Opinion of the Advocate General — ECLI:EU:C:2024:616
Date: 2024-07-11
Language of the case: Latvian
Procedure: Reference for a preliminary ruling
Origin: Latvia

Summary C-376/23 – 1 
Case C-376/23 
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: 
15 June 2023 
Referring court: 
Augstākā tiesa (Senāts) (Latvia) 
Date of the decision to refer: 
14 June 2023 
Applicant at first instance and appellant: 
SIA BALTIC CONTAINER TERMINAL 
Defendant at first instance and respondent: 
Valsts ieņēmumu dienests 
  
Subject matter of the main proceedings 
Action for annulment of the decision of the Valsts ieņēmumu dienests (State Tax 
Authority; ‘the VID’), imposing on the applicant limited liability company, 
BALTIC CONTAINER TERMINAL, the obligation to pay import duties and 
value added tax, in addition to the applicable late-payment penalty. 
Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, the referring court asks (1) whether, in accordance 
with Delegated Regulation 2015/2446, in conjunction with the Union Customs 
Code, it is possible to discharge the ‘free zone’ special procedure without 
indicating the master reference number which identifies the declaration by which 
the goods are placed under the subsequent customs procedure; (2) whether the 
holder of that procedure is entitled to discharge the procedure relying solely on a 
note concerning the customs status of the goods made by a customs official on the 
transport document for the goods, without checking for itself the validity of that 
status or, where it is required to carry out such checks, the extent to which it must 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-376/23 
 
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do so; (3) whether it is possible for the holder of that procedure to have a 
legitimate expectation based on confirmation, by the customs authorities, of the 
change of customs status of the goods, even if that confirmation does not indicate 
the reason for that change of status or any information which allows that reason to 
be verified; and (4) whether, in the event that the holder of the procedure has 
infringed the provisions of the customs procedure laid down by EU law and does 
not have the legitimate expectation referred to above, the holder must, 
nevertheless, pursuant to the principle of res judicata, be exempt from the customs 
debt if, in other proceedings brought before a national court in relation to the same 
questions of fact and law, it was ruled by judgment that the holder did not commit 
any infringement with regard to the customs procedure. 
Questions referred for a preliminary ruling 
1. Under Article 178(1)(b) and (c) of Delegated Regulation 2015/2446, in 
conjunction with Article 214(1) of the Union Customs Code, is it possible to 
discharge the ‘free zone’ special procedure without having included in the 
electronic records system the master reference number (MRN) which identifies 
the customs declaration by which the goods are placed under the subsequent 
customs procedure? 
2. Under Articles 214(1) and 215(1) of the Union Customs Code and 
Article 178(1)(b) and (c) of Delegated Regulation 2015/2446, is it possible for the 
holder of the ‘free zone’ special procedure to discharge that procedure relying 
solely on a note concerning the customs status of the goods made by a customs 
authority official on the transport document for the goods (CMR), without 
checking for itself the validity of the customs status of those goods? 
3. If the answer to question 2 is negative, what level of verification in 
accordance with Articles 214(1) and 215(1) of the Union Customs Code and 
Article 178(1)(b) and (c) of Delegated Regulation 2015/2446 is sufficient in order 
to consider the ‘free zone’ special procedure to have been correctly discharged? 
4. Was the holder of the ‘free zone’ special procedure entitled to have a 
legitimate expectation as a result of the confirmation by the customs authorities 
that the customs status of the goods had changed from ‘non-Union goods’ to 
‘Union goods’, even though that confirmation did not indicate the reason for that 
change of status of the goods or any information which allowed that reason to be 
verified? 
5. If the answer to question 4 is negative, may the fact that, in other 
proceedings brought before a national court, it was ruled, by final judgment, that, 
in accordance with the procedures laid down by the customs authorities, the 
holder of the customs procedure had not committed any infringement with regard 
to the ‘free zone’ customs procedure constitute a ground for exemption from the 
customs debt arising under Article 79(1)(a) and 3(a) of the Union Customs Code, 
in the light of the principle of res judicata laid down in national law and EU law? 
BALTIC CONTAINER TERMINAL 
 
