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

Provisional text

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 26 March 2019(1)

Case C‑249/18

Staatssecretaris van Financiën

joined party:

CEVA Freight Holland BV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court, Netherlands))

(Reference for a preliminary ruling — Customs Union — Community Customs Code — Article 78 — Post clearance examination of declarations — Customs duties imposed on imported goods following review by customs authorities — Amendment by declarant of value of goods entered in customs declaration — Article 221 determination of expiry of limitation period)

1.        This reference for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court, Netherlands) concerns the interpretation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (2) which sets the legal framework for customs rules and procedures in the EU customs territory. It arises out of a dispute between CEVA Freight Holland BV (‘CEVA Freight’) and the Netherlands customs authorities regarding requests to recover customs duties following a review of CEVA Freight’s customs declarations.

2.        By the first question the referring court seeks guidance on the interpretation of Article 78 of the Customs Code which deals with post-clearance examination of customs declarations. The second question concerns the interpretation of Article 221 of the Customs Code and whether the determination of when the three-year time limit laid down therein expires is a matter of EU law or national law.

 The Customs Code

3.        The following terms were defined in Article 4:

‘(3) “Customs authorities” means the authorities responsible inter alia for applying customs rules.

…

(9) “Customs debt” means the obligation on a person to pay the amount of the import duties (customs debt on importation) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force.

…

(12) “Debtor” means any person liable for payment of a customs debt.

…

(16) “Customs procedure” means:

(a)      release for free circulation

…

(17) “Customs declaration” means the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure.

(18) “Declarant” means the person making the customs declaration in his own name or the person in whose name a customs declaration is made.

…

(20) “Release of goods” means the act whereby the customs authorities make goods available for the purposes stipulated by the customs procedure under which they are placed.

…’

4.        Title II concerned the factors on the basis of which measures prescribed in respect of goods, such as import duties, were imposed. Article 20 provided that duties legally owed where a customs debt was incurred were to be based on the EU customs tariff. Article 28 stated that the provisions of Chapter 3 determined the customs value for the purposes of applying, inter alia, the EU customs tariff. Within that chapter, Article 29 provided that the ‘customs value of imported goods shall be the transaction value’, that was, ‘the price actually paid or payable for the goods when sold for export to the [EU] customs territory’, subject to necessary adjustments. (3)

5.        In accordance with the normal customs procedure, Article 62 stated that declarations were to be made on a form in writing. Declarations had to be signed and contain the information necessary to implement the customs procedure for which the goods concerned were declared.

6.        Pursuant to Article 65, the declarant could amend the declaration after it had been accepted by the customs authorities, provided that the declarant did not request authorisation to amend after the customs authorities had taken measures, such as releasing the goods in question. (4)

7.        Article 78 stated:

‘(1) The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.

(2) The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced.

(3) Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’ (5)

8.        Article 79 provided that release for free circulation conferred on non-EU goods the same status as EU goods.

9.        Pursuant to Article 221:

‘(1) As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

(2) Where the amount of duty payable has been entered, for guidance, in the customs declaration, the customs authorities may specify that it shall not be communicated in accordance with paragraph 1 unless the amount of duty indicated does not correspond to the amount determined by the authorities.

Without prejudice to the application of the second subparagraph of Article 218(1), where use is made of the possibility provided for in the preceding subparagraph, release of the goods by the customs authorities shall be equivalent to communication to the debtor of the amount of duty entered in the accounts.

(3) Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.’ (6)

 Commission Regulation (EEC) No 2454/93

10.      Article 147 of Regulation No 2454/93 (7) provided:

‘(1)      For the purposes of Article 29 of the Code, the fact that the goods which are the subject of a sale are declared for free circulation shall be regarded as adequate indication that they were sold for export to the customs territory of the Community. This indication shall also apply in the case of successive sales before valuation; in such case each price resulting from these sales may, subject to the provisions of Articles 178 to 181, be taken as a basis for valuation.

