Judgment;Summary — ECLI:EU:C:2020:583
Date: 2020-07-16
Language of the case: Italian
Court formation: Eighth Chamber
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Italy

Translation C-496/19 — 1 
Case C-496/19 
Request for a preliminary ruling 
Date lodged: 
25 June 2019 
Referring court: 
Commissione tributaria regionale della Campania (Italy) 
Date of the decision to refer: 
29 September 2017 
Applicant and appellant: 
Antonio Capaldo SpA 
Defendant and respondent: 
Agenzia delle dogane e dei monopoli — Ufficio delle dogane di 
Salerno 
  
  […] 
THE COMMISSIONE TRIBUTARIA 
REGIONALE DI CAMPANIA SEZIONE 
STACCATA DI SALERNO SEZIONE 5 
 […] 
  […] 
(Regional Tax Court, Campania, Italy, Salerno 
Division, Fifth Chamber) 
  
[…]   
has made the following 
ORDER 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 9. 2017 — CASE C-496/19 
 
2  
‒ in Appeal No 8959/2015 
lodged on 7 September 2015 
‒ against Judgment No 940/2015 Sez:14 of the Commissione Tributaria 
Provinciale di SALERNO (Provincial Tax Court, Salerno, Italy, Fourteenth 
Chamber) 
against: 
AGENZIA DOGANE ‒ UFFICIO DELLE DOGANE DI SALERNO (Customs 
Agency, Italy — Salerno Customs Office) 
brought by the appellant: 
ANTONIO CAPALDO SPA 
[…] 
represented by: 
MARIA ROSARIA SALZANO 
and PIERLUIGI GIORDANO DOMENICO DE ROSA (lawyers) 
[…] 
Contested documents: 
AVV. RETTIFICA no N. 5984 DOGANE DAZI (Rectification Notice No 
N. 5984 — Customs Duties) 
AVV. RETTIFICA no N. 5984 DOGANE IVA IMP. (Rectification Notice No 
N. 5984 — Import VAT) 
AVV. RETTIFICA no N. 5988 DOGANE DAZI (Rectification Notice No 
N. 5988 — Customs Duties) 
‒ in Appeal No 10157/2015 
lodged on 16 October 2015 
‒ against Judgment No 3675/2015 Sez:10 of the Commissione Tributaria 
Provinciale di SALERNO (Provincial Tax Court, Salerno, Tenth Chamber) 
against: 
ANTONIO CAPALDO SPA 
[Or.2] 
ANTONIO CAPALDO 
 
3 
[…] 
represented by: 
MARIA ROSARIA SALZANO 
and PIERLUIGI GIORDANO DOMENICO DE ROSA 
[…] 
brought by the appellant: 
AGENZIA DOGANE E MONOPOLI ‒ UFFICIO DELLE DOGANE DI 
SALERNO (Customs and Monopolies Agency, Italy — Salerno Customs Office) 
Contested documents: 
IST.REV. ACC.TO no PROT. 35873/2014 DOGANE DAZI (Application for 
Review of Assessment No PROT. 35873/2014 — Customs Duties) 
IST.REV. ACC.TO no PROT. 35873/2014 DOGANE IVA IMP. (Application for 
Review of Assessment No PROT. 35873/2014 — Import VAT) 
‒ in Appeal No 10162/2015 
lodged on 16 October 2015 
‒ against Judgment No 2413/2015 Sez:2 of the Commissione Tributaria 
Provinciale di SALERNO (Provincial Tax Court, Salerno, Second Chamber) 
against: 
AGENZIA DOGANE E MONOPOLI ‒ UFFICIO DELLE DOGANE DI 
SALERNO (Customs and Monopolies Agency — Salerno Customs Office) 
brought by the appellant: 
ANTONIO CAPALDO SPA 
[…] 
represented by: 
MARIA ROSARIA SALZANO 
and PIERLUIGI GIORDANO [DOMENICO DE ROSA] (lawyers) 
[…] 
Contested documents: 
REQUEST FOR A PRELIMINARY RULING OF 29. 9. 2017 — CASE C-496/19 
 
