1 This request for a preliminary ruling concerns the interpretation of Article 29 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’), of Article 147 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1762/95 of 19 July 1995 (OJ 1995 L 171, p. 8) (‘Regulation No 2454/93’), and of Article 70(1) 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; ‘the Union Customs Code’).
2 The request has been made in proceedings between Grupo Massimo Dutti SA (‘Massimo Dutti’) and Agencia Estatal de la Administración Tributaria (State Agency for Tax Administration, Spain; ‘the Tax Authority’) concerning the determination of the value of certain goods for customs purposes.
3 Article 29(1) of the Community Customs Code, in Chapter 3, entitled ‘Value of goods for customs purposes’, of Title II of that code, entitled ‘Factors on the basis of which import duties or export duties and the other measures prescribed in respect of trade in goods are applied’, provided: ‘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 [European Union], adjusted, where necessary …’
4 As provided in the first and second subparagraphs of Article 147(1) of Regulation No 2454/93: ‘For the purposes of Article 29 of the [Community Customs] Code, the fact that the goods which are the subject of a sale are declared for free circulation shall be regarded as adequate indication that they were sold for export to the customs territory of the [European Union]. In the case of successive sales before valuation, only the last sale, which led to the introduction of the goods into the customs territory of the [European Union], or a sale taking place in the customs territory of the [European Union] before entry for free circulation of the goods shall constitute such indication. Where a price is declared which relates to a sale taking place before the last sale on the basis of which the goods were introduced into the customs territory of the [European Union], it must be demonstrated to the satisfaction of the customs authorities that this sale of goods took place for export to the customs territory in question.’
5 Article 70(1) of the Union Customs Code provides: ‘The primary basis for the customs value of 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 Union, adjusted, where necessary.’
6 In accordance with Article 288(2) of that code, Article 70 became applicable as from 1 May 2016.
7 Massimo Dutti is a company whose principal activity is the distribution of fashion items. The goods are manufactured in Asian countries and are sold, by the manufacturers, to ITX TRADING S.A. (‘ITX’), a company whose registered office is in Switzerland (‘the first sale’), and then resold by ITX to Massimo Dutti (‘the second sale’).
8 Following that second sale, the goods are transported directly from the countries of manufacture to Spain. Most of those goods are released for free circulation, while others are placed under the customs warehousing procedure. The goods that are released for free circulation are either marketed in the European Union or exported to third countries. The labels in fact allow the goods to be marketed in different countries.
9 For 2014 and 2015, Massimo Dutti declared the value invoiced to ITX by the Asian manufacturers as the customs value, that is to say, the price at which the first sale was concluded.
10 The Tax Authority took the view that the first sale had not been concluded for export to the customs territory of the European Union. Consequently, it found that the value to be taken as the customs value was that which had actually led to the goods being imported into the European Union, that is, the second sale.
11 The Tax Authority therefore issued customs duty assessment notices in respect of 2014 and 2015 for the adjustment of Massimo Dutti’s tax liability.
12 Those notices were contested by Massimo Dutti before the Tribunal Económico-Administrativo Central (Central Tax Tribunal, Spain) which, by decision of 3 June 2020, dismissed the complaint brought against that adjustment.
13 Massimo Dutti brought an action against that decision before the Audiencia Nacional (National High Court, Spain), which dismissed it by a judgment of 24 May 2022.
14 The Audiencia Nacional (National High Court) found that the fact that, at the time of the first sale, the destination of the goods was the European Union was not sufficient, since, given their labelling, the goods could have been re-exported to third countries.
15 Massimo Dutti lodged an appeal in cassation before the Tribunal Supremo (Supreme Court, Spain), which is the referring court.
16 That court notes that the circumstances of the case before it are characterised by the fact that the goods concerned were, in part, released for free circulation and, in part, placed under the customs warehousing procedure. The latter goods could then be released for free circulation or be re-exported. The choice between the ‘release for free circulation’ procedure and the customs warehousing procedure depended on the applicability of the tariff preferences at the time when the goods were introduced into the customs territory of the European Union.
