1 This request for a preliminary ruling concerns the interpretation of Article 70 and Article 173(3) 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, and corrigendum OJ 2013 L 287, p. 90) (‘the Union Customs Code’).
2 The request has been made in proceedings between ‘Tauritus’ UAB and the Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos (Customs department attached to the Ministry of Finance of the Republic of Lithuania) (‘the customs department’) concerning default interest claimed by the latter from Tauritus on an additional amount of import value added tax (VAT).
3 EU customs legislation includes, inter alia, the Union Customs Code, Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1) and Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation No 952/2013 (OJ 2015 L 343, p. 558).
4 In accordance with Article 15(2)(a) of the Union Customs Code, the lodging of a customs declaration makes the person concerned responsible for the accuracy and completeness of the information given in that declaration.
5 Article 48 of that code, entitled ‘Post-release control’, provides that the customs authorities may verify the accuracy and completeness of the information given, inter alia in a customs declaration, and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question after having released them.
6 Article 70 of that code, entitled ‘Method of customs valuation based on the transaction value’, provides: 1. 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. 2. The price actually paid or payable shall be the total payment made or to be made by the buyer to the seller or by the buyer to a third party for the benefit of the seller for the imported goods and include all payments made or to be made as a condition of sale of the imported goods. 3. The transaction value shall apply provided that all of the following conditions are fulfilled: …
7 Articles 71 and 72 of that code govern the adjustments referred to in Article 70(1) thereof, which may have to be made in order to determine the customs value determined on the basis of the transaction value, by setting out the elements which, where appropriate, either must be added to the price actually paid or payable or, on the contrary, must not be included in the customs value.
8 Article 73 of the Union Customs Code, entitled ‘Simplification’, provides: ‘The customs authorities may, upon application, authorise that the following amounts be determined on the basis of specific criteria, where they are not quantifiable on the date on which the customs declaration is accepted:
9 Article 74 of that code, entitled ‘Secondary methods of customs valuation’, provides: ‘1. Where the customs value of goods cannot be determined under Article 70, it shall be determined by proceeding sequentially from points (a) to (d) of paragraph 2 [of this article], until the first point under which the customs value of goods can be determined. … 2. The customs value, pursuant to paragraph 1, shall be: 3. Where the customs value cannot be determined under paragraph 1, it shall be determined on the basis of data available in the customs territory of the Union, using reasonable means consistent with the principles and general provisions of all of the following:
10 Article 101 of that code, entitled ‘Determination of the amount of import or export duty’, provides in paragraphs 1 and 2: ‘1. The amount of import or export duty payable shall be determined by the customs authorities … as soon as they have the necessary information. 2. Without prejudice to Article 48, the customs authorities may accept the amount of import or export duty payable determined by the declarant.’
11 Chapter 2 of Title V of that code contains Section 3, entitled ‘Simplified customs declarations’, which contains, inter alia, Articles 166 and 167 of that code. Article 166, entitled ‘Simplified declaration’, provides in paragraph 1: ‘The customs authorities may accept that a person has goods placed under a customs procedure on the basis of a simplified declaration which may omit certain of the particulars [necessary for application of the provisions governing the customs procedure for which the goods are declared] or the supporting documents [required for the application of the provisions governing that customs procedure].’
12 Article 167 of the Union Customs Code, entitled ‘Supplementary declaration’, provides: ‘1. In the case of a simplified declaration pursuant to Article 166 …, the declarant shall lodge a supplementary declaration containing the particulars necessary for the customs procedure concerned at the competent customs office within a specific time limit. In the case of a simplified declaration pursuant to Article 166, the necessary supporting documents shall be in the declarant’s possession and at the disposal of the customs authorities within a specific time limit. … 4. The simplified declaration referred to in Article 166 … and the supplementary declaration shall be deemed to constitute a single, indivisible instrument taking effect … on the date on which the simplified declaration is accepted in accordance with Article 172 … …’
13 Article 172(2) of that code provides: ‘The date of acceptance of the customs declaration by the customs authorities shall, except where otherwise provided, be the date to be used for the application of the provisions governing the customs procedure for which the goods are declared and for all other import or export formalities.’
14 Article 173 of that code, entitled ‘Amendment of a customs declaration’, provides: ‘1. The declarant shall, upon application, be permitted to amend one or more of the particulars of the customs declaration after that declaration has been accepted by customs. … … 3. Upon application by the declarant, within three years of the date of acceptance of the customs declaration, the amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.’