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AVVISO DI ACCERTAMENTO no PROT. N. 1297/14 DOGANE DAZI 
(Assessment Notice No PROT. N. 1297/14 — Customs Duties) and AVVISO DI 
ACCERTAMENTO no PROT. N. 1297/14 DOGANE IVA IMP (Assessment 
Notice No PROT. N. 1297/14 — Import VAT). 
[Or.3] 
The proceedings 
1. By an action notified within the prescribed time limit and in the proper form, the 
company Antonio Capaldo SpA (‘Antonio Capaldo’), represented as stated above, 
challenged before the Commissione Tributaria Provinciale [di] Salerno (Provincial 
Tax Court, Salerno, Italy) (‘the Tax Court’) the decisions dismissing its 
applications for review of the assessment of Customs Dockets IMA No 1937S of 
24 February 2011 and IMA No 1993C of 25 February 2011 (‘the contested 
decisions’). 
2. In support of the action, Antonio Capaldo stated that it had imported gazebos from 
China some of which were made with an iron structure and others with an 
aluminium structure and that it had mistakenly declared them under tariff heading 
6306 12 00 00 (for which the rate of duty was 12%). 
Following an internal audit carried out by a customs consultancy, it had found that 
the tariff heading attributed to the gazebos in question was incorrect, inasmuch as 
the gazebos with an iron structure should allegedly have been classified under 
tariff heading 7308 90 99 00 (for which the rate of duty was 0%, while the 
gazebos with an aluminium structure should theoretically have been classified 
under tariff heading 7610 90 99 00, for which the rate of duty was 6%). 
Accordingly, it made two applications for review of the assessment of the import 
dockets in question, seeking amendment of the tariff heading and reimbursement 
of the excess paid by way of customs duty and VAT. 
3. By the contested decisions, the Ufficio delle Dogane di Salerno (Salerno Customs 
Office) (‘the Customs Office’) dismissed those applications, finding that: 
(a) in light of the Explanatory notes to the Customs Tariff Nomenclature 
(Section XI, tariff heading 6306, point 4), the tariff heading attributed had to be 
regarded as correct; 
(b) Rule 3 of the ‘General Rules for the interpretation of the Combined 
Nomenclature’ did not apply because the goods in question were ‘specifically 
listed in the customs tariff’. 
4. Antonio Capaldo referred to the Community and national legislation governing 
the procedure for the review of assessments, set out the principles governing the 
customs classification of goods and argued that the contested decisions were 
unlawful. In particular, it complained that: 
ANTONIO CAPALDO 
 