…’ (8)

 Facts, procedure and questions referred

11.      CEVA Freight is a customs agent and, as such, it makes declarations in its own name and on its own account for release for free circulation. In the period from 1 March to 31 October 2010 it made numerous declarations for release for free circulation in respect of various models of media player (‘the declarations at issue’). CEVA Freight classified those goods under two customs headings (8471 70 50 and 8517 62 00) which both gave rise to a corresponding duty rate of 0% in relation to the goods concerned. The customs authorities therefore released the media players without levy of import duties.

12.      In 2011 the customs authorities reviewed the declarations at issue. As a result of those checks they decided that the media players should be classified under a different customs subheading (8521 90 00), attracting a corresponding rate of duty of 13.9%.

13.      By letter of 22 February 2013, the customs authorities notified CEVA Freight of their intention to recover the unpaid customs duties. For the purposes of post-clearance recovery of duties, the customs authorities based the value of the media players on the prices previously specified by CEVA Freight, which were the prices at which the undertakings concerned sold the players within the European Union. On 27 February 2013, the authorities received a reply from CEVA Freight requesting a reduction in the value of the goods for customs purposes. CEVA Freight argued that the players should be valued on the basis of the lower transaction price which the Asian manufacturer had applied. That request was based on Article 78 of the Customs Code.

14.      By letter dated 28 February 2013, the customs authorities informed CEVA Freight that since the period for repayment of the customs debt (set out in accordance with the letter of 22 February 2013) might become time barred, it was necessary to issue the requests for payment in relation to the declarations at issue. The letter was posted on that day and received by CEVA Freight on 4 March 2013.

15.      CEVA Freight contested the requests for payment and again sought a reduction to the customs value of the goods at issue on the basis of Article 78 of the Customs Code. The customs authorities rejected CEVA Freight’s challenge on the grounds that: (i) when making the declarations, CEVA Freight had made a conscious choice between two prices, both of which could validly be used to determine the value of the goods for customs purposes; (ii) the prices CEVA Freight had specified in the customs declarations were correct; and (iii) Article 78 of the Customs Code does not provide declarants with an opportunity to review and subsequently change information entered in an import declaration unless it is incorrect or incomplete.

16.      The Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands) considered that the price which CEVA Freight had chosen indicating the value of the media players was indissociably linked to the error made in the customs classification of those goods. That choice constituted ‘incorrect information’ for the purposes of Article 78(3) of the Customs Code. The court accordingly ruled that the customs authorities should review the decision as to whether CEVA Freight could amend the customs declarations at issue. That court also ruled that the three year limitation period laid down in Article 221(3) of the Customs Code to communicate the customs debt to CEVA Freight had not expired, because the relevant date, when determining the time at which communication to the debtor took place, was the date on which the customs authorities sent the requests for payment (28 February 2013) rather than the date that those requests were received (4 March 2013). (9)

17.      The customs authorities seek the annulment of the substance of that ruling in the appeal before the referring court, which seeks guidance on the following questions:

‘(1)      Must Article 78 of [the Customs Code] be interpreted as meaning that a declarant, in the context of a subsequent entry in the accounts with reference to the second subparagraph of Article 147(1) of [Implementing Regulation No 2454/93], can choose another, lower transaction price of imported goods with a view to reducing the customs debt?

(2)(a)      Is the determination of the time at which communication to the debtor took place, in the context of the application of [the Customs Code], a question of EU law?

(2)(b)      If Question 2(a) is answered in the affirmative, must Article 221(3) of [the Customs Code] be interpreted as meaning that the communication to the debtor referred to in that provision must have been received within the three-year period after a customs debt was incurred, or is it sufficient that that communication was sent to the debtor within that period?’

18.      Written observations were submitted by CEVA Freight, the Governments of the Netherlands and Spain and the European Commission. The same parties attended the hearing on 14 February 2019 and made oral observations.

 Assessment

 Preliminary remarks

19.      Title III of the Customs Code sets out the three factors relating to goods (tariff classification, origin and value) which form the basis of measures such as import duties. Here, the customs authorities reviewed the tariff classification of the goods at issue on the basis of Article 78(1) of the Customs Code, changing the amount of duties payable from nil to a chargeable rate of customs duty of 13.9%. That reclassification decision is not challenged in the main proceedings.

