compliance e AEO,  valore in dogana

Again doubts about the customs treatment of post-entry upward and downward price adjustments: the Court of Justice of European Union has to provide with a ruling

Marzo 3, 2024 /

The customs value is one of the most complex for the compliance with the customs obligation. More aspects should be still fully clarified. At this regard it is interesting to share some considerations about the “request for a preliminary ruling” Case C-782/23 dated 19 Dicembrer 2023: the Cort of Justice of the European Union has to rule about the customs treatment of post-entry upward and downward price adjustments; in particular,  an importer declared a provisional prices for imported goods, then later adjusted these values based on market conditions and exchange rates.

Although the final price was not unknown at the moment of  the acceptance of import declaration, in the customs officials opinion  the transaction value method has should be used.

The request of preliminary ruling  is based on articles of UCC 70 ( Article 70 which states, inter alia: ‘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:… (b) the sale or price is not subject to some condition or consideration for which a value cannot be determined with respect to the goods being valued; …’) and 173 paragraph 3, 128 and 133 of Commission Implementing Regulation (EU) 2015/2447.

The company actor added, about the criterion applied for the customs value calculation that “…Under the terms of the contracts with the suppliers, the provisional price was subsequently adjusted to take account of circumstances that arose after the importation of the goods, such as the average fuel prices on the market for the relevant period and the average exchange rate for the relevant period. That revised price (‘the final price’) was agreed between the Company and its suppliers by means of supplementary agreements (annexes to the contracts), on the basis of which the suppliers issued revised invoices (depending on the abovementioned fluctuations in the market prices, the final price was in some cases higher than the provisional price and in other cases lower)…” and “…12 After receiving those revised invoices from the suppliers, the Company, on its own initiative, applied for an adjustment of the value of the goods declared in the abovementioned import declarations….”.In other words, they applied the fall-back method.

Starting from this picture, the Lituanian authority is asking the European Court of Justice to provide their opinion about this question: “…it is necessary to ascertain whether Article 70 of the Union Customs Code must be interpreted as meaning that paragraph 1 thereof does not apply where, at the time of acceptance of the customs declaration and on the basis of the sale occurring immediately before the goods were brought into the customs territory, only the price provisionally payable is known, which is subsequently (that is to say, after the declaration has been lodged and the goods have been released for free circulation) adjusted upwards or downwards in the light of circumstances beyond the control of the parties to the transaction and unknown at the time of lodging the declaration…”

This question should be read on the light of the following points:

  • “…It should also be noted that, in paragraph 35 of its judgment of 20 December 2017 in Hamamatsu Photonics Deutschland (C-529/16; EU:C:2017:984), the Court of Justice ruled that ‘… an agreed transaction value, composed of an amount initially invoiced and declared and a flat-rate adjustment made after the end of the accounting period, [may not] form the basis for the customs value, without it being possible to know at the end of the accounting period whether that adjustment would be made up or down’. Although, as the Department observes, the facts underlying the case […] that gave rise to the judgment in Hamamatsu Photonics Deutschland are different from the facts of the present case, that assessment was based on the general principles of interpretation of law set out in paragraphs 24 to 33 of that judgment, which leads to the conclusion that, also in the present case, the ‘transaction value’ method could not have been applied to the Company at the time of lodging the declarations at issue (the original declarations)…”;
  • “…it should be noted that Article 176[(1)](c) of the Union Customs Code entrusts the European Commission with the task of laying down the procedure for amending a customs declaration after the release of the goods in accordance with Article 173(3). However, the Implementing Regulation, which, as follows from recital 39 thereof, was adopted, inter alia, for the purpose of specifying ‘… the situations in which a customs declaration can be amended after the release of the goods …’, does not provide for the amendment of the declaration in a situation such as that in the present case, namely where changes made to supply contracts after the lodging of the declaration result in the price actually payable for the goods becoming apparent. On the contrary, by way of example, Article 130(3) of the Implementing Regulation explicitly prohibits the taking into account of discounts arising from amendments to the contract subsequent to the time of acceptance of the customs declaration….”.

Finally, the topics which will run in the ruling will play an important role in the management of the AEO (with its high level of compliance with the pillars of customs obligation).