CELEX: 62018CC0160
Language: en
Date: 2019-06-13 00:00:00
Title: Opinion of Advocate General Szpunar delivered on 13 June 2019.#X BV v Staatssecretaris van Financiën.#Request for a preliminary ruling from the Hoge Raad der Nederlanden.#Reference for a preliminary ruling — Customs Union and Common Customs Tariff — Regulation (EC) No 1234/2007 — Regulation (EC) No 1484/95 — Import of frozen poultrymeat originating in Brazil — Post-clearance recovery of additional import duties — Verification mechanism — Method for calculating additional duties.#Case C-160/18.

OPINION OF ADVOCATE GENERAL
   SZPUNAR
   delivered on 13 June 2019 (
         1
      )
   
      Case C‑160/18
   
   X BV
   v
   Staatssecretaris van Financiën
   
      (Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))
   
   (Reference for a preliminary ruling — Own resources of the European Union — Retrospective recovery of additional import duties — Import of poultrymeat — Verification mechanism for the purpose of establishing the amount of additional duties — Method for calculating additional duties — Legality of the verification mechanism)
   
      Introduction
   
   
            1.
         
         
            For the second time now, the Court will have the opportunity to examine the legality of the provisions of EU law concerning additional import duties in the poultrymeat sector. Like the previous case, the present case concerns the import of frozen poultrymeat originating from Brazil. (
                  2
               ) In the previous case concerning this issue, the Court declared the provisions of EU law concerned to be invalid. (
                  3
               ) Those provisions have since been amended, but there are significant doubts as to whether the amendments were sufficient. The present case will allow that issue to be resolved.
         
      
      Legal framework
   
   
      
         International law
      
   
   
            2.
         
         
            Article 5(1)(b) of the Agreement on Agriculture set out in Annex 1A to the Agreement establishing the World Trade Organisation, approved by the European Union under Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (
                  4
               ) (‘the Agreement on Agriculture’), states:
            ‘Notwithstanding the provisions of paragraph 1(b) of Article II of GATT 1994, any Member may take recourse to the provisions of paragraphs 4 and 5 below in connection with the importation of an agricultural product, in respect of which measures referred to in paragraph 2 of Article 4 of this Agreement have been converted into an ordinary customs duty and which is designated in its Schedule with the symbol “SSG” as being the subject of a concession in respect of which the provisions of this article may be invoked, if:
            …
            
                     (b)
                  
                  
                     the price at which imports of that product may enter the customs territory of the Member granting the concession, as determined on the basis of the c.i.f. [(cost, insurance and freight) (“CIF”)] import price of the shipment concerned expressed in terms of its domestic currency, falls below a trigger price equal to the average 1986 to 1988 reference price … for the product concerned’.
                  
               
      
      
         EU law
      
   
   
            3.
         
         
            Pursuant to Article 29(1)(d) and Article 29(2)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code: (
                  5
               )
            ‘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:
            …
            
                     (d)
                  
                  
                     that the buyer and seller are not related, or, where the buyer and seller are related, that the transaction value is acceptable for customs purposes under paragraph 2.
                  
               2.   
            
                     (a)
                  
                  
                     In determining whether the transaction value is acceptable for the purposes of paragraph 1, the fact that the buyer and the seller are related shall not in itself be sufficient grounds for regarding the transaction value as unacceptable. Where necessary, the circumstances surrounding the sale shall be examined and the transaction value shall be accepted provided that the relationship did not influence the price. If, in the light of information provided by the declarant or otherwise, the customs authorities have grounds for considering that the relationship influenced the price, they shall communicate their grounds to the declarant and he shall be given a reasonable opportunity to respond. If the declarant so requests, the communication of the grounds shall be in writing.
                  
               …’
         
      
            4.
         
         
            Article 30(1) and (2)(a) of Regulation No 2913/92 stated:
            ‘1.   Where the customs value cannot be determined under Article 29, it is to be determined by proceeding sequentially through subparagraphs (a), (b), (c) and (d) of paragraph 2 to the first subparagraph under which it can be determined, subject to the proviso that the order of application of subparagraphs (c) and (d) shall be reversed if the declarant so requests; it is only when such value cannot be determined under a particular subparagraph that the provisions of the next subparagraph in a sequence established by virtue of this paragraph can be applied.
            2.   The customs value as determined under this Article shall be:
            
                     (a)
                  
                  
                     the transaction value of identical goods sold for export to the Community and exported at or about the same time as the goods being valued;
                  
               …’
         
      
            5.
         