5 
(a) tariff heading 6306 12 00 00, which had been declared when the gazebos 
were imported, related (as could easily be ascertained from the TARIC database, 
available on the Customs Agency’s website) [Or.4] to: ‘Tarpaulins, awnings and 
sunblinds; tents; sails for boats, sailboards or landcraft; camping goods’; 
(b) the error was therefore obvious, given that gazebos are not tarpaulins, 
awnings, tents, sails or camping goods; 
(c) the gazebos were not, contrary to the Customs Office’s assertions, 
specifically listed in the customs tariff, there being no specific tariff heading 
relating to them; 
(d) the gazebos were in fact ‘mixed’ goods, in that they consisted in a 
supporting structure of iron/steel or aluminium and a material covering; they were 
therefore complex structures (d1) that included a real supporting structure to take 
the weight of the covering which, (d2) from an economic viewpoint, as shown by 
the annexed documentation, had to be regarded as more significant than the 
covering (given that, as a rule, the cost of an iron and/or steel structure represented 
more than 60% of the gazebo’s value and that of an aluminium structure more 
than 80%); 
(e) accordingly, the gazebos not being listed in the Customs Tariff but, based on 
the foregoing considerations, being composite goods consisting of different 
materials and made up of several components, the correct classification, in 
accordance with the General Rules for the interpretation of the Combined 
Nomenclature, should have been carried out by reference to the rule that 
‘mixtures, composite goods consisting of different materials or made up of 
different components, and goods put up in sets for retail sale … [are to] be 
classified as if they consisted of the material or component which gives them their 
essential character’; 
(f) there could be no doubt in the case at hand that the essential character of the 
gazebos was conferred by their structure, given that (f1) the covering could be 
made of anything (cloth, plastic, bamboo, palm leaves, and so on), while (f2) the 
cost of the structure was, based on the [foregoing] considerations, clearly the main 
cost; 
(g) accordingly, applying those General Rules, (g1) the gazebos with an iron 
supporting structure should have been classified, as requested, under tariff heading 
7308 and (g2) the gazebos with an aluminium structure should have been 
classified under tariff heading 7610; 
(h) it would also be necessary to reach the same conclusion if applying 
[Commission Regulation (EU) No 313/2011 of 30 March 2011 concerning the 
classification of certain goods in the Combined Nomenclature (OJ 2011 L 86, 
p. 55)], which, in the annex thereto, stated that the higher cost of one of the 
materials making up the product in question was likely to give the product its 
essential character and so determine its customs classification; 
REQUEST FOR A PRELIMINARY RULING OF 29. 9. 2017 — CASE C-496/19 
 
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(i) in response to the arguments and documentation put forward, the Customs 
Office had indeed referred, in the contested decisions, to the ‘Explanatory notes to 
the Customs Tariff [Or.5] Nomenclature (Section XI, tariff heading 6306, 
point 4)’ and had found that ‘the goods [were] specifically listed in the customs 
tariff’, which therefore excluded the application of ‘Rule 3 of the General Rules 
for the interpretation of the Combined Nomenclature’; however, it had not 
demonstrated or documented its own assumption; nor could it have done so, 
because, in those explanatory notes, there are no notes relating to subheading 06 
of Chapter 63, still less to any point 4 thereof, since the notes in fact go straight 
from heading 6305 to heading 6307; 
(j) nor could it have been regarded as useful to refer to the ‘Explanatory Notes 
of the Swiss Federal Customs Administration’ (in the body of which, under 
heading 6306 of Section XI, there was indeed a point 4, which stated that that 
heading was to include ‘all … Tents …, shelters etc. including large marquees 
(e.g. circus tents), military tents with poles and stakes etc.’, because those notes 
also contained a paragraph relating exclusively to the tariff classification of 
gazebos; that paragraph carefully set out the differences between ‘gazebo tents’ 
(which have a simple tent-pole structure and generally a material covering) and 
‘pergola gazebos’ (which, like those imported by Antonio Capaldo, have a real 
supporting structure to take the weight of the covering) and confirmed that, on the 
basis of Rule 3c for the interpretation of the Harmonised System, regardless of the 
material used for the covering, the gazebos should have been classified under 
heading 7308, where their supporting structure was made of iron, or heading 
7610, where it was made of aluminium. 
5. In its defence, the Customs Office reiterated its arguments and also stated that: 
(a) the goods in question were of the same type as other goods that had been 
imported previously with a different customs docket and which had been the 
subject of a physical inspection without any objection being raised on the part of 
the customs agent representing the importer; 
(b) the legislation relating to the review of assessments, in so far as it provided 
that the Customs Office ‘could’ review such assessments, meant that the decision 
to review was merely optional and, accordingly, not mandatory; 
(c) the Explanatory Notes of the Swiss Federal Customs Administration (which 
had been referred to as a point of comparison) were not applicable in a 
Community context. 
6. Antonio Capaldo disputed the reasoning of the Customs Office and replied that: 
[Or.6] 
(a) the fact that the goods in question were of the same type as other goods that 
had previously been the subject of a physical inspection at the time of importation 
ANTONIO CAPALDO 
 
