# C_2014292EN.01000602.xml

| 1.9.2014 | EN | Official Journal of the European Union | C 292/6 |
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1.9.2014

EN

Official Journal of the European Union

C 292/6

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Judgment of the Court (Fifth Chamber) of 3 July 2014 (request for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — Kamino International Logistics BV (C-129/13), Datema Hellmann Worldwide Logistics BV (C-130/13) v Staatssecretaris van Financiën

(Joined Cases C-129/13 and C-130/13) (1)

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((Recovery of a customs debt - Principle of respect for the rights of the defence - Right to be heard - Addressee of the recovery decision not heard by the customs authorities before its adoption, but only during the subsequent objection stage - Infringement of the rights of the defence - Determination of the legal consequences of non-observance of the rights of the defence))

2014/C 292/08

Language of the case: Dutch

Referring court

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Parties to the main proceedings

Applicants: Kamino International Logistics BV (C-129/13), Datema Hellmann Worldwide Logistics BV (C-130/13)

Applicants:

Defendant: Staatssecretaris van Financiën

Defendant:

Operative part of the judgment

Operative part of the judgment

| 1) | The principle of respect for the rights of the defence by the authorities and the resulting right of every person to be heard before the adoption of any decision liable adversely to affect his interests, as they apply in the context 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, may be relied on directly by individuals before national courts. |
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1)

The principle of respect for the rights of the defence by the authorities and the resulting right of every person to be heard before the adoption of any decision liable adversely to affect his interests, as they apply in the context 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, may be relied on directly by individuals before national courts.

| 2) | The principle of respect for the rights of the defence and, in particular, the right of every person to be heard before the adoption of an adverse individual measure must be interpreted as meaning that, where the addressee of a demand for payment adopted in a procedure for the post-clearance recovery of customs duties on imports, under Regulation No 2913/92, as amended by Regulation No 2700/2000, he has not been heard by the authorities before the adoption of the decision, his rights of defence are infringed even though he can express his views during a subsequent administrative objection stage, if national legislation does not allow the addresses of such demands, in the absence of a prior hearing, to obtain suspension of their implementation until their possible amendment. Such is the case, in any event, if the national administrative procedure implementing the second subparagraph of Article 244 of Regulation No 2913/92, as amended by Regulation No 2700/2000, restricts the grant of such suspension where there is good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned. |
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2)

The principle of respect for the rights of the defence and, in particular, the right of every person to be heard before the adoption of an adverse individual measure must be interpreted as meaning that, where the addressee of a demand for payment adopted in a procedure for the post-clearance recovery of customs duties on imports, under Regulation No 2913/92, as amended by Regulation No 2700/2000, he has not been heard by the authorities before the adoption of the decision, his rights of defence are infringed even though he can express his views during a subsequent administrative objection stage, if national legislation does not allow the addresses of such demands, in the absence of a prior hearing, to obtain suspension of their implementation until their possible amendment. Such is the case, in any event, if the national administrative procedure implementing the second subparagraph of Article 244 of Regulation No 2913/92, as amended by Regulation No 2700/2000, restricts the grant of such suspension where there is good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.

| 3) | The conditions under which observance of the rights of the defence is to be ensured and the consequences of the infringement of those rights are governed by national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness).
  The national court, which is under an obligation to ensure that EU law is fully effective, may, when assessing the consequences of an infringement of the rights of the defence, in particular the right to be heard, consider that such an infringement entails the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different. |
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3)

The conditions under which observance of the rights of the defence is to be ensured and the consequences of the infringement of those rights are governed by national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness).

The national court, which is under an obligation to ensure that EU law is fully effective, may, when assessing the consequences of an infringement of the rights of the defence, in particular the right to be heard, consider that such an infringement entails the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different.

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(1)  OJ C 171, 15.6.2013.

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