Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 20 April 2023 (1)

Case C‑770/21

OGL-Food Trade Lebensmittelvertrieb GmbH

v

Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’

(Request for a preliminary ruling from the Administrativen sad Sofia-grad (Sofia City Administrative Court, Bulgaria))

(Reference for a preliminary ruling – Union Customs Code – Determination of the customs value of fruit and vegetables to which an entry price applies – Declared transaction value greater than the standard import value – Disposal of the goods under conditions confirming the correctness of the transaction value – Sale at a loss – Judicial review of the decision assessing the amount of the customs debt – Non-production of any commercial contract relating to the importation – Concept of ‘legally recognised partners in business’)

I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of:

–        Articles 22, 44, 70 and 74 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, (2) as amended by Regulation (EU) 2016/2339 of the European Parliament and of the Council of 14 December 2016; (3)

–        Articles 127 and 142 of 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, (4) as amended by Commission Implementing Regulation (EU) 2018/604 of 18 April 2018; (5) and

–        Article 75 of Commission Delegated Regulation (EU) 2017/891 of 13 March 2017, supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011, (6) as amended by Commission Delegated Regulation (EU) 2018/1145 of 7 June 2018. (7)

2.        The request was made in proceedings between OGL-Food Trade Lebensmittelvertrieb GmbH (‘OGL-Food’) and the Direktor na Teritorialna direktsia ‘Mitnitsa Plovdiv’ pri Agentsia ‘Mitnitsi’ (Director of the regional head office for the Customs Agency, Plovdiv, Bulgaria; ‘the Director of Customs’) concerning the transaction value declared in respect of the importation of fresh courgettes originating in Türkiye.

3.        This case provides the Court of Justice with the opportunity to clarify the circumstances in which a decision of the customs authorities rejecting a customs value can be challenged before the courts and, in particular, whether the grounds of that decision can be altered during such a legal challenge.

4.        In this Opinion – which, at the Court’s request, is limited to an examination of the first and second questions referred – I will propose that the answer should be, first, that the grounds of the customs decision cannot be altered at the stage of judicial proceedings challenging that decision, and second, in the alternative, that the issue of whether persons are legally recognised business partners is to be determined in accordance with national law and, consequently, the factors identified by the referring court are relevant only if, under national law, they enable that determination to be made.

II.    Legal framework

A.      The customs legislation

1.      The Union Customs Code

5.        Article 1(1) of the Union Customs Code reads as follows:

‘This Regulation establishes the Union Customs Code … laying down the general rules and procedures applicable to goods brought into or out of the customs territory of the [European] Union.

Without prejudice to international law and conventions and Union legislation in other fields, the Code shall apply uniformly throughout the customs territory of the Union.’

6.        Article 5(1) and (3) of the Union Customs Code provides:

‘For the purposes of the [Union Customs] Code, the following definitions shall apply:

(1)      “customs authorities” means the customs administrations of the Member States responsible for applying the customs legislation and any other authorities empowered under national law to apply certain customs legislation;

…

3.      “customs controls” means specific acts performed by the customs authorities in order to ensure compliance with the customs legislation and other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside that territory, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure’.

7.        Article 22 of that code, which is headed ‘Decisions taken upon application’, provides, in paragraphs 6 and 7:

‘6.      Before taking a decision which would adversely affect the applicant, the customs authorities shall communicate the grounds on which they intend to base their decision to the applicant, who shall be given the opportunity to express his or her point of view within a period prescribed from the date on which he or she receives that communication or is deemed to have received it. Following the expiry of that period, the applicant shall be notified, in the appropriate form, of the decision.

…

7.      A decision which adversely affects the applicant shall set out the grounds on which it is based and shall refer to the right of appeal provided for in Article 44.’

8.        Under Article 29 of that code, which is headed ‘Decisions taken without prior application’:

‘Except when a customs authority acts as a judicial authority, Article 22(4), (5), (6) and (7) … shall also apply to decisions taken by the customs authorities without prior application by the person concerned.’

9.        Article 44 of the same code, which is headed ‘Right of appeal’, provides:

‘1.      Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually.

…

2.      The right of appeal may be exercised in at least two steps:

(a)      initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;

(b)      subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.

…

4.      Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’

10.      Article 70 of the Union Customs Code, which is headed ‘Method of customs valuation based on the transaction value’, is worded as follows:

‘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:

…

(d)      the buyer and seller are not related or the relationship did not influence the price.’

11.      Article 74 of that code, which is headed, ‘Secondary methods of customs valuation’ provides, in paragraphs 1 and 2:

‘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, until the first point under which the customs value of goods can be determined.

…

2.      The customs value, pursuant to paragraph 1, shall be:

…

(c)      the value based on the unit price at which the imported goods, or identical or similar imported goods, are sold within the customs territory of the Union in the greatest aggregate quantity to persons not related to the sellers; …

…’

2.      The Union Customs Code Implementing Regulation

12.      In Chapter 3 of the Union Customs Code Implementing Regulation, which is entitled ‘Value of goods for customs purposes’ and appears in Title II, concerning ‘factors on the basis of which import or export duty and other measures in respect of trade in goods are applied’, Article 127 provides as follows:

‘(Article 70(3)(d) of the [Union Customs] Code)

1.      For the purposes of this Chapter, two persons shall be deemed to be related if one of the following conditions is fulfilled:

…

(b)      they are legally recognised partners in business;

…

(e)      one of them directly or indirectly controls the other;

(f)      both of them are directly or indirectly controlled by a third person;

(g)      together they control a third person directly or indirectly;

…’

13.      Article 134 of that implementing regulation, which is headed ‘Transactions between related persons’, provides:

‘(Article 70(3)(d) of the [Union Customs] Code)

1.      Where the buyer and the seller are related, and in order to determine whether such relationship did not influence the price, the circumstances surrounding the sale shall be examined as may be necessary, and the declarant shall be given an opportunity to supply further detailed information as may be necessary about those circumstances.

2.      However, the goods shall be valued in accordance with Article 70(1) of the [Union Customs] Code where the declarant demonstrates that the declared transaction value closely approximates to one of the following test values, determined at or about the same time:

…

(b)      the customs value of identical or similar goods, determined in accordance with Article 74(2)(c) of the [Customs] Code;

…’

14.      Article 142 of the implementing regulation, which is headed ‘Deductive method’, provides:

‘(Article 74(2)(c) of the [Union Customs] Code)

1.      The unit price used to determine the customs value under Article 74(2)(c) of the [Union Customs] Code shall be the price at which the imported goods or imported identical or similar goods are sold in the Union, in the condition as imported, at or about the time of importation of the goods being valued.