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could not be regarded as precluding the procedure for the review of assessments 
(there being no such rule or practice at Community or national level); 
(b) the optional nature of the decision to review could not be accepted as 
adequate grounds for arbitrarily leaving every decision regarding an application 
for review submitted by a party to the customs authorities, this being, in essence, a 
power/duty for which proper reasoning had to be given; 
(c) the reference to the explanatory notes relating to the Swiss legislation had 
been made solely to explain and confirm the assertion that the Explanatory notes 
to the EU Combined Nomenclature, to which the Customs Office had referred, did 
not, as was stated in the application, contain any notes to heading 6306. 
7. After hearing the parties, the [Tax Court] dismissed the action by Judgment 
No [940/2015] of 25 February 2015, essentially upholding the Customs Office’s 
arguments and finding that: 
(a) the tariff heading originally attributed could indeed relate to the imported 
gazebos, inasmuch as that heading related to tents and shelters; 
(b) the Explanatory Notes of the Swiss Federal Customs Administration relied 
on by Antonio Capaldo could not be applied to the Member States; 
(c) the imported goods were of the same type as other goods that had previously 
been physically inspected upon importation and that had been acknowledged as 
falling under tariff heading 6306 12 00 00. 
8. Antonio Capaldo appealed against that ruling, arguing that it was entirely 
mistaken and seeking variation of the judgment. 
9. By a separate appeal, also notified within the prescribed time limit and in the 
proper form, Antonio Capaldo likewise challenged Judgment No [2413/2015] of 
26 February 2015, by which the Tax Court had dismissed, in substantially the 
same terms, a similar action. 
10. By a separate appeal, the Customs Agency in turn challenged Judgment 
No [3675/2015] of 15 June 2015, by which, in identical circumstances, the same 
Tax Court, sitting in a different composition, had upheld Antonio Capaldo’s 
action. 
[Or.7] 
11. At the public inter partes hearing on 29 September 2017, the legal representatives 
of the parties having again put forward their pleadings, the cases, which had been 
joined for the purposes of the decision, were reserved for judgment. 
The grounds of the decision 
REQUEST FOR A PRELIMINARY RULING OF 29. 9. 2017 — CASE C-496/19 
 
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1. The abovementioned appeals, which in subjective and objective terms are clearly 
linked, should henceforth be joined for the purposes of a single decision, given 
that they all call for the resolution of the same issues of fact and law. 
2. Having full regard to the grounds of appeal argued by both sides, the referring 
court observes that the issues which it is called upon to examine concern: 
(a) the formal/procedural issue of whether the procedure for the review of 
assessments is available upon application by a party; the customs authority (with 
the support of two of the rulings that are now under appeal, but not of the separate 
ruling being appealed by the Customs Office) has argued that it is not, for two 
reasons: first, it is merely an option (and so the omission thereof or objection 
thereto by the customs authorities cannot be called into question); secondly and at 
the same time, recourse cannot be had to the procedure because goods of the same 
type have been acknowledged, without any objection being raised, as falling under 
tariff heading 6306 12 00 00; 
(b) the substantive issue of whether the tariff heading originally attributed to the 
goods may be justified by the similarity between gazebos and ‘tents and shelters’. 
3. As regards the first issue, in so far as concerns the extended application of the 
results of the examination of goods which have previously been the subject of a 
customs inspection, the Court of Justice (most recently in its judgment of 
27 February 2014[, Greencarrier Freight Services Latvia, C-571/12]) has held 
that this may be justified ‘where those goods are identical, which it is for the 
referring court to ascertain’. 
In particular, ‘a finding that the goods are identical may be based, inter alia, on 
the inspection of the commercial documents and data relating to the import or 
export operations in respect of the goods concerned or to subsequent commercial 
operations involving those goods and, in particular, on the particulars supplied by 
the customs declarant stating that the goods come from the same manufacturer 
and are identical as regards their name, appearance and composition to the 
goods covered by those earlier customs declarations’. 
[Or.8] 
In so far as concerns the procedure for the review of assessments, this is governed 
by Article 11(1) of Legislative Decree No 374/1990, which provides that the 
customs office ‘may review an assessment which has become final even if the 
trader has been given the freedom to dispose of the goods which were the subject 
of that assessment or if those goods have already left the customs territory’. 
In addition, pursuant to paragraphs (1) and (2) of Article 78 of [Council 
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community 
Customs Code (OJ 1992 L 302, p. 1)] (which is entitled ‘Post-clearance 
examination of declarations’), after releasing the goods the customs authorities 
may, ‘on their own initiative or at the request of the declarant, amend the 
ANTONIO CAPALDO 
 
