JUDGMENT OF THE COURT (Sixth Chamber)

12 December 2013 ( *1 )

‛Customs value — Goods exported to a third country — Export refunds — Processing in the exporting country regarded as non-substantial — Re‑export of goods to the European Union — Determination of the customs value — Transaction value’

In Case C‑116/12,

REQUEST for a preliminary ruling under Article 267 TFEU from the Diikitiko Protodikio Serron (Greece), made by decision of 15 November 2011, received at the Court on 5 March 2012, in the proceedings

Ioannis Christodoulou,

Nikolaos Christodoulou,

Afi N. Christodoulou AE

v

Elliniko Dimosio,

THE COURT (Sixth Chamber),

composed of A. Borg Barthet, President of the Chamber, E. Levits and F. Biltgen (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

—

I. Christodoulou, N. Christodoulou and Afi N. Christodoulou AE, by P. Niadis and A. Karydi, dikigoroi,

—

the Greek Government, by K. Paraskevopoulou, P. Karastergiou, I. Bakopoulos and K. Boskovits, acting as Agents,

—

the European Commission, by D. Triantafyllou and B.‑R. Killmann, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Articles 24, 29, 32 and 146 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ( OJ 1992 L 302, p. 1 ), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 ( OJ 1996 L 17, p. 1 ) (‘the Customs Code’).

2The request has been made in proceedings between I. Christodoulou, N. Christodoulou and Afi N. Christodoulou AE (together ‘the applicants’) and the Elliniko Dimosio (the Serres Director of Customs) concerning a notice of assessment issued against them.

Legal context

3In accordance with Article 24 of the Customs Code:

‘An item in the production of which two or more countries are involved originates in the country where the last significant processing or working, economically justified and carried out in an enterprise equipped for this purpose and leading to the manufacture of a new product or representing an important stage of manufacture, takes place.’

4Article 25 of the Customs Code provides the following:

‘Any processing or working in respect of which it is established, or in respect of which the facts as ascertained justify the presumption, that its sole object was to circumvent the provisions applicable in the Community to goods from specific countries shall under no circumstances be deemed to confer on the goods thus produced the origin of the country where it is carried out within the meaning of Article 24.’

5Article 29 of the Customs Code is worded as follows:

‘1. 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 Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided:

(a)

that there are no restrictions as to the disposal or use of the goods by the buyer ...

...’

6Article 30 of the Customs Code states:

‘1. Where the customs value cannot be determined under Article 29, it is to be determined by proceeding sequentially through subparagraphs (a), (b), (c) and (d) of paragraph 2 to the first subparagraph under which it can be determined ...

2. The customs value as determined under this Article shall be:

(a)

the transaction value of identical goods sold for export to the Community and exported at or about the same time as the goods being valued;

(b)

the transaction value of similar goods sold for export to the Community and exported at or about the same time as the goods being valued;

(c)

the value based on the unit price at which the imported goods for identical or similar imported goods are sold within the Community in the greatest aggregate quantity to persons not related to the sellers;

(d)

the computed value, consisting of the sum of:

—

the cost or value of materials and fabrication or other processing employed in producing the imported goods,

—

an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued which are made by producers in the country of exportation for export to the Community,

—

the cost or value of the items referred to in Article 32(1)(e).

...’

7In accordance with Article 31 of the Customs Code:

‘1. Where the customs value of imported goods cannot be determined under Articles 29 or 30, it shall be determined, on the basis of data available in the Community, using reasonable means consistent with the principles and general provisions of:

—

the agreement on implementation of Article VII of the General Agreement on Tariffs and Trade of 1994,

—

Article VII of the General Agreement on Tariffs and Trade of 1994

– and

—

the provisions of this chapter.

...’

8Article 32 of the Customs Code provides the following:

‘1. In determining the customs value under Article 29, there shall be added to the price actually paid or payable for the imported goods:

(a)

the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods:

(i)

commissions and brokerage, except buying commissions,

(ii)

the cost of containers which are treated as being one, for customs purposes, with the goods in question,

(iii)

the cost of packing whether for labour or materials;

(b)

the value, apportioned as appropriate, of the following goods and services where supplied directly or indirectly by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods, to the extent that such value has not been included in the price actually paid or payable:

(i)

materials, components, parts and similar items incorporated in the imported goods,

(ii)

tools, dies, moulds and similar items used in the production of the imported goods,

...