15 According to Article 286(1) and (3) of that code, the latter was repealed and replaced by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1).
16 Pursuant to Article 288(2) of the Union Customs Code, all the provisions of that code mentioned in paragraphs 4 to 14 above became applicable with effect from 1 May 2016.
17 Article 71 of Delegated Regulation 2015/2446, entitled ‘Simplification’ and relating to Article 73 of the Union Customs Code, provides in paragraph 1: ‘The authorisation referred to in Article 73 of the [Union Customs] Code may be granted where the following conditions are met:
18 Article 128 of Implementing Regulation 2015/2447, entitled ‘Transaction value’ and relating to Article 70(1) of the Union Customs Code, provides in paragraph 1: ‘The transaction value of the goods sold for export to the customs territory of the Union shall be determined at the time of acceptance of the customs declaration on the basis of the sale occurring immediately before the goods were brought into that customs territory.’
19 Article 130 of that implementing regulation, entitled ‘Discounts’ and relating to Article 70(1) and (2) of the Union Customs Code, provides: ‘1. For the purposes of determining the customs value under Article 70(1) of the [Union Customs] Code, discounts shall be taken into account if, at the time of acceptance of the customs declaration, the sales contract provides for their application and their amount. … 3. Discounts arising from amendments to the contract subsequent to the time of acceptance of the customs declaration shall not be taken into account.’
20 Article 133 of that implementing regulation, entitled ‘Valuation of conditions and considerations’ and relating to Article 70(3)(b) of the Union Customs Code, is worded as follows: ‘Where the sale or price of imported goods is subject to a condition or consideration the value of which can be determined with respect to the goods being valued, such value shall be regarded as part of the price actually paid or payable, … …’
21 Article 144 of that implementing regulation, entitled ‘Fall-back method’ and relating to Article 74(3) of the Union Customs Code, provides in paragraph 1: ‘When determining the customs value under Article 74(3) of the [Union Customs] Code, reasonable flexibility may be used in the application of the methods provided for in Articles 70 and 74(2) of [that] Code. The value so determined shall, to the greatest extent possible, be based on previously determined customs values.’
22 Article 85 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) provides: ‘In respect of the importation of goods, the taxable amount shall be the value for customs purposes, determined in accordance with the [provisions of EU law] in force.’
23 Under the first paragraph of Article 273 of that directive: ‘Member States may impose other obligations which they deem necessary to ensure the correct collection of VAT and to prevent evasion …’
24 Tauritus imported diesel fuel and jet fuel into Lithuania between 1 October 2015 and 30 April 2017.
25 The contracts concluded with the suppliers and the pro forma invoices issued by them indicated a provisional price for the purchase of those goods.
26 Those contracts provided that, at a later point, that provisional price would be adjusted on the basis of the average price of the fuel concerned on the market over a specified period and the average exchange rate during that period. The final price could be higher or lower than the provisional price. It was determined in addenda to the purchase agreements and gave rise to the issuing of final invoices.
27 In the customs declarations for the imported goods, Tauritus referred to their provisional price as the customs value and indicated code 6 for the method used to determine that value, which corresponded to a customs value established on the basis of data available in the customs territory of the European Union, using the residual fall-back method provided for in Article 74(3) of the Union Customs Code.
28 Once in possession of the final invoices, that company generally submitted requests for amendment of the value of the goods identified in its customs declarations.
29 During a post-release control carried out on 26 May 2017 by the Kauno teritorinė muitinė (Kaunas regional customs service, Lithuania) (‘the regional customs service’), it became apparent, however, that, between 29 September 2016 and 1 February 2017, Tauritus had lodged 13 customs declarations in respect of which it had not subsequently requested an amendment of the customs value of the goods, even though it received, between 6 February and 15 March 2017, definitive invoices for the goods concerned, indicating a final price higher than the provisional price and, therefore, higher than the customs value stated in those declarations. Consequently, that company had not paid additional import VAT in respect of those goods. The referring court states, however, that there is nothing in the file in the main proceedings to suggest that those facts are the result of fraudulent intent.