20.      The sole factor in question is the value to be attributed to the goods at issue.

 Question 1

21.      By Question 1 the referring court seeks to ascertain whether Article 78 of the Customs Code should be interpreted as meaning that where a declarant has entered a price indicating the value of goods imported into the European Union in a customs declaration, he can choose to change that entry by substituting a lower, equally lawful, transaction price for the goods concerned.

22.      CEVA Freight submits that when it first made customs declarations for the goods at issue it considered the value to be unimportant. That was because it took the view that a duty rate of 0% was applicable under the relevant tariff classification. It argues that the referring court’s first question should be reformulated to reflect that factor. It seems to me in the light of the referring court’s explanation of the circumstances of the case in its order for reference that that position is already very clear. I therefore consider that there is no need to reformulate Question 1.

23.      CEVA Freight argues that it should be permitted to amend the customs declaration on the basis of Article 78 of the Customs Code.

24.      The Netherlands and the Commission argue to the contrary. Once goods have been released for circulation, a customs declaration can be amended only if Article 78 of the Customs Code applies. In order to be able to rely on that provision, the declarant must demonstrate that the customs authorities have proceeded on the basis of incorrect or incomplete information. Whether a revision would be favourable to the declarant is not a relevant consideration.

25.      It is settled case-law that the aim of the EU legislation on customs valuation is to introduce a fair, uniform and neutral system excluding the use of arbitrary or fictitious customs values. Thus, the customs value must reflect the real economic value of imported goods and take into account all of the elements of those goods that have economic value. (10)

26.      Article 29 of the Customs Code defined the ‘customs value’ of imported goods as ‘the transaction value’ — that is, the price paid or payable for goods when sold for export to the EU customs territory, adjusted where necessary in accordance with the relevant provisions of the Customs Code. (11) It follows from Article 29(1) that the customs value concerns only goods sold for export to the EU customs territory. It must therefore be agreed at the time of sale that the goods in question, originating in a third country, will be transported into the EU customs territory. (12)

27.      In accordance with Article 147(1) of the Implementing Regulation, in the case of successive sales of goods before valuation for customs purposes the prices relating to sales made after export, but before release into free circulation in the European Union, may be taken into account for the purpose of determining the ‘transaction value’ within the meaning of Article 29(1) of the Customs Code. (13) Accordingly, the importer is able to select from amongst the prices agreed for each of the sales the price to be taken as a basis for determining the customs value of the goods in question, provided that it is possible to furnish to the customs authorities all the necessary documents relating to the price chosen. (14)

28.      Here, it is common ground that the value CEVA Freight entered in its customs declarations which formed the basis of the customs authorities’ revised assessment falls within the definition of the transaction value of goods for the purposes of Article 29 of the Customs Code and Article 147(1) of the Implementing Regulation. It is equally true that the revised lower value which CEVA Freight considers the customs authorities should take into account in order to calculate the duties payable also falls within the definition set out in those provisions. It is also common ground that CEVA Freight was not in doubt as to the interpretation of Article 29 of the Customs Code and Article 147(1) of the Implementing Regulation inasmuch as it was aware that under those provisions it was able to use either the price of the media players on the EU market or the lower Asian price in the customs declarations.

29.      Pursuant to Articles 62 and 76 of the Customs Code, customs declarations must contain all the particulars necessary for implementation of the customs procedure for which the goods are declared. (15) The general position (set out in Article 65(c) of the Customs Code) was that declarants could not amend the particulars in the customs declaration after goods were released for free circulation. That position changed when the 1992 Customs Code came into effect on 1 January 1994. (16) Thereafter, Article 78 allowed the customs authorities on their own initiative or at the request of the declarant to amend the customs declaration after release of the goods. When making a revision under Article 78 the customs authorities can use only the information furnished in or with the customs declaration. (17)

30.      Article 78 of the Customs Code is silent as to whether a declarant can change the value of the goods entered in its customs declarations to a lower transaction price in circumstances such as those at issue in the main proceedings. The novel point of law raised by CEVA Freight’s case concerns the scope of the customs authorities’ discretion to revise customs declarations. Pursuant to Article 78(3), that discretion is to be exercised if upon re-examination (or inspection) it appears that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information, that is to say, that there were material errors or omissions, or errors of interpretation of the applicable law. If so, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them. (18) The aim is to collect the customs duties properly due, not to maximize receipts.

