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

Provisional text

JUDGMENT OF THE COURT (Fifth Chamber)

8 June 2023 (*)

(Reference for a preliminary ruling – Customs union – Regulation (EU) No 952/2013 – Union Customs Code – Excess quantity of goods discovered after the release of the goods – Article 173 – Amendment of a customs declaration – Goods other than those originally covered by the declaration to amend – Article 174 – Invalidation of a customs declaration – Article 42 – Penalties imposed by the customs authorities responsible – Delegated Regulation (EU) 2015/2446)

In Case C‑640/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunalul Cluj (Regional Court, Cluj, Romania), made by decision of 25 August 2021, received at the Court on 19 October 2021, in the proceedings

SC Zes Zollner Electronic SRL

v

Direcţia Regională Vamală Cluj – Biroul Vamal de Frontieră Aeroport Cluj Napoca,

THE COURT (Fifth Chamber),

composed of E. Regan, President of the Chamber, D. Gratsias (Rapporteur), M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        the Romanian Government, by E. Gane and A. Rotăreanu, acting as Agents,

–        the Estonian Government, by M. Kriisa, acting as Agent,

–        the European Commission, by A. Armenia, F. Clotuche-Duvieusart and F. Moro, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 26 January 2023,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Articles 173 and 174 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Union Customs Code’).

2        The request has been made in proceedings between SC Zes Zollner Electronic SRL (‘ZZE’), a Romanian undertaking, and the Direcția Regională Vamală Cluj – Biroul Vamal de Frontieră Aeroport Cluj-Napoca (Cluj Regional Customs Directorate – Cluj-Napoca Airport Border Customs Office, Romania) concerning the latter’s decision to fine ZZE for removing from customs control 5 000 electronic integrated circuit parts and to request payment of an amount equal to the customs value of those goods, plus import duties and other duties owed.

 Legal context

 European Union law

 Regulation (EEC) No 2913/92

3        Article 66 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), provided:

‘1.      The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure covered by that declaration or that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.

Nevertheless, where the customs authorities have informed the declarant of their intention to examine the goods, a request for invalidation of the declaration shall not be accepted until after the examination has taken place.

2.      The declaration shall not be invalidated after the goods have been released, expect in cases defined in accordance with the committee procedure.

3.      Invalidation of the declaration shall be without prejudice to the application of the penal provisions in force.’

 The Union Customs Code

4        Recital 15 of the Union Customs Code states as follows:

‘The facilitation of legitimate trade and the fight against fraud require simple, rapid and standard customs procedures and processes. It is therefore appropriate, in line with the Commission Communication of 24 July 2003 entitled “A simple and paperless environment for customs and trade” [COM(2003) 452 final], to simplify customs legislation, to allow the use of modern tools and technology and to promote further the uniform application of customs legislation and modernised approaches to customs control, thus helping to ensure the basis for efficient and simple clearance procedures. …’

5        Article 5 of that code, entitled ‘Definitions’, provides, in paragraphs 16, 26 and 33 thereof:

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

…

(16) “customs procedure” means any of the following procedures under which goods may be placed in accordance with the Code:

(a)      release for free circulation;

(b)      special procedures;

(c)      export;

…

(26) “release of goods” means the act whereby the customs authorities make goods available for the purposes specified for the customs procedure under which they are placed;

…

(33)      “presentation of goods to customs” means the notification to the customs authorities of the arrival of goods at the customs office or at any other place designated or approved by the customs authorities and the availability of those goods for customs controls’.

6        Article 15 of the Union Customs Code, entitled ‘Provision of information to the customs authorities’, provides in paragraph 2 thereof:

‘The lodging of a customs declaration … shall render the person concerned responsible for all of the following:

(a)      the accuracy and completeness of the information given in the declaration …

(b)      the authenticity, accuracy and validity of any document supporting the declaration …

(c)      where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations.

The first subparagraph shall also apply to the provision of any information in any other form required by, or given to, the customs authorities.

…’

7        Under Article 42 of that code, entitled ‘Application of penalties’:

‘1.      Each Member State shall provide for penalties for failure to comply with the customs legislation. Such penalties shall be effective, proportionate and dissuasive.