30 Following that control, the regional customs service adopted a decision in which it applied the method for determining the customs value on the basis of the transaction value provided for in Article 70(1) of the Union Customs Code (‘the transaction value method’) and, consequently, used, as the customs value of the goods concerned, the final price indicated on the final invoices. On that basis, it claimed from Tauritus, inter alia, payment of the additional sums due by way of import VAT, together with default interest for the period between the date of acceptance of the customs declarations concerned and 14 September 2017, the date on which the control report was drawn up.
31 Tauritus lodged an objection against that decision before the customs department and then an administrative appeal before the Mokestinių ginčų komisija prie Lietuvos Respublikos Vyriausybės (Tax disputes commission attached to the Government of the Republic of Lithuania), which were dismissed, as was the action subsequently brought before the administrative court of first instance having jurisdiction.
32 Hearing an appeal against the judgment of that court, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) held, by judgment of 17 June 2020, that the regional customs service had wrongly calculated the customs value of the goods in accordance with the transaction value method, on the ground that the final price of the goods could not serve as a basis for the customs declaration, since it was not known on the date that the declaration was lodged. The dispute was referred back to the customs department for reconsideration.
33 By decision of 31 December 2020, the customs department confirmed the decision of the regional customs service, holding that Tauritus was required to pay default interest on the additional import VAT relating to the goods concerned. It took the view, inter alia, that that company should have requested an adjustment of the customs value set out in the customs declarations on the basis of the final price of the goods and that, since that company had not fulfilled that obligation before the start of the post-release control, the regional customs service was entitled to amend the customs declarations concerned and claim default interest from the date on which those declarations were lodged.
34 Following the dismissal of the action brought by Tauritus against that decision before the administrative court of first instance having jurisdiction, that company brought a further appeal before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), the referring court.
35 That court considers that the practice of the Lithuanian customs authorities requires that Article 70 and Article 173(3) of the Union Customs Code be interpreted in order to enable it to determine the amount of the import VAT debt due and the date on which that debt became payable, factors which it must establish in order to be able to rule on the existence of an obligation to pay default interest, which is the only issue in dispute in the main proceedings.
36 In the first place, the referring court considers that it follows from Article 70 of the Union Customs Code and Article 128(1) of Implementing Regulation 2015/2447 that the application of the transaction value method requires that the price actually paid or payable is known or can be established at the time the customs declaration is lodged. That court states, in particular, that Article 70(3)(b) of that code excludes the application of that method where the sale or price is subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued. In the present case, that court is inclined to take the view that the subsequent adjustment of the provisional price is a condition of the sale, the effect of which on the final price was not and could not have been determined. It infers from this that it was impossible to use that method.
37 Furthermore, the application of the transaction value method in circumstances such as those in the main proceedings is incompatible with the requirement for accuracy laid down in Article 15(2)(a) of the Union Customs Code. Indicating in a customs declaration a price that will subsequently be amended amounts to adopting an arbitrary or fictitious customs value.
38 In the second place, the referring court doubts whether Article 173(3) of the Union Customs Code requires the submission of an application to amend a customs declaration relating to goods the value of which had been determined pursuant to Article 74 of that code, on the basis of a provisional sales invoice, once the final price of those goods was known.
39 That court notes in that regard that, in accordance with Article 173(2) of the Union Customs Code, once the goods have been released, the importer is no longer authorised to amend the customs declaration, subject to the exception provided for in Article 173(3) of that code, concerning an amendment to enable the declarant to fulfil his or her obligations relating to the placing of the goods under the customs procedure concerned.
40 However, Article 173(3) provides for an exception, to be interpreted strictly, the applicability of which in circumstances such as those in the main proceedings is doubtful, since failure to follow a method for determining the customs value which it was impossible to apply at the time the customs declaration was lodged does not constitute a mistake or inaccuracy which must be amended. That court considers in that regard that Implementing Regulation 2015/2447 does not provide for the possibility of amending the customs declaration in a case where the price actually due for the goods concerned results from amendments made to the sales contract after the customs declaration has been lodged. It states, on the contrary, that Article 130(3) of that implementing regulation prohibits account being taken of discounts arising from amendments to the contract subsequent to the time of acceptance of that declaration.
41 In those circumstances, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
42 As a preliminary point, the Court observes that the dispute in the main proceedings does not relate to the additional amount of VAT claimed by the regional customs service, but to the default interest applied to that amount, which appears to be the only amount disputed by Tauritus. The questions referred by the national court concern exclusively the determination of the customs value of imported goods in circumstances such as those in the main proceedings and, therefore, the correctness of the claim for an additional amount of VAT in such circumstances.