31.      Is the revision sought by CEVA Freight compatible with the aims of EU customs legislation on valuation?

32.      It seems to me that it is.

33.      First, the main proceedings concern the customs authorities’ appeal against the decision of the Gerechtshof Amsterdam (Court of Appeal, Amsterdam). In the judgment under appeal in those proceedings the court found that CEVA Freight’s choice of the price of the media players entered in the customs declarations for the purposes of the customs valuation could not be dissociated from the error made regarding the customs tariff classification of those goods. (19) That suggests to me that the initial error relating to the tariff classification of the goods at issue is linked inseparably to the value which CEVA Freight attributed to the media players. It was acknowledged at the hearing that where a tariff classification generated a resulting duty rate of 0%, the customs value of the imported goods was immaterial. However, where a tariff classification generates liability to pay customs duty at the rate of 13.9%, those factors (price and customs value) became of prime importance. Failure to take account of the change in circumstances following the customs authorities’ revised tariff classification would prevent CEVA Freight from entering a considered rather than an arbitrary value for the goods in question. I therefore consider that the initial tariff classification error and the valuation of the goods at issue form an indivisible whole. To assess each of those steps in isolation would be artificial and contrary to the objective of reflecting the actual situation which the Customs Code seeks to establish as regards valuation. (20)

34.      Second, in my view, allowing proposed revision is fair in as much as it takes account of reality, namely that the applicable tariff classification is indissociably linked to the price CEVA Freight selected and entered into its customs declaration for the goods at issue. Third, the revision does not run counter to the uniformity and neutrality of the system in so far as duties remain payable (merely on a lesser value).

35.      Fourth, the referring court emphasises in its order for reference that the lower price which CEVA Freight sought to substitute for the declared price is verifiable by reference to the relevant documents and therefore cannot be regarded as generating a fictitious customs value.

36.      Fifth, the Court has ruled that Article 78 of the Customs Code does not restrict customs authorities from being able to amend or conduct a post-clearance examination within the meaning of Article 78(1) (or Article 78 (2)), nor does it prevent them from being able to take the measures necessary to regularise the situation as provided for in Article 78(3). (21) Both the very purpose of the Customs Code, ‘as stated inter alia in recital 5 in the preamble thereto, as being to ensure the correct application of the duties provided for therein …, and the specific logic of Article 78 thereof, which is to bring the customs procedure into line with the actual situation by correcting material errors or omissions as well as errors of interpretation of the applicable law …, weigh against an interpretation of that article which would preclude generally the customs authorities from amending or conducting other post-clearance examinations of customs declarations in order to regularise the situation’. (22) Furthermore, in accordance with settled case-law the customs authorities enjoy broad discretion in amending or conducting post-clearance examinations inter alia with a view to achieving those objectives. (23) Therefore, Article 78(3) of the Customs Code should be interpreted as meaning that, within the framework of the obligations it imposes on the customs authorities, as a rule it allows those authorities to revise or conduct a post-clearance examination of a customs declaration and to regularise the situation by fixing a new customs debt. (24)

37.      In my view, it follows from that case-law that customs authorities enjoy a wide margin of discretion regarding the review of declarations after release of the goods concerned. As the initial tariff classification error and the value which CEVA Freight attributed to the media players are linked inseparably, I consider that the mistake identified falls within the expression ‘incorrect or incomplete information’ in Article 78(3) of the Customs Code. Those words have been interpreted as covering technical errors or omissions and errors of interpretation of the applicable law. (25) The initial mistake in tariff classification can be assimilated to a technical error.

38.      Last, the Commission has expressed concerns that Article 78 of the Customs Code is not intended to allow declarants a facility to request revision in order to choose to submit information which places them in a more favourable position. I can see that such concerns might be legitimate if declarants were considered to have such a general and wide choice.

39.      However, the circumstances of CEVA Freight’s case are more nuanced than simply seeking to choose a more favourable value for its customs declaration.