17 Thus, the referring court is uncertain, in particular, whether the expression ‘export to the customs territory of the [European Union]’ in Article 29(1) of the Community Customs Code and in Article 147 of Regulation No 2454/93 is to be understood in the sense of the physical and geographical introduction of the goods into that territory or, rather, as referring to the introduction of the goods into the EU market in the economic and commercial sense. In particular, it queries whether, for the purpose of demonstrating that a sale has taken place for export to that territory, it is sufficient that, at the time of the sale, it is established that the goods will be introduced into that territory, irrespective of the customs procedure under which the goods will subsequently be placed and regardless of their intended purpose, or whether it is necessary that the reason for export should be the marketing of the goods on the EU market.
18 In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) In the case of successive sales, in order to determine the customs value of the goods, where that is the transaction value, must the expressions “for export to the customs territory of the Community”, mentioned in Article 29 of the [Community Customs Code] and Article 70(1) of the [Union Customs Code], and “for export to the customs territory in question”, mentioned in Article 147 of [Regulation No 2454/93], be interpreted as meaning that the mere introduction of the goods into EU territory, understood to mean the geographical area, by means of their sale, is sufficient, irrespective of the customs procedure the goods are subsequently placed under and regardless of the purpose for which they are intended, and that in no event is the marketing of the goods within EU territory required? (2) Or, for the sale to be regarded as having been concluded “for export to the customs territory in question”, is it necessary to prove that the export destination is the EU market?’
19 According to settled case-law, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, 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. It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the order for reference, the points of EU law which require interpretation, having regard to the subject matter of the dispute (see judgments of 17 July 1997, Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23, and of 25 February 2025, Alphabet and Others, C‑233/23, EU:C:2025:110, paragraph 33).
20 In the present case, it is apparent from the request for a preliminary ruling and the observations submitted to the Court that the goods at issue in the main proceedings physically entered the customs territory of the European Union after the second sale, which is the last sale on the basis of which those goods were introduced into that territory, either under the customs warehousing procedure or under the ‘release for free circulation’ procedure, and that the price on the basis of which the customs value of those goods was declared is the price at which the first sale, which preceded the second sale, took place. It is also common ground that, by its assessment notices issued in respect of the years 2014 and 2015, the Tax Authority challenges the fact that that price was taken into account for the purpose of determining the customs value of those goods, and considers that it is the transaction value of those goods at the time of the second sale that should be applied.
21 In that context, it must be noted that, under Article 288 of the Union Customs Code, Article 70 of that code was to apply as from 1 May 2016, whereas the assessment notices at issue in the main proceedings cover the years 2014 and 2015. Consequently, that request concerns transactions that took place before that article was applicable. Accordingly, although that article is among the provisions whose interpretation has been formally requested by the referring court, the questions raised are exclusively intended to enable that court to determine under what conditions, in accordance with Article 29 of the Community Customs Code and Article 147 of Regulation No 2454/93, account may be taken of the transaction value of the goods concerned at the time of the sale that took place before the last sale on the basis of which those goods were introduced into the customs territory of the European Union.
22 In the light of those considerations, it must be concluded that, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 29 of the Community Customs Code and Article 147 of Regulation No 2454/93 must be interpreted as meaning that where goods were the subject of two sales prior to their introduction into the customs territory of the European Union in order either to be placed under the customs warehousing procedure in that territory or to be released for free circulation, the first sale cannot be considered to have taken place for the export of those goods to the customs territory of the European Union if, at the time of that first sale, it was established only that those goods were intended to be introduced into that territory, and the place where those goods were ultimately to be marketed had not yet been determined.
23 According to settled case-law, 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 must be determined primarily according to the ‘transaction value’ method of the imported goods (see, to that effect, judgments of 19 November 2020, 5th AVENUE Products Trading, C‑775/19, EU:C:2020:948, paragraphs 22 and 24, and of 15 May 2025, Tauritus, C‑782/23, EU:C:2025:353, paragraphs 51 and 54).
24 That method is described in Article 29(1) of the Community Customs Code, according to which the customs value of imported goods is to 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 European Union, adjusted, where necessary.