43 In that regard, it must be borne in mind that, in accordance with settled case-law, in proceedings under Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgments of 21 April 1988, Pardini, 338/85, EU:C:1988:194, paragraph 8, and of 22 October 2024, Kolin Inşaat Turizm Sanayi ve Ticaret, C‑652/22, EU:C:2024:910, paragraph 36).
44 However, the Court cannot rule on a question referred for a preliminary ruling where it is quite obvious that the interpretation of a rule of EU law that is sought by a national court bears no relation to the actual facts or purpose of the dispute before that national court, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments of 13 July 2000, Idéal tourisme, C‑36/99, EU:C:2000:405, paragraph 20, and of 4 October 2024, Biohemp Concept, C‑793/22, EU:C:2024:837, paragraph 27).
45 That is not, however, the case here. In particular, the referring court has set out sufficiently clearly the reasons which prompted it to inquire about the interpretation of certain provisions of EU law which it considers necessary in order to enable it to deliver judgment, and it is not obvious that the interpretation sought bears no relation to the main proceedings or that the problem raised is hypothetical.
46 That finding is not called into question by the fact that the dispute in the main proceedings appears to concern only the interest claimed by the customs authorities, the amount of VAT itself not being in dispute.
47 While it is for the Member States, under Article 273 of Directive 2006/112 and Article 325(1) TFEU, to take all legislative and administrative measures appropriate in particular for ensuring collection of all the VAT due on their respective territories, including charging default interest, in so far as that helps to combat failures to pay amounts due in respect of that tax within the prescribed time limits (see, to that effect, judgment of 13 October 2022, Direktor na Direktsia ‘Obzhalvane i danachno-osiguritelna praktika’, C‑1/21, EU:C:2022:788, paragraph 92), it follows from the wording of Article 273 that such measures must ensure the correct collection of VAT.
48 By its questions relating to the method according to which the taxable amount must be determined in circumstances such as those in the main proceedings, the referring court specifically seeks to establish, inter alia, the amount of VAT actually due and the date on which that amount is payable, which, as it explains, are factors on which the correctness of the claim for default interest disputed by Tauritus depends.
49 Consequently, the questions referred for a preliminary ruling are admissible.
50 By its first question, the referring court asks, in essence, whether Article 70 of the Union Customs Code must be interpreted as meaning that, where, at the time when goods are imported into the customs territory of the European Union, only their provisional price, which appears on a pro forma invoice, is known, with the sales contract stipulating that their final price will subsequently be fixed by a final invoice on the basis of certain predetermined objective factors the value of which is beyond the control of the parties and unknown to them at the time of acceptance of the customs declaration, such as an average of the exchange rate of certain currencies or of the price of certain products in a given period, the customs value of those goods must be determined by applying the transaction value method provided for in that article.
51 It should be borne in mind at the outset 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 product and, therefore, take into account all of the elements of that product that have economic value (judgment of 9 June 2022, Baltic Master, C‑599/20, EU:C:2022:457, paragraph 24 and the case-law cited).
52 Furthermore, under Articles 70 and 74 of the Union Customs Code, first, the transaction value of the goods constitutes the ‘primary basis for [determining] the customs value’ and, second, the use of other bases for determining that value falls within ‘secondary methods’, which must be used only ‘where the customs value of goods cannot be determined under Article 70’.
53 Thus, as the Advocate General observed in point 36 of his Opinion, Articles 70 to 74 of the Union Customs Code expressly establish a hierarchy between the various methods for determining the customs value provided for in that code, so that an importer is not free to choose the method he or she will use.
54 Therefore, the customs value of imported goods must be determined, as a matter of priority, according to the transaction value method, that method being assumed to be the most appropriate (see, to that effect, judgment of 9 June 2022, Baltic Master, C‑599/20, EU:C:2022:457, paragraph 26 and the case-law cited), whereas the methods referred to in Article 74 of the Union Customs Code must be regarded as subsidiary methods (see, to that effect, judgment of 20 December 2017, Hamamatsu Photonics Deutschland, C‑529/16, EU:C:2017:984, paragraph 26 and the case-law cited). That is particularly true of the residual method referred to in Article 74(3) of that code, which is applicable only if the customs value cannot be determined either by means of the transaction value method or by means of one of the subsidiary methods referred to in paragraph 2 of that article.