2. Additions to the price actually paid or payable shall be made under this Article only on the basis of objective and quantifiable data.

3. No additions shall be made to the price actually paid or payable in determining the customs value except as provided in this Article.

...’

9Under Article 145(1) of the Customs Code:

‘The outward processing procedure shall, without prejudice to the provisions governing specific fields relating to the standard exchange system laid down in Articles 154 to 159 or to Article 123, allow Community goods to be exported temporarily from the customs territory of the Community in order to undergo processing operations and the products resulting from those operations to be released for free circulation with total or partial relief from import duties.’

10Article 146(1) of the Customs Code is worded as follows:

‘The outward processing procedure shall not be open to Community goods:

...

—

whose export gives rise to the granting of export refunds or in respect of which a financial advantage other than such refunds is granted under the common agricultural policy by virtue of the export of the said goods.’

11Article 4(3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests ( OJ 1995 L 312, p. 1 ) provides the following:

‘Acts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal.’

12Article 20 of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products ( OJ 1999 L 102, p. 11 ) states:

‘1. Where:

...

(c)

there are definite suspicions that the product, in its unaltered state or after having been processed in a third country, will be reimported into the Community duty free or at a reduced rate of import duty;

the single-rate refund or the part of the refund referred to in Article 18(2) shall be paid only if the product has left the customs territory of the Community in accordance with Article 7, and,

(i)

in the case of a non-differentiated refund, the product has been imported into a third country during the 12 months following the date of acceptance of the export declaration or has undergone substantial processing or working in this period within the meaning of Article 24 of [the Customs Code];

...’

The dispute in the main proceedings and the questions referred for a preliminary ruling

13Afi N. Christodoulou AE (‘Christodoulou’), a company whose registered office is in Nafplion (Greece), specialises in the preparation of fruit, mainly oranges, for the production of fruit juice. It has a sales department near Athens (Greece) and a factory in the north of Greece.

14On 15 February 2006, the Thessaloniki Customs Control Department (Greece) carried out a post-clearance inspection in order to verify Christodoulou’s compliance with the customs regulations on imports of orange juice with added sugar from Bulgaria via the Serres customs office since January 2002.

15That inspection was preceded by another inspection in November 2005 of Elliniki Biomikhania Zakharis AE in order to verify that company’s compliance with the provisions on export refunds for sugar exports to Bulgaria, intended for Agrima SA (‘Agrima’), whose registered office is in Sofia (Bulgaria). During that inspection, it was found that the sugar exports in question were covered by permanent export declarations and that they had been made at the request and on behalf of Christodoulou which paid for them. As the export of white sugar was subsidised, the export price of that sugar was lower than the domestic selling price.

16The inspection carried out on 15 February 2006 revealed that Christodoulou also exported its concentrated orange juice to Agrima, via the Nafplion customs office using permanent export declarations.

17Agrima received both products, that is to say, the sugar and the orange juice, through a temporary import declaration and placed them under the inward processing customs procedure with a view to their re-export without payment of any customs duties. After simply mixing the two products and diluting them with water, the orange juice with added sugar (‘the final preparation’), whose declared country of origin was Bulgaria, was re-exported to Greece, destined for Christodoulou. For each import, Agrima charged a price of EUR 511.30 which price remained unchanged during the period from January 2002 to 2006.

18There was no written agreement between Christodoulou and Agrima.

19Moreover, it is clear from the inspection of the accounting entries of both companies that the declared customs value of the imported final preparation was greater than the customs value as re-valued by the Thessaloniki customs inspectorate. According to that inspectorate, under Articles 29 and 32 of the Customs Code, the following amounts, corresponding to the costs of mixing the components, had to be added to the price of EUR 511.30 actually paid at the time of each import:

—

the costs of producing the concentrated orange juice as a first component, supplied by Christodoulou to Agrima free of charge;

—

the purchase costs of the sugar as a second component, also supplied free of charge by Christodoulou to Agrima;

—

the costs of transporting the final preparation from Bulgaria to Greece.

