Judgment;Summary — ECLI:EU:C:2021:320
Date: 2021-04-22
Language of the case: Lithuanian
Court formation: Eighth Chamber
Subject matter: External relations;Free movement of goods;Commercial policy;Approximation of laws;Customs Cooperation
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Translation  C-75/20–1 
Case C-75/20 
Request for a preliminary ruling 
Date lodged: 
13 February 2020 
Referring court: 
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the decision to refer: 
29 January 2020 
Applicant and appellant: 
‘Lifosa’ AB 
Defendant and respondent: 
Muitinės departamentas prie Lietuvos Respublikos finansų 
ministerijos 
      
[…] 
 
LIETUVOS VYRIAUSIASIS ADMINISTRACINIS TEISMAS 
(Supreme Administrative Court of Lithuania) 
ORDER 
29 January 2020 
Vilnius 
A chamber of the Supreme Administrative Court of Lithuania, […] [composition 
of the chamber] 
has examined, at a sitting of the court under the written appeal procedure, the 
administrative case concerning an appeal by the applicant, the public limited 
company ‘Lifosa’, against the judgment of the Vilniaus apygardos administracinis 
teismas (Regional Administrative Court, Vilnius) of 28 November 2017 in the 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 1. 2020 — CASE C-75/20 
 
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administrative case concerning the action brought by the applicant, the public 
limited company ‘Lifosa’, against the defendant, the Muitinės departamentas prie 
Lietuvos Respublikos finansų ministerijos (Customs Department under the 
Ministry of Finance of the Republic of Lithuania) (interested third parties: Kauno 
teritorinė muitinė (Kaunas Customs Office) and the private limited company 
‘Transchema’) for annulment of a decision and of a report. 
The chamber 
has established as follows: 
I. 
1. At issue in the present case is a tax dispute between the applicant, the public 
limited company ‘Lifosa’ (‘the applicant’, ‘the Company’), and the defendant, the 
Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos (Customs 
Department under the Ministry of Finance of the Republic of Lithuania; ‘the 
defendant’, ‘the Department’), concerning inspection report No 7KM320012M of 
the Kaunas Customs Office dated 9 February 2017 (‘the Report’), which inter alia 
adjusted the customs value of imported goods that was declared by the applicant. 
Legal basis. EU law 
2. Article 29(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 
1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the 
Community Customs Code’) provides: 
‘1. The customs value of imported 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 Community, adjusted, where necessary, in accordance 
with Articles 32 and 33, provided: … (b) that 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 … 
3. (a) The price actually paid or payable is the total payment made or to be made 
by the buyer to or for the benefit of the seller for the imported goods and includes 
all payments made or to be made as a condition of sale of the imported goods by 
the buyer to the seller or by the buyer to a third party to satisfy an obligation of the 
seller. The payment need not necessarily take the form of a transfer of money. 
Payment may be made by way of letters of credit or negotiable instrument and 
may be made directly or indirectly …’ 
3. Article 32(1) to (3) of the Community Customs Code provides inter alia: 
[Or. 2] 
‘1. In determining the customs value under Article 29, there shall be added to 
the price actually paid or payable for the imported goods: … (e) (i) the cost of 
MUITINĖS DEPARTAMENTAS PRIE LIETUVOS RESPUBLIKOS FINANSŲ MINISTERIJOS 
 