40.      In that respect the referring court seeks clarification of the Court’s ruling in Overland Footwear. (26) On the one hand, that judgment indicates that no revision under Article 78 of the Customs Code is possible unless there are technical errors or omissions and errors of interpretation of the applicable law. On the other hand, this Court noted that errors consisting of an involuntary omission cannot be regarded as exercising a choice, which is by definition voluntary. The referring court expresses the view that the expression ‘involuntary omissions’ should be construed broadly and could thus be understood to cover a situation such as CEVA Freight’s in the main proceedings.

41.      In that case the undertaking (Overland) bought products (mainly shoes) manufactured outside the European Union and then imported and distributed them in the territory of the Member States. In the course of its activities Overland used the services of a buying agent in the Far East to which it paid a buying commission. That commission was paid to the manufacturer which passed it to the agent. Overland initially included the buying agent’s commission (which was not shown separately) on the import declarations. Import duties were accordingly calculated and paid on the commission. Subsequently, with the agreement of the customs authorities, Overland showed the buying commission and the selling price of the goods separately on the customs declarations. From that point onwards the customs authorities did not levy import duties on the amount shown as the buying commission. Overland then sought to revise the earlier customs declarations and obtain a proportionate repayment of the duties paid on the grounds that part of the value shown on each import declaration corresponded to a buying commission on which no duties were payable.

42.      In its ruling the Court rejected arguments to the effect that Article 78(3) applied only in restricted circumstances, such as in cases of erroneous classification of the goods at issue. The Court likewise did not accept submissions to the effect that by not indicating the buying commission in its declaration Overland had made a choice and had not committed an error. In so doing the Court stated ‘… where there is a possibility of subsequently revising a customs declaration at the declarant’s request, [that] cannot have as its consequence that duties legally charged by reason of simple rules of evidence are subsequently assimilated to duties legally owed … despite the production of sufficient evidence. It should finally be noted that, in any event, an error consisting in an involuntary omission cannot be regarded as the exercise of a choice, which is by definition voluntary’. (27)

43.      Whilst the Court’s ruling in Overland Footwear (28) is certainly instructive, it seems to me that the present matter is not the same. Here, there was an initial error concerning the tariff classification of the goods concerned. As a consequence of that initial error a particular value was given in the relevant customs declarations. The tariff classification error was subsequently reviewed and rectified. That is very different from the circumstances in Overland Footwear. The present matter also differs from the situation where a declarant freely selects from a number of different values and subsequently seeks a review simply because he changes his mind. Here, the initial tariff classification error and the value that accompanied it are two sides of the same coin.

44.      I therefore conclude that where goods are mistakenly classified for customs purposes under a tariff subheading which generates a nil rate of customs duty and on the basis of that error a declarant selects a price (in the case of successive sales) for the purposes of providing a valuation of those goods, in accordance with Article 29 of the Customs Code and Article 147(1) of the Implementing Regulation, the customs authorities may at the declarant’s request amend the customs declaration after release of the goods concerned allowing the declarant to substitute a considered value, provided that that valuation also meets the requirements of the Customs Code.

 Question 2

45.      In accordance with Article 221(1) of the Customs Code, the customs authorities are to communicate the amount of duty payable by the debtor as soon as it is entered into the accounts. By Question 2 the referring court asks whether the determination of the time at which that communication is made is a matter of EU law or national law. In so far as the determination of the timing of the communication is a matter of EU law, it also seeks to ascertain whether the communication must be received within three years after a customs debt is incurred or whether it is sufficient, for the purposes of Article 221(3), to show that the communication was sent to the debtor within that period.

46.      As a preliminary matter it should be borne in mind that a customs debt is incurred when the customs declaration is accepted (Article 201(2) of the Customs Code). Here, the declarations at issue were lodged at different times between 1 March 2010 and 31 October 2010. The referring court states that the question as to whether certain customs debts are time-barred concerns only those debts incurred before 4 March 2010.

47.      CEVA Freight and the Spanish Government are of the view that determination of the expiration of the time limit is a matter of EU law. The Netherlands and the Commission submit that under the Customs Code that determination is governed by national procedural rules.