2.      Where administrative penalties are applied, they may take, inter alia, one or both of the following forms:

(a)      a pecuniary charge by the customs authorities, including, where appropriate, a settlement applied in place of and in lieu of a criminal penalty;

(b)      the revocation, suspension or amendment of any authorisation held by the person concerned.

…’

8        Article 139 of the Union Customs Code, entitled ‘Presentation of goods to customs’, provides in paragraphs 1 and 7 thereof:

‘1.      Goods brought into the customs territory of the Union shall be presented to customs immediately upon their arrival at the designated customs office …

…

7.      Goods presented to customs shall not be removed from the place where they have been presented without the permission of the customs authorities.’

9        Article 158 of that code, entitled ‘Customs declaration of goods and customs supervision of Union goods’, provides, in paragraph 1 thereof:

‘All goods intended to be placed under a customs procedure, except for the free zone procedure, shall be covered by a customs declaration appropriate for the particular procedure.’

10      Article 172 of the Union Customs Code, entitled ‘Acceptance of a customs declaration’, is worded as follows:

‘1.      Customs declarations which comply with the conditions laid down in this Chapter shall be accepted by the customs authorities immediately, provided that the goods to which they refer have been presented to customs.

2.      The date of acceptance of the customs declaration by the customs authorities shall, except where otherwise provided, be the date to be used for the application of the provisions governing the customs procedure for which the goods are declared and for all other import or export formalities.’

11      Article 173 of that code, entitled ‘Amendment of a customs declaration’, is worded as follows:

‘1.      The declarant shall, upon application, be permitted to amend one or more of the particulars of the customs declaration after that declaration has been accepted by customs. The amendment shall not render the customs declaration applicable to goods other than those which it originally covered.

2.      No such amendment shall be permitted where it is applied for after any of the following events:

(a)      the customs authorities have informed the declarant that they intend to examine the goods;

(b)      the customs authorities have established that the particulars of the customs declaration are incorrect;

(c)      the customs authorities have released the goods.

3.      Upon application by the declarant, within three years of the date of acceptance of the customs declaration, the amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.’

12      Under Article 174 of the Union Customs Code, entitled ‘Invalidation of a customs declaration’:

‘1.      The customs authorities shall, upon application by the declarant, invalidate a customs declaration already accepted in either of the following cases:

(a)      where they are satisfied that the goods are immediately to be placed under another customs procedure;

(b)      where they are satisfied that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.

However, where the customs authorities have informed the declarant of their intention to examine the goods, an application for invalidation of the customs declaration shall not be accepted before the examination has taken place.

2.      The customs declaration shall not be invalidated after the goods have been released unless where otherwise provided.’

13      Article 175 of that code, entitled ‘Delegation of power’, states:

‘The [European] Commission shall be empowered to adopt delegated acts, in accordance with Article 284, in order to determine the cases where the customs declaration is invalidated after the release of the goods, as referred to in Article 174(2).’

 Delegated Regulation (EU) 2015/2446

14      Article 148 of Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation No 952/2013 as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1), adopted inter alia on the basis of Article 175 of the Union Customs Code, provides as follows:

‘1.      Where it is established that goods have been declared in error for a customs procedure under which a customs debt on import is incurred instead of being declared for another customs procedure, the customs declaration shall be invalidated after the goods have been released, upon reasoned application by the declarant, if the following conditions are fulfilled:

…

2.      Where it is established that the goods have been declared in error instead of other goods, for a customs procedure for which a customs debt on import is incurred, the customs declaration shall be invalidated after the goods have been released, upon reasoned application by the declarant, if the following conditions are fulfilled:

…

3.      Where goods which have been sold under a distance contract as defined in Article 2(7) of Directive 2011/83/EU of the European Parliament and of the Council [of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64)] have been released for free circulation and are returned, the customs declaration shall be invalidated after the goods have been released, upon reasoned application by the declarant, if the following conditions are fulfilled:

…

4.      In addition to the cases referred to in paragraphs 1, 2 and 3, customs declarations shall be invalidated after the goods have been released, upon reasoned application by the declarant, in any of the following cases:

(a)      where goods have been released for export, re-export or outward processing and have not left the customs territory of the [European] Union;

(b)      where Union goods have been declared in error for a customs procedure applicable to non-Union goods, and their customs status as Union goods has been proved afterwards by means of a T2L, T2LF or a customs goods manifest;

(c)      where goods have been erroneously declared under more than one customs declaration;

(d)      where an authorisation with retroactive effect is granted in accordance with Article 211(2) of the Code;

(e)      where Union goods have been placed under the customs warehousing procedure in accordance with Article 237(2) of the Code and can no longer be placed under that procedure in accordance with Article 237(2) of the Code.

