Opinion of Advocate General Richard de la Tour delivered on 26 January 2023.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2023:56
• Date: 26 January 2023

Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 26 January 2023 (1)

Case C‑640/21

SC Zes Zollner Electronic SRL

v

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

(Request for a preliminary ruling from the Tribunalul Cluj (Regional Court, Cluj, Romania))

(Reference for a preliminary ruling – Customs union – Regulation (EU) No 952/2013 – Incorrect customs declaration – Error characterised by the customs authority as an ‘administrative offence’ – Possibility for the declarant to correct the error to avoid a penalty)

I. Introduction

1. The present request for a preliminary ruling concerns the interpretation of Articles 173 and 174 of Regulation (EU) No 952/2013. (2)

2. The request was made in proceedings between SC Zes Zollner Electronic SRL (‘ZZE’), a Romanian undertaking, and the Direcţia 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.

3. Specifically, ZZE placed two orders with a Swiss company for a total of 10 000 electronic integrated circuits. On the same day, the Swiss company issued two separate invoices, each one for 5 000 parts and the amount of EUR 4 950.

4. Upon taking delivery of the consignment at its premises, ZZE discovered that it contained 10 000 electronic integrated circuits, whereas only goods relating to one of the two invoices, or 5 000 electronic integrated circuits, had been declared to the border customs office at Cluj-Napoca airport.

5. ZZE therefore applied to that office 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.

6. It is in this context that the Court of Justice is asked to rule on whether a customs declaration can be amended to include an excess quantity of goods, even though the customs authorities have already released the goods concerned. To that end, it should be clarified what is meant by the concept of ‘goods other’ than those which the customs declaration originally covered, within the meaning of Article 173(1) of the Union Customs Code.

7. The Court is also asked to rule on whether, in the event that such an amendment is not permitted, the invalidation of the customs declaration could be applied for under Article 174 of the Union Customs Code, even though the customs authorities have already released the goods concerned.

8. In this Opinion, following my analysis, I will propose that the Court rule that Article 173 of the Union Customs Code must be interpreted as meaning that first, an excess quantity of the same goods does not fall within the concept of ‘goods other’ than those which the original customs declaration covered, within the meaning of that article, if it can be shown that the second goods are identical to the first, in so far as they are classified in the same tariff subheading and could have been covered by the same declaration if a clerical error had not been made. and that, second, it does not preclude a customs declaration from being amended, after the release of those goods, to include a quantity of goods in excess of the goods originally declared, in so far as the application for amendment is accompanied by information allowing a connection to be established between that excess quantity and the import documents and where any suspicion of fraud is ruled out.

9. I would also suggest to the Court that Article 174 of the Union Customs Code should be interpreted as precluding, where an excess quantity of goods has not been entered in the original customs declaration, the competent customs authorities from invalidating that declaration after the goods have been released.

II. Legal framework

A. European Union law

10. Recitals 15 and 23 of the Union Customs Code state:

‘(15) The facilitation of legitimate trade and the fight against fraud require simple, rapid and standard customs procedures and processes …

…

(23) … It is necessary to ensure an appropriate level of effective, dissuasive and proportionate penalties throughout the internal market.’

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

‘For the purposes of the 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’.

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

‘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, notification or application;

(b) the authenticity, accuracy and validity of any document supporting the declaration, notification or application;

(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.

…

Where the declaration or notification is lodged, the application is submitted, or information is provided, by a customs representative of the person concerned, as referred to in Article 18, that customs representative shall also be bound by the obligations set out in the first subparagraph of this paragraph.’

13. Article 42 of that code, entitled ‘Application of penalties’, provides, in its paragraph 1:

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

14. Under Article 173 of the code, entitled ‘Amendment of a customs declaration’:

‘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.’

15. Article 174 of the same code, entitled ‘Invalidation of a customs declaration’, is worded as follows:

‘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.’

16. Article 175 of the Union Customs Code provides:

‘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).’

17. Article 176 of the code provides:

‘The Commission shall specify, by means of implementing acts, the procedural rules for:

…

(c) amending the customs declaration after the release of the goods in accordance with Article 173(3).

…’

18. Under Article 194 of the code, entitled ‘Release of the goods’:

‘1. Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.

…

2. All the goods covered by the same declaration shall be released at the same time.

For the purposes of the first subparagraph, where a customs declaration covers goods falling under two or more items the particulars relating to goods falling under each item shall be deemed to constitute a separate customs declaration.’

B. Romanian law

1. Law No 86/2006 on the Romanian Customs Code

19. In accordance with Article 68 of Legea nr. 86/2006 privind Codul vamal al României (Law No 86/2006 on the Romanian Customs Code) (3) of 10 April 2006, goods may, with the agreement of the customs authority, be examined or sampled, on request, for the purpose of granting a customs-approved treatment or use.

20. Article 100 of that law provides:

‘1. The customs authority may, of its own motion or at the request of the declarant, amend the customs...