55 In the present case, the referring court is uncertain as to the possible implications, as regards the method for determining the customs value of goods, of the fact that, at the time the customs declaration is lodged, only a provisional price is known, the final price not having to be fixed until later, when the values of the various factors on which the parties to the sale have agreed to make that final price dependent are established.
56 By virtue of Article 70(1) of the Union 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 with Articles 71 and 72 of that code. It follows from Article 70(2) that that price includes all payments made or to be made as a condition for the sale of the imported goods.
57 It is apparent from the file before the Court that the purpose of the revaluation of the provisional price indicated in the pro forma invoices, as provided for in the contracts at issue in the main proceedings, was to determine the final price of the imported goods. Accordingly, the view must be taken that their transaction value is that final price. However, the referring court expresses doubts as to whether it is possible to apply such a transaction value in order to determine the customs value of those goods on the ground that their final price was not known on the date those goods were imported into the customs territory of the European Union.
58 In that regard, it must be pointed out that Article 70(3)(b) of the Union Customs Code explicitly provides that the transaction method may not be used unless the sale or the price is subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued.
59 Subject to verification by the referring court, it is apparent from the order for reference that the final sale price of the goods at issue in the main proceedings could have been determined as soon as the contracts for the sale of those goods were concluded, having regard to the contractual arrangements for determining that final price, as the Advocate General observed in points 43 and 44 of his Opinion.
60 The revaluation of the provisional price of the imported goods, as provided for in the contracts at issue in the main proceedings, depended on objective factors which were predetermined and beyond the control of the parties to those contracts. Furthermore, it appears from the file before the Court that those parties were required to carry out that revaluation.
61 In so far as, in the present case, it appeared that the final price of the goods could have been determined on the date of the importation of those goods into the customs territory of the European Union, the mere fact that that price was not determined on that date is not sufficient to rule out the possibility that the customs value of those goods may be set on the basis of their transaction value. It is apparent from the actual wording of Article 70 of the Union Customs Code that that transaction value may correspond not only to the ‘price actually paid’ for the goods concerned, but also to the price ‘payable’ for those goods.
62 Moreover, it follows from the judgment of 19 November 2020, 5th AVENUE Products Trading (C‑775/19, EU:C:2020:948, paragraphs 8, 9, 43 and 47), that an amount corresponding to a percentage of the annual turnover achieved in a given territory by the importer of goods and which is payable to the seller, in addition to the price initially invoiced, in return for an exclusive distribution right, must be included in the customs value of those goods, even though that amount is not determined until after the event.
63 Furthermore, it should be noted that Articles 166 and 167 of the Union Customs Code provide for a simplified customs declaration procedure making it possible to take account of a contractual revaluation of the transaction value of the goods, which must take place after the acceptance of the customs declaration of those goods, such as the revaluation provided for in the contracts at issue in the main proceedings.
64 In accordance with Article 166(1) of that code, the customs authorities may allow goods to be placed under a customs procedure on the basis of a simplified declaration which may omit certain of the particulars necessary for application of the provisions governing the customs procedure for which the goods are declared or the supporting documents required for such application, while Article 167 of that code provides that, within a specific time limit, the declarant is to lodge a supplementary declaration containing the particulars necessary for the customs procedure concerned and make available to the customs authorities the necessary supporting documents.
65 Under that procedure, a simplified declaration indicating a customs value corresponding to the provisional price referred to in the pro forma invoice may be made, followed by a supplementary declaration, indicating a customs value corresponding to the final price referred to in the final invoice.
66 As the Advocate General stated, in essence, in points 58 and 65 to 67 of his Opinion, respectively, in circumstances such as those in the main proceedings, the use of the simplified customs declaration procedure provided for in Articles 166 and 167 of the Union Customs Code makes it possible, first, to declare a customs value which, in accordance with the priority method of the transaction value, reflects the real economic value of the imported goods, that is to say, the price actually paid or payable for the acquisition of those goods, and, second, to satisfy the requirement for accuracy and completeness laid down in Article 15(2)(a) of that code, in particular by informing the customs authorities at the outset that imported goods are declared provisionally for a value that does not correspond to their transaction value.
67 It should be added that the simplification of the determination of the customs value provided for in Article 73 of the Union Customs Code does not appear to be applicable in circumstances such as those in the main proceedings, which is, however, a matter for the referring court to determine.
