Opinion of the Advocate General — ECLI:EU:C:2023:323
Date: 2023-04-20
Language of the case: Bulgarian
Subject matter: Agriculture and Fisheries;Agricultural structures
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-770/21 – 1 
Case C-770/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
13 December 2021 
Referring court:  
Administrativen sad Sofia-grad (Bulgaria)  
Date of the decision to refer:  
23 November 2021 
Applicant:  
OGL-FOOD TRADE LEBENSMITTELVERTRIEB GMBH 
Defendant:  
Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia 
‘Mitnitsi’ 
  
Subject matter of the main proceedings 
Determination of the customs value of agricultural products originating in third 
countries as the basis for calculating the import duties and value added tax (VAT) 
payable. Situation in which the declared transaction value is significantly higher 
than the standard import value determined by the Commission for the same goods, 
but the importer sells at a loss after deducting its costs. Situation in which the 
importer does not provide a commercial contract for the importation but other 
documents providing evidence of the importation and the payment made. 
Possibility that, due to their long-standing business relationship, the importer and 
its customer (a food chain) could be regarded as ‘related persons’ whose 
relationship ‘influenced the price’ of the imported goods. 
Subject matter and legal basis of the request 
Interpretation of secondary EU law on the basis of Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-770/21 
 
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Questions referred for a preliminary ruling 
1. In the light of Article 70(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, read in conjunction with the first subparagraph of Article 75(5) 
and Article 75(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, 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; 
– 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; 
– 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 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 
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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? 
– 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: 
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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 
– 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; 
– 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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Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Articles 41, 47 and 51 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code (‘the UCC’), in particular 
Articles 1, 22(6), 29, 44(1), 69, 70, 71, 74 and 163(1) 
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, in particular Articles 127(1)(b), 128, 132, 134(1) and 
(2)(b), 140, 142, 145 and 148 
Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 
17 December 2013 establishing a common organisation of the markets in 
agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) 
No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, in particular recital 147, 
Article 181(1) and (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, in particular Articles 73(a) and 75 
Case-law of the Court of Justice relied on 
Judgment of 18 July 2013, Consiglio nazionale dei geologi, С-136/12, 
EU:C:2013:489 
Order of 7 March 2013, Euronics Belgium, С-343/12, EU:C:2013:154 
Judgment of 12 December 2013, Christodoulou and Others, С-116/12, 
EU:C:2013:825 
Judgment of 21 January 2016, Valsts, С-430/14, EU:C:2016:43 
Judgment of 12 October 2017, X, С-661/15, EU:C:2017:753 
Judgment of 19 October 2017, Europamur AlimentacHon, С-295/16, 
EU:C:2017:782 
Judgment of 20 December 2017, Hamamatsu, С-529/16, EU:C:2017:984 
Judgment of 11 March 2020, BV, С-160/18, EU:C:2020:190 
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Judgment of 25 June 2020, Ministerio Fiscal, С-36/20 PPU, EU:C:2020:495 
Provisions of national law relied on 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure), in 
particular Articles 145, 161 and 171 
Zakon za mitnitsite (Law on Customs), in particular Article 19(1) and (7), 
Article 220(1) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 23 April 2019, OGL-FOOD TRADE LEBENSMITTEL VERTRIEB GmbH 
(‘OGL Food’, ‘the importer’ or ‘the applicant’) submitted a customs declaration to 
the Mitnichesko byuro Svilengrad (Customs Office, Svilengrad, Bulgaria). OGL 
Food declared the importation of fresh courgettes, having a net weight of 4 800 kg 
and originating from the Republic of Turkey, into Bulgaria for release for free 
circulation for final consumption. The declared customs value per 100 kg was 
equivalent to EUR 90.81. 
2 The declared price of the imported goods was EUR 3 916.80. That price 
corresponded to the value specified in the commercial invoice issued by the 
exporter on 19 April 2019. Costs were also indicated which, according to the 
customs authorities, amount to a total of EUR 109.60 per 100 kg and represent 
costs incurred by the importer in order to acquire the goods at issue. 
3 On the ground that the customs value of the goods which was declared for the 
specific import exceeded by more than 8% the standard import value for 
courgettes determined by the European Commission for the day (23 April 2019) at 
EUR 53.80 per 100 kg with origin erga omnes, including Turkey, the importer 
provided a guarantee of 982.17 leva (BGN) in accordance with Article 75(2) of 
Delegated Regulation (EU) No 2017/891 and Article 148 of Regulation (EU) 
No 2015/2447. 