…’

 Romanian law

15      In accordance with Article 68 of Legea nr. 86/2006 privind Codul vamal al României (Law No 86/2006 on the Romanian Customs Code) (Monitorul Oficial al României, Part I, No 350 of 19 April 2006; ‘the Romanian Customs Code’), in the version in force at the material time, goods could, with the agreement of the customs authority, be examined or sampled, on request, for the purpose of granting a customs-approved treatment or use.

16      Article 100 of the Romanian Customs Code provides:

‘1.      The customs authority may, of its own motion or at the request of the declarant, amend the customs declaration within five years of the date of release.

2.      Within the time limit laid down in paragraph 1, the customs authority shall check all documents, records and entries relating to the goods released from customs or subsequent commercial transactions involving those goods. The check may be carried out at the premises of the declarant, of any other person directly or indirectly involved in a professional capacity in such transactions or of any other person possessing those documents or having information pertaining thereto. The goods may also be physically checked, if they still exist.

3.      Where, after rechecking the declaration or a post-release control, it is found that the provisions governing the customs procedure in question have been applied on the basis of inaccurate or incomplete information, the customs authority shall take measures to regularise the situation, taking into account the new information available to it.

4.      The customs authority shall specify the format of the document required to regularise the situation and the instructions for completing it.

5.      Where it is found that a customs debt is incurred or that overpayments have been made, the customs authority shall take measures to recover the missing amounts or to secure the repayment of the overpayments in accordance with the legal provisions.

6.      In the context of the post-release control of declarations, the customs authority shall determine, in accordance with paragraph 3, any overpayments or underpayments in respect of other taxes due to the State in connection with customs procedures and shall take measures to recover the missing amounts identified. Overpayments relating to such taxes shall be repaid in accordance with the applicable legal rules.

7.      Where the infringement of customs regulations constitutes an administrative offence or a criminal offence, as the case may be, the customs authority shall be required to apply the penalties in respect of the administrative offence or to refer the matter to the criminal investigation authorities.

8.      The accepted and registered customs declaration and the document referred to in paragraph 4 shall constitute a debt instrument.’

17      According to Article 653(1)(a) of Hotărârea Guvernului nr. 707/2006 pentru aprobarea Regulamentului de aplicare a Codului vamal al României (Government Decision No 707/2006, approving the Regulation implementing the Romanian Customs Code), of 7 June 2006 (Monitorul Oficial al României, Part I, No 520 of 15 June 2006) (‘the Regulation implementing the Romanian Customs Code’), the removal from customs supervision of any goods or merchandise that must be placed under a customs procedure constitutes an administrative offence liable to give rise to a fine ranging from 3 000 to 8 000 Romanian lei (RON). In this case, the goods will also be confiscated.

18      Article 654 of the Regulation implementing the Romanian Customs Code provides that, in the case of the administrative offence provided for in Article 653(1)(a), where the goods can no longer be identified, the offender is required to pay the amount corresponding to the customs value of the goods, plus import duties and other duties legally owed, corresponding to the taxes determined at the time of release for free circulation of the goods. With regard to the extinguishment of the customs debt, that measure has the same legal effect as the confiscation of the goods.

19      In accordance with Article 655 of that implementing regulation, the acts referred to in Articles 651 to 653 constitute administrative offences if they are not committed in circumstances such that, under the criminal law, they constitute criminal offences.

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

20      ZZE placed two orders with a Swiss company for a total of 10 000 electronic integrated circuits. That company issued two invoices to that effect, namely, invoice No VFE19-03168 of 2 July 2019, for 5 000 parts and in the amount of EUR 4 950, and invoice No VFE19-03169 of 2 July 2019, also for 5 000 parts and in the amount of EUR 4 950. The transport of the goods concerned was carried out by a company providing courier services.

21      On 4 July 2019, ZZE received the import notice for air waybill No 1Z3022056899895681, in respect of a consignment weighing 2.7 kg and with a value of EUR 4 950 declared by the supplier. On the basis of that document, only goods relating to invoice No VFE19-03169 of 2 July 2019, including transport costs, were declared to the border customs office at Cluj-Napoca airport.

