Opinion of the Advocate General — ECLI:EU:C:2025:800
Date: 2025-10-16
Language of the case: German

summary, the purpose of customs valuation is to introduce a fair, uniform and 
neutral system excluding the use of arbitrary or fictitious customs values. The 
customs value must therefore reflect the real economic value of imported goods 
and take into account all of the elements of those goods that have economic value. 
Thus, although, as a general rule, the price actually paid or payable for the goods 
forms the basis for calculating the customs value, that price is a factor that 
potentially must be adjusted where necessary in order to avoid the setting of an 
arbitrary or fictitious customs value (CJEU judgment of 10 September 2020, 
BMW, C-509/19, EU:C:2020:694, paragraph 13 and the case-law cited, […] 
[reference in legal journal], to Articles 70(1) and 71(1) of the Union Customs 
Code). 
22 (b) Article 32 of the Customs Code contains a list of various costs and values 
which must be added to the price actually paid or payable for the imported goods. 
The present Chamber considers that list to be exhaustive, which is why additions 
to the transaction value that go beyond it are not permissible (see also submissions 
on C-340/93, EU:C:1994:177, paragraph 17, on Article 8 of Council Regulation 
(EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs 
purposes – ‘Regulation No 1224/80’ – (Official Journal of the European 
Communities – OJ 1980 L 134, p. 1); CJEU judgment of 28 March 1990, Malt, 
C-219/88, EU:C:1990:146, paragraph 11, on Article 8 of Regulation No 1224/80; 
see also judgment of the Chamber of 24/1/1995 – VII R 79/94, BFH/NV 1995, 
895, also on Article 8 of Regulation No 1224/80). 
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23 (aa) According to Article 32(1)(a)(ii) of the Customs Code, the cost of containers, 
which are treated as being one with the goods in question for customs purposes, is 
to be added to the price actually paid or payable for the imported goods. The 
provision makes no distinction between services provided within the Community 
and those provided outside the Community. The Customs Code does not contain a 
definition of the term ‘container’. In particular, it is unclear whether the cost of 
producing printing templates for labels, which in turn are affixed to the actual 
containers (for example food cans), also falls under the term ‘container’ and is 
thus to be added to the transaction value pursuant to Article 32(1)(a)(ii) of the 
Customs Code. 
24 (1) The wording of Article 32(1)(a)(ii) of the Customs Code (‘containers’, 
‘Umschließungen’ in German, or ‘contenants’ in French) indicates that the term 
containers refers to receptacles that hold or enclose the goods. This is also 
supported by the separate mention of the cost of packing in Article 32(1)(a)(iii) of 
the Customs Code. 
25 (2) The further requirement that the containers must be treated as being one with 
the goods in question for customs purposes allows the use of general rule 5(a) for 
containers and general rule 5(b) for packing […] [citation of legal literature], 
without clarifying the scope of the term ‘container’. 
26 Containers (general rule 5(a)) are therefore specially shaped or fitted to contain a 
specific article or set of articles and are suitable for long-term use (see also ENHS 
0[2].0 and 04.0 on general rule 5(a)). According to footnote 1 to general rule 5(b), 
the terms ‘packing materials’ and ‘packing containers’ mean any external or 
internal containers, holders, wrappings or supports other than transport devices 
(for example, transport containers), tarpaulins, tackle or ancillary transport 
equipment. Accordingly, the customs tariff distinguishes between containers and 
packing. ENHS 16.0 on general rule 5(b) provides the additional information that 
the latter refers to packing materials and packing containers of a kind normally 
used for packing the goods to which they relate. 
27 However, the application of general rule 5 does not lead to an unambiguous result 
with regard to the interpretation of the term ‘container’ within the meaning of 
Article 32(1)(a)(ii) of the Customs Code. After all, while customs tariff law 
distinguishes between specially designed containers suitable for long-term use and 
(other) customary packing, Article 32(1)(a) of the Customs Code differentiates 
between containers (point (ii)) and packing (point (iii)). In that respect, the 
terminology already differs. Moreover, there are also differences in content in that 
containers within the meaning of Article 32(1)(a)(ii) of the Customs Code do not 
necessarily have to be intended for long-term use. 
