Therefore, although there is no official evidence as to the de jure existence of such 
control, the present Chamber is of the opinion that the circumstances of the 
present case may possibly justify the seller and the applicant being regarded as de 
facto related parties within the meaning of Article 29(1)(d) of the Community 
Customs Code and Article 143(1)(e) and/or (f) of the Implementing Regulation. 
15 In the main proceedings, the Customs Authority also found that there were 
grounds for recognising the applicant and the seller as related persons in 
accordance with Article 143(1)(b) of the Implementing Regulation, that is to say, 
as legally recognised partners in business. 
16 The Court of Justice, in its case-law, has not interpreted the concept of legally 
recognised partners in business, and the content of this provision raises certain 
questions for the present Chamber. 
17 According to the commonly understood concept of partnership in business, it can 
be assumed that such a legal form of business brings together several mutually 
independent entities, which in turn are not controlled by a third party. This form of 
legal relationship is characterised by, inter alia, the unified orientation of the 
partnered entities to economic benefit (profit), and with sharing investment and 
operational management functions in agreed proportions. 
18 In the present case, the circumstances of the transactions concluded between the 
seller and the applicant, as set out above, taking into account, in particular, the 
long-standing mutual business practices of those economic entities, could be 
regarded as proving particularly close relations based on a high level of trust that 
BALTIC MASTER 
 
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is not characteristic in the ordinary course of business. These circumstances 
suggest that the business relationship between the seller and the applicant may de 
facto be equivalent to a business partnership within the meaning of Article 
143(1)(b) of the Implementing Regulation. However, it is not clear whether such 
an assessment is justified, in particular as the wording of that provision, which 
must be interpreted strictly, states clearly that the persons must be ‘… legally 
recognized …’. 
The second question referred for a preliminary ruling 
19 In the present case, the Customs Authority determined the customs value of the 
goods imported by the applicant by using the transaction data for goods of a 
separate importer under the same designation (parts of air-conditioning machines), 
classified under the same TARIC code 8415 90 00 90 with the same origin, 
Malaysia (and the same manufacturer), with a transaction value of LTL 56.67/kg. 
This was the only case of exports from Malaysia under the same TARIC code 
8415 90 00 90 recorded in the PREMI database in 2010. The Customs Authority 
applied the transaction value of that case to the values of the goods declared by 
the applicant over the period from 2009 to 2011. 
20 At this stage of the proceedings, the present Chamber considers that the applicant 
has failed to prove that the value of the disputed goods almost does not differ from 
one of the values indicated in Article 29(2)(b) of the Community Customs Code. 
In order to determine the value of the goods imported by the applicant, the 
Customs Authority established that it was not possible to use the transaction value 
of identical and similar goods for customs valuation according to the country of 
origin, that is to say, the PREMI database does not contain information on 
transactions that meet the requirements for identical and similar goods as they are 
understood in accordance with the relevant provisions of the Community Customs 
Code and the Implementing Regulation. It was also impossible to determine the 
value using the deductive value method because the applicant had failed to 
provide the documents and information required to apply that method. It was also 
not possible to calculate the value of the goods using the computed value method, 
since, in accordance with Article 153(1) of the Implementing Regulation, the 
Customs Authority may not require a non-Community person to provide the data 
necessary to determine that value. In other words, the value of the goods imported 
by the applicant could not be determined by consistently applying Articles 29 and 
30 of the Community Customs Code. In such a case, the customs value of the 
imported goods has to be determined in accordance with the provisions of the 
third indent of Article 31(1) of the Community Customs Code. 
21 Therefore, in accordance with the abovementioned rules and Point 12 of the Rules 
approved by Resolution No 1332 and Points 7 and 24 of the Rules of the Customs 
Department, the Customs Authority established that the value determined in the 
single case of exportation from Malaysia in 2010 of goods recorded under the 
same TARIC code was to be regarded as the customs value of the goods which the 
applicant imported and declared in the period from 2009 to 2011. In the present 
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case, there is no evidence to suggest that the Customs Authority made any effort 
to obtain any additional information relevant to the matter in question from the 
competent authorities of other Member States. 
22 In the opinion of the present Chamber, the determination of the customs value of 
the goods on the basis of the single case of which the Customs Authority was 
aware does not in itself constitute a ground for questioning the accuracy and 
validity of the results obtained. Such a conclusion is also supported by Articles 
150(3) and 151(3) of the Implementing Regulation, the content of which shows 
that the value of a single transaction for the sale of identical (Article 150) or 
similar (Article 151) goods is sufficient to determine the customs value of 
imported goods. 
23 On the other hand, the present Chamber considers that the importance of a proper 
classification of goods should be emphasised in this regard; therefore, particular 
emphasis must be placed on the concepts of identical and similar goods as defined 
in Article 142(1)(c) and (d) of the Implementing Regulation. 
24 In the circumstances of the present case, only the concept of similar goods is 
relevant. Article 142(1)(d) of the Implementing Regulation defines similar goods 
as goods produced in the same country which, although not alike in all respects, 
have like characteristics and like component materials which enable them to 
perform the same functions and to be commercially interchangeable. The quality 
of the goods, their reputation and the trade marks covering the goods and services 
are some of the factors that are to be taken into account in determining whether 
goods are similar. 
25 The collected data allow the reasonable conclusion to be drawn that the disputed 
goods and the goods with which the Customs Authority compared those disputed 
goods in order to determine their customs value, even though they were declared 
by different importers under the same designation (parts of air-conditioning 
machines), were classified under the same TARIC code 8415 90 00 90, and the 
same Malaysian origin (the same manufacturer) was indicated, were, however, not 
similar in the light of the elements of that concept set out in Article 142(1)(d) of 
the Implementing Regulation. 
26 It should be noted that, in accordance with the provisions of Regulations 
No 1031/2008 and No 948/2009, the Explanatory Notes to the Nomenclature of 
the Harmonised Commodity Description and Coding System (HSENs, 2007), 
General Rules 1 and 6 for the Interpretation of the Combined Nomenclature, the 
titles of chapters and sections, headings and subheadings, parts of air-conditioning 
machines come under subheading 8415 90 of the CN. However, this subheading 
may cover very diverse parts of air-conditioning systems having differing 
purposes, which obviously may have different values. 
BALTIC MASTER 
 
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27 In other words, the circumstances established in the case suggest that the TARIC 
code, which is intended to combine similar goods for customs-classification 
purposes, was too general (abstract) in the present instance.