20The customs authorities also found that Christodoulou had overcharged for the concentrated orange juice that was supplied free of charge, so that, at the time the final preparation was imported from Bulgaria, a customs duty of 12.2% ad valorem was applied because the product was classified under subheading 2009 19 98 99 of the Combined Nomenclature (orange juice with a Brix value that exceeds 20 but does not exceed 67, of a value exceeding EUR 30 per 100 kg).

21On the basis of the customs value as re-valued by the customs authority, that product should have been classified under the tariff subheading 2009 19 91 99 (orange juice with a Brix value that exceeds 20 but does not exceed 67, of a value not exceeding EUR 30 per 100 kg) to produce a customs duty on imports of 15.2% ad valorem .

22Consequently, Christodoulou, first, obtained a financial advantage on the domestic market by importing the final preparation at a price lower than the price on the domestic market because the white sugar was purchased at a subsidised export price (from EUR 0.24/kg to EUR 0.325/kg, instead of EUR 0.705/kg), and secondly, on the basis of the customs duty of 12.2% instead of 15.2%, it evaded payment of customs charges on the import of an amount of EUR 1 237 189.04.

23On the basis of these findings, the Serres customs office drew up a statement of customs infringements. By a tax notice of 10 February 2009, the director of that office required the applicants to pay the tax evaded, increased duties and fines.

24On 27 April 2009, the applicants brought an action before the Diikitiko Protodikio Serron challenging the legality of that tax notice and requesting that it be set aside. They consider that, in addition to the costs relating to the production of the orange juice, the purchase of the sugar and the transport of the final preparation, other costs relating, in particular, to packaging, labour and production should be added to the price actually paid for the final preparation.

25The Greek State submitted that that action should be dismissed as unfounded.

26The Diikitiko Protodikio Serron observes first of all that the final preparation cannot be qualified as a product that originated in Bulgaria because it has not been established that the sugar and the concentrated orange juice were ‘permanently’ imported into Bulgaria, that they were put into circulation there and that they underwent substantial working. According to that court, the declared customs value of the final preparation appears from the outset to be distorted as it does not correspond with the price paid or to be paid for the product covered by the contract concluded between Agrima and Christodoulou.

27Next, the Diikitiko Protodikio Serron states that, in order to determine the customs value of the final preparation, the customs authorities relied on the provisions in Articles 29 and 32 of the Customs Code, by adding to the sum of EUR 511.30, relating to the blending costs, for each import, the cost of producing the concentrated orange juice, the cost of purchasing the white sugar and the charges for transporting that preparation to Greece.

28Finally, the national court states that, as regards the majority of the imports of final preparation, the part of the customs value corresponding to the value of the concentrated orange juice was more than the cost of producing that juice, and that overcharging had the consequence of placing that preparation in a tariff classification requiring the payment of a reduced customs duty of 12.2%.

30In those circumstances, the Diikitiko Protodikio Serron decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘1.

Do Articles 29 and 32 of [the Customs Code] apply to the determination of the customs value of imported goods where the contract is for processing or working of materials (exported to the country of processing without being placed under the customs procedure of outward processing) which is not at the level provided for in Article 24 of that [code] or which is otherwise insufficient to permit it to be held that the origin of the goods produced is the country where that processing or working was carried out?

2.If the answer to Question 1 is in the affirmative, is a distinction to be made where the import, on the basis of invoices and other documents held to be inaccurate, appears to have taken place under a contract of sale, but it is proven that the contract was for non-substantial processing of materials originating in the country of import in return for a specific fee, which can be determined, and that the declared customs value does not correspond to the real price payable or paid?

3.If the answer to Question 2 is in the negative, is a distinction to be made where there is also evidence of a practice that constitutes abuse of Community rules with the aim of enabling the interested party to derive an advantage?