…

4.      The following sales shall not be taken into account for the purposes of determining the customs value under Article 74(2)(c) of the [Union Customs] Code:

…

(b)      sales to related persons;

…

5.      When determining the customs value, the following shall be deducted from the unit price determined in accordance with paragraphs 1 to 4:

…

(c)      import duties and other charges payable in the customs territory of the Union by reason of the import or sale of the goods.

…’

B.      Legislation on the importation of fruit and vegetables to which an entry price applies

1.      Regulation (EU) No 1308/2013

15.      Recital 147 of Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007, (8) as amended by Regulation (EU) 2017/2393 of the European Parliament and of the Council of 13 December 2017, (9) states:

‘The entry price system should be maintained for certain products. In order to ensure the efficiency of that system, the power to adopt certain acts should be delegated to the [European] Commission in respect of checking the veracity of the declared price of a consignment using a flat-rate import value, and providing for the conditions under which the lodging of a security is required.’

16.      Article 181 of Regulation No 1308/2013, which is headed ‘Entry price system for certain products of the fruit and vegetables, processed fruit and vegetables and wine sectors’, provides:

‘1.      For the application of the Common Customs Tariff duty rate for products of the fruit and vegetables and processed fruit and vegetables sectors and for grape juice and musts, the entry price of a consignment shall be equal to its customs value calculated in accordance with Council Regulation (EEC) No 2913/92 [(10)] and Commission Regulation (EEC) No 2454/93 [(11)].

2.      In order to ensure the efficiency of the system, the Commission shall be empowered to adopt delegated acts in accordance with Article 227 to provide that the veracity of the declared entry price of a consignment is to be checked using a flat-rate import value, and to provide the conditions under which the lodging of a security is required.

3.      The Commission shall adopt implementing acts establishing rules for the calculation of the flat-rate import value referred to in paragraph 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to Article 229(2).’

2.      Delegated Regulation 2017/891

17.      Title III of Delegated Regulation 2017/891, which is entitled ‘Trade with third countries entry price system’, contains Articles 73 to 75.

18.      Article 74 of that delegated regulation, which is headed ‘Notification of prices and quantities of products imported’ provides, in paragraph 1:

‘For each product and for the periods set out in Part A of Annex VII, for each market day and origin, Member States shall notify the Commission, by 12.00 noon (Brussels time) the following working day, of:

(a)      the average representative prices of the products imported from third countries sold on Member States’ import markets; and

(b)      the total quantities relating to the prices referred to in point (a).

For the purposes of point (a) of the first subparagraph, Member States shall notify the Commission of the import markets they consider representative and which shall include London, Milan, Perpignan and Rungis.

Where the total quantities referred to in point (b) of the first subparagraph are less than 10 tonnes, the corresponding prices shall not be notified to the Commission.’

19.      Article 75 of that delegated regulation, which is headed ‘Entry price basis’, provides:

‘1.      For the purposes of Article 181(1) of Regulation [No 1308/2013], the products of the fruit and vegetables and processed fruit and vegetables sectors referred to in that Article shall be those listed in Annex VII to this Regulation.

2.      When the customs value of the products listed in Part A of Annex VII is determined in accordance with the transaction value referred to in Article 70 of [the Union Customs Code] and that customs value is higher by more than 8% than the flat-rate calculated by the Commission as a standard import value at the time the declaration of release of the products for free circulation is made, the importer must provide a guarantee as referred to in Article 148 of [the Union Customs Code Implementing Regulation]. For this purpose, the amount of import duty for which the products listed in Part A of Annex VII to this Regulation may be liable, shall be the amount of the duty due if the product in question had been classified on the basis of the standard import value concerned.

…

3.      When the customs value of the products listed in Part A of Annex VII is calculated in accordance with Article 74(2)(c) of [the Union Customs Code], the duty shall be deducted as provided for in Article 38(1) of Implementing Regulation (EU) 2017/892. [(12)] In that case, the importer shall provide a guarantee equal to the amount of duty which he would have paid if the classification of the products had been made on the basis of the standard import value applicable.

4.      The customs value of the goods imported on consignment shall be directly determined in accordance with Article 74(2)(c) of [the Union Customs Code], and for this purpose, the standard import value calculated in accordance with Article 38 of Implementing Regulation [2017/892] shall apply during the periods in force.

5.      The importer shall have one month from the sale of the products in question, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation, to prove that the lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of [the Union Customs Code], or to determine the customs value referred to in Article 74(2)(c) of that [code].

Failure to meet one of these deadlines shall entail the loss of the guarantee provided, without prejudice to the application of paragraph 6.

The guarantee provided shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities. Otherwise the guarantee shall be forfeit by way of payment of the import duties.

In order to prove that the lot was disposed of under the conditions set out in the first subparagraph, the importer shall make available, in addition to the invoice, all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question, including documents relating to the transport, insurance, handling and storage of the lot.

…

6.      The time limit of four months referred to in the first subparagraph of paragraph 5 may be extended by the competent authorities of the Member State by a maximum of three months at the request of the importer, which must be duly justified.

…’

20.      Part A of Annex VII to Delegated Regulation 2017/891 contains, amongst others, the following entry:

3.      Implementing Regulation 2017/892

21.      Article 38 of Implementing Regulation 2017/892, which is headed ‘Standard import values’ provides, in paragraphs 1 and 2:

‘1.      For each product and for the periods of application set out in Part A of Annex VII to Delegated Regulation [2017/891], the Commission shall fix each working day and for each origin, a standard import value equal to the weighted average of the representative prices referred to in Article 74 of that Regulation, less a standard amount of EUR 5/100 kg and the ad valorem customs duties.

2.      Where a standard import value is established for the products and for the periods of application set out in Part A of Annex VII to Delegated Regulation [2017/891], in accordance with Articles 74 and 75 of that Regulation and this Article, the unit price as referred to in Article 142 of [the Union Customs Code Implementing Regulation] shall not apply. It shall be replaced by the standard import value referred to in paragraph 1.’

4.      Regulation (EEC) No 2658/87

22.      Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, (13) as amended by Commission Implementing Regulation (EU) 2018/1602 of 11 October 2018, (14) contains, inter alia, in Annex 2 to Section I of the third part of Annex I, which is entitled ‘Products to which an entry price applies’, the following entry:

III. The facts of the dispute in the main proceedings and the questions referred for a preliminary ruling

23.      On 23 April 2019, OGL-Food, as importer, submitted a customs declaration to the customs office of Svilengrad (Bulgaria), by which it declared, under the procedure for release for free circulation for final consumption, ‘fresh courgettes’ in tariff subheading 0709 93 10 of the goods nomenclature, weighing 4 800 kg and originating in Türkiye (‘the lot at issue’), at a customs value equivalent to EUR 90.81 per 100 kg. The exporter was a company established in Antalya (Türkiye).