22      Upon taking delivery of the consignment at Satu Mare (Romania), ZZE’s employees discovered that it contained double the quantity stated on invoice No VFE19-03169 of 2 July 2019 and that the supplier had issued, on the same date, invoice No  VFE19-03168, which had not been included in the declaration made to the customs authorities.

23      On 9 July 2019, ZZE applied to the border customs office at Cluj-Napoca airport for the irregularity to be remedied by means of the adoption, by the customs authorities, of a decision to regularise the situation and to calculate the associated customs liability.

24      On 2 September 2019, the competent customs authority issued a report stating that ZZE had intentionally removed from customs supervision the goods relating to invoice No VFE19-03168 of 2 July 2019. Accordingly, it fined ZZE RON 3 000 for having committed the administrative offence referred to in Article 653(1)(a) of the Regulation implementing the Romanian Customs Code, and imposed an additional fine of RON 27 839 pursuant to Article 654 of that regulation.

25      ZZE challenged that report before the Romanian courts.

26      At first instance, the Judecătoria Cluj-Napoca (Court of First Instance, Cluj-Napoca, Romania) dismissed ZZE’s action. According to that court, the offence referred to in Article 653(1)(a) of the Regulation implementing the Romanian Customs Code may be committed either intentionally or through negligence. The fact that, a few days after the release of the goods that it received, ZZE referred the matter to the competent customs authority with a view to regularising its situation cannot preclude the facts alleged from constituting an infringement.

27      Moreover, that court held that Article 173 of the Union Customs Code was not applicable in the present case, since that article does not allow a customs declaration to be amended where such an amendment would render that declaration applicable to goods other than those which it originally covered.

28      As for the fine imposed on ZZE, the Court of First Instance, Cluj-Napoca, held that it was the minimum statutory fine and was proportionate to the degree of risk posed to society by the offending conduct. That court further held that the additional fine imposed on ZZE under Article 654 of the Regulation implementing the Romanian Customs Code was appropriate. Specifically, the first instance court took account of the fact that, in view of the time that elapsed between the date on which the goods at issue were removed from customs supervision and the date on which the matter was referred to the customs authority, and since, in 2019, ZZE had imported goods of the same type from the same supplier on eight other occasions, the defendant in the main proceedings was not certain that the goods removed from customs supervision could still be identified. Furthermore, ZZE could have presented the goods at issue once it had referred the matter to the customs authorities, which it did not do.

29      ZZE brought an appeal against that decision before the Tribunalul Cluj (Regional Court, Cluj, Romania), the referring court.

30      The referring court notes that different approaches have been taken by the customs authorities and the Romanian courts as regards the interpretation of Article 173 of the Union Customs Code, and in particular, of paragraph 3 thereof, thereby infringing the principle of legal certainty. The referring court considers that, if Article 173 of that code did not apply in a case such as that at issue in the main proceedings, there should still be another legal means of correcting an error such as that which the applicant in the main proceedings claims to have made: namely, either the remedy provided for in Article 174 of that code, or another procedural remedy not involving severe penalties that might deter the applicant from complying with the rules in force.

31      The referring court points out, in that regard, relying on the circumstances of the case in the main proceedings described in paragraphs 20 to 23 of the present judgment, that ZZE did not act in bad faith.

32      In those circumstances the Tribunalul Cluj (Regional Court, Cluj) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Does Article 173 or Article 174 of [the Union Customs Code] apply where the consignee of the goods reports a quantity in excess of that stated in the original customs declaration?

(2)      Does the expression “goods other than those which [the customs declaration] originally covered” within the meaning of Article 173 of the [Union Customs Code] refer to goods that differ quantitatively or qualitatively, or both?

(3)      In the case of a quantitative difference that exceeds the quantity of goods stated in the customs declaration, does the consignee of the goods have any procedural remedy under the [Union Customs Code] enabling the consignee to correct the errors without incurring administrative or criminal penalties?’

 Consideration of the questions referred

 The first and second questions

33      By its first and second questions, which it is appropriate to consider together, the referring court asks, in essence, whether Articles 173 and 174 of the Union Customs Code must be interpreted as being applicable when the declarant reports, after submitting his or her customs declaration and after release of the goods, that a quantity of goods in excess of that which was originally covered by that declaration should also have been covered by the declaration.