4 In addition, the customs authorities required the importer to prove, on the basis of 
the first subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891, 
that the goods were disposed of under conditions confirming the correctness of the 
customs value declared. On 23 May 2019, the importer submitted the following 
evidence: purchase invoice for the goods, transport invoice, international bill of 
lading, sales invoice for the goods at the first level of trade, delivery notes, 
confirmations of receipt of deliveries, reference calculations for the formation of 
the selling price on the basis of the acquisition price, extracts from import and 
sales accounts, and VAT returns for the tax periods January to April 2019, 
purchase and sales ledgers, etc. On the basis of those documents, the importer, by 
indicating the various components of the pricing, fixed the selling price of the 
courgettes at 1.06/1 kg, or EUR 106.00 per 100 kg, formed on the basis of the 
OGL-FOOD TRADE LEBENSMITTELVERTRIEB 
 
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acquisition price excluding VAT. The importer sought reimbursement of the 
guarantee of BGN 982.17 provided in respect of the product in question. 
5 On the ground that the resale price of EUR 106.00 per 100 kg was lower than the 
acquisition price of EUR 109.06 per 100 kg for the same product, the customs 
authorities found that satisfactory proof of the conditions of disposal had not been 
provided and that the guarantee provided in respect of the product in question 
should be forfeit by way of payment of the import duty. 
6 By decision of the Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri 
Agentsia ‘Mitnitsi’ (Director of the Regional Directorate of ‘Plovdiv Customs’ at 
the Customs Agency, Bulgaria) of 30 October 2020, in accordance with the third 
subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891, release of 
the guarantee provided by the importer was refused, and the guarantee was forfeit 
by way of payment of the import duty due, recalculated on the basis of the 
standard import value of the product. 
7 In addition, corrections were made to the customs declaration. As a result of those 
corrections, the contested decision determined a new tax debt for the import of the 
goods at issue: import duty of BGN 982.17 to be entered in the accounts and VAT 
of BGN 498.51 unduly paid on the import of the product. 
8 The reasons given for the decision of the customs authority are summarised as 
follows: 
8.1. On the basis of Article 181(2) of Regulation (EU) No 1308/2013, the 
declared value exceeds the standard import value for the day by 8%, since 
the importer declared the purchase of the product at issue, ‘courgettes’, at a 
price of EUR 90.81 per 100 kg. The same product on the market in the 
Republic of Turkey had a standard import value of EUR 53.80 per 100 kg. 
The importer was required to prove that the high price declared by it was not 
inflated in order to avoid payment of customs duties. In order to prove the 
legitimacy of the higher price of the goods, it could, for example, have 
submitted documents showing that the product is categorised as organic or 
was of a special quality. The product is not declared as an organic product in 
either the customs declaration at issue or the accompanying documents; the 
submitted declaration of conformity with EU marketing standards indicates 
Class I for the courgettes. 
8.2. In verifying the veracity of the declared customs value, account was taken of 
the information that the product is sold at a loss after importation. From the 
verb ‘to prove’ used in Article 75 of Delegated Regulation (EU) 2017/891, it 
was concluded that the legislature did not have in mind only the submission 
of documents concerning the placing of the product, irrespective of the 
price. 
9 The importer brought an action against that decision before the referring court. 
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The essential arguments of the parties in the main proceedings 
10 The applicant submits that the decision is unlawful on the grounds that it 
infringes essential rules of the procedure for proving the declared customs value 
under Article 75 of Commission Delegated Regulation (EU) 2017/891, that it 
contradicts substantive law and that it is incompatible with the purpose of the law. 
The applicant complied with the customs authorities’ request to provide additional 
evidence. That evidence confirmed the transaction value declared on importation 
and fulfilment of the conditions in Article 70(3) of the UCC. The product was 
purchased and entered in the company’s accounts at the price declared on 
importation and actually paid to the seller. The customs administration was wrong 
to reject all the evidence submitted, without any of the documents submitted 
having been challenged by it or found to be false or falsified. 
