On July 11, 2024, the ECJ released the AG Opinion in the case C-376/23 (SIA ‘BALTIC CONTAINER TERMINAL’).
Context: Request for a preliminary ruling – Union Customs Code – Removal of goods from a free zone – EU‑law obligations incumbent on a free zone permit holder – Customs debt incurred through non-compliance – Principle of the protection of legitimate expectations – Protection of legitimate expectations arising from established administrative practice – Extension of the force of res judicata attaching to a judgment annulling a penalty imposed for a failure to fulfil obligations under customs law
Facts
The SIA ‘BALTIC CONTAINER TERMINAL’ holds a permit to handle goods in the free zone of the free port of Riga and is required to keep a record of the goods in that zone. The Latvian Tax Authority found that goods had exited the free zone without going through the proper customs procedures, resulting in customs debts for the applicant. The goods were allowed to leave the free zone based on CMR consignment notes, but after they left, it was discovered that there were no documents to prove their change in customs status. As a result, the tax authority required the applicant to pay import duties, late-payment penalties, and value added tax, which the applicant challenged in court.
Questions
‘(1) Under Article 178(1)(b) and (c) of Delegated Regulation 2015/2446, in conjunction with Article 214(1) of the Union Customs Code, is it possible to discharge the ‘free zone’ special procedure without having included in the electronic records system the master reference number (MRN) which identifies the customs declaration by which the goods are placed under the subsequent customs procedure?
(2) Under Articles 214(1) and 215(1) of the Union Customs Code and Article 178(1)(b) and (c) of Delegated Regulation 2015/2446, is it possible for the holder of the ‘free zone’ special procedure to discharge that procedure relying solely on a note concerning the customs status of the goods made by a customs authority official on the transport document for the goods (CMR), without checking for itself the validity of the customs status of those goods?
(3) If the answer to question 2 is negative, what level of verification in accordance with Articles 214(1) and 215(1) of the Union Customs Code and Article 178(1)(b) and (c) of Delegated Regulation 2015/2446 is sufficient in order to consider the ‘free zone’ special procedure to have been correctly discharged?
(4) Was the holder of the ‘free zone’ special procedure entitled to have a legitimate expectation as a result of the confirmation by the customs authorities that the customs status of the goods had changed from ‘non-Union goods’ to ‘Union goods’, even though that confirmation did not indicate the reason for that change of status of the goods or any information which allowed that reason to be verified?
(5) If the answer to question 4 is negative, may the fact that, in other proceedings brought before a national court, it was ruled, by final judgment, that, in accordance with the procedures laid down by the customs authorities, the holder of the customs procedure had not committed any infringement with regard to the ‘free zone’ customs procedure constitute a ground for exemption from the customs debt arising under Article 79(1)(a) and 3(a) of the Union Customs Code, in the light of the principle of res judicata laid down in national law and EU law?
AG Opinion
(1) Article 214 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, read in conjunction with Article 178 of Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code, does not require a free zone permit holder to record a master reference number in every case in order to comply with his or her record-keeping obligations and discharge the free zone special procedure.
(2) The question as to whether the free zone procedure can be discharged by recording the CMR consignment note displaying the stamp and signature of the tax authority depends on the content of the permit or the tax authority’s waiver of certain record-keeping obligations. This can be assessed by the referring court alone.
(3) The discharge of the free zone special procedure does not require the free zone permit holder to conduct an independent verification of the validity of the status of goods as certified by the tax authority, where there is nothing to indicate that the certificate concerned has been falsified. What form that certificate must take and how the status of the goods released is to be proved are matters determined by national law – since Article 178(3) of Delegated Regulation 2015/2446 allows the customs authorities to waive the requirement to provide some information.
(4) An established administrative practice whereby the customs authority, after examining the goods in question, marks their status on the CMR consignment note by affixing a stamp and signature to it, and which, in the past, has always enabled the free zone procedure to be effectively discharged, may warrant the protection of legitimate expectations, even if the reason for the change of status is not specified on the consignment document. In any event, the foregoing is not manifestly contrary to unambiguous provisions of EU law because the latter allows divergent requirements relating to the furnishing of proof.
(5) EU law does not preclude the national principle of res judicata from preventing an assessment as to liability for a customs debt on the ground of a failure to fulfil obligations under Article 79(1)(a) of Regulation No 952/2013, where a national court, in the course of proceedings for the imposition of a penalty, has already found by final judgment within the same period that the situation in question does not constitute a failure to fulfil customs obligations.
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