ECJ C-72/24 (Keladis I) – Questions – Use of threshold values/fair prices to determine the customs value of imported goods

• The appellant is the owner of a clothing undertaking who, in the course of his commercial activity, purchased clothing imported from Turkey by a clothing importer.
• In 2014, the clothing importer in question had established, as sole proprietor, a wholesale clothing undertaking with its headquarters in Thessaloniki. By the end of 2016, the undertaking had lodged hundreds of import declarations with a declared value of goods of around EUR 6 000 000. In 2016, the undertaking was subject to an audit by the customs authority following a complaint concerning the undervaluation of imported goods.
• The audit revealed irregularities in the operation of the undertaking and the  imports made by it. It was found, inter alia, that the alleged importer was an employee of another clothing retailer. Furthermore, the goods on which physical checks were conducted were found to correspond, in terms of quantity, to the figures given in each import declaration, but varied in quality, composition, size and design, as well as in value, from the declarations made. The value declared did not correspond to the import invoices attached to the declarations, the declared values being, according to the inspectors, manifestly lower than the actual values.
• Following the control, the customs authority concluded that the undertaking was owned by the importer in name only, whereas the real operator was the aforementioned clothing trader. According to the inspection authorities, the smuggling ring operated as follows: economic operators interested in importing clothing from Turkey initially went to that country and made contacts with suppliers, whom they paid in cash. The agreement stipulated that the goods would not be exported directly by the seller, but would be delivered to a transport company which would undertake the transport to Greece. The goods were packaged in such a way as to mislead the Greek customs authorities as to their quality and value. For the customs clearance of the goods, another Turkish company issued an invoice with inaccurate values (constituting an undervaluation); the invoice included all the goods and listed the undertaking as the purchaser. The goods were described in general terms in the invoice in question, but the values shown were much lower than the prices actually paid by the Greek economic operators to the real Turkish suppliers.
• After customs clearance, the goods were transported by another transport company to the actual purchasers throughout Greece. The fee for the transport from Turkey was paid by the final consignees in cash without a tax invoice being issued, while the VAT corresponding to the invoice issued by the undertaking was also paid in cash. The values indicated on the invoices for domestic sales were slightly higher than those declared on importation, while the quantities indicated on the majority of the invoices were inaccurate, since the majority of the consignees did not want the invoices to reflect the actual quantity received.
• The Thessaloniki customs office determined that the total amount of tax and other charges evaded by almost all of the undertaking’s imports was EUR 6 211 300.19.
• In particular, it was found that in 2014 the appellant knowingly ordered, purchased, imported and received, together with the other main partners in the importer’s undertaking, goods that had been undervalued, imported under nine declarations to which invoices containing inaccurate values for the goods had been attached . The appellant admitted that he had conducted the relevant transactions with the importer’s undertaking, but denied that the goods had been undervalued and disputed the way in which the customs value of the goods had been calculated.
• However, the customs authority took the view that all those involved as described above in the smuggling ring and the appellant, as the final consignee and purchaser of the goods, engaged, in concert, in intentionally carrying out the constituent elements of the offence of smuggling, consisting in undervaluing the goods on importation and in the possession of those goods which were released for consumption.
• That led to the adoption of the notices of assessment contested by the appellant. Each notice stated that both the appellant, as the final consignee of the goods in each declaration and the actual importer, as well as the persons associated with the undertaking’s activities, were guilty of the offence of smuggling. It was considered that they had acted in concert and colluded to deprive the Greek State of the tax charges levied on the goods imported from abroad, thereby evading payment of the relevant VAT and obtaining the corresponding direct financial benefit.
• On the basis of the foregoing, the value of the goods imported under each declaration was reassessed and the amount of VAT evaded per importer and per declaration was calculated and charged jointly and severally to all the co–authors of the offence. In addition, a penalty consisting in increased taxes amounting to three times the amount of VAT evaded was imposed.
• On appeal, the appellant was acquitted of the smuggling offence by a final judgment in 2021.

Questions

• 1. Are the statistical values referred to as ‘threshold values’/‘fair prices’, which are based on Eurostat’s Comext statistical database and are derived from  OLAF’s information system (Anti–Fraud Information System, ‘AFIS’), of which the Automated Monitoring Tool (‘AMT’) is an application, available to the national customs authorities through their respective electronic systems? Do they meet the requirement of accessibility for all economic operators, as referred to in the judgment of 9 June 2022, Fawkes Kft., C–187/21? Do they contain solely aggregated data, as defined in Regulations Nos 471/2009 and 113/2010 on Community statistics relating to external trade with non–Member States, as in force at the relevant time?
  
• 2. In the context of ex post controls in which it is not possible to physically check the imported goods, may those statistical values in the Comext database, if regarded as generally accessible and as not containing aggregated data only, be used by the national customs authorities solely in order to substantiate their reasonable doubts as to whether the value declared in the declarations represents the transaction value, that is to say, the amount actually paid or payable for those goods, or may they also be used to determine the customs value of the goods, in accordance with the alternative method referred to in Article 30(2)(c) of the Community Customs Code (Regulation No 2913/[92]) [corresponding to Article 7[4](2)(c) of the Union Customs Code (Regulation No 952/2013); ‘deductive method’] or possibly another alternative method? How does the fact that it cannot be established that identical or similar goods are involved in transactions at the relevant time, as defined in Article 152(1) of Regulation (EEC) No 2454/93 (the implementing regulation), affect the answer to that question? 
• 3. In any event, is the use of those statistical values to determine the customs value of certain imported goods, which is equivalent to the application of minimum values, consistent with the obligations arising under the World Trade Organization (WTO) International Agreement on the Determination of Customs Valuation, otherwise known as the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, to which the European Union is a party, in view of the fact that that agreement expressly prohibits the use of minimum values?
• 4. In relation to the previous question, is the reservation in favour of the principles and general provisions of the aforementioned International Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, laid down in Article 31(1) of the Community Customs Code (Regulation No 2913/[92]) concerning the fall–back method for determining the customs value and, accordingly, the exclusion of the application of minimum values laid down in Article 31(2) [which does not appear in the corresponding provision of Article 74(3) of the Union Customs Code (Regulation No 952/2013)], valid only where that method is applied or does it govern all the alternative methods for determining customs value?
• 5. Where it is established that simplification through the grouping of headings, within the meaning of Article 81 of the Community Customs Code (Regulation No 2913/92) [now Article 177 of the Union Customs Code (Regulation No 952/2013)], was used on importation, is it possible to apply the alternative method set out in Article 30(2)(c) of the Community Customs Code (Regulation No 2913/1992) [corresponding to Article 70(2)(c) [Article 70(2)] of the Union Customs Code (Regulation No 952/2013)], irrespective of the disparity between the goods declared under the same TARIC code in the same declaration and the value fictitiously established as a result for those goods not belonging to that tariff classification code?
• 6. Finally, irrespective of the preceding questions, are the provisions in the Greek legislation concerning the determination of the persons liable for payment of import VAT sufficiently clear, pursuant to the requirements of EU law, in so far as they designate the ‘deemed owner of the imported goods’ as the person liable?