11 According to the applicant, the customs authorities did not take the specificity of 
the case into account. The product at issue had been destined for the Bulgarian 
branch of the international retail chain Lidl. It was not a one-off supply, but part 
of a long-term business relationship with the object of supplying fresh fruit and 
vegetables throughout the year. That relationship (which exists on a periodic basis 
and lasts throughout the year) requires a flexible approach to the determination of 
the final financial result and the commercial profit. Within a period of one month, 
the company makes a profit on the sale of goods of the same type, irrespective of 
the individual sales, at prices below the customs value. The selling price of the 
product on the European market confirms the correctness of the information in the 
customs declaration. The entire quantity of the imported goods was sold to Lidl, 
with the result that it was a sale of imported goods ‘in the greatest aggregate 
quantity’ within the meaning of Article 74(2) of the UCC. The standard import 
value was much lower than the selling price after the importation. In that 
connection, evidence was submitted to prove that the importer and the companies 
in the chain were not related persons and were not ‘legally recognised partners in 
business’ within the meaning of Article 70(3) of the UCC. 
12 The applicant claims that Article 75(5) of Delegated Regulation (EU) 2017/891 
(and in particular the wording ‘the importer shall make available … all documents 
needed for the carrying out of the relevant customs controls’) did not introduce a 
requirement to provide proof of a profitable disposal. There were no conditions or 
requirements regarding the documents proving the declared customs value, and 
there was no reason to introduce additional criteria subsequently. Had the 
intention behind the abovementioned provision been otherwise, the EU legislature 
would undoubtedly have included an express obligation to prove a positive 
financial result. 
13 The defendant contests the action in its entirety, claims that the decision is 
lawful in all respects, and seeks the dismissal of the action. 
14 The defendant submits that, for the purpose of verifying the veracity of the 
transaction price declared, the customs authorities took into account circumstances 
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relating to the product which could have justified the higher price. However, the 
importer did not provide any evidence that the product was of special quality or 
organic. From the defendant’s point of view, there is no reasonable explanation as 
to why well-acquainted traders agreed on large quantities of goods but cannot 
negotiate lower prices. Save in exceptional circumstances, market logic dictates 
that the trader sells the goods at a price higher than the purchase price. Under 
normal circumstances, commercial transactions are concluded with the intention 
of making a profit. 
15 The defendant states that the dispute concerns, above all, the determination of the 
customs value, which forms the basis for the calculation of import duties and 
VAT. It claims that the special legislation, namely Delegated Regulation (EU) 
2017/891, which contains rules only in respect of the fruit and vegetables sector, 
is applicable and takes precedence over the general legislation, namely the UCC. 
The company argues that the method of determination of the customs value under 
Article 74(2)(c) of the UCC applies to the specific import, but the defendant 
considers that method to be inapplicable. 
16 With regard to the term ‘lot’ in Article 73(a) of Delegated Regulation (EU) 
No 2017/891, the defendant states that an analysis of the circumstances of import 
transactions over a longer period, including on a monthly or annual basis, is 
excluded. Therefore, it states that the data relating to the sale of goods of the same 
type, irrespective of the period, are irrelevant. That conclusion is also supported 
by Article 148(1) of Regulation (EU) No 2015/2447, in accordance with which 
the guarantee is an individual guarantee, covering a single operation. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
17 As regards the relevance of the questions referred for a preliminary ruling, 
the referring court emphasises that the abovementioned provisions of the 
delegated regulation have not been interpreted by the Court of Justice. Nor has 
Article 70(3) of the UCC been interpreted with regard to related persons who are 
‘legally recognised partners in business’. Moreover, those provisions do not 
contain any reference to the law of the Member States. The referring court draws 
attention to the fact that it follows from the need for uniform application of EU 
law and from the principle of equality that the terms of a provision of EU law 
which makes no express reference to the law of the Member States for the purpose 
of determining its meaning and scope must normally be given an autonomous and 
uniform interpretation throughout the European Union, having regard not only to 
its wording but also to the context of the provision and the objective pursued by 
the legislation in question (judgment of 25 June 2020, Ministerio Fiscal, 
С-36/20 PPU, EU:C:2020:495, paragraph 53 and the case-law cited). 