24.      For 23 April 2019, the Commission had set the standard import value of courgettes, regardless of origin, at EUR 53.80 per 100 kg. As the transaction value declared in respect of the lot at issue exceeded that flat-rate import value by more than 8%, OGL-Food provided a guarantee of 982.17 leva (BGN) (approximately EUR 502), in accordance with Article 75(2) of Delegated Regulation 2017/891.

25.      By letter of 24 April 2019, the customs authority, having established that the total purchase price paid in respect of the lot at issue was EUR 109.6 per 100 kg, taking account of the various costs incurred by OGL-Food, informed that company that, under Article 75(5) of Delegated Regulation 2017/891, it was required to prove that the lot at issue had been disposed of on the market under conditions confirming the correctness of the declared customs value.

26.      On 23 May 2019, OGL-Food provided the customs authority with a certain number of documents relating, in particular, to the purchase and sale of the lot at issue, and, on the basis of the evidence it had produced, requested the release of the guarantee provided.

27.      According to the account of the sale price, OGL-Food sold the lot at issue at a price of EUR 106 per 100 kg. As that price was below the total purchase price of EUR 109.6 per 100 kg that OGL-Food had paid for the lot at issue, the customs authority took the view that OGL-Food had not proved that that lot had been disposed of under conditions confirming the correctness of the declared transaction value. In those circumstances, in accordance with the third subparagraph of Article 75(5) of Delegated Regulation 2017/891, the guarantee was forfeit by way of payment of the import duties.

28.      In accordance with Article 22(6) of the Union Customs Code, the grounds on which the Director of Customs intended to base the decision were communicated to OGL-Food, which was invited to express its point of view within 30 days.

29.      In its observations, OGL-Food stated, first, that Article 75 of Delegated Regulation 2017/891 does not require the goods to have been resold at a profit in order to prove the correctness of the declared transaction value as a customs value. Next, it stated that the sale was part of a long-standing commercial relationship with Lidl, the international chain of hypermarkets, and that if a longer period had been examined, it would have been apparent that profits were being generated. Lastly, OGL-Food observed that the price at which it sold the lot at issue was significantly above the standard import value that the Commission had calculated for the goods on 23 April 2019.

30.      By decision of 30 October 2020, (15) the Director of Customs decided, inter alia, that the guarantee provided was forfeit by way of payment of the import duties, which were assessed at BGN 982.17. That decision was based, first, on the fact that OGL-Food had not put forward any evidence capable of explaining the striking difference between the declared transaction value of EUR 90.81 per 100 kg and the flat-rate import value of EUR 53.80 per 100 kg, such as the lot at issue – which was simply described as ‘best quality’ – being of exceptional quality or of organic origin. Second, the Director of Customs determined, having regard to the loss incurred on the sale of the lot at issue, that OGL-Food had not proved that that lot had been disposed of under conditions confirming the correctness of the declared transaction value within the meaning of Article 75(5) of Delegated Regulation 2017/891.

31.      In support of an action for annulment of the decision of 30 October 2020 which it has brought before the Administrativen sad Sofia-grad (Sofia City Administrative Court, Bulgaria), OGL-Food submits that the information provided to the customs authority – which is not disputed – confirms that the declared transaction value meets the requirements of Article 70 of the Union Customs Code. In that context, OGL-Food states, first, that whether the sale of comparable products to a particular customer results in profit is to be calculated on a monthly basis and not at the level of each individual transaction. Second, the sale price of the lot at issue on the EU market, calculated in accordance with Article 74(2)(c) of the Union Customs Code, confirms the correctness of the declared transaction value. OGL-Food adds that it and Lidl are not recognised partners in business within the meaning of Article 127(1)(b) of the Union Customs Code Implementing Regulation.

32.      The Director of Customs, for his part, states, first, that OGL-Food has not put forward any evidence to justify the high level of the declared transaction value in comparison to the standard import value, such as the products concerned being of exceptional quality or resulting from organic farming. Second, the fact that OGL-Food sold the lot at issue at a loss does not conform to market logic, according to which it seeks to make a profit. Third, the Union Customs Code applies without prejudice to Delegated Regulation 2017/891. That regulation excludes the possibility of taking other import transactions into account in assessing the correctness of the declared transaction value for the purposes of the importation of the lot at issue. Furthermore, fourth, the secondary method of determining the customs value provided for in Article 74(2)(c) of the Union Customs Code is not applicable in the present case.

33.      The referring court appears to consider that the analysis contained in the decision of 30 October 2020, which is unfavourable to OGL-Food, does not conform to the case-law of the national courts on the interpretation of Article 75(5) of Delegated Regulation 2017/891. However, the referring court also considers that the arguments advanced by OGL-Food are unfounded. In particular, in its view, it is necessary to determine whether OGL-Food’s relationship with the exporter and with its customer in the European Union, Lidl, is such that they are related persons within the meaning of Article 70(3)(d) and Article 74(2)(c) of the Union Customs Code.

34.      First, in the view of the referring court, it is necessary to determine whether, in the absence of a commercial contract or other legal link between the parties, the long-term, periodic and recurrent supply relationship at issue in the main proceedings, as reflected in the corresponding invoices and accounting entries, is sufficient for the exporter and OGL-Food to be classified as ‘legally recognised partners in business’, within the meaning of Article 127(1)(b) of the Union Customs Code Implementing Regulation, and therefore as related persons within the meaning of Article 70(3)(d) of the Union Customs Code, which requires an assessment of whether that relationship influenced the declared transaction value of the lot.

35.      Second, OGL-Food argued before the referring court that the declared transaction value ought to have been accepted by the customs authority on the ground that it closely approximated to the customs value of identical or similar goods as determined in accordance with Article 74(2)(c) of the Union Customs Code, as calculated by the court-appointed expert at its request. The referring court considers that, in order to assess the relevance of that argument, which is based on Article 134(2)(b) of the Union Customs Code Implementing Regulation, it is necessary to determine whether OGL-Food and its purchaser at the first level of trade, Lidl, are related persons within the meaning of Article 74(2)(c) of the Union Customs Code and Article 142(4)(b) of the Union Customs Code Implementing Regulation, which lays down detailed rules for the implementation of that code. In that regard, the referring court considers that the expression ‘related persons’ has the same meaning in Article 70(3)(d) and Article 74(2)(c) of the Union Customs Code as it does in Article 127(1) and Article 142(4)(b) of the Union Customs Code Implementing Regulation.

