INTERNATIONAL TAX PLAZA - CJEU judges in Case C-173/15, GE Healthcare (Determination of the customs value – Royalties or licence fees in respect of the goods being valued)

Details: Published: 09 March 2017

On March 9, 2017 the Court of Justice of the European Union (CJEU) judged in Case C-173/15, GE Healthcare GmbH versus Hauptzollamt Düsseldorf (ECLI:EU:C:2017:195).

This request for a preliminary ruling concerns the interpretation of Article 32(1)(c) and 32(5)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (‘the Customs Code’), and of Articles 158(3) and 160 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1875/2006 of 18 December 2006 (‘Regulation No 2454/93’).

The request has been made in proceedings between GE Healthcare GmbH and the Hauptzollamt Düsseldorf (Principal Customs Office, Düsseldorf, Germany; ‘the Customs Office’) concerning the taking into account of royalties and licence fees for the determination of the customs value of goods imported from third countries with a view to their release for free circulation within the European Union.

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

· GE Medical Systems Deutschland GmbH & Co. KG (‘GE Germany’) concluded a standard-form licence agreement with Monogram Licensing International Inc. (‘M’), both undertakings belonging to the General Electrics group (‘the GE Group’).

· Under Article II A of that agreement, M grants to GE Germany, subject to a royalty and strict adherence to the quality standards established by the parties, a non-exclusive licence to use the GE Group trade mark (‘the GE trade mark’) for goods and services manufactured, sold and supplied by GE Germany. In addition, M granted GE Germany a royalty-free, non-exclusive licence to use the GE trade mark as it thought fit for the sale of the goods to other subsidiaries belonging to the GE Group, their use for test purposes or as samples, or for scrap. GE Germany was also permitted, without royalties, to make use of products under the trade mark in its commercial dealings with another undertaking, also belonging to the GE Group, which had also been allowed to use the GE trade mark under similar conditions to those set out in the licence agreement between M and GE Germany.

· In order to ensure strict adherence to the quality standards established by the parties regarding the goods and services manufactured, sold and supplied by GE Germany, M had extensive powers of supervision and could, if quality standards were not met, terminate the agreement at short notice. The date on which royalties were due under Article II A of the licence agreement was set at 31 December of each calendar year. For the use of the GE trade mark, the royalties amounted to 0.95% of GE Germany’s annual turnover and to 0.05% of GE Germany’s annual turnover for the use of the trade name of the GE Group.

· In a customs inspection covering the period from 1 October 2007 to 31 December 2009, the Customs Office found in a report of 8 September 2010, in particular, that GE Germany had acquired goods originating in third countries from undertakings belonging to the GE Group but had, wrongly according to that office, not declared the corresponding royalties in the customs value declarations for those goods. Consequently, on 30 September 2010, the Customs Office issued a notice of assessment for import duties in the amount of EUR 14 985.09.

· After having paid those duties, GE Germany applied on 21 July 2011 to have them refunded under Article 236 of the Customs Code on the ground that, in its view, the royalties owed under the licence agreement should not have been added to the customs value of the goods at issue under Article 32 of the Customs Code.

· By decision of 9 March 2015, the Customs Office turned down GE Germany’s application for a refund on the ground that the customs values used as a basis were correct.

· Meanwhile, on 31 August 2011, GE Healthcare had become the universal successor of GE Germany.

· On 11 March 2015, GE Healthcare brought an action before the referring court against the decision of the Customs Office of 9 March 2015. That court, minded to apply Article 32(1)(c) of the Customs Code in the case brought before it, is unsure as to the precise scope of that provision.

· In those circumstances, the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Can royalties or licence fees within the meaning of Article 32(1)(c) of [the Customs Code] be included in the customs value even if it is not established, either at the time at which the contract was concluded or at the relevant date as regards the incurring of the customs debt (the latter date being determined in the event of any dispute in accordance with Articles 201(2) and 214(1) of the [Customs] Code), that royalties or licence fees were owed?

2. If the reply to Question 1 is in the affirmative: can royalties or licence fees for trade marks within the meaning of Article 32(1)(c) of the [Customs] Code relate to the imported goods notwithstanding the fact that those royalties or licence fees are also paid for services and for the use of the first part of the name of the common group of undertakings?

