5th AVENUE Products Trading GmbH v Hauptzollamt Singen.
Date: 2020-11-19
22


It should be borne in mind that EU law on customs valuation seeks to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. The customs value must thus reflect the real economic value of an imported good and, therefore, take into account all of the elements of that good that have economic value (see, inter alia, judgments of 16 November 2006, Compaq Computer International Corporation, C‑306/04, EU:C:2006:716, paragraph 30; of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 24; and of 20 June 2019, Oribalt Rīga, C‑1/18, EU:C:2019:519, paragraph 22).
23


In particular, by virtue of Article 29 of the Customs Code, the customs value of imported goods is the transaction value, that is to say, the price actually paid or payable for the goods when they are sold for export to the customs territory of the European Union, adjusted, where necessary, in accordance, in particular, with Article 32 of that code (see, inter alia, judgments of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 24; of 9 March 2017, GE Healthcare, C‑173/15, EU:C:2017:195, paragraph 31; and of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 25).
24


As the Court has already stated, the customs value must be determined primarily according to the ‘transaction value’ method of the imported goods (judgments of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 30, and of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 26). That method of determining the customs value is thus assumed to be the most appropriate and the most frequently used (judgments of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 44, and of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 30).
25


As a general rule, the price actually paid or payable for the goods therefore forms the basis for calculating the customs value, even if 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 (see, inter alia, judgments of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 25; of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 27; and of 20 June 2019, Oribalt Rīga, C‑1/18, EU:C:2019:519, paragraph 23).
26


According to the objective pursued by the rules of the Customs Code relating to customs valuation, which was recalled in paragraph 22 above, the transaction value must reflect the real economic value of imported goods (judgments of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 40; of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 26; and of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 28).
30


As is apparent from the actual wording of Article 157(1) of the Implementing Regulation, those concepts refer to payments for the use of rights relating to the manufacture of goods, such as, in particular, ‘patents, designs, models and manufacturing know-how’, the sale for exportation of goods, such as, in particular, ‘trade marks, registered designs’, and the use or resale of those goods, such as, in particular, ‘copyright, manufacturing processes inseparably embodied in those goods’ (see, to that effect, judgment of 9 March 2017, GE Healthcare, C‑173/15, EU:C:2017:195, paragraph 33).
33


That being said, according to settled case-law of the Court, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court by those courts (judgment of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle, C‑769/18, EU:C:2020:203, paragraph 39).
34


Consequently, even if, formally, the referring court has limited its first question to the interpretation of Article 32(1)(c) and (5)(b) of the Customs Code, as well as Article 157(2) of the Implementing Regulation, that does not prevent this Court from providing the referring court with all the elements of interpretation of EU law that may be of assistance in adjudicating in the case before it, whether or not the referring court has referred to them in the wording of its questions. It is, in that regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation in view of the subject matter of the dispute in the main proceedings (judgment of 12 March 2020, Caisse d’assurance retraite et de la santé au travail d’Alsace-Moselle, C‑769/18, EU:C:2020:203, paragraph 40).
40


Although no provision of the Customs Code or of the Implementing Regulation provides a definition of the concept of ‘condition of sale’ within the meaning of Article 29(3)(a) of that code, it follows from the case-law of the Court that, in order to maintain the priority of the transaction value method, the concepts which appear in Article 29 must be interpreted broadly (see, to that effect, judgment of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraph 45).
41


Thus, the Court has already held, with regard to the concept of ‘condition of sale’ which appears in Article 32(1)(c) of the Customs Code, that a payment is such a ‘condition of sale’ of the goods being valued where, in the course of the contractual relations between the seller, or the person related to the seller, and the buyer, that payment is so important to the seller that, without such a payment, the seller would not have concluded the sales contract (judgment of 9 March 2017, GE Healthcare, C‑173/15, EU:C:2017:195, paragraph 60).
42


Since Article 32 of that code is intended to specify the transaction value of imported goods for the purposes of Article 29 of that code, and thus pursues the same objective as that set out in Article 29, that interpretation of the concept of ‘condition of sale’ also applies in the context of Article 29. Given the requirements of unity and consistency in the EU legal order, the terms used by the measures adopted in the same sector must be given the same meaning, unless the EU legislature has expressed a different intention (see, inter alia, judgment of 15 September 2016, Landkreis Potsdam-Mittelmark, C‑400/15, EU:C:2016:687, paragraph 37 and the case-law cited).
45


In that regard, it is irrelevant, as the referring court has moreover found, that such payment is imposed in the framework agreement for exclusive distribution rather than in each individual contract for the subsequent sale of the goods concerned, since the conditions laid down in that framework agreement determine the conditions under which each individual sale must be made (see, to that effect, judgments of 4 February 1986, Van Houten International, 65/85, EU:C:1986:53, paragraph 13, and of 23 February 2006, Dollond & Aitchison, C‑491/04, EU:C:2006:144, paragraph 26).