48.      I agree with the Netherlands and the Commission.

49.      The first sentence of Article 221(3) lays down a limitation rule: ‘Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred.’ (29) Nothing in the plain wording of the text indicates that the determination of the time at which communication to the debtor takes place is a matter of EU law.

50.      The legislative history of that provision shows that the legislator aimed to introduce a limited degree of consistency and uniformity regarding recovery of the amount of the customs debt. Before the Customs Code entered into force, such matters were governed by Regulation No 1697/79, (30) together with Regulation No 1854/89. (31) Regulation No 1697/79 was introduced to replace the existing national rules with new Community-wide legislation. (32) The second recital of that regulation states that post-clearance recovery of customs duties involves some degree of prejudice to the certainty which persons liable for payment have a right to expect from official acts that have financial consequences. It was therefore considered appropriate to fix a time limit of three years after which the determination of customs duties would become definitive, so as to restrict the scope for future action by the customs authorities. No further objectives are recorded regarding the operation of that time limit. In particular, the legislator made no stipulations as to the time and manner in which the notification was to be effected. The wording of Article 221 of the 1992 Customs Code is similar to that of Article 2 of Regulation No 1697/79.

51.      It therefore seems to me to be for the Member States to act in accordance with the procedural and substantive rules of national laws to implement Article 221 of the Customs Code, since at that time EU law did not include common rules governing determination of the time when communication was made for the purposes of that provision. (33)

52.      CEVA Freight and the Spanish Government submit that it is however necessary to take account of the wider context in which the customs authorities and economic operators act. They draw attention to the current version of the Customs Code, (34) which now provides that all exchanges of information, such as declarations, applications or decisions between the customs authorities and economic operators must be made using electronic data processing techniques (Article 6(1)). Both CEVA Freight and the Spanish Government argue that the 2013 Customs Code should be used as an aid to interpret its predecessor, the 1992 Customs Code.

53.      That submission overlooks the simple fact that the legislative context of the 2013 Customs Code and the 1992 Customs Code are not the same. In 2008 the Customs Code was radically revised to make it fit the new electronic environment for customs and trade; and the rules were overhauled for that purpose. (35) It is not therefore possible to draw inferences from the present content of the 2013 Customs Code to interpret Article 221(3) of the 1992 Customs Code.

54.      Thus, I consider that under that provision it is for national procedural law to determine when communication to the debtor takes place. That is subject to the classic limits imposed by EU law, namely that the rules and procedures laid down in domestic law should not make it practically impossible or excessively difficult to recover the amount of the customs debt and that such domestic rules are not applied in a discriminatory manner as compared to equivalent procedures for deciding similar disputes under national law. (36)

55.      In the light of my reply to the first part of Question 2 there is no need to address the second part of that question. For the sake of good order, I add that if the Court should disagree with my view on the first part of Question 2 and opt for a uniform, EU-wide interpretation, it seems to me that the wording of Article 221(3) suggests that the customs authorities are to send the communication to the debtor before the three-year time limit expires, inasmuch as that provision focuses on the acts of the customs authorities rather than the date of receipt by the debtor.

 Conclusion

56.      In the light of all the foregoing considerations, I suggest that the Court should answer the questions raised by the Hoge Raad der Nederlanden (Supreme Court, Netherlands) as follows:

(1)      Where goods are mistakenly classified for customs purposes under a tariff subheading which generates a nil rate of customs duty and on the basis of that error a declarant selects a price (in the case of successive sales) for the purposes of providing a valuation of those goods, in accordance with Article 29 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, and Article 147(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92, the customs authorities may at the declarant’s request amend the customs declaration after release of the goods concerned allowing the declarant to substitute a considered value, provided that that valuation also meets the requirements of Regulation No 2913/92.

(2)      It is for national procedural law to determine when communication to the debtor takes place for the purposes of Article 221(3) of Regulation No 2913/92. That is subject to the limits imposed by EU law, namely that the rules and procedures laid down in domestic law for such communications do not have the effect of making it practically impossible or excessively difficult to recover the amount of the customs debt and that such domestic rules are not applied in a discriminatory manner as compared to equivalent procedures for deciding similar disputes under national law.