3. If the reply to Question 2 is in the affirmative: can royalties or licence fees for trade marks within the meaning of Article 32(1)(c) of the [Customs] Code be a condition of the sale for export to the Community of the imported goods within the meaning of Article 32(5)(b) of the [Customs] Code even if they are payable, and paid, to an undertaking related to the seller and to the buyer?

4. If the reply to Question 3 is in the affirmative and the royalties or licence fees relate, as here, partly to the imported goods and partly to post-importation services: does it follow from the appropriate apportionment made only on the basis of objective and quantifiable data, in accordance with Article 158(3) of ... [Regulation No 2454/93] and the interpretative note on Article 32(2) of the [Customs] Code in Annex 23 to ... Regulation [No 2454/93], that only a customs value in accordance with Article 29 of the [Customs] Code may be corrected, or, if a customs value cannot be determined in accordance with Article 29 of the [Customs] Code, is the apportionment laid down in Article 158(3) of ... Regulation [No 2454/93] also possible, in so far as those costs would not otherwise be taken into account, when determining a customs value to be established in accordance with Article 31 of the [Customs] Code?’

Judgment

The CJEU ruled as follows:

1. Article 32(1)(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as, first, not requiring the amount of royalties or licence fees to be determined at the time when a licence agreement was concluded or when the customs debt was incurred in order for those royalties or licence fees to be regarded as related to the goods being valued and, second, allowing such royalties or licence fees to be ‘related to the goods being valued’ even if those royalties or licence fees relate only partly to those goods.

2. Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Article 160 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1875/2006 of 18 December 2006, must be interpreted as meaning that royalties or licence fees are a ‘condition of sale’ of the goods being valued where, within a single group of undertakings, those royalties or licence fees are required to be paid by an undertaking related to both the seller and the buyer and were paid to that same undertaking.

3. Article 32(1)(c) of Regulation No 2913/92, as amended by Regulation No 1791/2006, and Article 158(3) of Regulation No 2454/93, as amended by Regulation No 1875/2006, must be interpreted as meaning that the adjustment and apportionment measures, referred to in those provisions respectively, may be applied where the customs value of the goods at issue has been determined, not on the basis of Article 29 of Regulation No 2913/92, as amended, but on the basis of the alternative method laid down in Article 31 of that regulation.

From the considerations of the Court

Preliminary observations

· At the outset, it should be borne in mind that, according to settled case-law of the Court, 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 imported goods and therefore take into account all of the elements of such goods that have economic value (see, to that effect, judgments of 16 November 2006, Compaq Computer International Corporation, C‑306/04, EU:C:2006:716, paragraph 30, and of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraphs 23 and 26).

· In particular, by virtue of Article 29 of the Customs Code, the customs value of imported goods is, in principle, the transaction value, that is to say, the price actually paid or payable for the goods when they are sold for export to the customs territory of the European Union, adjusted, where necessary, in accordance with Article 32 of that code (see, to that effect, judgment of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraphs 38, 44 and 50, and of 21 January 2016, Stretinskis, C‑430/14, EU:C:2016:43, paragraph 15).

· Article 32 of the Customs Code sets out the elements which must be added to the price actually paid or payable for the imported goods in order to determine their customs value. Thus, according to Article 32(1)(c) of the Customs Code, royalties and licence fees related to the goods being valued that the buyer must pay, either directly or indirectly, as a condition of sale of the goods being valued, to the extent that such royalties and licence fees are not included in the price actually paid or payable, must be added to the price actually paid or payable.

· Under Article 157(1) of Regulation No 2454/93, ‘royalties and licence fees’ for the purposes of Article 32(1)(c) of the Customs Code are to be taken to mean, in particular, payment for the use of rights relating ‘to the sale for exportation of imported goods (in particular, trade marks, registered designs)’ or ‘to the use or resale of imported goods (in particular, copyright, manufacturing processes inseparably embodied in the imported goods)’.

· Article 157(2) of Regulation No 2454/93 specifies, for its part, that royalties or licence fees must to be added to the price actually paid or payable where that payment is related to the goods being valued and constitutes a condition of sale of those goods.