36.      However, the referring court asks whether an importer can rely on the deductive method provided for in Article 74(2)(c) of the Union Customs Code (16) for the first time when an action is brought against the decision assessing the customs debt, which is to say after the time limits laid down in Article 75(5) and (6) of Delegated Regulation 2017/891 have expired, triggering the loss of the guarantee. If not, the referring court has doubts as to whether this is compatible with the importer’s rights of defence, and as to whether it is entitled to find that the importer is related to the exporter or to its EU customer within the meaning of those provisions, in circumstances where the decision determining the customs debt did not reject the transaction value on that ground.

37.      The referring court also asks whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that the importer must produce a purchase contract or other equivalent document, whether the customs authority may take into account the fact that the lot at issue was sold at a loss on the EU market and whether the circumstances surrounding that sale are relevant for the purposes of applying that provision.

38.      Lastly, the referring court asks whether Article 75(5) of Delegated Regulation 2017/891 must be interpreted as meaning that the customs authority may take the flat-rate import value as the customs value where the declared transaction value is abnormally high, without challenging the authenticity of the exporter’s invoice and the proof of payment to the exporter, and in the absence of further evidence produced by the importer in order to demonstrate the correctness of the declared transaction value.

39.      In those circumstances, the Administrativen sad Sofia-grad (Sofia City Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      In the light of Article 70(1) of [the Union Customs Code], read in conjunction with the first subparagraph of Article 75(5) and Article 75(6) of [Delegated Regulation 2017/891], must it be understood that the following are to be regarded as being relevant to the assessment of the condition in Article 70(3)(d) of the [Union] Customs Code – “the buyer and seller are not related” – for the purpose of applying the transaction value of the goods for customs purposes in connection with a specific customs declaration concerning an importation of vegetables:

–        information regarding the relationship between the parties involved in the importation of the goods and the sale of the same goods at the first level of trade in the European Union – regarding long-term and recurrent supplies of goods of the same kind, in significant quantities and of a significant value, such as would preclude the inference that the relationship was formed coincidentally in the context of the specific importation under assessment;

–        information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and [value-added tax (VAT)] books, or the right of deduction exercised in respect of the specific import;

–        the fact that the declared transaction value of the specific importation under assessment is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector, while the same product is sold at a loss in the European Union;

–        the fact that the importer has not produced either a commercial contract relating to the specific importation, as requested by the customs authorities, or a document relating to any other legal relationship between the contracting parties?

If those circumstances are relevant, do they permit the importing trader and the exporting trader, or the importer and the buyer at the first level of trade in the EU, to be categorised as “legally recognised partners in business” or as related persons within the meaning of Article 127(1)(b) and Article 142(4)(b) of the Union Customs Code [Implementing Regulation]?

If the above circumstances are relevant but are not sufficient to regard the traders as related persons, is there an obligation to assess, for the purposes of the verification under Article 75(6) of [Delegated Regulation 2017/891], whether the relationship between the traders influenced the determination of the higher price of the product subject to the specific importation, in order to counteract the evasion of customs duties and the loss of tax revenue to the EU budget, taking into account also the subsequent sale at a loss at the first level of trade in the [European Union]?

(2)      Does it follow from [the first subparagraph of] Article 47 and Article 41(2)(c) of the Charter of Fundamental Rights [‘the Charter’] – interpreted in conjunction with the importer’s right of appeal under Article 44(1) of [the Union Customs Code], as well as the obligation of the customs authorities to set out the reasons on which the decision is based in accordance with Article 29 of [that code], in conjunction with Article 22(7) thereof, and the circumstances of the case, and taking into account the fact that, in proceedings relating to an action brought against the decision, the court of first instance is required to examine the legality of that decision of its own motion, including in relation to aspects not raised in the action, take new evidence and appoint experts of its own motion – that:

–        the condition laid down in Article 70(3)(d) of [the Union Customs Code] – “the buyer and seller are not related or the relationship did not influence the price” – may be established for the first time in the proceedings before the court, or is the customs authority required to reach a conclusion on that matter already in the statement of reasons for the contested decision?

–        where, despite having the procedural possibility to do so, the importer has not expressly stated that it will determine the value of the imported goods using the deductive method under Article 74(2)(c) of [the Union Customs Code], it would be contrary to Article 75(5) and (6) of [Delegated Regulation 2017/891], and in particular the time limit laid down for that determination, if that value were to be determined for the first time in the proceedings relating to the action brought against the decision before the court, also with a view to taking into account the importer’s objections based on the fact that the selling price of the product in the European Union is close to the declared transaction value?

(3)      In the light of the interpretation given in operative part 1 of the judgment of the Court of Justice of 11 March 2020, [X (Recovery of additional import duties)], С‑160/18, EU:C:2020:190, in relation to proof of the declared transaction value under Article 70(1) of the Union Customs Code, does it follow, in the circumstances of the present case, from the fourth subparagraph of Article 75(5) of [Delegated Regulation 2017/891], according to which “the importer shall make available […] all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question”, that:

–        the customs authorities and, in proceedings relating to an action, the court, are required to take the fact that the imported goods – vegetables – were sold at a loss in the European Union into account as a serious indication that the declared import price was artificially inflated – also with regard to the assessment of the relationship between the persons that had an influence on the declared transaction value – in order, inter alia, to counteract evasion of customs duty and loss of tax revenue?

–        the importer is required to produce a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, or is it sufficient to prove payment of the declared value of the product on importation? or

–        the importer is required to submit only the documents expressly referred to in the fourth subparagraph of Article 75(5) of [Delegated Regulation 2017/891] as proof of the declared transaction value for the importation of vegetables, with the result that the circumstances surrounding the sale of the same product at a loss in the European Union are irrelevant for the assessment under Article 75(6) of that regulation as regards the non-acceptance of the transaction value and the determination of the import duty?