18 As regards the questions referred, the adjudicating Chamber states that the 
national case-law on Article 75(5) of Delegated Regulation (EU) No 2017/891 
supports the view that the transaction value declared by OGL Food is proven on 
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the basis of the correspondence between the information provided by the importer 
and the exporter, and the proof of payment of the invoice. Having regard to the 
wording of Article 70(1) of the UCC, according to which the transaction value is 
the price paid or payable, the adjudicating Chamber accepts that the payment 
details in the commercial invoice could be regarded as evidence of the transaction 
value, as the applicant submits. Nevertheless, the present Chamber takes the view 
that the evidence of payment alone is not sufficient, since Article 70(3) of the 
UCC sets out the conditions for the applicability of the transaction value, 
including the condition in Article 70(3)(d) of the UCC: ‘the buyer and seller are 
not related or the relationship did not influence the price’. 
19 In that connection, the referring court states that, pursuant to Article 127(1)(b) of 
Implementing Regulation (EU) 2015/2447, two persons who are ‘legally 
recognised’ partners in business are deemed to be related persons within the 
meaning of Article 70(3)(d) of the UCC. In the absence of any indication as to 
which traders are to be regarded as legally recognised partners in business, the 
referring court proceeds on the assumption that what is at issue in that respect is 
clearly not only a contractual relationship or other type of legal relationship 
between traders – as that would have been expressly provided for by the EU 
legislature – but other elements as well. Moreover, the presentation of a contract 
or other document concerning the legal relationship between the importer and the 
exporter in the context of the specific import is not expressly provided for in the 
fourth subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891. 
Conversely, the documents expressly referred to in that provision were submitted 
by the importer OGL Food to the customs authorities. 
20 Nevertheless, for the purposes of proof under the first subparagraph of 
Article 75(5) of Delegated Regulation (EU) 2017/891, the customs authority 
requested a commercial contract, which the importer did not provide. The 
adjudicating Chamber takes the view that the invoices issued by the exporter to 
OGL Food and by the latter to Lidl listing the imported goods as the subject 
matter, contain, as a document, all the required details of the supply, which are 
also recorded in the importer’s VAT books. Those invoices are to be regarded as 
evidence of a contractual relationship under a contract of sale of the imported 
goods. 
21 Therefore, the referring court considers that there is a need for an interpretation of 
Article 70(1) of the UCC, in conjunction with Article 70(3)(d) thereof, and in 
conjunction with Article 127(1)(b) of Implementing Regulation (EU) 2015/2447, 
in order to clarify whether, where a commercial contract or other document 
governing the legal relationship between traders has not been submitted, but 
regard is had to the circumstances of the case – namely: (i) a supply chain 
between exporter, importer and buyer at the first level of trade, which precludes 
the inference of a commercial relationship which arose coincidentally; and (ii) 
information regarding invoices issued between the importer and the exporter, 
which show payment and are recorded in the importer’s accounts and VAT sales 
ledgers – circumstances exist which demonstrate a contractual commercial 
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relationship between the exporter and the importer and identify them as ‘legally 
recognised partners in business’ or related persons, with the result that it must be 
examined whether that relationship influenced the declared transaction value of 
the specific imported goods. 
22 The referring court also considers that a further reason why that issue requires 
clarification is that, for the purpose of demonstrating the correctness of the 
declared transaction value, the applicant relies on the similarity of the values of 
the declared import price and the unit price for the same goods, calculated 
according to the deductive method. In accordance with Article 142 of 
Implementing Regulation (EU) 2015/2447, when determining the customs value 
according to that method, the price at which the imported goods are sold in the 
European Union is to be used, whereby sales between related persons within the 
meaning of Article 127(1) of that regulation are excluded. Therefore, the referring 
court considers that an interpretation of the concept of ‘related persons’ in 
Article 142(4)(b) of Implementing Regulation (EU) 2015/2447 is required. 
23 In addition, the referring court states that neither Article 75 of Delegated 
Regulation (EU) 2017/891 nor any other relevant provision expressly provides 
that it is legally possible for the importer to establish the price of the imported 
goods for customs purposes, using the deductive method, for the first time in 
proceedings relating to an action against the decision of the customs authority. 
The referring court has doubts as to whether a negative answer to that question 
would restrict the importer’s right to an effective remedy under Article 47 of the 
Charter. In addition, on the basis of the price determined for the goods at issue 
using the deductive method, the importer states that the standard import value 
determined by the Commission for courgettes imported from the Republic of 
Turkey for the day in question is significantly lower than the price at which the 
same product is sold in the European Union, that it to say, it implicitly challenges 
the standard import value determined by the Commission for the day. 