1      Original language: English.

2      Regulation of the Council of 12 October 1992 (OJ 1992 L 302, p. 1). That regulation was amended several times: it was the version as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) that was in force at the material time. I shall refer to that instrument as ‘the Customs Code’ or ‘the 1992 Customs Code’ in this Opinion. 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), entered into force on 4 June 2008. However, Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (‘the 2013 Customs Code’) repealed and replaced Regulation No 450/2008 before the latter became applicable.

3      Articles 32 and 33 set out certain adjustments that could be made to the price actually paid or payable for the purposes of the valuation of goods under the Customs Code.

4      Previously the provisions contained in what was Article 65 of the Customs Code were reflected in Article 6 of Council Directive 79/695/EEC of 24 July 1979 on the harmonisation of procedures for the release of goods for free circulation (OJ 1979 L 205, p. 19).

5      There were no legislative provisions reflecting the content of Article 78 of the Customs Code prior to the amendment of customs legislation which was incorporated into the 1992 Customs Code.

6      Article 243 stated that any person had the right to appeal against decisions taken by the customs authorities which related to the application of customs legislation, and which concerned him directly and individually.

7      Regulation of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1) (‘the Implementing Regulation’). That regulation was repealed with effect from 30 April 2016 by Commission Implementing Regulation (EU) No 2016/481 of 1 April 2016 (OJ 2016 L 87, p. 24).

8      Articles 178 to 181 concerned declarations of particulars and documents to be furnished.

9      See point 46 below.

10      Judgment of 12 December 2013, Christodoulou and Others, C‑116/12, EU:C:2013:825, paragraphs 34 to 36 and the case-law cited.

11      See footnote 3 above.

12      Judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 28 and the case-law cited.

13      Judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraphs 29 and 30 and the case-law cited. That case-law includes judgment of 6 June 1990, Unifert (C‑11/89, EU:C:1990:237), which was however concerned with the legislative provisions governing the determination of the customs value of imported goods (Article 3 of Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1) in force before the introduction of Article 78 of the Customs Code).

14      Judgment of 28 February 2008, Carboni e derivati, C‑263/06, EU:C:2008:128, paragraph 31 and the case-law cited.

15      The declaration is to be accompanied by all necessary supporting documents (Article 62(2) of the Customs Code).

16      See footnote 5 above, and judgment of 20 October 2005, Overland Footwear, C‑468/03, EU:C:2005:624, paragraph 62.

17      Judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 22 and the case-law cited.

18      Judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 24 and the case-law cited.

19      See point 3.1 of the order for reference.

20      See point 25 above.

21      Judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 25.

22      Judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 26 and the case-law cited.

23      Judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 27 and the case-law cited.

24      Judgment of 12 October 2017, Tigers, C‑156/16, EU:C:2017:754, paragraphs 29 to 31.

25      Judgment of 20 October 2005, Overland Footwear, C‑468/03, EU:C:2005:624, paragraph 63.

26      Judgment of 20 October 2005, C‑468/03, EU:C:2005:624.

27      Judgment of 20 October 2005, Overland Footwear, C‑468/03, EU:C:2005:624, paragraphs 68 and 69 (emphasis added).

28      Judgment of 20 October 2005, C‑468/03, EU:C:2005:624.

29      See also judgment of 17 June 2010, Agra, C‑75/09, EU:C:2010:352, paragraph 30, and see point 9 above.

30      Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1).

31      Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt (OJ 1989 L 186, p. 1).

32      Judgment of 23 February 2006, Molenbergnatie, C‑201/04, EU:C:2006:136, paragraph 32.

33      See by way of analogy, judgment of 23 February 2006, Molenbergnatie, C‑201/04, EU:C:2006:136, paragraphs 52 and 53.

34      See footnote 2 above.

35      See the explanatory memorandum to the Commission’s proposal for a regulation of the European Parliament and of the Council laying down the Union Customs Code COM(2012) 64, p. 2.

36      Judgment of 21 June 2007, ROM-projecten, C‑158/06, EU:C:2007:370, paragraph 23 and the case-law cited.

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