(4)      In the circumstances of the main proceedings, does it follow from Article 75(5) and (6) of [Delegated Regulation 2017/891], and from the interpretation given in the judgment of 16 June 2016, EURO 2004. Hungary, С‑291/15, EU:C:2016:455, that the customs value in the importation of vegetables from third countries may not be determined on the basis of the declared transaction value where:

–        the transaction value declared is significantly higher than the standard import value determined by the Commission for the same product for the purpose of applying import duties in the vegetable sector;

–        the customs authority does not dispute or otherwise question the authenticity of the invoice and the proof of payment of the price of the product, presented as evidence of the import price actually paid;

–        the importer, despite being requested to do so by the customs authority, has not provided a contract or other equivalent document as proof of the price payable for the product when sold for export to the customs territory of the European Union, including additional evidence for the determination of the economic elements of the product justifying the higher value when purchased from the exporter, for an organic product or a particularly high level of quality of the specific lot of vegetables?’

40.      OGL-Food, the Director of Customs, the Bulgarian Government and the Commission submitted written observations. Those parties also attended the hearing held on 25 January 2023, when they responded to questions put to them by the Court for oral answer.

IV.    Analysis

A.      Preliminary observations on the legal framework

41.      It may be recalled that Article 1(1) of the Union Customs Code provides that that code lays down the general rules and procedures applicable to goods brought into or taken out of the customs territory of the European Union. It goes on to provide that that code applies uniformly throughout that territory, ‘without prejudice to international … conventions and Union legislation in other fields’. Thus, the customs legislation applicable to fruit and vegetables by virtue of Regulation No 1308/2013 and Delegated Regulation 2017/891 constitutes a special regulation with respect to the Union Customs Code.

42.      Article 181 of Regulation No 1308/2013 provides for an entry price to be established for certain products in the fruit and vegetables sectors, equal to the customs value of the lot as calculated in accordance with the Union Customs Code and its implementing regulation. It also empowers the Commission to adopt delegated acts to provide that the correctness of the declared entry price of a consignment is to be checked using a flat-rate import value, and to provide the conditions under which the lodging of a security is required.

43.      On that basis, the Commission made provision, in Article 74(1) of Delegated Regulation 2017/891, in respect of certain fruits and vegetables, including courgettes, for the Member States to notify it, on a daily basis, of the average representative prices of the products imported from third countries and sold on Member States’ import markets, and of the total quantities of those products corresponding to those average prices, if greater than 10 tonnes.

44.      As regards the basis of the entry prices for those fruits and vegetables, including courgettes, Article 75 of that delegated regulation provides for three methods of calculating the customs value.

45.      Under the first method, the customs value is the transaction value determined in accordance with Article 70 of the Union Customs Code. (17) As may be recalled, that article provides that 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 European Union. (18) Article 70 of that code also provides that the transaction value is to apply provided that a number of conditions are fulfilled, including a condition that the buyer and seller are not related or the relationship did not influence the price. (19) Article 127(1)(b) of the Union Customs Code Implementing Regulation provides that two persons are related if they are partners in business.

46.      In that first situation, if the transaction value declared by the importer of courgettes is higher by more than 8% than the standard import value calculated by the Commission at the time of release for free circulation, the importer must provide a guarantee in the amount of the duty that would have been due if the product in question had been classified on the basis of that standard import value. (20) The variable element of the duty is nil where the entry price of the courgettes is equal to or greater than EUR 69.2 per 100 kg net weight, whereas where it is below that threshold, the variable element of the duty increases bracket by bracket as the entry price decreases. (21)

47.      Under the second method of calculation, the deductive method may be used. (22) It may be recalled that Article 74(2)(c) of the Union Customs Code provides that, where the transaction value of goods cannot be determined, the customs value is to be based on the unit price at which the imported goods, or identical or similar imported goods, are sold within the customs territory of the Union in the greatest aggregate quantity to persons not related to the sellers. Article 142 of the Union Customs Code Implementing Regulation adds a number of stipulations: first, the sales used as a reference must have taken place at the time or about the time of importation of the goods being valued; (23) second, sales to related persons are not to be taken into account; (24) lastly, import duties, inter alia, are to be deducted from the unit price. (25)

48.      Where the deductive method is used for a lot of courgettes, Article 75(3) of Delegated Regulation 2017/891 provides that the duty is to be deducted as provided for in Article 38(1) of Implementing Regulation 2017/892 and that, in such a case, the importer is to provide a guarantee equal to the amount of duty which he or she would have paid if the classification of the products had been made on the basis of the standard import value applicable. Article 38(1) of Implementing Regulation 2017/892 provides that for courgettes, amongst other products, the Commission shall fix, each working day and for each origin, a standard import value equal to the weighted average of the representative prices referred to in Article 74 of Delegated Regulation 2017/891, less a standard amount of EUR 5 for every 100 kg and the ad valorem customs duties.

49.      Thus, the amount of duty deducted from the unit price for a lot of courgettes in order to determine the customs value is calculated on the basis of the standard import value for the day in question, pending proof of the correctness of the unit price.

50.      The third method of calculation is a simplified arrangement for goods imported on consignment. In respect of such goods, Article 75(4) of Delegated Regulation 2017/891 makes direct provision for the deductive method to be applied, but with the following stipulation: the standard import value calculated in accordance with Article 38 of Implementing Regulation 2017/892 applies. As stated in paragraph 48 above, Article 38(1) of that regulation provides for the Commission to calculate a standard import value on a daily basis. Article 38(2) of that regulation provides that, where a standard import value is established, the unit price as referred to in Article 142 of the Union Customs Code Implementing Regulation does not apply and is replaced by the standard import value referred to in Article 38(1).

51.      Thus, a lot of courgettes which is imported on consignment will have its customs value determined as a function of the standard import value on the day in question. Since that value is immediately known, it is not necessary to provide for a guarantee pending a subsequent determination of the customs value, as under the first two methods of calculation.

52.      The final determination of the customs value is the subject matter of Article 75(5) of Delegated Regulation 2017/891. Under that provision, the importer has one month from the sale of the products in question, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation, to prove that the lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of the Union Customs Code, or to determine the customs value in accordance with the deductive method. Article 75(5) of Delegated Regulation 2017/891 stipulates that failure to meet one of those deadlines entails the loss of the guarantee provided, and that the guarantee provided is to be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities. Otherwise, the guarantee is forfeit by way of payment of the import duties. Moreover, in order to prove that the lot was disposed of under the conditions laid down in the first subparagraph of that provision, the importer is to make available, in addition to the invoice, all documents needed for the carrying out of the relevant customs controls in relation to the sale and disposal of each product of the lot in question, including documents relating to the transport, insurance, handling and storage of the lot.

53.      The interpretation of Article 75(5) of Delegated Regulation 2017/891 is central to the questions referred to the Court for a preliminary ruling. I will begin by considering the second question referred, which relates to whether the grounds of the customs decision can be altered at the stage of judicial proceedings, before turning to the first question referred, which concerns the concept of partners in business or related persons.