· Thus, the adjustment laid down in Article 32(1)(c) of the Customs Code is to be applied where three cumulative conditions are satisfied, namely that, first, the royalties or licence fees have not been included in the price actually paid or payable, second, they are related to the goods being valued and, third, the buyer is required to pay those royalties or licence fees as a condition of sale of the goods being valued.

· In the present case, as regards the first condition, it is undisputed, according to the order for reference, that, pursuant to the requirements of the licence agreement at issue in the main proceedings, GE Healthcare did not include the royalties or licence fees for the use of the GE trade mark in the customs value of the goods being valued.

The first and second questions

· By its first and second questions, which it is appropriate to consider together in so far as they concern the second condition set out in paragraph 35 above, the referring court asks, in essence, whether Article 32(1)(c) of the Customs Code must be interpreted as meaning that royalties or licence fees are ‘related to the goods being valued’ where, first, the royalties or licence fees cannot be determined at the time when the agreement was concluded or when the customs debt was incurred and, second, those royalties or licence fees relate only partly to the goods being valued.

· In order to answer that question, it must, in the first place, be examined whether royalties or licence fees are, within the meaning of Article 32(1)(c) of the Customs Code, ‘related to the goods being valued’ even if the amount of those royalties or licence fees could not be determined at the time when the licence agreement was concluded or when the customs debt was incurred.

· In that regard, according to the order for reference, the licence agreement at issue in the main proceedings provided for the obligation, on the part of GE Germany, to pay the royalties and licence fees for the use of the GE trade mark for goods which it imported, save for certain goods capable of being used, under that trade mark, without payment of royalties, such as goods sold to other subsidiaries belonging to the GE Group, those used for test purposes, as samples, or for scrap.

· Accordingly, and as the Advocate General stated in point 29 of his Opinion, such royalties or licence fees indeed relate to the goods being valued, even if their precise amount has not been determined at the time when the licence agreement was concluded or at a later stage, when the customs declaration was accepted or the customs debt incurred.

· Article 32(1)(c) of the Customs Code does not provide for any condition as regards, in particular, whether the exact amount of the royalties or licence fees to be paid must be determined when the customs debt was incurred.

· By contrast, Article 156a(1) of Regulation No 2454/93 provides that the customs authorities may, at the request of the person concerned and by derogation from Article 32(2) of the Customs Code, authorise certain elements required to be added to the price actually paid or payable but not quantifiable at the time when the customs debt is incurred to be determined on the basis of appropriate and specific criteria.

· In addition, Article 254 of Regulation No 2454/93 provides for the possibility on the part of the declarant, if accepted by the customs authorities, to submit an incomplete declaration for release for free circulation, which, under Article 257(3) of that regulation, may give a provisional indication of the customs value of the goods intended to be imported, capable of being added to subsequently pursuant to Articles 256, 257 and 259 of that regulation.

· Furthermore, paragraph 14 of Commentary No 3 (customs valuation section) on the incidence of royalties and licence fees in customs value, drawn up by the Customs Code Committee referred to in Article 247a of that code (‘the Customs Code Committee’), reads as follows:

‘In general royalties and licence fees are calculated after importation of the goods to be valued. In such cases final valuation may be delayed with reference to Article 257(3) of the [Customs Code]. A general adjustment may be determined based on results over a representative period and updated regularly. This is a matter for agreement between importers and customs authorities.’

· The conclusions of the Customs Code Committee, although they do not have legally binding force, nevertheless constitute an important means of ensuring the uniform application of the Customs Code by the customs authorities of the Member States and as such may be regarded as a valid aid to the interpretation of the Code (judgment of 6 February 2014, Humeau Beaupréau, C‑2/13, EU:C:2014:48, paragraph 51 and the case-law cited).

· Article 32(1)(c) of the Customs Code does not therefore require the amount of royalties or licence fees to be determined at the time when the agreement was concluded or when the customs debt is incurred in order for that amount to be regarded as related to the goods being valued.

· In the second place, it must be examined whether royalties or licence fees may be regarded as related to the goods being valued although they are related only partly. In the present case, the royalties or licence fees have also been paid for services provided after importation of the goods at issue in the main proceedings and for the use of the trade name of the group to which the declarant belonged.