         
            Pursuant to Article 220(1) of that regulation:
            ‘Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time limit may be extended in accordance with Article 219.’
         
      
            6.
         
         
            Article 141 of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (
                  6
               ) stated:
            ‘1.   An additional import duty shall apply to imports at the rate of duty laid down in Articles 135 to 140a of one or more products of the … poultry … [sector], … in order to prevent or counteract adverse effects on the Community market which may result from those imports, if:
            
                     (a)
                  
                  
                     the imports are made at a price below the level notified by the Community to the WTO (the trigger price);
                  
               …
            2.   Additional import duties shall not be imposed where the imports are unlikely to disturb the Community market, or where the effects would be disproportionate to the intended objective.
            3.   For the purposes of paragraph 1(a), import prices shall be determined on the basis of the [CIF] import prices of the consignment under consideration.
            [CIF] import prices shall be checked against the representative prices for the product on the world market or on the Community import market for that product.’
         
      
            7.
         
         
            The provisions implementing Regulation No 1234/2007 as regards additional import duties are set out in Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing additional import duties in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC. (
                  7
               ) Article 2 of that regulation, in the wording in force until 11 September 2009, stated:
            ‘1.   The representative prices referred to in the second subparagraph of Article [141(3) of Regulation No 1234/2007] shall be determined at regular intervals taking into account in particular:
            
                     –
                  
                  
                     the prices on third country markets,
                  
               
                     –
                  
                  
                     [CIF] import prices; for the purposes of this Regulation, the following factors shall constitute the [CIF] import price: (a) the fob price in the country of origin; and (b) transport and insurance costs to the point of introduction into the customs territory of the Community,
                  
               
                     –
                  
                  
                     prices at the various stages of marketing in the Community for imported products.
                  
               …
            2.   The Member States shall communicate to the Commission, each Monday, the prices referred to at the second and third indents of paragraph 1 for representative shipments of products listed in Annex II.’
         
      
            8.
         
         
            From 11 September 2009, that same article was reworded as follows:
            ‘1. The representative prices referred to in Article 141(3) of [Regulation No 1234/2007] shall be determined at regular intervals on the basis of data collected under the Community surveillance system governed by Article 308d of Commission Regulation (EEC) No 2454/93 …
            …’
         
      
            9.
         
         
            Article 3 of Regulation No 1484/95 states:
            ‘1.   The additional duty shall be established on the basis of the [CIF] import price of the consignment in question in accordance with the provisions of Article 4.
            2.   When the [CIF] import price per 100 kg of a consignment is higher than the applicable representative price referred to in Article 2(1), the importer shall present to the competent authorities of the importing Member States at least the following proofs:
            
                     –
                  
                  
                     the purchasing contract, or any other equivalent document,
                  
               
                     –
                  
                  
                     the insurance contract,
                  
               
                     –
                  
                  
                     the invoice,
                  
               
                     –
                  
                  
                     the certificate of origin (where applicable),
                  
               
                     –
                  
                  
                     the transport contract,
                  
               
                     –
                  
                  
                     and, in the case of sea transport, the bill of lading.
                  
               3.   In the case referred to in paragraph 2, the importer must lodge the security referred to in Article 248(1) of Commission Regulation (EEC) No 2454/93 …, equal to the amount of additional duty which he would have paid if the calculation of the additional duty had been made on the basis of the representative price applicable to the product in question, as shown in Annex I.
            4.   The importer shall have one month from the sale of the products in question, subject to a limit of six months from the date of acceptance of the declaration of release for free circulation, to prove that the consignment was disposed of under conditions confirming the correctness of the prices referred to in paragraph 2. Failure to meet one or other of these deadlines shall entail the loss of the security lodged. However, the time limit of six months may be extended by the competent authorities by a maximum of three months at the request of the importer, which must be duly substantiated.
            The security lodged shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities.
            Otherwise, the security shall be forfeit by way of payment of the additional duties.
            5.   If on verification the competent authorities establish that the requirements of this Article have not been met, they shall recover the duty due in accordance with Article 220 of Regulation (EEC) No 2913/92. The amount of the duty to be recovered or remaining to be recovered shall include interest from the date the goods were released for free circulation up to the date of recovery. The interest rate applied shall be that in force for recovery operations under national law.’
         