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transport … of the imported goods … to the place of introduction into the customs 
territory of the Community. 
2. Additions to the price actually paid or payable shall be made under this 
Article only on the basis of objective and quantifiable data. 
3. No additions shall be made to the price actually paid or payable in 
determining the customs value except as provided in this Article.’ 
4. Article 164(c) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 
laying down provisions for the implementation of Regulation No 2913/92 (OJ 
1993 L 253, p. 1) provides that ‘in applying Article 32(1)(e) … of the 
[Community Customs] Code: … where transport is free or provided by the buyer, 
transport costs to the place of introduction, calculated in accordance with the 
schedule of freight rates normally applied for the same modes of transport, shall 
be included in the customs value.’ 
5. Article 70 (‘Method of customs valuation based on the transaction value’) of 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the 
Union Customs Code’) provides: 
‘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: … (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 …’ 
6. Article 71 (‘Elements of the transaction value’) of the Union Customs Code 
provides: 
‘1. In determining the customs value under Article 70, the price actually paid or 
payable for the imported goods shall be supplemented by: … (e) the following 
costs up to the place where goods are brought into the customs territory of the 
Union: (i) the cost of transport … of the imported goods … 
2. Additions to the price actually paid or payable, pursuant to paragraph 1, 
shall be made only on the basis of objective and quantifiable data. 
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3. No additions shall be made to the price actually paid or payable in 
determining the customs value except as provided in this Article.’ 
7. Article 138 (‘Transport costs’) 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 (OJ 2015 L 343, p. 558) 
provides in paragraph 3 that, ‘where transport is free of charge or provided by the 
buyer, the transport costs to be included in the customs value of the goods shall be 
calculated in accordance with the schedule of freight rates normally applied for 
the same modes of transport’. 
Relevant facts 
8. The applicant is a public limited company established in Lithuania, which, inter 
alia, produces fertilisers. From 1 January 2014 until 31 October 2016, in 
accordance with a contract concluded on 23 September 2011, the applicant 
acquired from the private limited company ‘Transchema’ (‘“Transchema” UAB’), 
and imported into the customs territory of the European Union, various quantities 
of technical sulphuric acid (‘the goods at issue’) produced by the Belarusian 
undertaking ‘Naftan’ OAO (‘the Producer’). 
9. For each acquisition, a supplementary contract was concluded in which, among 
other things, a specific price was agreed upon and it was also stipulated that the 
supply/acquisition was to be carried out in accordance with one of the 
international commercial terms drawn up by the International Chamber of 
Commerce (‘Incoterms 2000’), namely DAF [Or. 3], Belarus-Lithuania […], 
which means inter alia that the supplier (seller) pays all costs of transporting the 
goods to the place of destination. 
10. It has also been established in the case that ‘Transchema’ UAB acquired the goods 
at issue from the Producer, which delivered them on DAF terms (Belarus-
Lithuania) from the plant in the territory of Belarus to the Gudogai border 
crossing point. 
11. The customs value of the imported goods at issue stated by the applicant in the 
declarations submitted by it was constituted by the amounts actually paid or 
payable by the applicant for those goods, corresponding to the amounts specified 
in the VAT invoices issued by ‘Transchema’ UAB. 
12. After carrying out an inspection, on 9 February 2017 the Kaunas Customs Office 
adopted the Report adjusting the customs value of the goods at issue that was 
declared by the applicant so as to include the costs of transport of the goods at 
issue outside the customs territory of the European Union (Community). 
Accordingly, the applicant was subject to an additional assessment of EUR 25 876 
in customs duties, EUR 412 in default interest on customs duties, EUR 187 152 in 
MUITINĖS DEPARTAMENTAS PRIE LIETUVOS RESPUBLIKOS FINANSŲ MINISTERIJOS 
 
