ECJ Customs C-640/21 (Zes Zollner Electronic) – Judgment – Amennding customs declarations and failing to declare the correct quantity of goods

On June 8, 2023, the ECJ issued its decision in the case C-640/21 (Zes Zollner Electronic).

Context: 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

Article in the EU VAT Directive

Articles 173 and 174 of the Regulation (EEC) No 2913/92

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;

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.

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.

Facts

ZZE placed two orders with a Swiss company for a total of 10,000 electronic integrated circuits.
The company issued two invoices, one for 5,000 parts and the other for another 5,000 parts. ZZE received an 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.
Only goods relating to one of the invoices were declared to the border customs office. Upon taking delivery of the consignment, ZZE discovered that it contained double the quantity stated on one of the invoices and that another invoice had not been included in the declaration made to the customs authorities.
ZZE applied to the border customs office for the situation to be regularised, but the competent customs authority fined ZZE for having committed an administrative offence and imposed an additional fine.
ZZE challenged that decision before the Romanian courts, but the Court of First Instance dismissed ZZE’s action. ZZE brought an appeal against that decision before the Tribunalul Cluj, the referring court.
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.

Questions

(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?

AG Opinion

(1) Article 173(1) 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 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.

(2) Article 173(3) of Regulation No 952/2013

must be interpreted as meaning that it does not preclude a customs declaration from being amended, after the release of the 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.

(3) Article 174 of Regulation No 952/2013

must be interpreted as meaning that it precludes the competent customs authorities, where an excess quantity of goods has not been entered in the original customs declaration, from invalidating that declaration after the goods have been released.

Decision

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.

Summary

Regulation (EU) No 952/2013 does not apply when a declarant reports after the release of goods that a quantity of goods exceeding that covered by the original declaration should also have been reported. Amendment of a customs declaration cannot be allowed to cover a quantity of goods in excess of that set out in the original declaration, and invalidation of a customs declaration cannot be allowed after release of goods unless determined by the Commission under Article 175. If a declarant reports a greater quantity of imported goods than set out in the customs declaration after release of goods, a new declaration must be made for the excess quantity. If penalties are applied, they must take into account all relevant information, including the good faith of the declarant, to ensure they are effective, proportionate, and dissuasive.

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