28 (3) The referring court considers that the cans used in the present case are 
containers within the meaning of Article 32(1)(a)(ii) of the Customs Code. Labels 
affixed to cans in the third country are also likely to be covered by that provision 
because they are firmly attached to the cans and are unlikely to be removed from 
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them without damage. In accordance with that view, the applicant included the 
cost of printing the labels in the customs value. 
29 However, whether the addition of costs as referred to in Article 32(1)(a)(ii) of the 
Customs Code can be interpreted so broadly that it also covers the cost of 
production of printing templates for the labels to be affixed to the imported goods 
in the third country is unclear and requires clarification by the CJEU. 
30 (bb) Moreover, the relationship between Article 32(1)(a)(ii) and 
Article 32(1)(b)(iv) of the Customs Code and the delimitation of containers and/or 
packing and the supplies referred to in Article 32(1)(b)(iv) of the Customs Code is 
unclear. According to that provision, the value, apportioned as appropriate, of the 
engineering, development, artwork, design work, and plans and sketches 
undertaken elsewhere than in the Community and necessary for the production of 
the imported goods is to be added to the transaction value where these are 
supplied directly or indirectly by the buyer free of charge or at reduced cost for 
use in connection with the production and sale for export of the imported goods, 
to the extent that such value has not been included in the price actually paid or 
payable. However, costs for research and preliminary designs are not included in 
the customs value pursuant to Article 155 of the Implementing Regulation. 
31 (1) With the introductory wording ‘goods and services’, the EU legislature chose a 
broad wording for Article 32(1)(b)(iv) of the Customs Code, so that the scope of 
application of that provision is not limited to tangible goods, and intangible goods 
may also be covered (see CJEU judgment in BMW, EU:C:2020:694, 
paragraphs 17 and 19, […] [reference in legal journal]). Thus, the value of the 
electronic printing templates for labels could also be considered to fall under 
(intangible) goods within the meaning of that provision. 
32 (2) It is precisely the broad wording of Article 32(1)(b) of the Customs Code 
compared with Article 32(1)(a) of the Customs Code that leads to the question 
whether Article 32(1)(b) of the Customs Code is to be applied with priority when 
determining the customs valuation of intellectual property. The referring court 
considers it reasonable to interpret Article 32(1)(b) of the Customs Code as 
containing a specific rule of principle for intellectual supplies, even if that is not 
sufficiently clear from the actual wording and structure of the provision. In that 
respect, it must also be clarified whether, in the case of the customs valuation of 
intangible goods – in the present case, the creation of printing templates by design 
studios – the application of Article 32(1)(a)(ii) of the Customs Code is excluded 
for that reason alone. That question is relevant to the dispute because the printing 
templates were produced in Germany and their value would therefore not increase 
the customs value if Article 32(1)(b)(iv) of the Customs Code were applied, 
because according to that provision only intellectual supplies produced outside the 
Community are to be included in the customs value. 
33 (3) Lastly, in connection with Article 32(1)(b)(iv) of the Customs Code, the 
question remains as to what is meant by the ‘imported goods’. The correction of 
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the customs value under that provision relates only to the value of goods and 
services of the engineering, development, artwork, design work, and plans and 
sketches necessary for the production of the goods. In the present case, the goods 
could be the articles presented at importation as a whole, in other words the cans 
with the attached labels and contents, or only the foodstuffs, which is again 
supported by the fact that the cans actually constitute containers within the 
meaning of Article 32(1)(a)(ii) of the Customs Code. 
34 (cc) Owing to the doubts about the interpretation of Article 32(1)(a)(ii) and 
Article 32(1)(b)(iv) of the Customs Code, it is not possible clearly to assess in the 
present case whether the cost of production of the printing templates is to be 
included in the cost of packing and thus added to the transaction value or whether 
the value of the printing templates, as intellectual supplies, is not to be taken into 
account as a value that increases the customs value, because those printing 
templates were produced in the European Union. 
35 The view of the authorities that Article 32(1)(a)(ii) of the Customs Code should 
apply in the present case is supported by the fact that the labels could not have 
been produced without the printing templates and that they were therefore 
ultimately incorporated into the goods as they were declared for free circulation. 