B.      The second question referred

54.      The referring court asks, in essence, whether, on the initiative of the court or of the importer, the method used to calculate the customs value of imported goods can be changed at the stage of judicial proceedings, and thus after the expiry of the periods allowed to the importer, under Article 75(5) and (6) of Delegated Regulation 2017/891, for justifying the declared customs value, having regard to the right to an effective remedy and to the obligation to give reasons as protected, respectively, by Article 47 and Article 41(2)(c) of the Charter, and by Article 44(1) and Article 29, read in conjunction with Article 22(7), of the Union Customs Code. That court also asks whether the condition laid down in Article 70(3)(d) of the Union Customs Code, concerning related persons, can be examined for the first time during the judicial proceedings, and whether the deductive method can be relied on for the first time in those proceedings, either as a principal line of argument or as an objection, raised on the basis that the declared transaction value closely approximated to the value calculated in accordance with that deductive method.

55.      The question thus appears to me to be divided into two stages. First, can the grounds of a customs decision be altered at the stage of judicial proceedings, through a substitution of grounds by the court or at the request, by way of objection, of the applicant? Second, can those new grounds of the customs decision concern the issue of whether the parties are related and whether the relationship influenced the price in a situation such as that at issue in the main proceedings?

56.      First, as regards altering the grounds of the customs decision, the question must be considered in the light of the time limits and the sanction for failure to comply with those time limits laid down in Article 75 of Delegated Regulation 2017/891, bearing in mind that the referring court has stated that it is required, under national legislation, to examine the legality of the contested decision of its own motion, including in relation to aspects not raised in the action, to take new evidence and to appoint experts of its own motion.

57.      In the absence of EU rules governing the matter, it is for each Member State, in accordance with the principle of the procedural autonomy of the Member States, to lay down the detailed rules of administrative and judicial procedures intended to ensure a high level of protection of rights which individuals derive from EU law. The detailed rules for implementing the remedies provided for by EU law must not be less favourable than those governing similar domestic actions (principle of equivalence); nor must they render practically impossible or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (26)

58.      In the present case, there is EU customs legislation laying down specific procedural rules.

59.      On the one hand, the Union Customs Code provides that customs controls are to be carried out only by the customs authorities, (27) which may be the customs administrations or any other authorities empowered under national law to apply certain customs legislation. (28) That code provides that, before taking a decision which would adversely affect the applicant, the customs authorities are to communicate the grounds on which they intend to base their decision to the applicant, and that the applicant is to be given the opportunity to express his or her point of view within a prescribed period. (29) It also provides that a decision which adversely affects the applicant must set out the grounds on which it is based and refer to the right of appeal provided for in Article 44 of that code. (30) Furthermore, the Union Customs Code provides that the procedure for appealing against a customs decision is divided into two successive stages, the first before the customs authority and the second before a higher independent body, which may be a judicial authority. (31) It also indicates that the customs authority may act as a judicial authority, (32) but does not provide for the converse.

60.      At the customs stage of the appeal, the Union Customs Code provides that the importer has two rights: the right to be provided with the grounds of the adverse decision, preceded by the right to have the proposed grounds communicated to it. Accordingly, a substitution of grounds, on the initiative of the court or at the request of the importer during the judicial stage under the national procedural provisions, can be analysed as a customs control which, as such, can only be carried out by the customs authority of the Member State according to the Union Customs Code, which, as a special regulation with respect to those procedural provisions, must take precedence. In that regard, the referring court does not indicate whether it has power under legislation or regulations to apply certain customs provisions.

61.      Therefore, the two-stage structure of the appeal (customs stage and judicial stage) and the enhanced protection of the obligation to provide information in advance and the obligation to state the grounds for the decision are apt to guarantee the right to an effective remedy and the obligation to give reasons protected, respectively, by Article 47 and Article 41(2)(c) of the Charter.

62.      On the other hand, Article 75(5) of Delegated Regulation 2017/891 lays down a double time limit for the importer either to prove that the lot has been disposed of under conditions confirming the correctness of the prices referred to in Article 70 of the Union Customs Code, or to determine the customs value in accordance with the deductive method. The consequence of expiry of those time limits (one month from the sale of the products, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation) or of failure to prove that the lot was disposed of under the conditions referred to, is loss of the guarantee. (33) Thus, failure to meet the conditions laid down by Article 75(5) of Delegated Regulation 2017/891 results in a single penalty: the loss of the guarantee calculated on the basis of the standard import value.

63.      This particularity of the customs procedure applicable to certain fruits and vegetables, including courgettes, is a perfect illustration of the fact that the method used to calculate the customs value must be chosen at the customs stage of the appeal procedure. It is accordingly for the importer to provide evidence of the customs value on the basis of the chosen method, in default of which the guarantee is lost.

64.      It thus follows from all the above considerations that the chosen basis of the customs value cannot be altered at the judicial stage of an appeal against a customs decision, as that would amount to depriving the importer of its right to advance notice of the grounds of a customs decision which would adversely affect it, and to a statement of the grounds of the adverse customs decision.

65.      Second, as regards the nature of the new grounds relied on before the court, can these concern the issue of whether the parties are related and whether the relationship influenced the price in a situation such as that at issue in the main proceedings?

66.      OGL-Food stated at the hearing that, in the course of the judicial proceedings, it did not request that the method used to calculate the customs value be changed to the deductive method, (34) but that, in the context of justifying the way in which it had disposed of products declared at a transaction value, it wished to take advantage of the possibility – left open by Article 134(2)(b) of the Union Customs Code Implementing Regulation – of proving that the transaction value closely approximated to the customs value of identical or similar goods, determined in accordance with the deductive method.

67.      It should be noted, however, that Article 134 of the Union Customs Code Implementing Regulation concerns the application of Article 70(3)(d) of the Union Customs Code and is applicable to transactions between related persons.

68.      During the customs stage, the importer did not raise any argument on the basis of its relationship with the purchaser at the first level of trade or supply any contract that may have existed between it and that purchaser, despite the customs authority requesting that it do so – nor, a fortiori, did it try to demonstrate that that relationship had not influenced the price. At that stage, it would have been able to prove the conditions under which it had disposed of the imported products by reference to Article 134(2)(b) of the Union Customs Code Implementing Regulation, which would also have entailed proving that it was related to the purchaser at the first level of trade in one of the ways set out in Article 127 of that regulation (35) and that that relationship had not influenced the price.

