Opinion of the Advocate General — ECLI:EU:C:2005:421
Date: 2005-06-30
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Acts of the institutions – Temporal application – Procedural rules – Substantive rules – Distinction (Council Regulation No 2913/92, Arts 217 to 232) 2. European Communities’ own resources – Post-clearance recovery of import or export duties (Council Regulation No 2913/92, Art. 221(1)) 3. European Communities’ own resources – Post-clearance recovery of import or export duties (Council Regulation No 2913/92, Art. 221) 1. Procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force. Consequently, only the procedural rules set out in Articles 217 to 232 of Regulation No 2913/92 establishing the Community Customs Code apply to the recovery, commenced after 1 January 1994, when that code became applicable, of a customs debt incurred prior to that date. Article 221(3) of the Customs Code must be considered, unlike Article 221(1) and (2), to be a substantive provision and cannot, therefore, be applied to recovery of a customs debt incurred prior to 1 January 1994. On expiry of the period prescribed by that article, an action for recovery of a customs debt is time-barred subject to the exception laid down in that article, which amounts to the debt itself being time-barred and, consequently, extinguished. Moreover, Article 233 of that code states that the list of the different causes of extinction of the customs debt set out at points (a) to (d) of that article is without prejudice, inter alia, to the provisions relating to the time-barring of the customs debt. Where the customs debt was incurred prior to 1 January 1994, it can be governed only by the rules on limitation in force at that date, even if the procedure for recovery of the debt was commenced after 1 January 1994. (see paras 31, 40, 42, operative parts 1, 3) 2. Article 221(1) of Regulation No 2913/92 establishing the Community Customs Code, requires the amount of import or export duty to be entered in the accounts before it is communicated to the debtor. It follows from the wording of that provision, which is wholly unambiguous, that entry in the accounts, which consists of entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import or export duty. (see paras 46, 49, operative part 2) 3. Member States are not required to adopt specific procedural rules on the manner in which communication of the amount of import or export duties is to be made to the debtor, laid down in Article 221 of Regulation No 2913/92 establishing the Community Customs Code, where national procedural rules of general application can be applied to that communication, which ensure that the debtor receives adequate information and which enable him, with full knowledge of the facts, to defend his rights. (see para. 54, operative part 4)