      
            10.
         
         
            As of 1 May 2010, the wording of Article 3(3) and (4) of Regulation No 1484/95 is as follows:
            ‘3.   In the case referred to in paragraph 2, the importer must lodge the security referred to in Article 248(1) of Regulation (EEC) No 2454/93, equal to the difference between the amount of additional import duty calculated on the basis of the representative price applicable to the product in question and the amount of additional import duty calculated on the basis of the [CIF] import price of the consignment in question.
            4.   The importer shall have two months from the sale of the products in question, subject to a limit of nine months from the date of acceptance of the declaration of release for free circulation, to prove that the consignment was disposed of under conditions confirming the correctness of the prices referred to in paragraph 2. Failure to meet one or other of these deadlines shall entail the loss of the security lodged. However, the time limit of nine months may be extended by the competent authorities by a maximum of three months at the request of the importer, which must be duly substantiated.
            The security lodged shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities. Otherwise, the security shall be forfeit by way of payment of the additional duties.’
         
      
            11.
         
         
            Article 4 of Regulation No 1484/95 fixes the amount of additional duties on the basis of the difference between the CIF import price of the product and the trigger price. That provision implements Article 5(5) of the Agreement on Agriculture referred to in point 2 of this Opinion.
         
      
      Facts, procedure and questions referred
   
   
            12.
         
         
            X, a company incorporated under Netherlands law (‘Company X’), is part of an international group of companies which also includes Company F, a poultry producer with its seat in Brazil. Company X purchases frozen poultrymeat produced by Company F and imports it into the customs territory of the European Union, where it sells it to other entities, both related and not related to it. The goods imported by Company X are subject to the provisions of Article 141 of Regulation No 1234/2007.
         
      
            13.
         
         
            The Netherlands customs authorities entered into an agreement with Company X regarding the method for calculating the customs value of the goods in question. That value was determined on the basis of the price at which those goods were purchased by Company X from another company belonging to the same group, plus 15% to cover additional costs and a profit margin. The customs authorities considered the customs value thus established to be appropriate for the purpose of calculating the CIF import price (
                  8
               ) for the purpose of applying Article 141 of Regulation No 1234/2007.
         
      
            14.
         
         
            The main proceedings concern consignments of poultrymeat imported into the customs territory of the European Union by Company X between 1 January 2009 and 30 June 2010. The declared CIF import price of those goods was greater than the trigger price (and thus greater than the representative price, which was lower than the trigger price). The customs authorities released the goods for free circulation without requiring the lodging of the security referred to in Article 3(3) of Regulation No 1484/95 and without requiring proof that, in accordance with Article 3(4) of that regulation, the goods were disposed of under conditions confirming the correctness of the declared import price.
         
      
            15.
         
         
            However, in a subsequent check, those authorities established that Company X had sold the consignments of poultrymeat concerned to entities in the European Union, both related and not related to it, at prices lower than the declared import price. Those prices were also lower than the representative price applicable to those goods.
         
      
            16.
         
         
            Applying, by way of analogy, Article 4 of Regulation No 1484/95, the customs authorities imposed additional duties on the goods in question amounting to EUR 2 163 793.55 in total, calculated on the basis of the difference between the applicable representative price and the trigger price.
         
      
            17.
         
         
            The action brought by Company X against that decision was dismissed at first instance and on appeal. Company X appealed on a point of law to the referring court against the decision of the appellate court of 24 November 2015.
         
      
            18.
         