34      As regards, in the first place, Article 173 of the Union Customs Code, paragraph 1 thereof provides that the declarant may apply for his or her declaration to be amended after it has been accepted by the customs authorities, provided that the amendment applied for does not render the customs declaration applicable to goods other than those which it originally covered.

35      According to Article 173(2) of that code, no such amendment is to be permitted where it is applied for after the customs authorities have informed the declarant that they intend to examine the goods, the customs authorities have established that the particulars of the customs declaration are incorrect or the customs authorities have released the goods.

36      Article 173(3) of the Union Customs Code provides that the customs authorities may, upon application by the declarant, within three years of the date of acceptance of the customs declaration, permit the amendment of a customs declaration after release of the goods, in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.

37      It must, accordingly, be inferred from reading Article 173(1) of the Union Customs Code in conjunction with Article 173(3) thereof that the amendment of a customs declaration cannot, under any circumstances, be permitted if the amendment applied for renders the customs declaration applicable to goods other than those which it originally covered. In order to determine whether that article is applicable in the case described in paragraph 33 above, it is therefore necessary to interpret the concept of ‘goods other than those which [a customs declaration] originally covered’ within the meaning of Article 173(1) of that code.

38      It must be borne in mind that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 16 July 2020, Pfeifer & Langen, C‑97/19, EU:C:2020:574, paragraph 34 and the case-law cited).

39      As regards, first, the wording of the last sentence of Article 173(1) of the Union Customs Code, it must be stated that the use of the adjective ‘other’ makes the wording of that provision sufficiently broad to exclude any amendment in relation to goods not covered by the original declaration, including goods which are quantitatively in excess of the goods declared. Even if the goods concerned are qualitatively identical to the goods covered by that declaration, such an excess quantity corresponds to goods which, precisely, were not originally covered by that customs declaration.

40      Secondly, a strict interpretation of Article 173(1) of the Union Customs Code, which precludes an amendment in relation to goods representing a quantity in excess of that set out in the original customs declaration, is supported by the context in which that provision occurs, of which Article 173(3) forms part. Article 173(3) of the Union Customs Code provides indeed for the possibility of amending a customs declaration after release of the goods, but only ‘in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned’. In that regard, since goods can be considered to have been placed under such a procedure only after they have been declared, Article 173 of the Union Customs Code can relate only to goods brought to the attention of the customs authorities by means of the customs declaration for which amendment is applied for. That cannot be the case for a quantity of goods in excess of that originally declared.

41      In addition, according to the case-law of the Court, the Union Customs Code is based on a system of declarations with the aim of keeping customs formalities and controls to a minimum while preventing fraud or irregularities that could harm the EU budget. Because of the importance of those prior declarations for the proper functioning of the customs union, the Union Customs Code, in Article 15, places an obligation on declarants to provide accurate and complete information (judgment of 9 July 2020, Unipack, C‑391/19, EU:C:2020:547, paragraph 22 and the case-law cited).

42      That obligation is the corollary of the principle of irrevocability of the customs declaration once it has been accepted, a principle the exceptions to which are strictly defined by the relevant EU legislation (judgment of 17 September 2014, Baltic Agro, C‑3/13, EU:C:2014:2227, paragraph 43 and the case-law cited).

43      Although that principle of irrevocability is qualified, under the Union Customs Code, by the possibility, provided for in Article 173 thereof, of amending a customs declaration, the fact remains that that possibility constitutes an exception to that principle, which must be interpreted strictly.

44      Such an interpretation reflects, moreover, the intention of the EU legislature. As is apparent from a comparison of Article 173(3) of the Union Customs Code, as adopted by that legislature, with the text which had been proposed in that regard by the Commission in Article 149 of the Proposal for a Regulation of the European Parliament and of the Council laying down the Union Customs Code (COM(2012) 64 final), it was the legislature which added to Article 173 the condition, recalled in paragraph 40 above, that such an amendment may be applied for after the release of the goods only in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned, thereby reflecting the legislature’s intention to restrict the possibilities of amending customs declarations.

45      As regards, thirdly, the objectives pursued by the legislation at issue in the main proceedings, it should be noted that they support an interpretation of Article 173(1) of the Union Customs Code which precludes an amendment in relation to goods representing a quantity in excess of that set out in the original customs declaration, in particular the objective of combating fraud, set out in recital 15 of that code.