4.If it is held that Articles 29 and 32 of [the Customs Code] can be applied to a case such as that described in Question 2, even when the objective circumstances and subjective factor of Question 3 coincide, what is considered to be the value of the component (in the present case sugar) which was incorporated into the imported goods and supplied at no cost to the importer, where the component in question, which could not be subject to a customs procedure of outward processing in accordance with Article 146(1) of the said Regulation, was not produced by him, but was acquired by him at the export price (which was lower than the price that applied on the internal market, since the product is subject to the refund system)?’

Consideration of the questions referred

The first and second questions

31By its first two questions, which should be examined together, the national court asks in essence whether Articles 29 and 32 of the Customs Code must be interpreted as applying to the determination of the customs value of goods imported on the basis of a contract which, although described as a contract of sale, in fact proves to be a working or processing contract that does not satisfy the conditions laid down in Article 24 of that code, so that the goods concerned are regarded as coming from the country where the working or processing was carried out.

32In order to respond to these questions, it is necessary, first, to determine whether Articles 29 and 32 of the Customs Code apply exclusively to sales contracts or whether working or processing contracts can also fall within the scope of those articles. Secondly, it is necessary to ascertain to what extent the determination of the origin of the goods in accordance with Article 24 of the Customs Code applies when determining the customs value in the light of Articles 29 and 32 of the Customs Code.

33To begin with, it must be noted that the term ‘sale’ is not defined by the Customs Code and that the code makes no reference to the law of the Member States in order to determine the meaning and scope of that term.

37As regards, the context of Article 29 of the Customs Code, it is important to bear in mind the system laid down by that code for determining the customs value of imported goods.

46Accordingly, the issue whether the contractual relationship between the buyer and the seller must be qualified as a contract of sale or whether it merely falls within a contract for working or processing the imported goods is not relevant since the working or processing operations, as appropriate, are carried out with no charge to the buyer in favour of the seller.

47That interpretation is moreover supported by the provisions of Article 32 of the Customs Code, which stipulate the elements that must be added to the price actually paid or payable for the imported goods in order to determine their customs value.

48In that regard, Article 32, in particular paragraph 1(b)(i), requires the value of certain products supplied by the buyer free of charge or at reduced cost for use in connection with the production and sale for export of the imported goods to be added to the price actually paid or payable in so far as that value has not been included in that price.

49Thus, Article 32 refers expressly to a situation such as that at issue in the main proceedings. Indeed, it is common ground that the two basic elements, that is to say, concentrated orange juice and white sugar, were made available to Agrima free of charge and that the price charged for each import represented only the cost relating to the mixing of the two basic elements.

51It follows from the foregoing considerations that Articles 29 and 32 of the Customs Code must be interpreted as applying to the determination of the customs value of goods imported on the basis of a contract which, although described as a contract of sale, in fact proves to be a working or processing contract.

52Secondly, as regards the determination of the origin of the goods, under Article 24 of the Customs Code, an item in whose production two or more countries are involved originates in the country where the last significant processing or working, economically justified and carried out in an enterprise equipped for this purpose and leading to the manufacture of a new product or representing an important stage of manufacture, takes place.

53In that regard, the Court has held that the last processing or working is substantial only if the resulting product has its own properties and a composition of its own, which it did not possess before that process or operation (Case 49/76 Gesellschaft für Überseehandel [1977] ECR 41 , paragraph 6).

54Ascertaining in which country the imported goods underwent, as the case may be, substantial processing or working, within the meaning of Article 24 of the Customs Code, is not decisive where the customs value of those goods is the transaction value for the purposes of Article 29, since, as is clear from paragraphs 37 to 39 above, that value is to be determined in accordance with the criterion based on the real economic value of the goods, taking into account the various elements that make up those goods.

55Consequently, when the customs value of the imported goods on the basis of a working or processing contract is determined, it is immaterial whether the working or processing operations satisfy the conditions laid down in Article 24 of the Customs Code, so that those goods may be regarded as originating in the country in which the operations took place.

56On the other hand, it must be noted that the concept of the origin of goods can have an effect on the export refund system. Thus, as regards Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products ( OJ 1987 L 351, p. 1 ), the Court has previously ruled that, under the first paragraph of Article 5(1) of that regulation, payment of the refund is to be conditional not only on the product having left the customs territory of the European Union but also on its having been imported into a non‑member country (Case C-218/09 SGS Belgium and Others [2010] ECR I-2373 , paragraph 40).