         
            In those circumstances the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
            
                     ‘(1)
                  
                  
                     Must paragraphs 2, 4 and 5 of Article 3 of [Regulation No 1484/95], read in conjunction with Article 141 of [Regulation No 1234/2007], be interpreted as meaning that the control mechanism described therein, including ex post controls, is merely intended to ensure that the competent authorities quickly become aware of any facts or circumstances relating to chain transactions that could give rise to doubts about whether the [CIF] import price reported is correct and could constitute grounds for a supplementary inspection?
                     Or is an opposing interpretation correct, in other words, must the control mechanism described in paragraphs 2, 4 and 5 of Article 3 of Regulation No 1484/95, including ex post controls, be interpreted as meaning that, if the importer makes one or more resales on the Community market at a price below the reported [CIF] import price of the consignment plus the amount of import duties due, this does not satisfy the required conditions (or conditions of disposal) on the Community market and additional duties are therefore due for this reason alone? To answer the latter question, is it relevant whether the importer made the aforementioned resale or resales at a price below the applicable representative price? In this context, is it significant that the representative price was calculated in a different way prior to 11 September 2009 than in the period since that date? Furthermore, in order to answer these questions, is it relevant whether the customers within the European Union and the importer are related companies?
                  
               
                     (2)
                  
                  
                     If it follows from the answer to the questions set out under 1 above that reselling at a loss constitutes a sufficient ground for rejecting the reported [CIF] import price, how should the level of the additional duties due be determined? Should that basis be established in accordance with the methods for determining customs value laid down in Articles 29 to 31 of [Regulation No 2913/92]? Or must it be established solely on the basis of the applicable representative price? Does Article 141(3) of [Regulation No 1234/2007] preclude use of the representative price determined prior to 11 September 2009?
                  
               
                     (3)
                  
                  
                     If it follows from the answers to Questions 1 and 2 that the decisive factor in additional duties being owed is the resale of imported products at a loss on the Community market, and the representative price must then be taken as a basis for calculating the level of those additional duties, are paragraphs 2, 4 and 5 of Article 3 of [Regulation No 1484/95] compatible with Article 141 of [Regulation No 1234/2007] in the light of [the judgment of 13 December 2001, Kloosterboer Rotterdam, C‑317/99, EU:C:2001:681]?’
                  
               
      
      Analysis
   
   
            19.
         
         
            The referring court has submitted three questions to the Court of Justice for a preliminary ruling. The third of these raises the issue of the legality of Article 3(2), (4) and (5) of Regulation No 1484/95 in the light of Article 141 of Regulation No 1234/2007 and the judgment in Kloosterboer Rotterdam. (
                  9
               ) In the background of this problem there is also Article 5(1)(b) of the Agreement on Agriculture. The referring court has made the third question referred for a preliminary ruling dependent on the answers to the first two questions and on the interpretation to be given to the aforementioned provisions. In my view, however, the very wording of those provisions raises serious doubts as to their legality. I shall therefore begin my analysis of the reference for a preliminary ruling in the present case by addressing the third question.
         
      
      
         Third question referred
      
   
   
            20.
         
         
            As I have mentioned above, the third question referred for a preliminary ruling concerns the validity of Article 3(2), (4) and (5) of Regulation No 1484/95 in the light of Article 141 of Regulation No 1234/2007 and the judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681). These provisions, and therefore the problem of their potential incompatibility with Regulation No 1234/2007, are difficult to understand without recalling their original wording and the history of how that wording has been challenged by the Court.
         
      
            21.
         
         
            Initially, the first subparagraph of Article 3(1) of Regulation No 1484/95 and Article 3(3) of that regulation had the following wording:
            ‘1.   At the request of the importer the additional duty may be established on the basis of the [CIF] import price of the consignment in question, if this price is higher than the applicable representative price, referred to in Article 2(1).
            …
            3.   In the absence of the request referred to in paragraph 1, the import price of the consignment in question to be taken into consideration for imposing an additional duty shall be the representative price referred to in Article 2(1).’
         
      
            22.
         
         
            The second subparagraph of Article 3(1) of that regulation and Article 3(2) thereof laid down a mechanism for verifying the correctness of the CIF import price declared by the importer, the wording of which was essentially identical to the current wording of Article 3(2) to (5) of that regulation.
         
      
            23.
         
         
            The logic of those provisions was therefore quite clear. As a rule, additional duties were imposed on the basis of the representative price. However, where imports were made at a price higher than the representative price, this method for calculating additional duties was unfavourable to the importer, since the amount of those duties is dependent on the difference between the accepted import price (in this case the representative price) and the trigger price: the lower the import price relative to the trigger price, the higher the additional duty.
         