46      First, as is apparent from paragraph 41 above, the obligation on declarants to provide accurate and complete information in their declarations plays an essential role in the proper functioning of customs controls and in combating fraud and irregularities. It is, therefore, consistent with the pursuit of that objective that the possibilities of amending customs declarations should be strictly limited. Secondly, it is also apparent from that recital 15 that customs controls are inherent to the achievement of that objective.

47      In that regard, the Court has already pointed out, in the context of cases relating to the revision of customs declarations after release of the goods, the importance attached to the possibility of presenting the goods concerned and the difficulties which may arise from the fact that that is no longer possible, where the facts to be verified require physical verification, as is the case, in particular, of amendments to information concerning the material aspects of those goods, such as the nature or characteristics of the goods (see, to that effect, judgments of 20 October 2005, Overland Footwear, C‑468/03, EU:C:2005:624, paragraphs 47 and 48, and of 16 July 2020, Pfeifer & Langen, C‑97/19, EU:C:2020:574, paragraph 42 and the case-law cited).

48      Such considerations explain why, with a view to ensuring that the objective of combating fraud is attained, the EU legislature intended, in any event, by means of Article 173(1) of the Union Customs Code, to preclude the amendment concerning the material aspects of the customs declaration from enabling the declarant to evade the original obligation to declare the goods concerned to the customs authorities.

49      In the light of the foregoing, it must be held that the concept of ‘goods other than those which [a customs declaration] originally covered’, within the meaning of Article 173(1) of that code, must be interpreted as encompassing a quantity of goods in excess of that set out in that original customs declaration.

50      Accordingly, Article 173 of the Union Customs Code must be interpreted as meaning that an application for amendment of a customs declaration cannot be allowed where it seeks to amend that declaration in order to render it applicable to a quantity of goods in excess of that set out therein.

51      As regards, in the second place, Article 174 of the Union Customs Code, that article provides that, in certain cases referred to in paragraph 1 thereof, the customs authorities may invalidate a customs declaration already accepted. As has been held under Regulation No 2913/92, Article 66 of which is reproduced in the provisions of Article 174 of the Union Customs Code, in the event of invalidation, the customs debt arising from the invalidated declaration is extinguished and the latter becomes inoperative (see, to that effect, judgment of 16 July 2020, Pfeifer & Langen, C‑97/19, EU:C:2020:574, paragraphs 39 and 40 and the case-law cited).

52      As stated in Article 174(2) of that code, such invalidation is possible, ‘unless where otherwise provided’, only before release. Thus, after such a release, Article 174 is not, as a rule, applicable.

53      However, Article 175 of that code empowers the Commission to adopt delegated acts in order to determine the cases where the customs declaration is invalidated after the release of the goods, as referred to in Article 174(2) of the code. It was on the basis of that provision, inter alia, that the Commission adopted Delegated Regulation 2015/2446, which provides, in Article 148 thereof, for the cases in which the invalidation of a customs declaration would be permitted even after the goods have been released. However, as is apparent from the very wording of that provision, the circumstances at issue in the main proceedings do not fall within any of the cases envisaged in Article 148 of Delegated Regulation 2015/2446, which is nevertheless for the referring court to verify.

54      In the light of the foregoing, Article 174 of the Union Customs Code must be interpreted as meaning that, in a case such as that described in paragraph 33 above, an application for invalidation of a customs declaration cannot be allowed when that application was made after the goods were released, without, however, falling within the cases determined by the Commission pursuant to Article 175 of that code.

55      In the light of all the foregoing considerations, the answer to the first and second questions is that Articles 173 and 174 of the Union Customs Code must be interpreted as meaning that they are not applicable when the declarant reports, after submitting his or her customs declaration and after release of the goods, that a quantity of goods in excess of that which was originally covered by that declaration should also have been covered by the declaration, where:

–        first, an application for amendment of a customs declaration, on the basis of the first of those provisions, cannot be allowed when it seeks to amend that declaration in order to render it applicable to a quantity of goods in excess of that set out therein and

–        secondly, an application for invalidation of a customs declaration, on the basis of the second of those provisions, cannot be allowed when that application was made after the goods were released, without, however, falling within the cases determined by the Commission under Article 175 of that code.

