On 23 November 2023, the European Court of Justice gave its judgment in case C-653/22 (JP Mali Kerékpárgyártó és Forgalmazó Kft. ), dealing with the obligation on the Member States to provide for effective, proportionate and dissuasive penalties for failure to comply with the customs legislation.
Facts
J.P. Mali, a company incorporated under Hungarian law, imported bicycles and bicycle parts purchased from companies established in Taiwan. Its customs representative ZeMeX Kereskedelmi és Szállítmányozó Kft., for the purpose of the release for free circulation of those goods, lodged customs declarations, stating that those goods originated in Taiwan.
The Hungarian Customs Authorities found that the imported bicycles and bicycle parts actually came from China, so that their import should have given rise to the levying of an anti-dumping duty. Therefore, they raised an assessment of HUF 26,077,000 (approximately EUR 70,000), for customs duties, which was paid by the company’s customs representative.
The Hunagrain Customs Authorities also raised a penalty to J.P. Mali, arguing that that that company, as a contracting party to the transaction, should have information on the circumstances of the acquisition of the goods concerned. Its control report was based, in particular, on a report of the European Anti-Fraud Office (OLAF) from which it was apparent that the company established in Taiwan listed as exporter of those goods was involved in false declarations as to the origin of Chinese bicycle parts.
J.P. Mali appealed, but the national Court decided that the penalty was justified. J.P. Malia argued that the fine, which corresponds to a flat rate of 50% of the shortfall in customs duties, is not proportionate to the seriousness of the offence. J.P. Mali observes that importers have only limited information on the production and origin of goods and that they rely, in that regard, on the data provided by exporters. It states that, in the present case, an independent public body, the Taiwan Chamber of Commerce, issued it with certificates confirming the information provided by the exporters as to the origin of the goods concerned. It considers that Hungarian legislation, in so far as it does not allow such circumstances to be taken into account and, in the event of infringement of customs legislation, imposes a heavy fine on the importer even though that infringement is not attributable to him or her, is contrary to EU law, in particular the provisions of Regulation No 952/3013 on penalties.
The Fővárosi Törvényszék (Budapest High Court) decided to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Regulation [No 952/2013] be interpreted as meaning that the requirement of proportionality laid down in Article 42(1) thereof is satisfied by Article 84(8) of [the Law on customs] which, in the case of the customs administrative fine which has to be imposed where a [shortfall in customs duties has arisen] as a result of an offence relating to the correctness of information in the customs declaration, does not allow the customs authorities to assess all the circumstances of the case or the conduct attributable to the trader who lodged the customs declaration, but requires, as a mandatory rule, the imposition of a customs administrative fine equal to 50% of the established [shortfall in customs duties], irrespective of the seriousness of the offence committed and the examination and assessment of the liability attributable to that trader?’
Judgment
Article 42(1) of Regulation 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 not precluding national legislation which provides, in the event of a shortfall in customs duties caused by the supply of incorrect information in a customs declaration relating to goods imported into the European Union, for an administrative fine which corresponds, in principle, to 50% of that shortfall and which is imposed notwithstanding the good faith of and precautions taken by the operator concerned, since that rate of 50% is significantly lower than that provided for in the case of bad faith on the part of that operator and is, moreover, considerably reduced in certain situations specified in that legislation, including the situation in which the operator acting in good faith corrects its customs declaration before the post-clearance control has been completed.
Source : CURIA – Documents (europa.eu)