69.      Furthermore, the grounds relied on by the customs director did not concern related party status, but were based on two other factors: the high import purchase price (40.75% higher than the standard import value) and the fact that the products had been sold at a loss.

70.      Consequently, the argument that the value closely approximated to the transaction value is completely new in relation to the grounds relied on by the customs director, and to advance it at the judicial stage amounts to asking the court to carry out a customs control, which goes beyond the territory of simple objections capable of relating to the grounds of the decision in themselves.

71.      In conclusion, I propose that the answer to the second question referred should be that Article 75(2), (5) and (6) of Delegated Regulation 2017/891, read in the light of Article 5(1) and (3), of Article 22(6), of Article 29 and of Article 44(2) of the Union Customs Code, is to be interpreted as meaning that the time limits and the penalty for non-compliance with those time limits for which it provides preclude alteration of the grounds of the customs decision during the judicial stage of a challenge to that decision, including in relation to the method chosen for the calculation of the customs value or the concept of ‘related persons’, within the meaning of Article 70(3)(d) of the Union Customs Code.

C.      The first question referred

72.      By its first question, the referring court asks the Court of Justice about the information which is relevant in proving that persons are recognised partners in business or related persons within the meaning of Article 127(1)(b) and Article 142(4)(b) of the Union Customs Code Implementing Regulation. It also asks whether the verification provided for by Article 75 of Delegated Regulation 2017/891 entails, with a view to preventing customs fraud, an obligation to assess whether the relationship between the operators influenced the determination of a higher price for goods which were subsequently resold at a loss.

73.      I propose to consider this question in the alternative, in the light of the answer given to the second question referred.

74.      The Court has recently held, in the judgment of 9 June 2022, Baltic Master, (36) that Article 181a of the implementing regulation, which was introduced following the amendment of that regulation by Commission Regulation (EC) No 3254/94 of 19 December 1994, (37) permits the customs authorities to disregard the transaction value for the purposes of determining the customs value where those authorities take the view that the declared value does not reflect the real economic value of the imported goods, regardless of whether there is a relationship between the importer and the exporter. (38) The general terms in which that statement is couched enable it to be extended by analogy to Article 140 of the Union Customs Code Implementing Regulation, which essentially restates Article 181a in relation to non-acceptance of declared transaction values. Article 140 of the Union Customs Code Implementing Regulation provides, first, that ‘where the customs authorities have reasonable doubts that the declared transaction value represents the total amount paid or payable as referred to in Article 70(1) of the [Union Customs] Code, they may ask the declarant to supply additional information’ and, second, that ‘if their doubts are not dispelled, the customs authorities may decide that the value of the goods cannot be determined in accordance with Article 70(1) of [that code]’.

75.      In the same judgment, the Court also held that, ‘as regards the relationship between persons on account of being recognised partners in business, referred to in Article 143(1)(b) of the Implementing Regulation, [(39)] it should be noted that the very wording of that provision excludes any de facto business relationship’. (40) It added that ‘that provision, which refers to persons that are “legally recognised partners in business”, requires, for the purposes of establishing the existence of a relationship, that the conditions laid down by the national provisions concerning recognised partners are satisfied, thus excluding any business relationship that is not legally recognised’. (41)

76.      It follows that the assessment of whether persons are legally recognised partners in business is a matter of national law and that the factors mentioned by the referring court (the fact that there was an ongoing commercial relationship, information regarding the invoices issued in respect of the supplies, the payment of the price, the recording of the invoices in the importer’s accounts and VAT books and the right to deduct VAT, the fact that the declared transaction value was significantly higher than the standard import value and the goods were resold at a loss, and the fact that no commercial contract has been produced) can be relevant only if they lead to persons being legally recognised as partners in business under national law.

77.      Nonetheless, in order to propose an answer to that question it is necessary to consider the interaction between the special provisions applicable to certain fruits and vegetables, including courgettes, and the general provisions of the Union Customs Code and its implementing regulation.

78.      Where the importer has declared a transaction value, Article 75(5) of Delegated Regulation 2017/891 provides that it must prove, within one month from the sale of the products in question, subject to a limit of four months from the date of acceptance of the declaration of release for free circulation, that the lot was disposed of under the conditions confirming the correctness of the prices referred to in Article 70 of the Union Customs Code.

79.      Is it sufficient, then, for the importer to prove that the conditions of Article 70 of the Union Customs Code – in particular that concerning related persons – are met on resale of the imported goods, or must it simply prove that the lot was disposed of under conditions justifying the declared transaction value?

80.      The answer will determine whether the first question is admissible, given that, if proof of the existence of a relationship between the importer and the purchaser at the first level of trade and its influence on the price is sufficient, it is unnecessary to consider the question of the conditions of disposal of the goods.

81.      On a literal reading, it might be thought that it is sufficient simply to prove that the goods were resold at a price justifying the declared transaction value. However, the wording chosen by the EU legislature does not simply require proof of the correctness of the transaction value, but also refers to the conditions of disposal of the resold goods. The third subparagraph of Article 75(5) of Delegated Regulation 2017/891 provides for the guarantee to be released only to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities.

82.      Nonetheless, if account is taken of the purpose of that provision, which is to prevent invoices from being fraudulently inflated at the time of importation in order to avoid paying customs duty, it is apparent that the reference to Article 70 of the Union Customs Code must be given full effect. While it is possible for related parties to collude when the exported goods are invoiced, it is equally possible for them to do so when those goods are resold in EU territory; hence the relevance of the fact that the sale cannot be to a related person in order to justify the transaction value, or that any such relationship did not influence the price. The objective of EU law on customs valuation is 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. (42)

83.      Thus, the transaction value may not be used if the existence of a relationship between related persons at the time of purchase of products for export and of the resale of those products within the EU customs territory influenced the price. In such a situation, the Union Customs Code Implementing Regulation provides that the transaction value may still be used, even where there is a relationship between the parties, where that value closely approximates to the customs value of identical or similar goods, determined in accordance with the deductive method, (43) with the exception of the comparison with the customs value of imported goods.

84.      Nonetheless, that objective of verifying the economic reality of the purchase and resale, and thus the adequacy of the amount of customs duty, may also be achieved through proof of the conditions of disposal, given that abnormal conditions of disposal may indicate that there has been collusion between related persons, which has influenced the price. Thus, the obligation to prove the conditions of disposal can be seen as a simplified proof that any relationship between the parties did not influence the price. That interpretation would conform to the objective of the specific legislation concerning perishable fruit and vegetables, which is to facilitate the determination of their value for the purposes of calculating the entry price, given that most perishable fruit and vegetables are supplied on consignment, making it difficult to determine their price. (44) That interpretation can also be justified by reference to the fact that, in the absence of proof of the matters which Article 75(5) of Delegated Regulation 2017/891 requires, within the prescribed time limit, the guarantee calculated on the basis of the standard import value is forfeit to the customs authority.