25 It is apparent from the wording of that provision, in particular of the expression ‘sold for export to the customs territory of the [European Union]’, that the transaction value must be equal to a price for export to the European Union. It must therefore be agreed, at the time of sale, that the goods originating in a third country will be transported into the customs territory of the European Union (see judgments of 6 June 1990, Unifert, C‑11/89, EU:C:1990:237, paragraph 11, and of 9 November 2017, LS Customs Services, C‑46/16, EU:C:2017:839, paragraph 27).
26 For the purposes of the application of that provision, the first subparagraph of Article 147(1) of Regulation No 2454/93 provides, in the first sentence, that 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 they were sold for export to the customs territory of the European Union. In the second sentence, that provision makes clear that, in the case of successive sales before valuation, only the last sale, which led to the introduction of the goods into that territory, or a sale taking place in that territory before entry for free circulation of the goods is to constitute such indication. However, in its second subparagraph, Article 147(1) of Regulation No 2454/93 provides that, where a price is declared which relates to a sale taking place before the last sale on the basis of which the goods were introduced into the customs territory of the European Union, it must be demonstrated to the satisfaction of the customs authorities that this sale of goods took place for export to that territory.
27 Thus, where that second subparagraph is applicable, it must be proved that the sale concerned took place for export to the customs territory of the European Union.
28 Unlike the first subparagraph of Article 147(1) of Regulation No 2454/93, the introduction of goods into the customs territory of the European Union does not, according to the second subparagraph of that provision, constitute adequate indication that the sale to which it refers took place for export to that territory. Consequently, in order to demonstrate that the sale that took place before the last sale on the basis of which the goods were introduced into the customs territory of the European Union took place for export to that territory, evidence must be adduced that goes beyond the mere indication that those goods were introduced into that territory, in the sense of the geographical area.
29 In that regard, it must be noted that, while finding that, for the purpose of applying Article 29 of the Community Customs Code, it must be agreed, at the time of sale, that the goods originating in a third country will be transported into the customs territory of the European Union, the Court has made clear that, in so far as the price of goods in a given customs area corresponds to the market situation in that area, the price for export of goods to a third country does not necessarily correspond to the price that would have been established for export of those goods to the customs territory of the European Union (see, to that effect, judgment of 9 November 2017, LS Customs Services, C‑46/16, EU:C:2017:839, paragraphs 27 and 31).
30 Therefore, even if, at the time of the sale that took place before the last sale on the basis of which the goods were introduced into the customs territory of the European Union, it was agreed that those goods were to be transported to the European Union and introduced into that territory, that information cannot be considered sufficient for the price at which the first sale took place to be taken to be the customs value. If it is to serve to demonstrate that that sale took place for the export of those goods to that territory, that information must be substantiated in order to confirm, beyond any reasonable doubt, that those goods were intended to be marketed in that territory.
31 As it is, proof that such a sale took place for the export of the goods to the customs territory of the European Union cannot be considered to have been adduced if, at the time of that sale, the commercial destination of the goods concerned was not known, and the planned introduction of those goods into that territory was to proceed only pending a decision on their final destination.
32 Since the demonstration required in the second subparagraph of Article 147(1) of Regulation No 2454/93 concerns the situation at the time of the sale, evidence derived from circumstances arising after that sale took place may, in some cases, enable conclusions to be drawn with regard to that situation but are not, as a rule, relevant. That is particularly so where the goods concerned are actually introduced into the customs territory of the European Union, are released for free circulation or, on the other hand, are re-exported to a third country. Indeed, in the cases referred to in that provision, that evidence does not support the conclusion - nor, however, does it preclude the possibility - that the sale to which that provision relates took place for the export of those goods to that territory.
33 In the light of all of the foregoing considerations, the answer to the questions raised is that Article 29 of the Community Customs Code and Article 147 of Regulation No 2454/93 must be interpreted as meaning that where goods were the subject of two sales prior to their introduction into the customs territory of the European Union in order either to be placed under the customs warehousing procedure in that territory or to be released for free circulation, the first sale cannot be considered to have taken place for the export of those goods to the customs territory of the European Union if, at the time of that first sale, it was established only that those goods were intended to be introduced into that territory, and the place where those goods were ultimately to be marketed had not yet been determined.
34 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.