· In that regard, the second paragraph of Article 161 of Regulation No 2454/93 provides that where the amount of a royalty or licence fee is calculated regardless of the price of the imported goods, the payment of that royalty or licence fee may nevertheless be related to the goods to be valued.

· According to the order for reference, the amount of the royalties or licence fees depends in the present case on a percentage of the turnover generated by the sale to third parties of the imported goods under the licence agreement. It follows that the payment of those royalties or fees ‘[is] related’ to the goods being valued within the meaning of the second paragraph of Article 161 of Regulation No 2454/93.

· That finding cannot be brought into question by the fact that, according to that order for reference, the royalties and licence fees also relate to services provided after the goods were imported by GE Germany and to the use of the trade name of the GE Group by that undertaking.

· Article 158(3) of Regulation No 2454/93 provides that if royalties or licence fees relate partly to the imported goods and partly to other ingredients or component parts added to the goods after their importation, or to post-importation activities or services, an appropriate apportionment is to be made only on the basis of objective and quantifiable data, in accordance with the interpretative note on Article 32(2) of the Customs Code set out in Annex 23 to Regulation No 2454/93.

· Thus, Article 158(3) of Regulation No 2454/93 explicitly provides that royalties or licence fees to be paid may be regarded as being related partly to the goods and partly to services supplied after their importation in such a way that the adjustment provided for in Article 32(1)(c) of the Customs Code will be applicable, even if those royalties or licence fees would relate only partly to the goods imported, such an adjustment thereby needing to be made on the basis of objective and quantifiable data capable of estimating the amount of the royalties or licence fees related to those goods.

· It follows that, under Article 32(1)(c) of the Customs Code, royalties or licence fees may be ‘related to the goods being valued’, within the meaning of that provision, even if the royalties or licence fees relate only partly to those goods.

· Having regard to the foregoing considerations, the answer to the first and second questions is that Article 32(1)(c) of the Customs Code must be interpreted as, first, not requiring the amount of royalties or licence fees to be determined at the time when a licence agreement was concluded or when the customs debt was incurred in order for those royalties or licence fees to be regarded as related to the goods being valued and, second, allowing such royalties or licence fees to be ‘related to the goods being valued’ even if those royalties or licence fees relate only partly to those goods.

The third question

· By its third question, which concerns the third condition set out in paragraph 35 above, the referring court asks, in essence, whether Article 32(1)(c) of the Customs Code and Article 160 of Regulation No 2454/93 must be interpreted as meaning that royalties or licence fees are a ‘condition of sale’ of the goods being valued where, within a single group of undertakings, those royalties or licence fees are required to be paid by an undertaking related to both the seller and the buyer and were paid to that same undertaking.

· It should be borne in mind that Article 157(2) of Regulation No 2454/93, which lays down the conditions for the application of Article 32(1)(c) of the Customs Code, provides that royalties or licence fees must be added to the price actually paid or payable where that payment is, first, related to the goods being valued and, second, constitutes a condition of sale of those goods.

· However, neither Article 32(1)(c) of the Customs Code nor Article 157(2) of Regulation No 2454/93 specifies what is meant by ‘condition of sale’ of the goods being valued.

· In that regard, the Customs Code Committee has taken the view, in paragraph 12 of Commentary No 3 (Customs Valuation Section) on the incidence of royalties and licence fees in customs value that ‘the question to be answered in this context is whether the seller would be prepared to sell the goods without the payment of a royalty or licence fee. The condition may be explicit or implicit. In the majority of cases it will be specified in the licence agreement whether the sale of the imported goods is conditional upon payment of a royalty or licence fee. It is not, however, essential that it should be so stipulated.’

· Regard should be had to the guidelines provided by that commentary, as stated in paragraph 45 above.

· In those circumstances, the Court considers, as the Advocate General stated in point 51 of his Opinion, that the payment of a royalty or of a licence fee is a ‘condition of sale’ of the goods being valued where, in the course of the contractual relations between the buyer, or the person related to him, and the seller, the payment of the royalty or of the licence fee is so important to the seller that, without such payment, the seller would not have concluded the sales contract, this being a matter to be determined by the referring court.

