# C_2017437EN.01001101.xml

| 18.12.2017 | EN | Official Journal of the European Union | C 437/11 |
| --- | --- | --- | --- |

18.12.2017

EN

Official Journal of the European Union

C 437/11

---

Judgment of the Court (Sixth Chamber) of 26 October 2017 (request for a preliminary ruling from the Augstākās tiesas Administratīvo lietu departaments) — ‘Aqua Pro’ SIA v Valsts ieņēmumu dienests

(Case C-407/16) (1)

1

((Reference for a preliminary ruling - Customs union - Community Customs Code - Article 220(1) and (2)(b) - Post-clearance recovery of import or export duties - Definition of ‘entry in the accounts of the import duties’ - Decision of the competent customs authority - Time limit for submitting an application for repayment or remission - Obligation to transmit the case to the European Commission - Evidence in the event of an appeal against a decision of the competent authority of the importing Member State))

(2017/C 437/14)

Language of the case: Latvian

Referring court

Referring court

Augstākās tiesas Administratīvo lietu departaments

Parties to the main proceedings

Parties to the main proceedings

Applicant:‘Aqua Pro’ SIA

Applicant:

Defendant: Valsts ieņēmumu dienests

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Article 217(1) and Article 220(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that, in the case of post-clearance recovery, the amount of duty found to be owed by the authorities is to be regarded as entered in the accounts when the customs authorities enter that amount in the accounting records or on any other equivalent medium, regardless of the fact that the decision of the authority to enter that amount in the accounts or establish the obligation to pay the duty is subject to an administrative appeal or judicial review. |
| --- | --- |

1.

Article 217(1) and Article 220(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that, in the case of post-clearance recovery, the amount of duty found to be owed by the authorities is to be regarded as entered in the accounts when the customs authorities enter that amount in the accounting records or on any other equivalent medium, regardless of the fact that the decision of the authority to enter that amount in the accounts or establish the obligation to pay the duty is subject to an administrative appeal or judicial review.

| 2. | Article 220(2)(b) and Articles 236, 239 and 243 of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that, in the case of an administrative appeal or judicial review, within the meaning of Article 243 of that regulation, as amended by Regulation No 2700/2000, brought against a decision of the competent tax authority subsequently to enter in the accounts an amount of import duty and to require the importer to pay it, that importer may rely on a legitimate expectation under Article 220(2)(b) of that regulation, as amended by Regulation No 2700/2000, in order to challenge that entry in the accounts, regardless of whether the importer has submitted an application for remission or repayment of such duty in accordance with the procedure laid down in Articles 236 and 239 of the regulation, as amended by Regulation No 2700/2000. |
| --- | --- |

2.

Article 220(2)(b) and Articles 236, 239 and 243 of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that, in the case of an administrative appeal or judicial review, within the meaning of Article 243 of that regulation, as amended by Regulation No 2700/2000, brought against a decision of the competent tax authority subsequently to enter in the accounts an amount of import duty and to require the importer to pay it, that importer may rely on a legitimate expectation under Article 220(2)(b) of that regulation, as amended by Regulation No 2700/2000, in order to challenge that entry in the accounts, regardless of whether the importer has submitted an application for remission or repayment of such duty in accordance with the procedure laid down in Articles 236 and 239 of the regulation, as amended by Regulation No 2700/2000.

| 3. | Article 869(b) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003, must be interpreted as meaning that, where there is no Commission decision or procedure within the meaning of Article 871(2) of the regulation, as amended by Regulation No 1335/2003, in a situation such as that at issue in the case in the main proceedings, the customs authorities may not themselves decide not to enter uncollected duties subsequently in the accounts by taking the view that the conditions for pleading a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied, and that those authorities are required to transmit the dossier to the European Commission, either where they consider that the Commission has committed an error within the meaning of that provision of Regulation No 2913/92, as amended by Regulation No 2700/2000, or where the circumstances of the case in the main proceedings are related to the findings of an EU investigation within the meaning of the second indent of Article 871(1) of Regulation No 2454/93, as amended by Regulation No 1335/2003, or where the amount of the duties at issue in the main proceedings is EUR 500 000 or more. |
| --- | --- |

3.

Article 869(b) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003, must be interpreted as meaning that, where there is no Commission decision or procedure within the meaning of Article 871(2) of the regulation, as amended by Regulation No 1335/2003, in a situation such as that at issue in the case in the main proceedings, the customs authorities may not themselves decide not to enter uncollected duties subsequently in the accounts by taking the view that the conditions for pleading a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied, and that those authorities are required to transmit the dossier to the European Commission, either where they consider that the Commission has committed an error within the meaning of that provision of Regulation No 2913/92, as amended by Regulation No 2700/2000, or where the circumstances of the case in the main proceedings are related to the findings of an EU investigation within the meaning of the second indent of Article 871(1) of Regulation No 2454/93, as amended by Regulation No 1335/2003, or where the amount of the duties at issue in the main proceedings is EUR 500 000 or more.

| 4. | Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that information contained in a European Anti-Fraud Office (OLAF) report relating to the conduct of the customs authorities of the exporting State and that of the exporter may be admitted as evidence in ascertaining whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. To the extent, however, that such a report proves insufficient, in the light of the information that it contains, for the purposes of establishing to the requisite legal standard whether those conditions are actually satisfied in all respects, which is for the referring court to ascertain, the customs authorities may be required to provide further evidence for that purpose, inter alia by carrying out subsequent checks. |
| --- | --- |

4.

Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that information contained in a European Anti-Fraud Office (OLAF) report relating to the conduct of the customs authorities of the exporting State and that of the exporter may be admitted as evidence in ascertaining whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. To the extent, however, that such a report proves insufficient, in the light of the information that it contains, for the purposes of establishing to the requisite legal standard whether those conditions are actually satisfied in all respects, which is for the referring court to ascertain, the customs authorities may be required to provide further evidence for that purpose, inter alia by carrying out subsequent checks.

| 5. | Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that it is for the referring court to ascertain, in the light of all the specific evidence in the case in the main proceedings, and in particular of the evidence adduced by the parties in those proceedings for that purpose, whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. For the purpose of that assessment, priority is not to be given to information obtained in a subsequent check over that contained in a European Anti-Fraud Office (OLAF) report. |
| --- | --- |

5.

Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that it is for the referring court to ascertain, in the light of all the specific evidence in the case in the main proceedings, and in particular of the evidence adduced by the parties in those proceedings for that purpose, whether the conditions for an importer to rely on a legitimate expectation under that provision are satisfied. For the purpose of that assessment, priority is not to be given to information obtained in a subsequent check over that contained in a European Anti-Fraud Office (OLAF) report.

| 6. | Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that a Member State is bound, under the conditions specified by the European Commission pursuant to that article, by the findings of a European Commission decision adopted under Article 873 of that regulation, as amended by Regulation No 1335/2003, in respect of another Member State in cases involving comparable issues of fact and of law, which it is for its authorities and courts to ascertain by taking into account, inter alia, the information on the conduct of the exporter or that of the customs authorities of the exporting State as stated in the European Anti-Fraud Office (OLAF) report on which the decision is based. |
| --- | --- |

6.

Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that a Member State is bound, under the conditions specified by the European Commission pursuant to that article, by the findings of a European Commission decision adopted under Article 873 of that regulation, as amended by Regulation No 1335/2003, in respect of another Member State in cases involving comparable issues of fact and of law, which it is for its authorities and courts to ascertain by taking into account, inter alia, the information on the conduct of the exporter or that of the customs authorities of the exporting State as stated in the European Anti-Fraud Office (OLAF) report on which the decision is based.

| 7. | Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, and Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that the customs authorities may, in principle, carry out as many post-clearance checks as they deem necessary, and use the information obtained from those checks, both in ascertaining whether the conditions for an importer to rely on a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied and in determining whether a case before those authorities involves issues of fact and of law that are comparable, within the meaning of Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, to a case on the basis of which a decision not to enter a duty in the accounts was adopted by the European Commission in accordance with Article 873 of Regulation No 2454/93, as amended by Regulation No 1335/2003. |
| --- | --- |

7.

Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, and Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, must be interpreted as meaning that the customs authorities may, in principle, carry out as many post-clearance checks as they deem necessary, and use the information obtained from those checks, both in ascertaining whether the conditions for an importer to rely on a legitimate expectation under Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, are satisfied and in determining whether a case before those authorities involves issues of fact and of law that are comparable, within the meaning of Article 875 of Regulation No 2454/93, as amended by Regulation No 1335/2003, to a case on the basis of which a decision not to enter a duty in the accounts was adopted by the European Commission in accordance with Article 873 of Regulation No 2454/93, as amended by Regulation No 1335/2003.

| 8. | Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that the fact that an importer imported goods under a distribution agreement has no incidence on his ability to plead a legitimate expectation on the same conditions as an importer who has imported goods by buying them directly from the exporter, that is to say, if three cumulative conditions are satisfied. It is necessary, first, that the failure to levy the duties was due to an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards his customs declaration. To that end, it is for such an importer to guard against the risks of an action for post-clearance recovery, inter alia by seeking to obtain from the other contracting party to that distribution agreement, at the time when the agreement is concluded or thereafter, all the necessary evidence confirming that the ‘Form A’ certificate of origin in respect of those goods was correctly issued. There can thus be no legitimate expectation within the meaning of the provision, in particular where, although he has clear reasons for doubting the accuracy of a ‘Form A’ certificate of origin, that importer failed to obtain from that contracting party information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well founded. |
| --- | --- |

8.

Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that the fact that an importer imported goods under a distribution agreement has no incidence on his ability to plead a legitimate expectation on the same conditions as an importer who has imported goods by buying them directly from the exporter, that is to say, if three cumulative conditions are satisfied. It is necessary, first, that the failure to levy the duties was due to an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards his customs declaration. To that end, it is for such an importer to guard against the risks of an action for post-clearance recovery, inter alia by seeking to obtain from the other contracting party to that distribution agreement, at the time when the agreement is concluded or thereafter, all the necessary evidence confirming that the ‘Form A’ certificate of origin in respect of those goods was correctly issued. There can thus be no legitimate expectation within the meaning of the provision, in particular where, although he has clear reasons for doubting the accuracy of a ‘Form A’ certificate of origin, that importer failed to obtain from that contracting party information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well founded.

---

(1)  OJ C 343, 19.9.2016.

1

---