      
            24.
         
         
            In such circumstances, therefore, it was accepted that the importer could request that the CIF import price, that is, the actual import price, be used instead of the representative price. (
                  10
               ) That request would be granted subject to certain conditions. Firstly, the importer had to provide a number of documents confirming the accuracy of the declared CIF import price. Secondly, the importer had to prove, within a short period of time after the sale of the imported goods on the EU market, that the sale had taken place under conditions confirming the correctness of the declared price. Thirdly, the importer was required to lodge a security equal to the amount of additional duty which it would be obliged to pay if the representative price was applied. If the customs authorities established that the imported goods had not been sold under conditions confirming the correctness of the declared CIF import price, they would revert to the general rule, that is, application of the representative price, and the security lodged would automatically be forfeit against payment of additional duties. Lastly, if, in the course of subsequent checks, the customs authorities established that the above conditions had not been satisfied, they could request ex post payment of additional duties as if they had been calculated on the basis of the representative price.
         
      
            25.
         
         
            In its judgment in Kloosterboer Rotterdam, (
                  11
               ) the Court challenged the general principle of calculating additional duties on the basis of the representative price and found that both Article 3(3) of Regulation No 1484/95 (the general rule) and Article 3(1) of that regulation (the possibility of submitting a request for application of the CIF import price together with an obligation to submit certain documents) were invalid. In particular, the Court held that it is quite clear from the first subparagraph of Article 5(3) of Regulation (EEC) No 2777/75 (
                  12
               ) that only the CIF import price may serve as a basis for determining any additional duty and that no conditions or exceptions are attached to the application of that rule. The Court also found that the representative price can be taken into account only for the purpose of checking the accuracy of the declared CIF import price. (
                  13
               )
         
      
            26.
         
         
            The Court assessed the provisions in question only in the light of Regulation No 2777/75, but emphasised that that regulation had been brought into line with the Agreement on Agriculture. (
                  14
               ) Furthermore, it should be noted that the method for calculating additional duties laid down in the original wording of Article 3 of Regulation No 1484/95 was challenged by the WTO’s Dispute Settlement Body in its position of 13 July 1998. (
                  15
               )
         
      
            27.
         
         
            Regulation No 1484/95 had already been amended, prior to the aforementioned judgment of the Court, by Regulation (EC) No 493/1999. (
                  16
               ) The recitals of that regulation indicate that Article 3 of Regulation No 1484/95 is incompatible with WTO rules. As a result of that amendment, Article 3(1) of Regulation No 1484/95 states that additional duties are to be established on the basis of the CIF import price. In addition, the original wording of paragraph 3 of that article has been deleted.
         
      
            28.
         
         
            However, where the CIF import price declared by the importer is higher than the representative price, all the obligations incumbent on the importer under the second subparagraph of Article 3(1) of Regulation No 1484/95 (
                  17
               ) and Article 3(2) of that regulation as originally worded remain in force. They are now laid down in Article 3(2) to (5) of that regulation. The mechanism whereby the security is automatically forfeit in the event that the importer fails to prove that it sold the imported goods under conditions confirming the correctness of the CIF import price also remains in force. The customs authorities likewise still have the option of establishing retrospectively that the conditions for the application of the CIF import price have not been satisfied and of collecting an additional duty calculated on the basis of the representative price.
         
      
            29.
         
         
            To maintain a mechanism that de facto automatically calculates additional duties on the basis of the representative price when, in principle, the CIF import price should apply seems illogical. How, then, should those provisions be interpreted?
         
      
            30.
         
         
            In its observations in the present case, the Commission explains this as follows: where the declared CIF import price is higher than the representative price, it is presumed that the former price is not accurate, as this would mean that the goods were purchased at a price higher than the market price. This presumption is iuris tantum: an importer may prove the correctness of the declared CIF import price, provided that it sells the imported goods on the EU market under conditions which, in the view of the customs authorities, confirm that that price is correct.
         
      
            31.
         
         
            Otherwise, an additional duty will be collected in an amount calculated on the basis of the representative price. This reasoning was finally confirmed by the Commission at the hearing. In its observations, the Netherlands Government proposes a similar interpretation of Article 3(2) to (5) of Regulation No 1484/95.
         
      
            32.
         
