Request for a preliminary ruling from the Dioikitiko Protodikeio Thessalonikis (Greece) lodged on 30 January 2024 – WI v Anexartiti Archi Dimosion Esodon

(Case C-73/24, Keladis II ¹ )

Language of the case: Greek

Referring court

Dioikitiko Protodikeio Thessalonikis

Parties to the main proceedings

Applicant: WI

Defendant: Anexartiti Archi Dimosion Esodon

Questions referred

Where reasonable doubts arise as to whether the declared customs value of imported goods is their actual transaction value, but during the post-release control it is impossible to determine the transaction value on the basis of the methods set out in Article 30(2)(a) and (b) of Regulation (EC) No 2913/1992 ¹ and Article 74(2) of Regulation No 952/2013 ² (transaction value of identical and similar goods) because, on the one hand, the goods have escaped seizure and therefore it is impossible to physically check them and, on the other hand, the description of the goods in the documents accompanying the import declaration is general and vague, is an administrative practice under which, in the context of the ‘deduction method’ provided for in those provisions, ‘threshold values’, which are defined in the Automated Monitoring Tool (AMT) system of the Union Anti-Fraud Programme (AFIS) and determined by means of statistical methods, are used as the basis for determining the transaction value of the goods, compatible with the provisions of Article 30(2)(c) of Regulation No 2913/92 and of Article 74(2)(c) of Regulation No 952/2013?

If the first question is answered in the negative, is it permissible to use the aforementioned ‘threshold values’ in the context of any of the other methods described in Articles 30 and 31 of Regulation No 2913/92 and Article 74(1) to (3) of Regulation No 952/2013, in view, in particular, of the reasonable flexibility that must on the one hand distinguish the application of the ‘fall-back method’ under Article 31 of Regulation No 2913/92 and Article 74(3) of Regulation No 952/2013 and, on the other hand, the express prohibition on determining the customs value on the basis of minimum customs values, which is provided for in relation to that ‘fall-back method’ (Article 31(2)(f) of the Community Customs Code (‘CCC’) and Article 144(2)(f) of Regulation 2015/2447) ¹ ?

If the answer to both of the preceding questions is in the negative, is it permissible under EU law not to charge VAT evaded to an importer who is subsequently found to have imported (and indeed systematically imported) goods at prices lower than those determined as the minimum commercially viable prices, where the customs authorities are unable, during the post-release control, to determine the customs value of the imported goods by any of the methods described in Articles 30 and 31 of Regulation No 2913/92 and Article 74(1) to (3) of Regulation No 952/2013, or is it permissible, in that case, as a last resort, to charge them on the basis of the statistically determined minimum acceptable prices, as has already been accepted in the case of charging by the Commission of loss of own resources to a Member State that did not carry out the appropriate customs checks (see judgment of the Court of Justice of 8 March 2022, Commission v United Kingdom, C-213/19, EU:C:2022:167)?

If the answer to the second or third question above is in the affirmative: must the statistically determined minimum values represent imports that took place at or around the same time as the imports subject to the checks and, if so, what is the maximum permitted interval between the imports used to derive the statistical result and the imports checked? For example, may the 90 days provided for in Article 152(1)(b) of Regulation No 2454/93 ¹ and in Article 142(2) of Regulation 2015/2447 be applied by way of analogy?

If the answer to any of the first three questions is in the affirmative as regards the use of ‘threshold values’ in order to determine the transaction values of imported goods: where the procedure for simplifying the drawing up of customs declarations by grouping the TARIC codes of the goods, provided for in Article 81 of Regulation No 2913/92 and Article 177 of Regulation No 952/2013, has been adopted on importation, is an administrative practice whereby the customs value of all goods imported under each import declaration is calculated on the basis of the ‘threshold value’ determined for the product in question, the TARIC code of which has been recorded in the import declaration, since the customs authority considers that it is bound, on the basis of Article 222(2)(b) of Regulation 2015/2447, by the grouping carried out by the importer, consistent with the principle prohibiting the determination of arbitrary or fictitious customs values? Or, on the contrary, must the value of each product be determined on the basis of its own tariff heading even if the code is not recorded in the import declaration, in order to avoid the risk of arbitrary customs duties being imposed?

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¹ The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

¹ Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

¹ 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).

¹ Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ 2015 L 343, p. 558).

¹ 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).