9 
declaration’ and, ‘in order to satisfy themselves as to the accuracy of the 
particulars contained in the declaration, [may] inspect the commercial documents 
and data relating to the import or export operations in respect of the goods 
concerned or to subsequent commercial operations involving those goods’. 
Article 11(5) of Legislative Decree No 374/1990 provides that, ‘where the 
review … reveals inaccuracies, errors or omissions relating to the factors on 
which the assessment was based, the [customs] office shall make the 
corresponding rectification and shall give the trader concerned appropriate 
notice thereof’. 
That provision appears to be consistent with Article 78(3) of Regulation (EEC) 
No 2913/92, which provides that, ‘where revision of the declaration or post-
clearance examination indicates that the provisions governing the customs 
procedure concerned have been applied on the basis of incorrect or incomplete 
information, the customs authorities shall … take the measures necessary to 
regularize the situation’. 
4. The Customs Office maintains that it applied that legislation correctly, in that it 
chose not to grant the application for review submitted by Antonio Capaldo on the 
basis that that company had not provided any new factual evidence to indicate 
inaccuracies, errors or omissions relating to the factors on which the assessment 
had been based (the catalogue photographs of the goods that had cleared customs 
in previous years, without any objection being raised, being allegedly insufficient 
in that regard). 
Antonio Capaldo argues, to the contrary, that: 
(a) all that is necessary under the legislation outlined above, for the purposes of 
the review procedure, is that the assessment has become final and that the (three-
year) time limit has not expired; there is no reference to the manner in which the 
assessment was carried out, whether automatic or on the basis of documents or 
inspection of the goods, being such as to preclude the procedure; 
(b) the fact that goods have previously been the subject of an inspection does 
not, accordingly, preclude the procedure for the review of assessments. 
[Or.9] 
5. The matters set out in the preceding paragraph would appear to be decisive for the 
purposes of resolving the dispute, the courts initially seised having taken divergent 
views and having found the remedy of review variously to be available or 
precluded once, as in the present case, the goods have been the subject of a 
physical inspection, without any objection being raised, upon importation. 
Given that this issue, which has been assessed in different ways, calls for an 
interpretation of EU law, it appears appropriate to refer the case to the Court of 
Justice of the European Union, pursuant to Article 267 of the Treaty [on the 
REQUEST FOR A PRELIMINARY RULING OF 29. 9. 2017 — CASE C-496/19 
 
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Functioning of the European Union], so that it may give a preliminary ruling on 
the following question: 
‘Where goods have been physically inspected upon importation, does this 
preclude initiating the procedure for the review of assessments referred to in 
Article 78 of Regulation (EEC) No 2913/92 establishing the Community Customs 
Code?’ 
6. The remaining points of contention, the assessment of which is dependent upon 
the answer to the question referred for a preliminary ruling, will be addressed in 
the subsequent assessment of the substance of the case. 
[…] 
[…] 
[…] [stay of proceedings and instructions for the registry] 
[…] 29 September 2017 
[…]