         
            That interpretation is not altered by the modification of Article 3(3) of that regulation, which entered into force on 1 May 2010, according to which the security lodged is not equal to the full amount of additional duties calculated on the basis of the representative price, but rather to the difference between the duties calculated on the basis of the representative price and those calculated on the basis of the CIF import price. This is because, in such a situation, the importer pays duties calculated on the basis of the import price, (
                  18
               ) while the difference is collected either by forfeiture of the security or as a result of ex post verification pursuant to paragraph 5 of that article. There is no material difference here.
         
      
            33.
         
         
            This seems to me to be the only possible interpretation of the provisions of Article 3(2) to (5) of Regulation No 1484/95. The effect is therefore that, where the CIF import price is higher than the representative price, the former is used as the basis for calculating additional duties only if the importer meets additional requirements, in particular as regards the conditions of disposal of the imported goods. Apart from the language used, this does not differ much from the situation that prevailed under Article 3 of Regulation No 1484/95 in the wording challenged by the Court. The only difference is that the importer is not required to submit a request for the CIF import price to be applied.
         
      
            34.
         
         
            It is worth emphasising that, in accordance with the second sentence of the first subparagraph of Article 3(4) of Regulation No 1484/95, the security lodged by the importer is also forfeit if the importer has failed to meet one or other of the deadlines laid down therein for proving that the goods were sold at a price confirming the correctness of the CIF import price. There is no question, therefore, of analysing the facts as to their substance; it is enough that there exists a formal defect for the representative price to be used de facto as the basis for calculating additional duties. In my view, this confirms that the mechanism laid down in Article 3(2) to (5) of Regulation No 1484/95 as currently worded is identical to the mechanism in force under the law as it originally stood, which was challenged by the Court.
         
      
            35.
         
         
            It is true that the Court did not expressly declare Article 3(2) of Regulation No 1484/95 as originally worded to be unlawful. The control mechanism laid down therein was, however, an inseparable element of that original provision, which laid down the principle that additional duties should be calculated on the basis of the representative price and that the application of the CIF import price was possible only exceptionally, subject to certain conditions. The retention of that control mechanism within the new regulatory framework implies that the same principle has been maintained, albeit in a disguised fashion, since in practice it leads to the same outcome.
         
      
            36.
         
         
            I therefore consider that the Commission, by amending or repealing the first subparagraph of Article 3(1) of Regulation No 1484/95 and Article 3(3) of that regulation as originally worded, but maintaining the second subparagraph of Article 3(1) of that regulation and Article 3(2) thereof (changing only the numbering), has not fully brought that regulation into line with the judgment in Kloosterboer Rotterdam. (
                  19
               ) Article 3(2) to (5) of Regulation No 1484/95 as currently worded should therefore be declared invalid.
         
      
            37.
         
         
            Although in its third question the referring court mentions only Article 3(2), (4) and (5) of Regulation No 1484/95, paragraph 3 of that article, which requires the importer to lodge a security equal to the amount of additional duties calculated on the basis of the representative price, forms an integral part of the mechanism laid down in Article 3(2) to (5) of that regulation. That security would have no raison d’être were it not possible to automatically apply the representative price as a basis for calculating additional import duties. Article 3(2) to (5) of Regulation No 1484/95 should therefore be considered as a whole.
         
      
            38.
         
         
            The Commission notes in its observations in the present case that the sale of goods on the EU market at a price below the trigger price is likely to disturb that market, which in itself justifies the imposition of additional duties. However, it should be noted that in accordance with Article 141(2) of Regulation No 1234/2007, where the imports are unlikely to disturb the market, additional import duties are not to be imposed. On the other hand, the likelihood of the market being disturbed is not a sufficient basis for imposing such duties. This is because the sole basis for doing so is the import of goods at a CIF import price that is lower than the trigger price.
         
      
            39.
         
         
            In the light of all the foregoing considerations, I propose that the third question referred for a preliminary ruling be answered as follows: Article 3(2) to (5) of Regulation No 1484/95 is invalid in the light of Article 141(3) of Regulation No 1234/2007 and Article 5(1)(b) of the Agreement on Agriculture.
         
      
      
         First question referred
      
   
   
            40.
         
