Opinion of the Advocate General — ECLI:EU:C:2007:264
Date: 2007-05-03
Language of the case: Portuguese
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Free movement of goods;Customs Union;Own resources
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits (Art. 234 EC) 2. Own resources of the European Communities – Post-clearance recovery of import or export duties (Council Regulation No 1697/79, Art. 2(1) and (3)) 1. Although, in the light of the division of responsibilities in the preliminary ruling procedure, the referring court alone can determine the subject-matter of the questions it proposes to refer to the Court of Justice, the latter can, in exceptional circumstances, examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. Such is the case, in particular, where the problem referred to the Court is purely hypothetical, as in a situation where, the public prosecutor having brought proceedings before a national court, the question as to what consequences should be drawn from the absence of such proceedings is of no relevance to the outcome of the case in the main proceedings. (see paras 14-16) 2. Classification of an act as ‘an act that could give rise to criminal court proceedings’, within the meaning of the first paragraph of Article 3 of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties, falls within the competence of the customs authorities required to determine the exact amount of the import duties or export duties in question. In the first place, it is clear from the wording of that provision that the authorities which are competent to classify an act as ‘an act that could give rise to criminal court proceedings’ are those authorities which, owing to the commission of such an act, were unable to collect customs duties due and are thus seeking to recover those duties post-clearance. As is provided, inter alia, in Article 2(1) of Regulation No 1697/79, it is clear that it is for the customs authorities of the Member States to determine the amount of those duties and to bring an action for their recovery. Secondly, the first paragraph of Article 3 of Regulation No 1697/79 refers neither to a criminal conviction nor to the initiation of any criminal action, but refers unambiguously to the commission of an act that could simply give rise to criminal court proceedings. There is no requirement in that provision for criminal court proceedings to have actually been initiated by the prosecuting authorities of a Member State and for those proceedings to lead to a conviction of those who committed the act in question, nor, a fortiori, is there a requirement that such proceedings not be time-barred. That conclusion cannot be called into question by considerations concerning observance of the principles of legal certainty and of the presumption of innocence of the persons liable for payment of those duties. Classification by the customs authorities of an act as ‘an act that could give rise to criminal court proceedings’ does not constitute a finding that an infringement of criminal law has actually been committed, but is made in the context and for the purposes of an administrative procedure whose sole purpose is to enable those authorities to make good incorrect or insufficient collection of import or export duties. Such classification is without prejudice to the review which the courts of the Member States may carry out in respect of the decisions of the customs authorities and cannot impose any restriction on all the consequences, including those which relate to any reimbursement of duties improperly levied by those authorities, which, pursuant to national law, may flow from the decisions of those courts, in particular, of those ordering dismissal of the charges or the acquittal of the accused. Accordingly, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to lay down the conditions enabling persons liable to payment to contest the application of the exception under Article 3 of Regulation No 1697/79 in relation to the limitation on actions for recovery of duties not collected and to request, in that respect, that consequences may be drawn from rulings in court proceedings, provided that those conditions are not less favourable than those governing similar domestic actions and that they do not render practically impossible the exercise of rights conferred by Community law. (see paras 22, 24-31, operative part)