Carboni e derivati Srl v Ministero dell’Economia e delle Finanze and Riunione Adriatica di Sicurtà SpA.
Date: 2008-02-28
27. It must be pointed out, first of all, that the expression ‘customs value’ corresponds to the customs value of the imported goods, as defined by the customs rules (see, by analogy, Case C‑93/96 ICT  [1997] ECR I‑2881, paragraph 14). Bearing in mind the time at which the facts in the main proceedings took place, reference must be made to Article 29(1) of the Community Customs Code, which defines that expression as ‘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 the relevant provisions of the Community Customs Code.
28. Article 29(1) provides that the customs value concerns only goods ‘sold for export to the customs territory of the Community’. It follows that it must be agreed, at the time of sale, that the goods originating in a non-member country will be transported into the customs territory of the Community (see, by analogy, with regard to Article 3(1) of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1), a provision essentially identical to Article 29(1) of the Community Customs Code, Case C‑11/89 Unifert  [1990] ECR I‑2275, paragraph 11).
29. Under the first sentence of Article 147(1) of the implementing regulation, the fact that the goods which are the subject of a sale are declared for free circulation is to be regarded as adequate indication that the abovementioned condition has been fulfilled. The second sentence of Article 147(1), in the version in force at the time of the facts in the main proceedings, provided that that indication was also to apply in the case of successive sales before valuation.
30. Thus, in the case of successive sales, the prices relating to sales made after export, but before release into free circulation in the Community, may be taken into account for the purpose of determining the ‘transaction value’ within the meaning of Article 29(1) of the Community Customs Code (see, by analogy, Unifert , paragraph 13).
31. It follows that, in the case of successive sales of goods for importation into the customs territory of the Community, the importer is at liberty to select from the prices agreed for each of the sales the price which he will take as a basis for determining the customs value of the goods in question, provided that he can furnish to the customs authorities all the necessary particulars and documents relating to the price which he chooses (see, by analogy, Unifert , paragraphs 16 and 21).
37. Article 29(1) of the Community Customs Code provides that the customs value, that is to say, the transaction value, is subject to adjustment, where necessary, in accordance with Articles 32 and 33 of the Code. In addition, as can be seen from Article 29(1)(d) and Article 29(2) of the Code, the customs authorities are entitled to examine the price indicated by the person making the declaration and to reject it where necessary. Consequently, the terms of Article 1(2) of Decision No 1751/94 contain nothing which calls into question the outcome that necessarily follows from the wording of Article 1(2) of Decision No 67/94.
46. In that regard, under Article 13(2) of the basic decision, measures imposing an anti-dumping duty are required to indicate in particular the amount and type of duty imposed, together with certain other matters. Accordingly, the institutions are free to choose, within the limits of their margin of discretion, between the different types of duty (see Joined Cases C‑305/86 and C‑160/87 Neotype Techmashexport  v Commission and Council  [1990] ECR I‑2945, paragraph 58). Thus, in the case of the hematite pig iron originating in the States referred to in Decision No 67/94, the Commission could have imposed a specific duty, possibly together with a variable duty, less likely to be circumvented (see, with regard to Council Regulation (EEC) No 3068/92 of 23 October 1992 imposing a definitive anti-dumping duty on imports of potassium chloride originating in Belarus, Russia or Ukraine (OJ 1992 L 308, p. 41), as amended by Council Regulation (EC) No 643/94 of 21 March 1994 (OJ 1994 L 80, p. 1), Case T‑87/98 International Potash Company  v Council  [2000] ECR II‑3179, paragraphs 43 to 48). However, as recital (66) in the preamble to Decision No 67/94 states, the Commission considered, in the exercise of its discretion, ‘the introduction of a minimum price more appropriate in this particular case than any other type of measure in order to achieve’ the objectives of that decision.
48. In the light of all the foregoing, the arguments put forward by the Italian Government and the Commission do not allow the result imposed expressly and without ambiguity by the wording of Article 1(2) of Decision No 67/94 to be called into question (see, by analogy, Case C‑220/03 ECB  v Germany  [2005] ECR I‑10595, paragraph 31).
52. In this context, Article 181a of the implementing regulation, introduced by Regulation No 3254/94, provides that the customs authorities need not necessarily determine the customs valuation of imported goods on the basis of the transaction value method if they are not satisfied, on the basis of reasonable doubts, that the declared value represents the total amount paid or payable, and they may refuse to accept the declared price if those doubts continue after they have asked for additional information or documents and have provided the person concerned w ith a reasonable opportunity to respond to the grounds for those doubts.
55. Article 181a of the implementing regulation merely states that the customs authorities ‘need not determine the customs valuation … on the basis of the transaction value method’ but does not specify what other value is to be substituted for the transaction value in such a case.
56. Pursuant to Articles 30 and 31 of the Community Customs Code, which apply to the anti-dumping duty established by Decision No 67/94 by virtue of Article 1(3) of that decision, where the customs value of the imported goods cannot be determined under Article 29 of the Code, it is to be determined by application, first, of Article 30 and, second, of Article 31.
60. It should be pointed out in this regard that, according to the case-law, the Community legislation on customs valuation seeks to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values ( Unifert , paragraph 35, Case C‑15/99 Sommer  [2000] ECR I‑8989, paragraph 25, and Case C‑306/04 Compaq Computer International Corporation  [2006] ECR I‑10991, paragraph 30) and that that objective meets the requirements of commercial practice (Case C‑299/90 Hepp  [1991] ECR I‑4301, paragraph 13). In accordance with Point 2 of the Interpretative Notes on Customs Value in Annex 23 to the implementing regulation, concerning Article 31(1) of the Community Customs Code, 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.
61. Having regard to the need to establish a customs value for the purpose of applying a variable anti-dumping duty and to the ‘reasonable flexibility’ mentioned in Point 2 of the Interpretative Notes, it must be accepted that the price indicated in a sale which took place prior to that on the basis of which the customs declaration was made may constitute data available in the Community which Article 31(1) of the Community Customs Code allows to be used as a basis for determining customs value. Having regard to the particular characteristic of a variable anti-dumping duty, as indicated in paragraph 58 of this judgment, reference to that price 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).
64. In the light of all of the foregoing, the answer to the question referred to the Court must be that, in accordance with Article 1(2) of Decision No 67/94, the customs authorities may not determine the customs value for the purpose of applying the anti-dumping duty established by that decision on the basis of the price indicated for the goods concerned in a sale prior to that on the basis of which the customs declaration was made when the declared price corresponds to the price actually paid or payable by the importer. If the customs authorities have reasonable doubts as to the accuracy of the declared value and their doubts are confirmed after they have asked for additional information or documents and have provided the person concerned with a reasonable opportunity to respond to the grounds for those doubts, without it being possible to determine the price actually paid or payable, they may, in accordance with Article 31 of the Community Customs Code, calculate the customs value for the purpose of applying the anti-dumping duty established by Decision No 67/94 by reference to the price agreed for the goods in question in the most recent sale prior to that on the basis of which the customs declaration was made and in regard to which the customs authorities have no objective reason to doubt its accuracy.
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