57Indeed, the purpose of Article 5(1) is to prevent abuses which, in the case referred to in Article 5(1)(b) of that regulation, consist in, inter alia, the risk that the exported product may be re-introduced into the European Union (Case C-114/99 Roquette Frères [2000] ECR I-8823 , paragraph 17)

58Such an abuse cannot exist where the product in question has undergone substantial and irreversible processing, as a result of which it has ceased to exist as such, and a new product, coming under a different tariff heading, has been created ( Roquette Frères , paragraph 19, and Case C-515/03 Eichsfelder Schlachtbetrieb [2005] ECR I-7355 , paragraph 31).

59That interpretation is moreover supported by Article 20(1) of Regulation No 800/1999, in accordance with which the refund is regarded as unwarranted, in particular if the product is reimported into the European Union without having undergone substantial working or processing within the meaning of Article 24 of the Customs Code ( Roquette Frères , paragraph 20, and Eichsfelder Schlachtbetrieb , paragraph 32).

60In the light of all of the foregoing considerations, the answer to the first and second questions is that Articles 29 and 32 of the Customs Code must be interpreted as applying to the determination of the customs value of goods imported on the basis of a contract which, although described as a contract of sale, in fact proves to be a working or processing contract. For the purposes of that determination, it is immaterial whether the working or processing operations satisfy the conditions laid down in Article 24 of that code, so that the goods concerned may be regarded as originating in the country where those operations took place.

The third and fourth questions

61By its third and fourth questions, which should also be examined together, the national court, for the purposes of determining the customs value in accordance with Articles 29 and 32 of the Customs Code, essentially seeks to ascertain the value of goods which have benefited from an export refund that was obtained by the implementation of a practice involving the application of provisions of European Union law with the aim of wrongfully securing an advantage.

62In this case, it is common ground that the applicants, under cover of a permanent export and allegedly substantial processing, intended to hide the fact that the goods were in fact inwardly processed. By dint of that practice, they circumvented the application of Article 146(1) of the Customs Code, under which goods giving rise to the granting of export refunds cannot be open to the outward processing procedure.

63It is settled case‑law that the scope of European Union regulations must not be extended to cover abuses on the part of a trader (Case 125/76 Cremer [1977] ECR 1593 , paragraph 21, and Case C-279/05 Vonk Dairy Products [2007] ECR I-239 , paragraph 31).

66As regards the conclusions to be drawn from the finding of such irregularity, Article 4(3) of Regulation No 2988/95, which is general in scope, states that ‘[a]cts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal’ (Case C-158/08 Pometon [2009] ECR I-4695 , paragraph 27).

69It follows that the determination of the transaction value in accordance with Articles 29 and 32 of the Customs Code necessarily takes into account the export refund which the exporter wrongfully benefited from by artificially creating the conditions required to obtain that advantage.

70Having regard to all the foregoing considerations, the answer to the third and fourth questions is that Articles 29 and 32 of the Customs Code must be interpreted as meaning that, when the customs value is determined, account must be taken of the value of the export refund which a product has benefited from and which was obtained by putting into effect a practice involving the application of provisions of European Union law with the aim of wrongfully securing an advantage.

Costs

71Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Sixth Chamber) hereby rules:

1.Articles 29 and 32 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, must be interpreted as applying to the determination of the customs value of goods imported on the basis of a contract which, although described as a contract of sale, in fact proves to be a working or processing contract. For the purposes of that determination, it is immaterial whether the working or processing operations satisfy the conditions laid down in Article 24 of that regulation, so that the goods concerned may be regarded as originating in the country where those operations took place.

2.Articles 29 and 32 of Regulation N 2913/92, as amended by Regulation No 82/97, must be interpreted as meaning that, when the customs value is determined, account must be taken of the value of the export refund which a product has benefited from and which was obtained by putting into effect a practice involving the application of provisions of European Union law with the aim of wrongfully securing an advantage.

[Signatures]

( *1 ) Language of the case: Greek.