The close connection of the labels with the cans also supports the view of the 
authorities. Ultimately, the significance of the printing templates also stems from 
the fact that the labels contain information on the contents of the cans. The 
inclusion of the cost of the printing templates thus reflects the real economic value 
of the imported goods (see CJEU judgment of 20 December 2017, Hamamatsu 
Photonics Deutschland, C-529/16, EU:C:2017:984, paragraph 24 and the case-law 
cited, […] [reference in legal journal]). In particular, adjustments (in the form of 
additions in the present case) also serve to prevent the determination of an 
arbitrary or fictitious customs value (see CJEU judgment in Hamamatsu 
Photonics Deutschland, EU:C:2017:984, paragraph 27 and the case-law cited, 
[…] [reference in legal journal]; see also CJEU judgment in BMW, 
EU:C:2020:694, paragraph 13 and the case-law cited, […] [reference in legal 
journal], regarding Articles 70(1) and 71(1) of the Union Customs Code). 
36 However, the arguments of the applicant, which submits that the printing 
templates should be treated as intellectual supplies for the purposes of 
Article 32(1)(b)(iv) of the Customs Code, cannot be dismissed out of hand. Thus, 
printing templates or similar intellectual services are not mentioned either in 
Article 32(1)(a) of the Customs Code or in general rule 5. If the list in Article 32 
of the Customs Code is exhaustive, as the referring court assumes, that militates 
against adding the cost of the printing templates to the customs value. In addition, 
the question arises as to why intellectual supplies provided in the customs territory 
of the European Union would not be included in the customs value according to 
the broadly formulated Article 32(1)(b) of the Customs Code, but would be 
included according to the more narrowly formulated Article 32(1)(a) of the 
Customs Code if they were considered to be part of the containers. As mentioned 
above, Article 32(1)(b)(iv) of the Customs Code could, as a more specific 
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provision, exclude the application of Article 32(1)(a)(ii) of the Customs Code with 
regard to intellectual supplies. Furthermore, the referring court sees a risk of 
contradiction if a printing template is used for different labels that are attached to 
the container or the goods in different ways. Thus, it does not make sense to 
consider printing templates to be part of the container if the label is affixed to the 
container, but to adopt the opposite view if the label is attached to the goods only 
by a tie, as is the case with hangtags. In any event, the present Chamber has so far 
not regarded hangtags as containers (see order of the Chamber of 18/12/2013 – 
VII B 107/12, BFH/NV 2014, 1107). 
37 Furthermore, the referring court wishes to point out a problem that could arise 
independently of the present dispute, and which should be taken into account 
when interpreting the aforementioned customs valuation provisions. If the cost of 
producing the printing templates is to be taken into account as a cost that increases 
the customs value, the question arises as to how the cost would be apportioned to 
the imports if the printing templates were to be produced once, but the goods were 
to be imported over a longer period of time. Article 32 of the Customs Code does 
not lay down any requirements in that respect. Article 154 of the Implementing 
Regulation, according to which the cost of containers can be apportioned 
according to generally accepted accounting rules in the case of repeated use, 
governs a different case and is not applicable to printing templates, at least not 
directly. Article 156a of the Implementing Regulation does not offer a satisfactory 
solution for this case either, because the determination of special criteria to 
determine surcharges and discounts requires, by way of derogation from 
Article 32(2) of the Customs Code, an application by the trader and thus an 
examination prior to importation as well as a corresponding approval by the 
customs authority. 
38 2. The legal question described under heading II has not yet been ruled on by the 
CJEU and cannot be answered satisfactorily on the basis of the existing case-law 
of the CJEU on customs valuation law. 
39 (a) In connection with the interpretation of the last sentence of paragraph 2 of 
Section C of Title I of Part I of the Annex to Article 1 of Council Regulation 
(EEC) No 950/68 of 28 June 1968 on the Common Customs Tariff (OJ 1968 
L 172, p. 1), the CJEU, in its judgment of 5 October 1988, Schmid, C-357/87 
(EU:C:1988:478, […] [reference in collection]) interpreted the term ‘packings’ as 
referring to containers which are suitable not only for transporting the products in 
question but also for storing and marketing them. Furthermore, the CJEU upheld 
the addition of compensation payments for containers not returned to the seller in 
another country pursuant to Article 8(1)(a) of Regulation No 1224/80. It can be 
inferred from that decision that the CJEU interprets the term ‘container’ rather 
broadly. However, the CJEU had no reason to distinguish between the actual 
containers of the goods (bottles and barrels) and any labels or intellectual supplies 
that had been used to produce the labels. 