85.      It follows from all those considerations that, even if the referring court were to conclude that the operators were related – which is not the case – that finding would not be sufficient to establish that the conditions of Article 75(5) of Delegated Regulation 2017/891 were met or, in particular, that the products had been disposed of under conditions confirming the correctness of the prices. Accordingly, the answer to this question does not appear to assist in resolving the dispute and thus appears to be inadmissible.

86.      I propose to answer it, in the alternative, as follows: Article 70(3)(d) of the Union Customs Code and Article 127(1)(b) of the Union Customs Code Implementing Regulation are to be interpreted as meaning that the buyer and the seller cannot be regarded as legally recognised partners in business if they do not demonstrate that the conditions laid down by the national provisions concerning recognised partners are satisfied, which excludes any business relationship that is not legally recognised.

V.      Conclusion

87.      In the light of all the foregoing considerations, I propose that the Court of Justice should answer the questions referred to it for a preliminary ruling by the Administrativen sad Sofia-grad (Sofia City Administrative Court, Bulgaria) as follows:

1.      Article 75(2), (5) and (6) of Commission Delegated Regulation (EU) 2017/891 of 13 March 2017 supplementing Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors and supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to penalties to be applied in those sectors and amending Commission Implementing Regulation (EU) No 543/2011, as amended by Commission Delegated Regulation (EU) 2018/1145 of 7 June 2018, read in the light of Article 5(1) and (3), Article 22(6), Article 29 and Article 44(2) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as amended by Regulation (EU) 2016/2339 of the European Parliament and of the Council of 14 December 2016,

is to be interpreted as meaning that the time limits and the penalty for non-compliance with those time limits for which it provides preclude alteration of the grounds of the customs decision during the judicial stage of the challenge, including in relation to the method chosen for the calculation of the customs value or the concept of ‘related persons’ within the meaning of Article 70(3)(d) of Regulation No 962/2013, as amended by Regulation 2016/2339.

2.      The first question referred is inadmissible, but, in the alternative, it should be answered as follows:

Article 70(3)(d) of Regulation No 952/2013, as amended by Regulation 2016/2339 and Article 127(1)(b) of 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, as amended by Commission Implementing Regulation (EU) 2018/604 of 18 April 2018,

is to be interpreted as meaning that the buyer and the seller cannot be regarded as legally recognised partners in business if they do not demonstrate that the conditions laid down by the national provisions concerning recognised partners are satisfied, which excludes any business relationship that is not legally recognised.

1      Original language: French.

2      OJ 2013 L 269, p. 1.

3      OJ 2016 L 354, p. 32; ‘the Union Customs Code’.

4      OJ 2015 L 343, p. 558.

5      OJ 2018 L 101, p. 22; ‘the Union Customs Code Implementing Regulation’.

6      OJ 2017 L 138, p. 4.

7      OJ 2018 L 208, p. 1; ‘Delegated Regulation 2017/891’.

8      OJ 2013 L 347, p. 671.

9      OJ 2017 L 350, p. 15; ‘Regulation No 1308/2013’.

10      Council Regulation of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). That regulation was repealed 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), which was itself repealed by the Union Customs Code.

11      Regulation 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 46/1999 of 8 January 1999 (OJ 1999 L 10, p. 1) (‘the implementing regulation’), repealed by Commission Implementing Regulation (EU) 2016/481 of 1 April 2016 (OJ 2016 L 87, p. 24), following the entry into force of the Union Customs Code Implementing Regulation.

12      Commission Implementing Regulation of 13 March 2017 laying down rules for the application of Regulation (EU) No 1308/2013 of the European Parliament and of the Council with regard to the fruit and vegetables and processed fruit and vegetables sectors (OJ 2017 L 138, p. 57).

13      OJ 1987 L 256, p. 1.

14      OJ 2018 L 273, p. 1; ‘Regulation No 2658/87’.

15      ‘The decision of 30 October 2020’.

16      ‘The deductive method’.

17      Article 75(2) of Delegated Regulation 2017/891.

18      Article 70(1) of the Union Customs Code.

19      Article 70(3)(d) of the Union Customs Code.

20      Article 75(2) of Delegated Regulation 2017/891.

21      See point 22 of this Opinion.

22      Article 75(3) of Delegated Regulation 2017/891.

23      Article 142(1) of the Union Customs Code Implementing Regulation.

24      Article 142(4)(b) of the Union Customs Code Implementing Regulation.

25      Article 142(5)(c) of the Union Customs Code Implementing Regulation.

26      See judgment of 12 January 2023, Nemzeti Adatvédelmi és Információszabadság Hatóság (C‑132/21, EU:C:2023:2, paragraphs 45 and 48 and the case-law cited).

27      Article 5(3) of the Union Customs Code.

28      Article 5(1) of the Union Customs Code.

29      Article 22(6) of the Union Customs Code.

30      Article 22(7) of the Union Customs Code.

31      Article 44(2) of the Union Customs Code.

32      Article 29 of the Union Customs Code.

33      See point 52 of this Opinion.

34      Second method of calculation; see point 47 of this Opinion.

35      By virtue of being officers or directors of the other party’s business, of being legally recognised partners in business, of a third party directly or indirectly owning or controlling or holding 5% or more of the outstanding voting stock or shares of both of them, of an employment relationship, of direct or indirect control, of control by the same parent or subsidiary, or of being members of the same family.

36      C‑599/20, EU:C:2022:457.

37      OJ 1994 L 346, p. 1.

38      See judgment of 9 June 2022, Baltic Master (C‑599/20, EU:C:2022:457, paragraph 34 and the case-law cited).

39      Identical to Article 127(1)(b) of the Union Customs Code Implementing Regulation.

40      Judgment of 9 June 2022, Baltic Master (C‑599/20, EU:C:2022:457, paragraph 35).

41      Judgment of 9 June 2022, Baltic Master (C‑599/20, EU:C:2022:457, paragraph 36).

42      Judgment of 9 June 2022, Baltic Master (C‑599/20, EU:C:2022:457, paragraph 24).

43      Article 134(2)(b) of the Union Customs Code Implementing Regulation.

44      Recital 31 of Regulation (EU) 2017/891.

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