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import value added tax and EUR 42 492 in default interest on that tax, and a fine 
of EUR 42 598 (20%) was imposed. 
13. The local tax authority took that decision after having found that the customs 
value of the goods at issue that was declared by the applicant was lower than the 
costs of their transport within the territory of Belarus which were actually incurred 
by the Producer in transporting them by rail from the plant owned by it to the 
border crossing point between the Republic of Belarus and the Republic of 
Lithuania. 
14. The applicant filed a complaint against that decision of the local tax authority with 
the Department which, by decision of 25 May 2017 […], upheld the amounts 
additionally assessed in the Report. 
15. Disagreeing with that decision of the defendant, the applicant brought an action 
before the Regional Administrative Court, Vilnius, emphasising inter alia that: 
15.1. the costs of transport at issue were paid by the Producer under the terms of 
the contract and they were included in the price paid by ‘Transchema’ UAB for 
the goods; 
15.2. the price of the goods at issue was determined by the following objective 
factors: (1) technical sulphuric acid is a by-product in the production process 
carried out by the Producer; (2) the Producer is unable to process or store that 
product (technical sulphuric acid); and (3) recovery of those products would entail 
very high costs, that is to say, although the price of the goods does not cover all 
the costs of transporting them incurred by the Producer, the price is reasonable 
and economically beneficial for the Producer, since the amount of ecological tax 
imposed in the Republic of Belarus that would be payable for the recovery of the 
goods at issue would exceed the sum of the declared customs value and of the 
transportation costs. 
16. By judgment of 28 November 2017, the Regional Administrative Court, Vilnius, 
dismissed the Company’s action as unfounded. Therefore, the applicant brought 
an appeal before the Supreme Administrative Court of Lithuania. 
The chamber 
finds as follows: 
II. 
17. The present case raises a question of interpretation of Articles 29(1) and 
32(1)(e)(i) of the Community Customs Code and Articles 70(1) and 71(1)(e)(i) of 
the Union Customs Code. It is therefore necessary to make a reference to the 
Court of Justice of the European Union (‘the Court of Justice’) for a preliminary 
ruling […] [reference to national law]. 
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18. Specifically, the question arises in the present case as to whether those provisions 
must be interpreted as meaning that the transaction (customs) value must be 
adjusted to include all the costs actually incurred by the Producer in transporting 
the goods to the place where they were brought into the customs territory of the 
European Union (Community) when, as in the present case, (1) under the delivery 
conditions (‘Incoterms 2000’ – DAF) the obligation to cover those costs was 
borne by the Producer and (2) those costs of transport exceeded the price that was 
agreed upon and was actually paid (payable) by the buyer, but (3) the price 
actually paid (payable) by the buyer corresponded to the real value of the goods, 
even if that price was insufficient to cover all the costs of transport incurred by the 
Producer. 
[Or. 4] 
Preliminary observations 
19. There is nothing in the case to indicate that the Producer assumed an obligation to 
transport the goods at issue free of charge to the place where they were brought 
into the customs territory of the European Union (Community), that is to say, that 
the agreed sale price did not include transport costs. However, the information 
contained in the file objectively confirms that the costs actually incurred by the 
Producer in transporting those goods up to that place exceeded the price actually 
paid by the buyer, within the meaning of Article 29(3)(a) of the Community 
Customs Code and Article 70(2) of the Union Customs Code. Since, as stated 
above, those goods were carried under conditions according to which the Producer 
was liable for covering all transport costs, the applicant and/or ‘Transchema’ UAB 
were under no obligation to contribute to those costs which exceeded that price. 
20. It must also be emphasised that the tax authority does not question the fact that the 
customs value of the goods at issue had to be calculated in the manner laid down 
in Article 29 of the Community Customs Code and Article 70 of the Union 
Customs Code, that is to say, in accordance with the transaction value method. 
Moreover, there is nothing in the case to support the conclusion that the price 
actually paid by the applicant and/or ‘Transchema’ UAB to the Producer for the 
goods at issue was fictitious, having been set by fraud or abuse of law. 
Substance of the question referred for a preliminary ruling 
21. It should be noted first of all that, for the purposes of applying Article 29(1) of the 
Community Customs Code or Article 70(1) of the Union Customs Code, 
‘transaction value’ must be interpreted as meaning a value which is adjusted once 
the conditions for an adjustment are met (judgment of 16 November 2006, 
Compaq Computer International Corporation, C-306/04, EU:C:2006:716, 
paragraph 28). In respect, in particular, of the adjustment referred to in 
Article 29(1) of the Community Customs Code, the Court of Justice has stated that 
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 
MUITINĖS DEPARTAMENTAS PRIE LIETUVOS RESPUBLIKOS FINANSŲ MINISTERIJOS 
 
