Opinion of the Advocate General — ECLI:EU:C:2016:621
Date: 2016-07-28
Language of the case: German
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 9 March 2017 1. Common Customs Tariff — Value for customs purposes — Transaction value — Determination — Taking into account of royalties or licence fees related to the goods being valued — Conditions — Existence of a relationship between the royalties or fees and the goods being valued — Meaning — Royalties or fees relating only to part of the goods — Included (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 32(1)(c); Commission Regulation No 2454/93, as amended by Regulation No 1875/2006, Arts 158(3) and 161, second para.) 2. Common Customs Tariff — Value for customs purposes — Transaction value — Determination — Taking into account of royalties or licence fees related to the goods being valued — Conditions — Payment of royalties or licence fees being a condition of sale of the goods — Meaning of condition of sale — Requirement relating to the payment of royalties or fees to an undertaking related to both the seller and the buyer of the goods — Included (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 32(1)(c); Commission Regulation No 2454/93, as amended by Regulation No 1875/2006, Art. 160) 3. Common Customs Tariff — Value for customs purposes — Transaction value — Determination — Taking into account of royalties or licence fees related to the goods being valued — Royalties or fees relating partly to the imported goods and partly to other component parts subsequently added — Appropriate apportionment — Condition — Resort to the alternative method for determining the customs value of the goods laid down in Article 31 of Regulation No 2913/92 (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Arts 29, 31 and 32(1)(c); Commission Regulation No 2454/93, as amended by Regulation No 1875/2006, Art. 158(3) and Annex 23) 1. Article 32(1)(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as, first, not requiring the amount of royalties or licence fees to be determined at the time when a licence agreement was concluded or when the customs debt was incurred in order for those royalties or licence fees to be regarded as related to the goods being valued and, second, allowing such royalties or licence fees to be ‘related to the goods being valued’ even if those royalties or licence fees relate only partly to those goods. (see para. 54, operative part 1) 2. Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Article 160 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1875/2006 of 18 December 2006, must be interpreted as meaning that royalties or licence fees are a ‘condition of sale’ of the goods being valued where, within a single group of undertakings, those royalties or licence fees are required to be paid by an undertaking related to both the seller and the buyer and were paid to that same undertaking. (see para. 71, operative part 2) 3. Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Article 158(3) of Regulation No 2454/93, as amended by Regulation No 1875/2006, must be interpreted as meaning that the adjustment and apportionment measures, referred to in those provisions respectively, may be applied where the customs value of the goods at issue has been determined, not on the basis of Article 29 of Regulation No 2913/92, as amended, but on the basis of the alternative method laid down in Article 31 of that regulation. As stated in paragraph 30 above, the objective of EU law on the valuation of goods for customs purposes is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. In accordance with point 2 of the interpretative note on customs value concerning Article 31(1) of the Customs Code, set out in Annex 23 to Regulation No 2454/93, the methods of valuation to be used under Article 31(1) should be those laid down in Articles 29 and 30(2) of the Code but a ‘reasonable flexibility’ in the application of those methods would be in conformity with the objectives and provisions of Article 31(1) of the Code (see, to that effect, judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 60). Having regard to the need to establish a customs value if an undertaking fails to provide full information relating to the relevant tax years and to the ‘reasonable flexibility’ mentioned in point 2 of the interpretative note, it must be accepted that taking into account data relating to other tax years of the undertaking may constitute data available in the European Union which Article 31(1) of the Customs Code allows to be used as a basis for determining customs value. Reference to such data constitutes a means of determining a customs value which is both ‘reasonable’ within the meaning of Article 31(1) and consistent with the principles and general provisions of the international agreements and the provisions referred to in Article 31(1) (see, by analogy, judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 61). (see paras 80, 81, 85, operative part 3)