68 It is true that, under that article, the customs authorities may authorise the amounts to be included in the customs value in accordance with Article 70(2) of that code to be determined on the basis of specific criteria where they are not quantifiable on the date the customs declaration is accepted.
69 However, pursuant to Article 71(1) of Delegated Regulation 2015/2446, the grant of that authorisation is subject to two conditions, namely, first, that the application of the simplified customs declaration procedure provided for in Articles 166 and 167 of the Union Customs Code would represent disproportioned administrative costs and, second, that the customs value determined on the basis of such specific criteria does not differ significantly from the value determined in the absence of such authorisation.
70 Irrespective of the fact that the use of such simplification requires prior authorisation, which the circumstances of the main proceedings suggest was not sought in the present case, it does not appear that the application of the simplified customs declaration procedure would have represented disproportioned administrative costs for the importer at issue in the main proceedings.
71 Consequently, it follows from the foregoing that, in such circumstances, the value of the imported goods must be determined on the basis of the transaction value method, using the simplified customs declaration procedure provided for in Articles 166 and 167 of the Union Customs Code.
72 That conclusion is not called into question by the judgment of 20 December 2017, Hamamatsu Photonics Deutschland (C‑529/16, EU:C:2017:984). As the Advocate General stated in point 45 of his Opinion, the views expressed by the Court in that judgment cannot be transposed to the circumstances of the case in the main proceedings.
73 In that regard, it should be noted, first, that the case that gave rise to that judgment concerned the revision of transfer prices concluded between companies belonging to the same group, on the basis of an a posteriori allocation of residual profits between the entities of that group, on the basis of criteria set by the parent company.
74 In principle, however, the real economic value of a product, which the customs value must reflect (see, to that effect, judgment of 9 June 2022, Baltic Master, C‑599/20, EU:C:2022:457, paragraph 24 and the case-law cited), cannot stem from an a posteriori allocation of profits between the parties to the sale on the basis of a decision taken by one of those parties.
75 Second, the judgment of 20 December 2017, Hamamatsu Photonics Deutschland (C‑529/16, EU:C:2017:984), comes under a different legal context from the case in the main proceedings, since it concerns, in particular, the application of a provision, namely Article 78(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), relating to a procedure for revising the customs declaration which is not found in the Union Customs Code.
76 Finally, it should be pointed out that the fact, noted by the referring court, that the declarant acted without fraudulent intent is irrelevant. Article 15 of the Union Customs Code places any person involved in the accomplishment of customs formalities under an obligation to provide accurate and complete information in the customs declaration, and the failure to comply with that obligation constitutes a ‘failure to comply with the customs legislation’ within the meaning of Article 42(1) of that code, since that concept does not cover only fraudulent activities, but includes any failure to comply with EU customs legislation, irrespective of whether that non-compliance was intentional or negligent, or even in the absence of any wrongful conduct on the part of the operator concerned (see, to that effect, judgment of 23 November 2023, J.P. Mali, C‑653/22, EU:C:2023:912, paragraphs 28 and 29 and the case-law cited).
77 In view of all of the foregoing considerations, the answer to the first question is that Article 70 of the Union Customs Code must be interpreted as meaning that, where, at the time when goods are imported into the customs territory of the European Union, only their provisional price, which appears on a pro forma invoice, is known, with the sales contract stipulating that their final price will subsequently be fixed by a final invoice on the basis of certain predetermined objective factors the value of which is beyond the control of the parties and unknown to them at the time of acceptance of the customs declaration, such as an average of the exchange rate of certain currencies or of the price of certain products in a given period, the customs value of those goods must be determined by applying the transaction value method provided for in that article, by using, as a general rule, the simplified customs declaration procedure provided for in Articles 166 and 167 of that code.
78 By its second question, the referring court asks, in essence, whether Article 173(3) of the Union Customs Code must be interpreted as meaning that, where the customs value of goods that were the subject of a sale, such as those at issue in the main proceedings, has been declared in accordance with Article 74(3) of that code, on the basis of provisional prices indicated in an initial invoice, the declarant must request authorisation to amend the customs declaration once the final price of those goods is known.
79 Since it follows from the answer to the first question that, in circumstances such as those in the main proceedings, the customs value of the goods must be declared in accordance with Article 70 of the Union Customs Code, there is no need to answer the second question.
80 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.