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judgment of 11 May 2017, Shirtmakers, C-59/16, EU:C:2017:362, paragraph [28] 
and the case-law cited (‘the judgment in Shirtmakers’); also see judgment of 
15 July [2010], Gaston Schul, C-354/09, EU:C:2010:439, paragraph 29). 
22. Article 32 of the Community Customs Code and Article 71 of the Union Customs 
Code refer specifically to the elements that must be added to the price actually 
paid or payable for the imported goods in order to determine their customs value 
(see, to that effect, judgment of 12 December 2013, Christodoulou and Others, C-
116/12, EU:C:2013:825, paragraph 47). 
23. The Court of Justice has already held that the concept of ‘cost of transport’ in 
Article 32(1)(e)(i) of the Community Customs Code is an autonomous concept of 
EU law (the judgment in Shirtmakers, paragraph 22). That concept must be 
interpreted broadly and includes all the costs, whether they are main or incidental 
costs, incurred in connection with moving the goods to the customs territory of the 
European Union (Community), and the decisive criterion for costs to be capable 
of being regarded as coming within the term ‘cost of transport’ within the 
meaning of Article 32(1)(e)(i) of the Community Customs Code is that they are 
connected with the movement of goods to the customs territory of the European 
Union (Community), irrespective of whether those costs are inherent in or 
necessary for the actual transport of those goods (the judgment in Shirtmakers, 
paragraphs 24 and 25; judgment of 6 June 1990, Unifert, C-11/89, 
EU:C:1990:237, paragraphs 29 to 31). 
24. In the light of the foregoing, on the one hand, it may reasonably be inferred that, 
for the purposes of applying Article 32(1)(e)(i) of the Community Customs Code 
or Article 71(1)(e)(i) of the Union Customs Code, all (any) costs of transport 
actually incurred must be added to the transaction value, irrespective of who 
incurred them and what gave rise to those costs, if they or any part thereof have 
not been included in the price actually paid or payable. In other words, the mere 
fact that part of those costs of transport was not included in the price actually paid 
or payable by the applicant and/or ‘Transchema’ UAB means, in itself, that the 
transaction value and, accordingly, the customs value should be adjusted so that 
all the actual costs of transport are included, regardless of the fact that those costs 
were actually incurred only by the seller (the Producer). 
[Or. 5] 
25. That assessment seems to be supported by the provisions of the Commission 
implementing regulations referred to in paragraphs 4 and 7 of the present order 
requiring the transport costs to be included in the customs value of the goods 
where transport is free of charge. Indeed, it is appropriate to take the view that the 
fact that goods are transported to the buyer (importer) free of charge or that the 
buyer does not contribute to the costs of transport of goods should not be treated 
differently as far as the determination of the customs value is concerned. 
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26. On the other hand, the information submitted by the applicant in the case (in 
particular that mentioned in paragraph 15.2 of the present order), which is not 
contested by the defendant, indicates that the fact that the costs of transport were 
higher than the price actually paid to the Producer for the goods at issue may, in 
the present case, be justified by the individual circumstances of the sale of the 
goods at issue into the customs territory of the European Union (Community). 
27. Indeed, at this stage of the proceedings, there is a basis for asserting that the goods 
at issue, namely technical sulphuric acid, are a by-product in the production 
process carried out by the Producer which it is unable to store or process. 
Moreover, recovery of that by-product in the Republic of Belarus would entail 
high costs. Consequently, it was economically beneficial (valuable) for the 
Producer to sell the goods at issue at the price paid by ‘Transchema’ UAB, even if 
that price did not cover all the costs incurred by the Producer in transporting those 
goods up to the customs territory of the European Union (Community). 
28. Those facts, on the basis of the evidence gathered in the case, suggest that the 
price actually paid for the goods at issue corresponded to the real value of the 
goods, even if the agreed sale price did not cover all the costs of transport of the 
goods incurred by the Producer. 
29. In those circumstances and in the light of the limitations set out in Article 32(3) of 
the Community Customs Code and Article 71(3) of the Union Customs Code, the 
chamber decides that, in order to dispel doubts which it has as to the interpretation 
of the provisions of EU legislation in question, it is appropriate to make a 
reference to the Court of Justice for a preliminary ruling. 
Request for a preliminary ruling 
30. The Supreme Administrative Court of Lithuania is the court of last instance for 
administrative cases (Article 21 of the Administracinių bylų teisenos įstatymas 
(Law on administrative proceedings)), so that, where a question of interpretation 
of legal measures adopted by the institutions of the European Union has arisen 
and that question has to be examined in order for the case to be decided, it must 
make a reference to the Court of Justice for a preliminary ruling (third paragraph 
of Article 267 TFEU), […] [reference to national law]). 
31. 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, it is appropriate to request the Court of Justice to interpret 
the EU rules in question. An answer to the questions set out in the operative part 
of the present order would be crucial for the present case because it would make it 
possible to identify unequivocally and clearly the actual extent of the applicant’s 
tax obligations related to the importation of the goods at issue, in particular 
ensuring the primacy of EU law. 
MUITINĖS DEPARTAMENTAS PRIE LIETUVOS RESPUBLIKOS FINANSŲ MINISTERIJOS 
 
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In view of the foregoing considerations and pursuant to the third paragraph of 
Article 267 of the Treaty on the Functioning of the European Union, […] 
[reference to national law], the chamber of the Supreme Administrative Court of 
Lithuania 
decides as follows: 
The proceedings on the substance are resumed. 
The following question is referred to the Court of Justice of the European Union 
for a preliminary ruling: are Articles 29(1) and 32(1)(e)(i) of Council Regulation 
(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs 
Code and Articles 70(1) and 71(1)(e)(i) of Regulation (EU) No 952/2013 of the 
European Parliament and of the Council of 9 October 2013 laying down the Union 
Customs Code to be interpreted as meaning that the transaction (customs) value 
must be adjusted to include all the costs actually incurred by the seller (producer) 
in transporting the goods to the place where they were brought into the customs 
territory of the European Union (Community) [Or. 6] when, as in the present case, 
(1) under the delivery conditions (‘Incoterms 2000’ – DAF) the obligation to 
cover those costs was borne by the seller (producer) and (2) those costs of 
transport exceeded the price that was agreed upon and was actually paid (payable) 
by the buyer (importer), but (3) the price actually paid (payable) by the buyer 
(importer) corresponded to the real value of the goods, even if that price was 
insufficient to cover all the costs of transport incurred by the seller (producer)? 
The present administrative proceedings are stayed pending receipt of a 
preliminary ruling from the Court of Justice of the European Union. 
[…] 
[composition of the chamber]