Furthermore, in the procedure before the customs authority, the importer did not 
state that it would establish the value using the deductive method within the time 
limit referred to in the first subparagraph of Article 75(5) of Delegated Regulation 
(EU) 2017/891. Since, in accordance with the second subparagraph of 
Article 75(5), failure to comply with that time limit results in the forfeiture of the 
guarantee provided, the question arises as to whether the importer may determine 
that value only within the time limit and the procedure before the customs 
authority. 
24 Second, the referring court takes the view that the question referred in relation to 
the requirement to produce a commercial contract or other document concerning 
the legal relationship between traders must also be answered in the light of the fact 
that it does not directly follow from the fourth subparagraph of Article 75(5) of 
Delegated Regulation (EU) 2017/891 that there is an obligation to produce the 
‘contract of sale or other equivalent document’ for the purpose of proving the 
price payable for the goods when sold for export (argumentum ex Article 70(1) of 
the UCC). The adjudicating Chamber questions whether the customs authorities 
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are required to examine that aspect at all when the importer provides evidence of 
payment of the import invoice. The Chamber concludes that those questions 
cannot be answered unequivocally, and they are not only essential for a reasoned 
judicial decision but are also relevant to the resolution of the dispute. Since the 
invoice referred to in Article 145 of Implementing Regulation (EU) 2015/2447 is 
a supporting document for the customs declaration, the provision in the fourth 
subparagraph of Article 75(5) of Delegated Regulation (EU) 2017/891 – ‘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’ – should mean another document relating to the ‘sale’, ‘in addition 
to the invoice’. In that context, it might be assumed that all the documents needed 
in relation to the sale include, in addition to the invoice, the ‘contract of sale or 
other equivalent document’. 
25 Next, the referring court emphasises that the customs authorities found that the 
declared import value was significantly higher than the standard import value 
determined for the day by the Commission. The declared import value is not only 
8% higher than the standard import value (in which case a guarantee must be 
provided pursuant to Article 75(2) of Delegated Regulation (EU) 2017/891), but 
exceeds it by 40.75%. Under the system applicable to the fruit and vegetable 
sector, the amount of the duty and the import price are inversely proportional, that 
is to say, the higher the declared import value of such goods, the lower the duty, 
which even drops to zero beyond a certain value. It is therefore for the importer to 
prove that the higher price declared by it was not inflated in order to avoid 
payment of customs duties. 
26 In that context, the referring court takes into account the case-law of the Court of 
Justice (in particular, judgments of 12 December 2013, Christodoulou and Others, 
С-116/12, and of 16 June 2016, EURO 2004. Hungary, С-291/15), according to 
which the transaction value must reflect the real economic value of imported 
goods and take into account all the elements of those goods that have economic 
value. In the present case, the importer did not point to any economic elements in 
respect of the product that would justify a higher price (for example, that the fresh 
courgettes are of a special quality or are organic). Moreover, the declared value is 
significantly (even abnormally) higher than the average value of comparable 
imported goods, which, according to the judgment of 16 June 2016, EURO 2004. 
Hungary (С-291/15), may serve as a sufficient basis for the customs authority to 
substantiate the doubts raised and to refuse to accept the declared import value. 
27 As the next point giving rise to uncertainty in the resolution of the case, the 
referring court points to the correct interpretation of the commercial practice of 
‘selling at a loss’. The referring court considers that the case-law of the Court of 
Justice in the judgment of 19 October 2017, Europamur Alimentación, С-295/16, 
and in the order of 7 March 2013, Euronics Belgium, С-343/12, is not relevant in 
the present case, in so far as the present case concerns proof of the declared 
customs value of agricultural products imported from third countries. The 
OGL-FOOD TRADE LEBENSMITTELVERTRIEB 
 
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referring court points out that it has not identified any other case-law of the Court 
of Justice from which an unequivocal answer to that question could be derived. 
28 Lastly, the referring court points out that an interpretation in accordance with 
Article 267 TFEU is also necessary for reasons of legal certainty, in terms of 
ensuring uniform application of the law in the area of EU customs legislation. 
Such an interpretation would contribute to the effectiveness of EU law and would, 
inter alia, prevent the European Union from losing tax revenue.