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40 (b) Furthermore, the CJEU has addressed Article 32(1)(b) of the Customs Code 
and the corresponding predecessor provision on several occasions. 
41 (aa) Thus, in the judgment of 7 March 1991, BayWa, C-116/89 (EU:C:1991:104, 
[…] [reference in legal journal]), it ruled that licence fees in respect of the 
propagation of basic seed were to be added to the customs value of the harvested 
seed produced from it in accordance with Article 8(1)(b)(i) of Regulation 
No 1224/80. In that context, the CJEU clarified that there is no general principle 
according to which services rendered and goods produced in the customs territory 
of the Community are to be excluded from the customs value. However, that 
ruling was made in respect of Article 8(1)(b)(i) of Regulation No 1224/80 – the 
predecessor provision to Article 32(1)(b)(i) of the Customs Code. 
42 (bb) The CJEU judgment of 9 March 2017, GE Healthcare, C-173/15 
(EU:C:2017:195, […] [reference in legal journal]) does not help in the 
interpretation of Article 32(1)(a)(ii) of the Customs Code either, because in that 
case the CJEU had to deal with royalties which – unlike the intellectual 
preparatory work provided through the production of the printing templates in the 
present case – are expressly governed by Article 32(1)(c) of the Customs Code. 
43 (cc) Lastly, in its judgment in BMW (EU:C:2020:694, paragraph 18, […] 
[reference in legal journal]) the CJEU ruled that intangible goods such as software 
are also covered by the addition of VAT under Article 32(1)(b) of the Customs 
Code or Article 71(1)(b) of the Union Customs Code. The relationship between 
that provision and the more narrowly formulated Article 32(1)(a) of the Customs 
Code, however, was not the subject of that decision. Nor can any conclusions be 
drawn from that ruling as to whether containers can also cover intellectual 
preparatory work. In addition, that case concerned software by means of which 
functionality tests of control units for vehicles were to be carried out. The 
software in question was thus related to the imported product as such. 
44 3. Furthermore, the present Chamber has not previously dealt with the customs 
treatment of printing templates for labels. 
45 In its judgment of 30/1/1990 – VII R 41/87 (BFH/NV 1990, 679), the present 
Chamber ruled that printing costs for labels produced in a third country and added 
to the goods are part of the customs value, which is not in dispute in the present 
case. Any cost incurred in the customs territory of the European Union for the 
production of printing templates was not at issue in the proceedings at that time. 
46 As explained […] [page reference of original formatting] [above in paragraph 36, 
in fine], the Chamber further decided in its decision in BFH/NV 2014, 1107 that 
hangtags are not containers within the meaning of Article 32(1)(a)(ii) of the 
Customs Code. Again, electronic printing templates were not the subject of the 
decision. 
47 Moreover, the referring court has ruled in connection with Article 32(1)(b)(iv) of 
the Customs Code that the embodied intellectual service made available for the 
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production of the imported goods crystallises the entire development process, 
including all mistakes made. The value of those goods for customs purposes thus 
includes all costs incurred in the course of that process (see judgment of the 
Chamber in BFHE 187, 362, […] [reference in legal journal]). However, that 
decision of the Chamber on the customs valuation of sample collections is of no 
further assistance with regard to the present case. 
48 4. For the sake of completeness, the referring court adds that, in its view, no other 
additions are applicable in the present case. 
49 Article 32(1)(a)(iii) of the Customs Code, concerning the cost of packing, is not 
applicable because the labels in the present case were affixed to the canned goods 
and were thus customs-cleared together with them. The labels should therefore be 
treated as being one with the goods for customs duty purposes. 
50 Article 32(1)(b)(i) of the Customs Code refers only to components incorporated in 
the imported goods and not also to containers or packing. However, the labels on 
the cans, including the electronic printing templates used to produce the labels, do 
not form part of the goods (foodstuffs) as such, but are at most part of the 
container. The printing templates for labels also do not serve to produce the 
imported goods.