         
            The first question referred for a preliminary ruling concerns the interpretation of Article 3(2) to (5) of Regulation No 1484/95. If the Court accepts my proposed answer to the third question referred and declares those provisions invalid, the answer to the first question will become redundant. I shall therefore only briefly discuss the first question below.
         
      
            41.
         
         
            By its first question, the referring court seeks, in essence, to establish whether the fact that the importer sold the imported goods at a price lower than the declared CIF import price plus import duties is sufficient to challenge the use of that import price as the basis for calculating additional duties.
         
      
            42.
         
         
            The answer to that question follows from the interpretation of Article 3(2) to (5) of Regulation No 1484/95 as set out above.
         
      
            43.
         
         
            Where the CIF import price is lower than the representative price, the importer is in principle required to prove that it sold the goods at a price confirming the correctness of that import price. That evidence is to be assessed by the customs authorities (
                  20
               ) and their assessment is subject to judicial review. That is a finding of fact. It is for the customs authorities to assess whether and to what extent the sale at a price lower than the declared CIF import price calls into question the correctness of that import price. Nothing is automatic here — the customs authorities may take the view, on the basis of all the facts, that the declared import price was accurate, even if the goods were subsequently sold at a lower price. One element of the assessment may be to compare the sale price of the product with the representative price.
         
      
            44.
         
         
            Contrary to the doubts raised in this regard by the referring court, the change in the method for calculating the representative price which took place on 11 September 2009 is irrelevant here. The comparison must be based on the representative price on the date of importation, calculated in accordance with the provisions in force on that day.
         
      
            45.
         
         
            No automatic effect can be derived from the fact that the buyers of the goods on the EU market are related to the importer. This is a fact which the customs authorities may take into account for the purpose of assessing the correctness of the declared import price.
         
      
            46.
         
         
            The problem of the legality of Article 3(2) to (5) of Regulation No 1484/95 does not stem from the fact that the customs authorities may challenge the correctness of the CIF import price declared by the importer, but from the effect which that entails, namely the automatic application of the representative price as the basis for calculating additional duties.
         
      
            47.
         
         
            The same considerations apply where the customs authorities, as in the main proceedings, have not followed the procedure laid down in Article 3(2) to (4) of Regulation No 1484/95, but carry out an ex post verification under Article 3(5) of that regulation. That provision applies where the ‘requirements of this Article’ have not been met. Those requirements should be understood to mean the requirement for the importer to have sold the goods at a price confirming the correctness of the CIF import price declared by that importer.
         
      
      
         Second question referred
      
   
   
            48.
         
         
            The second question referred for a preliminary ruling concerns the basis upon which additional duties are to be calculated in the event that the customs authorities reject the CIF import price declared by the importer as inaccurate.
         
      
            49.
         
         
            If one adheres to the letter of Article 3(2) to (5) of Regulation No 1484/95, then the answer to the question is simple: those duties should be calculated on the basis of the representative price.
         
      
            50.
         
         
            However, as I have indicated in my answer to the third question referred, this solution is, in my view, unlawful; in any event, it is unlawful in so far as it provides that the representative price is to be applied automatically and definitively. This gives rise to the problem of what the customs authorities should do if they have doubts as to the correctness of the CIF import price declared by the importer.
         
      
            51.
         
         
            In my view, the answer to this question is to be found in the general customs legislation on determining the customs value of goods. In accordance with Article 29(1) of Regulation No 2913/92, (
                  21
               ) the customs value of goods is, as a general rule, their transaction value. However, there are a number of exceptions to this rule, including in situations where, as in the present case, the purchaser (that is, the importer) and the seller are related. In such a situation, the customs authorities are required to establish whether this relationship has influenced the price. (
                  22
               )
         
      
            52.
         
