Judgment;Summary — ECLI:EU:C:2024:299
Date: 2024-04-11
Language of the case: Italian
Court formation: Tenth Chamber
Subject matter: Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-770/22 – 1 
Case C-770/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
19 December 2022 
Referring court:  
Commissione tributaria provinciale di Genova (Italy) 
Date of the decision to refer:  
22 November 2022 
Applicant:  
OSTP Italy Srl 
Defendants:  
Agenzia delle Dogane e dei Monopoli, Ufficio delle Dogane di 
Genova 1 
Agenzia delle Dogane e dei Monopoli, Ufficio delle dogane di 
Genova 2 
Agenzia delle Entrate - Riscossione – Genova 
  
Subject matter of the main proceedings 
Action brought by Ostp Italy s.r.l. against the preliminary notice of registration of 
a mortgage served on it by the Agenzia delle Entrate (Revenue Agency) with 
which the latter enforces a claim relating to the European Union’s own resources, 
for which the enforceable instrument was annulled by a court. 
Subject matter and legal basis of the request 
This request for a preliminary ruling under Article 267 TFEU concerns the 
interpretation of Articles 43, 44 and 45 of Regulation (EU) No 952/2013. More 
specifically, the referring court asks whether, in the light of the principle of 
effective judicial protection, enforcement of a tax payment order (that is, an order 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-770/22 
 
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for payment issued by the public administration), which has already been annulled 
by the court at first instance, is permissible.  
Question referred for a preliminary ruling 
‘May Articles 43, 44 and 45 of Regulation (EU) No 952/2013 be interpreted as 
precluding the compatibility with EU law of national legislation which provides 
for the immediate enforceability of judgments delivered at first instance by 
national courts, which have the effect of annulling, in whole or in part, tax 
payment orders relating to the European Union’s own resources?’ 
Provisions of European Union law relied on 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code, Articles 43, 44 and 45 
Article 19(1) TEU 
Article 47 of the Charter of Fundamental Rights of the European Union 
Provisions of national law relied on 
Decreto legislativo 31 dicembre 1992 n. 546 (Italian Legislative Decree No 546 of 
31 December 1992): Article 47, entitled ‘Suspension of the contested measure’; 
Article 67 bis, entitled ‘Provisional execution’; Article 68, entitled ‘Payment of 
tax during proceedings’ and Article 69, entitled ‘Enforcement of judgments in 
favour of the taxpayer’. 
These legislative provisions may be summarised as follows: 
Appeals against tax payment orders are not to have suspensive effect; however, 
the applicant may expressly apply, as a precautionary measure, for the suspension 
of the enforcement of those tax payment orders, on which the court will make a 
ruling by way of order. That ruling ceases to have effect at the time the judgment 
at first instance is delivered, which is immediately enforceable. The payment of 
sums relating to the European Union’s own revenue is governed by the provisions 
of EU legislation. 
Brief description of the facts and procedure 
1 In 2019, in the context of a dispute concerning the importation of steel tubes from 
non-member countries, subject to duty, the Ufficio delle dogane di Genova 
(Genoa Customs Office) served notices of assessment upon the applicant, 
followed by the imposition of fines. 
OSTP ITALY 
 