 The third question

56      By its third question, the referring court asks, in essence, whether the Union Customs Code must be interpreted as meaning that, where a declarant reports, after release of the goods, that the quantity of imported goods is greater than that set out in his or her customs declaration, he or she may regularise his or her situation under the provisions of that code other than Articles 173 and 174 thereof without, as the case may be, incurring any penalties.

57      It should be noted in that regard that, in such a case, the declarant is, in any event, required, under Article 139(1) and Article 158(1) of that code, to declare any quantity of goods in excess of that set out in that declaration. That code does not, however, preclude the customs authorities, while accepting such a late declaration, from imposing penalties on that declarant relating to the failure to comply with the customs legislation.

58      In accordance with Article 42(1) of the Union Customs Code, each Member State is to provide for penalties for failure to comply with the customs legislation, which are to be effective, proportionate and dissuasive.

59      According to the case-law of the Court, the penalties provided for in Article 42 of that code do not seek to penalise possible fraudulent or unlawful activities but any failure to comply with the customs legislation (judgment of 4 March 2020, Schenker, C‑655/18, EU:C:2020:157, paragraph 45 and the case-law cited).

60      In that regard, in the absence of harmonisation of EU legislation in the field of penalties applicable where conditions laid down by the rules imposed by such legislation are not complied with, Member States are empowered to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality (judgment of 4 March 2020, Schenker, C‑655/18, EU:C:2020:157, paragraph 42 and the case-law cited).

61      In particular, the administrative measures or the measures imposing penalties permitted under the national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation, and furthermore, they must not be disproportionate to those objectives (judgment of 4 March 2020, Schenker, C‑655/18, EU:C:2020:157, paragraph 43 and the case-law cited).

62      Consequently, where the customs authorities apply, in a case such as that in the main proceedings, national legislation which must be consistent with the principles recalled in paragraphs 59 and 60 above, they must take into account, both in making the legal classification of any offence committed and in determining, where appropriate, the penalties, relating to non-compliance with the customs legislation, to be imposed, all the relevant information, including, if necessary, the good faith of the declarant, in order to ensure that those penalties are effective, proportionate and dissuasive.

63      In the light of the foregoing considerations, the Union Customs Code, and in particular Article 42, Article 139(1) and Article 158(1) thereof, must be interpreted as meaning that where a declarant reports, after release of the goods, that the quantity of imported goods is greater than that set out in his or her customs declaration, he or she is required to make a new declaration in respect of that excess quantity. If, in the case of such a late declaration, the customs authorities are led to apply national legislation providing for penalties in accordance with Article 42 of that code, they must take into account, in making the legal classification of any infringement committed and in determining, where appropriate, the penalties, relating to non-compliance with the customs legislation, to be imposed, all the relevant information, including, if necessary, the good faith of the declarant, in order to ensure that those penalties are effective, proportionate and dissuasive.

 Costs

64      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

1.      Articles 173 and 174 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code

must be interpreted as meaning that they are not applicable when the declarant reports, after submitting his or her customs declaration and after release of the goods, that a quantity of goods in excess of that which was originally covered by that declaration should also have been covered by the declaration, where:

–        first, an application for amendment of a customs declaration, on the basis of the first of those provisions, cannot be allowed when it seeks to amend that declaration in order to render it applicable to a quantity of goods in excess of that set out therein and

–        secondly, an application for invalidation of a customs declaration, on the basis of the second of those provisions, cannot be allowed when that application was made after the goods were released, without, however, falling within the cases determined by the Commission under Article 175 of that code.

2.      Regulation No 952/2013, and in particular Article 42, Article 139(1) and Article 158(1) thereof,

must be interpreted as meaning that where a declarant reports, after release of the goods, that the quantity of imported goods is greater than that set out in his or her customs declaration, he or she is required to make a new declaration in respect of that excess quantity. If, in the case of such a late declaration, the customs authorities are led to apply national legislation providing for penalties in accordance with Article 42 of that code, they must take into account, in making the legal classification of any infringement committed and in determining, where appropriate, the penalties, relating to non-compliance with the customs legislation, to be imposed, all the relevant information, including, if necessary, the good faith of the declarant, in order to ensure that those penalties are effective, proportionate and dissuasive.

[Signatures]

*      Language of the case: Romanian.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.