· As regards the case in the main proceedings, according to the order for reference, the licensor, M, which was related to both the seller and the buyer, was the recipient of the royalties or licence fees relating to the goods sold. That recipient was therefore, in the present case, the same undertaking as that which required the buyer of those goods to pay the related royalties or licence fees, the three undertakings forming part of the same group, the GE Group, and being controlled, directly or indirectly, by the parent company of that group.

· In that connection, Article 160 of Regulation No 2454/93 provides that, when the buyer pays royalties or licence fees to a third party, the conditions provided for in Article 157(2) of the regulation are not to be considered as met unless the seller or a person related to him requires the buyer to make that payment.

· As a result, the referring court is uncertain whether the condition laid down in Article 160 of Regulation No 2454/93 is satisfied in a situation where the ‘third party’ to whom the royalty or licence fee is payable and the ‘person related’ to the seller are the same person.

· In that regard, GE Healthcare claims that, in the German-language version, Article 160 of Regulation No 2454/93 provides that the person requiring payment of the royalty or licence fee and the third party to whom the royalty or licence fee is payable cannot be identical.

· However, according to settled case-law of the Court, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement that EU law be applied uniformly. Where there is a divergence between the various language versions, the provision in question must thus be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (judgment of 15 November 2011, Kurcums Metal, C‑558/11, EU:C:2012:721, paragraph 48 and the case-law cited).

· As the Advocate General stated in point 63 of his Opinion, none of the other language versions of Article 160 of Regulation No 2454/93 contain a second reference to the ‘third party’ to whom royalties or licence fees are payable.

· Furthermore, as the Advocate General also stated in point 65 of his Opinion, it cannot be concluded from the fact that a person related to the seller is not classified as a ‘third party’ within the meaning of Article 160 of Regulation No 2454/93 that the payment of royalties or licence fees is not a ‘condition of sale’ of the goods being valued within the meaning of Article 32(1)(c) of the Customs Code.

· On the contrary, it is necessary to ascertain whether the person related to the seller has any control over the seller or the buyer such as to enable him to ensure that imports of the goods to which his licence fee relates are subject to the payment to him of the royalty or licence fee for those goods.

· It is for the national court to ascertain whether that is the position in the main proceedings.

· In addition, paragraph 13 of Commentary No 3 (Customs Valuation Section) on the incidence of royalties and licence fees in customs value, drawn up by the Customs Code Committee, states that ‘when goods are purchased from one person and a royalty or licence fee is paid to another person, the payment may nevertheless be regarded as a condition of sale of the goods ... The seller, or a person related to him, may be regarded as requiring the buyer to make that payment when, for example, in a multinational group goods are bought from one member of the group and the royalty is required to be paid to another member of the same group. Likewise, the same would apply when the seller is a licensee of the recipient of the royalty and the latter controls the conditions of the sale’.

· Having regard to the foregoing, the answer to the third question is that Article 32(1)(c) of the Customs Code and Article 160 of Regulation No 2454/93 must be interpreted as meaning that royalties or licence fees are a ‘condition of sale’ of the goods being valued where, within a single group of undertakings, those royalties or licence fees are required to be paid by an undertaking related to both the seller and the buyer and were paid to that same undertaking.

The fourth question

· By its fourth question, the referring court asks, in essence, whether Article 32(1)(c) of the Customs Code and Article 158(3) of Regulation No 2454/93 must be interpreted as meaning that the adjustment and apportionment measures, referred to in those provisions respectively, may be applied where the customs value of the goods at issue has been determined, not on the basis of Article 29 of the Customs Code, but on the basis of the alternative method laid down in Article 31 of that code.

· It is clear from the case file before the Court that, in regard to several tax years before the 2009 tax year, the Principal Customs Office, Düsseldorf, did not receive the data necessary to enable it to apply the adjustment, under Article 32(1)(c) of the Customs Code, of the transaction value calculated according to the method provided for in Article 29 of that code. Consequently, the method for determining the customs value referred to in Article 31 of the Customs Code was used, since the methods laid down in Articles 29 and 30 thereof were not, a priori, applicable.