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2 All the tax payment orders and fines were annulled in their entirety by the 
Commissione tributaria provinciale di Genova (Provincial Tax Court, Genoa) in 
judgments delivered in 2021 and the Revenue Agency was ordered to pay the 
costs of the proceedings. 
3 The Customs Office appealed against those judgments, but the appeal court did 
not suspend enforcement of the judgments. 
4 On 26 January 2022, the Revenue Agency served a preliminary notice of 
registration of a mortgage in which Ostp Italy s.r.l. was informed that, if that 
company failed to pay the sums which the agency had claimed (even though the 
Provincial Tax Court, Genoa had made a finding that they were not due), the 
mortgage would be registered on its properties for an amount equal to twice that 
debt. Ostp Italy s.r.l. challenged the notice in question. 
The essential arguments of the parties in the main proceedings 
5 Ostp Italy s.r.l. submits that Article 67 bis of Italian Legislative Decree no 546/92 
has been infringed and argues that, with regard to the collection of excise and 
customs duties, where the court at first instance has upheld, in whole or in part, 
the claim made against the notice of adjustment, by excluding or reducing the 
amount due, any higher sums claimed are not payable, and the customs authorities 
are therefore required to grant the relevant concessions and to ensure that duties 
collected in the future do not exceed the lower amount declared by the court. 
6 The Agenzia delle Dogane (Customs Agency) contends, on the other hand, that, 
since the notices of assessment relate to customs duties, namely traditional own 
resources of the European Union, the national legislation must be interpreted in a 
manner consistent with EU legislation. Consequently, payment of the customs 
duties due must be safeguarded, at least until the authorities have had the 
opportunity, under national law, to challenge the judgment annulling the tax 
payment order. 
7 In support of its argument, the Customs Agency relies on Article 68(3) bis of 
Italian Legislative Decree No 546/92 and the order of the Corte di Cassazione 
(Court of Cassation) No 22012 of 13 October 2020, according to which, ‘with 
regard to border duties, which constitute the European Union’s own resources, the 
non-final judgment providing for the refund, in favour of the taxpayer, of customs 
duties deemed not to be due cannot be regarded as immediately enforceable within 
the meaning of Article 69(1) of Italian Legislative Decree No 546 of 1992, a 
provision which is incompatible with the Community Customs Code and the 
[European Union] Customs Code’. The Customs Agency extends the legal 
principle set out by the Court of Cassation to a situation in which the taxpayer has 
not yet paid, and claims that it is legitimate, in such cases, for the Revenue 
Agency to initiate enforcement proceedings. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-770/22 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
8 The referring court has doubts regarding the interpretation of the provisions of 
Regulation (EU) No 952/2013, due to the authoritative status of the 
aforementioned order made by the Court of Cassation and to the reference, made 
by national legislation, to the rules contained in Regulation (EU) No 952/2013. 
9 It considers that the interpretation put forward by the Customs Agency cannot be 
accepted, as it conflicts with the principle of effectiveness of judicial protection 
established by Article 19 TEU and Article 47 of the Charter of Fundamental 
Rights. According to those articles, the right to a remedy must be effective, that is, 
in theory legally capable of providing reparation for the harm suffered and not so 
framed as to make it excessively difficult to exercise, or even impossible. 
10 The referring court points out that the Court of Justice of the European Union has 
stated that the effectiveness of judicial protection is a general principle of EU law, 
the content of which falls within the scope of Articles 6 and 13 of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms (‘the 
ECHR’) (judgments of 15 May 1986, Johnston, 222/84, EU:C:1986:206 and of 
13 March 2007, Unibet, C-432/05, EU:C:2007:163). Furthermore, according to 
the settled case-law of the Court of Justice, the principle of effectiveness of 
judicial protection must be intended to ensure adequate protection in the 
subjective adverse situation, by means of a remedy capable of satisfying the needs 
of the individual. 
11 In addition, the European Court of Human Rights (‘ECtHR’) has stated that, in 
order to be effective, an action must be capable of directly remedying the situation 
invoked (Pine Valley Developments Ltd and Others v. Ireland, Commission 
decision, 1989; Kudła v. Poland, 2000, § 158; Ramirez Sanchez v. France, 2006, § 
160). 
12 According to the referring court, the right to a remedy provided for in Article 44 
of Regulation (EU) No 952/13 must be taken to be effective. It is clear that to 
allow enforcement of a measure which has already been annulled by the court at 
first instance deprives the judicial remedy of any practical utility for the 
individual, rendering the action ineffective. 
13 On the one hand, the benefit of interim relief would be rendered meaningless if it 
were possible for the administration to enforce a measure which has already been 
annulled by a judgment. On the other, the judgment itself would serve no purpose 
if it were to be nullified by an administrative decision made after judgment was 
delivered in the taxpayer’s favour and in the absence of any review by the appeal 
court. Furthermore, the duration of the proceedings would inevitably be prolonged 
until the judgment has become final. 
14 According to the referring court, the fact that the resources in question are the 
European Union’s own resources cannot justify an interpretation which permits 
the implementation of measures already annulled by the courts. 
OSTP ITALY 
 
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15 In that regard, it follows from Article 1 of the Additional Protocol to the ECHR 
that the protection of property may be subject to the fiscal requirements of the 
State, so that interference in the private sphere of an individual in this sector and 
such cases may be justified. However, the European Court of Human Rights has 
stated that the financial obligation arising out of the levying of taxes may infringe 
the rights guaranteed in this provision if it imposes an excessive burden on the 
person or entity concerned or fundamentally interferes with their financial position 
(ECtHR, Buffalo s.r.l. v. Italy, 3 July 2003, No 38746/97). 
16 According to the referring court, it is clear that, at the time when the measure 
giving rise to the tax liability is annulled with retroactive effect by the competent 
court, the interference constituted by registration of a mortgage or by proceedings 
to enforce the debt is neither justified, on the ground that there is no proof of the 
debt, nor proportionate, since a court has already found the claim to be unfounded. 
17 Furthermore, it is apparent from an examination of the provisions of Regulation 
952/2013 and the national legislation that there is nothing that prevents the 
judgment at first instance from having immediate effect. 
18 Finally, the referring court points out that the question of interpretation is relevant 
in so far as it will affect the costs of the proceedings, which must be borne by the 
applicant, or otherwise by the Customs Authorities, on the basis of the 
interpretation provided of the question referred. In that regard, it points out that 
the Court of Justice has found that this was a sufficient ground to render the 
question of interpretation relevant (judgment of 28 November 2018, Amt Azienda 
Trasporti e Mobilità and Others, C-328/17, EU:C:2018:958).