         
            If it proves impossible to use the transaction value in order to determine the customs value, Articles 30 and 31 of Regulation No 2913/92 lay down alternative methods for determining the customs value of goods. These methods are consistent with the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 set out in Annex 1A to the Agreement establishing the World Trade Organisation, and with the Agreement on Agriculture. In particular, Article 30(2)(a) of Regulation No 2913/92 allows the customs value of goods to be determined on the basis of the transaction value of identical goods imported into the customs territory of the Union. In the case of goods subject to the provisions of Regulation No 1234/2007, it would appear that the value of identical goods can be determined on the basis of the representative price, which would make it possible to calculate the amount of additional duties on that basis. However, this requires the customs authorities to make the appropriate findings, which are subject to judicial review, and cannot imply shifting the burden of proof onto the importer or the automatic application of the representative price instead of the CIF import price. In particular, there are no provisions of EU or international law that allow the import price declared by the importer to be rejected on the sole ground that the goods were subsequently sold at a price lower than that import price. That fact can, at most, constitute a ground for checking the correctness of the declared import price.
         
      
            53.
         
         
            I therefore propose that the second question referred for a preliminary ruling be answered as follows: where the customs authorities have doubts as to the correctness of the CIF import price declared by the importer, they should establish the basis for calculating the additional import duties referred to in Article 141 of Regulation No 1234/2007 in accordance with Articles 29 to 31 of Regulation No 2913/92.
         
      
      Conclusion
   
   
            54.
         
         
            In the light of all the foregoing considerations, I propose that the questions referred to the Court of Justice by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) for a preliminary ruling be answered as follows:
            
                     (1)
                  
                  
                     Article 3(2) to (5) of Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing additional import duties in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC, is invalid in the light of Article 141(3) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) and Article 5(1)(b) of the Agreement on Agriculture set out in Annex 1A to the Agreement establishing the World Trade Organisation.
                  
               
                     (2)
                  
                  
                     Where the customs authorities have doubts as to the correctness of the CIF import price declared by the importer, they should establish the basis for calculating the additional import duties referred to in Article 141 of Regulation No 1234/2007 in accordance with Articles 29 to 31 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code.
                  
               
      (
         1
      )	Original language: Polish.
   (
         2
      )	International trade in poultrymeat has also provided an opportunity to develop EU law in other cases. See, for instance, judgment of 13 January 2004, Kühne & Heitz (C‑453/00, EU:C:2004:17).
   (
         3
      )	Judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681).
   (
         4
      )	OJ 1994 L 336, p. 1.
   (
         5
      )	OJ 1992 L 302, p. 1.
   (
         6
      )	OJ 2007 L 299, p. 1.
   (
         7
      )	OJ 1995 L 145, p. 47.
   (
         8
      )	The term ‘CIF price’ is derived from the International Trade Rules (Incoterms) published by the International Chamber of Commerce and covers cost, insurance and freight.
   (
         9
      )	Judgment of 13 December 2001 (C‑317/99, EU:C:2001:681).
   (
         10
      )	It is worth emphasising that this possibility was limited to situations where the CIF import price was higher than the representative price. In the logic used at that time this was justified, because in the reverse situation the importer had no interest in requesting that the CIF import price be applied — application of the representative price was more advantageous to the importer.
   (
         11
      )	Judgment of 13 December 2001 (C‑317/99, EU:C:2001:681).
   (
         12
      )	Regulation of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (OJ 1975 L 282, p. 77). That provision was replaced by Article 141(3) of Regulation No 1234/2007.
   (
         13
      )	Judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681, paragraph 30).
   (
         14
      )	Judgment of 13 December 2001, Kloosterboer Rotterdam (C‑317/99, EU:C:2001:681, paragraphs 23 to 25).
   (
         15
      )	Opinion of Advocate General Ruiz-Jarabo Colomer in Kloosterboer Rotterdam (C‑317/99, EU:C:2001:229, points 35 to 37).
   (
         16
      )	Commission Regulation of 5 March 1999 amending Regulation (EC) No 1484/95 (OJ 1999 L 59, p. 15), Article 1(3).
   (
         17
      )	See point 24 of this Opinion.
   (
         18
      )	According to Article 4 of Regulation No 1484/95.
   (
         19
      )	Judgment of 13 December 2001 (C‑317/99, EU:C:2001:681).
   (
         20
      )	This is clearly indicated by the second subparagraph of Article 3(4) of Regulation No 1484/95, according to which ‘… the security lodged shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities’ (emphasis added).
   (
         21
      )	That regulation was in force at the time when the events in the main proceedings took place. The current provisions on determining the customs value of goods are set out in Article 69 et seq. 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).
   (
         22
      )	Article 29(2)(a) of Regulation No 2913/92.