· In so far as Article 32(1)(c) of the Customs Code provides that an adjustment may be applied in order to determine the customs value solely under Article 29 thereof, the question arises as to whether that adjustment, and in particular the apportionment provided for in Article 158(3) of Regulation No 2454/93, may also be applied where the customs value of the goods imported has been determined according to the method provided for in Article 31 of that code.

· It should be borne in mind that, where the customs value cannot be determined by the transaction value of the goods being valued in accordance with Article 29 of the Customs Code, the customs valuation is to be carried out in accordance with the provisions of Article 30 of that code by applying sequentially the methods laid down in subparagraphs (a) to (d) of paragraph 2 of that article (judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 27 and the case-law cited).

· If it is no longer possible to determine the customs value of the imported goods on the basis of Article 30 of the Customs Code, the customs valuation is to be carried out in accordance with the provisions under Article 31 of that code (judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 28 and the case-law cited).

· Consequently, it is clear, both from the wording of Articles 29 to 31 of the Customs Code and from the order in which the criteria for determining the customs value must be applied pursuant to those articles, that those provisions are subordinately linked to each other. Thus, when the customs value cannot be determined by applying a given provision, only then is it appropriate to refer to the provision which comes immediately after it in the established order (judgment of 16 June 2016, EURO 2004. Hungary, C‑291/15, EU:C:2016:455, paragraph 29 and the case-law cited).

· Article 31(1) of the Customs Code provides that the customs value of imported goods is to be determined on the basis of data available in the European Union, using reasonable means consistent with the principles and general provisions of the international agreements and the provisions of Chapter 3 thereof which it sets out.

· In that regard, as the Advocate General stated in point 86 of his Opinion, the reference in Article 31(1) of the Customs Code to Chapter 3 thereof means that the general provisions of that chapter, of which Article 32 of the code forms part, also apply where the customs value of imported goods is determined in accordance with Article 31(1) of the code.

· As stated in paragraph 30 above, the objective of EU law on the valuation of goods for customs purposes is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. In accordance with point 2 of the interpretative note on customs value concerning Article 31(1) of the Customs Code, set out in Annex 23 to Regulation No 2454/93, the methods of valuation to be used under Article 31(1) should be those laid down in Articles 29 and 30(2) of the Code but a ‘reasonable flexibility’ in the application of those methods would be in conformity with the objectives and provisions of Article 31(1) of the Code (see, to that effect, judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 60).

· Having regard to the need to establish a customs value if an undertaking fails to provide full information relating to the relevant tax years and to the ‘reasonable flexibility’ mentioned in point 2 of the interpretative note, it must be accepted that taking into account data relating to other tax years of the undertaking may constitute data available in the European Union which Article 31(1) of the Customs Code allows to be used as a basis for determining customs value. Reference to such data constitutes a means of determining a customs value which is both ‘reasonable’ within the meaning of Article 31(1) and consistent with the principles and general provisions of the international agreements and the provisions referred to in Article 31(1) (see, by analogy, judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 61).

· As regards Article 158(3) of Regulation No 2454/93, this provides that if royalties or licence fees relate partly to the imported goods and partly to other ingredients or component parts added to the goods after their importation, or to post-importation activities or services, an appropriate apportionment ‘shall to be made only on the basis of objective and quantifiable data’, in accordance with the interpretative note on Article 32(2) of the Customs Code in Annex 23 to Regulation No 2454/93.

· It follows from paragraph 81 above, and from point 91 of the Advocate General’s Opinion, that data relating to other tax years of the undertaking in question may be regarded as ‘objective and quantifiable’ within the meaning of Article 158(3) of Regulation No 2454/93 and, accordingly, that the apportionment provided for in that article may be applicable.

· Furthermore, as the Commission and the German Government submit, to hold otherwise could give rise to undue advantages for importers who refused to provide full information, thereby preventing proper determination of the customs value of the imported goods.

· Having regard to the foregoing, the answer to the fourth question is that Article 32(1)(c) of the Customs Code and Article 158(3) of Regulation No 2454/93 must be interpreted as meaning that the adjustment and apportionment measures, referred to in those provisions respectively, may be applied where the customs value of the goods at issue has been determined, not on the basis of Article 29 of the Customs Code, but on the basis of the alternative method laid down in Article 31 of that code.

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