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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 (recast): Articles 79(1)(a) 
and (3)(a), 210(b), 214(1) and 215(1). 
Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 
supplementing Regulation (EU) No 952/2013 of the European Parliament and of 
the Council as regards detailed rules concerning certain provisions of the Union 
Customs Code: Article 178(1)(b) and (c) and 2(a). 
Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 
laying down detailed rules for implementing certain provisions of Regulation 
(EU) No 952/2013 of the European Parliament and of the Council laying down the 
Union Customs Code: Articles 199(1)(b), 200(1) and (3), 211 and the first 
paragraph of Article 226. 
Case-law of the Court of Justice and the General Court 
Judgment of the Court of Justice of 7 April 2011, Sony Supply Chain Solutions 
(Europe), C-153/10, EU:C:2011:224, paragraph 47. 
Judgment of the Court of Justice of 29 March 2011, ThyssenKrupp Nirosta v 
Commission (C-352/09 P, EU:C:2011:191, paragraph 123). 
Judgment of the General Court of 1 July 2009, ThyssenKrupp Stainless v 
Commission, T-24/07, EU:T:2009:236, paragraph 140. 
Judgment of the General Court of 8 February 2018, Sony Interactive 
Entertainment Europe v EUIPO – Marpefa (Vieta) (T-879/16, EU:T:2018:77, 
paragraph 31). 
Provisions of national law relied on 
Administratīvā procesa likums (Law on Administrative Procedure) 
Article 153(3): Facts that are established in the grounds of a judgment which has 
acquired the force of res judicata do not have to be established again when an 
administrative case involving the same parties is examined. 
Likums “Par tiesu varu” (Law on the Judiciary) 
Article 16(3) and (4): 
(3) Under the statutory procedure, a judgment is to be binding on the court when 
it examines other cases related to that case. 
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(4) Such judgments are to have the force of law, are binding erga omnes and 
must be treated with the same respect as statutes. 
Ministru kabineta 2017.gada 22.augusta noteikumi Nr. 500 “Muitas noliktavu, 
pagaidu uzglabāšanas un brīvo zonu noteikumi” (Decree No 500 of the Council of 
Ministers of 22 August 2017 laying down rules relating to customs warehousing, 
temporary storage and free zones): paragraph 77 provides that anyone in whose 
free zone non-Union goods are stored must keep a record of goods stored in the 
free zone; paragraph 78 provides that records are to include the information 
mentioned, inter alia, in Article 178(1)(b) and (c) and (2) of Delegated Regulation 
2015/2446; and paragraph 79 provides that records relating to non-Union goods 
are to include the number of the customs document or of the consignment note 
under which the goods entered and exited the free zone. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, SIA BALTIC CONTAINER TERMINAL, is the holder of a permit 
to load, unload and store goods in the free zone of the free port of Riga and has a 
duty to keep a record of goods present in that zone. 
2 The VID carried out checks on the goods in the applicant’s free zone and found 
that, on three occasions in 2018 and 2019, goods that were in the free zone had 
exited that zone without being placed under a subsequent customs procedure and 
that, therefore, the ‘free zone’ special procedure had not been discharged. The 
VID concluded that those goods had actually been removed from customs 
supervision and therefore the applicant had incurred a customs debt under 
Article 79(1)(a) and (3)(a) of the Union Customs Code. 
3 The goods in question were handed over for exit from the free zone on the basis of 
consignment notes (‘CMR’) describing the customs status of the goods as ‘Union 
goods’ (‘C’), which an official of the customs authority confirmed with the 
customs office stamp and his signature. That conformed to existing practice 
whereby the VID would check the customs status of goods before those goods left 
the port and would make a note of this on the transport documents, even though 
the law did not provide for such a procedure. However, after the goods had exited 
from the free zone, customs officials established that they did not have any 
documents substantiating the change of customs status of the goods at issue from 
‘non-Union goods’ (‘N’) to ‘Union goods’ (‘C’). 
4 By decision of the VID of 19 July 2019, the applicant was required to pay to the 
public purse import duties and the applicable late-payment penalty, in addition to 
value added tax and the applicable late-payment penalty. 
5 The applicant appealed to the courts against the decision of the VID. 
6 The Administratīvā apgabaltiesa (Regional Administrative Court) dismissed the 
appeal. 
BALTIC CONTAINER TERMINAL 
 
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7 That court stated that, under Article 210(b) of the Union Customs Code, a ‘free 
zone’ is a special customs procedure and that, therefore, in accordance with 
Article 215(1) of the Union Customs Code, that procedure is discharged when the 
goods are placed under a subsequent customs procedure. According to that court, 
under Article 214(1) of the Customs Code, the applicant should have kept records 
containing information and data which would enable the customs authorities to 
supervise the procedure, by indicating information about the customs status of the 
goods and the manner in which the special procedure was discharged; in other 
words, which subsequent procedure the goods had been placed under. 
8 The Administratīvā apgabaltiesa (Regional Administrative Court) found that the 
fact that the CMR had been stamped and signed was not sufficient to certify the 
customs status of Union goods of goods which had been imported as non-Union 
goods and which, therefore, should have changed status, since the VID did not 
certify that status on the CMR and the goods only acquired the status of Union 
goods when they were placed under the appropriate customs procedure. In the 
view of the court, the applicant failed to act with the necessary diligence in the 
fulfilment of its obligations, since it should have ensured that the non-Union 
goods were placed under one of the appropriate customs procedures. In its view, 
the applicant could not rely solely on a CMR bearing the customs office stamp 
and the official’s signature, since it was not possible to deduce from the CMR 
alone which subsequent customs procedure the goods had been placed under, 
although the letter ‘C’ could have led the applicant to believe that the goods had 
been placed under a customs procedure which altered the status of the goods to 
that of Union goods. In that situation, a declaration including the master reference 
number (‘MRN’) or a CMR bearing the customs office stamp and the MRN 
number was necessary. 
9 The applicant lodged an appeal in cassation with the Senāts (Supreme Court, 
Latvia) against the judgment of the [Administratīvā] apgabaltiesa (Regional 
Administrative Court). 
10 In parallel, proceedings were brought before the Rīgas apgabaltiesas Krimināllietu 
kolēģija (Regional Court, Riga (Division of Criminal Cases)) in which the 
applicant contested the imposition of an administrative penalty in respect of the 
same acts. By judgment of 5 February 2021, the Krimināllietu kolēģija (Division 
of Criminal Cases) annulled the administrative penalty imposed on the applicant; 
it found that the applicant had not infringed customs procedure rules and had 
acted in accordance with the usual practice of the customs authorities, while the 
VID had been unable to indicate any legal provisions which imposed on the 
applicant the obligation to verify other details relating to the validity of the change 
of status of the goods other than the confirmation provided by the customs 
authorities. 
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Essential arguments of the parties in the main proceedings 
11 The applicant, now appellant in cassation, submits that the lower court erred in 
applying Article 79(1)(a) and (3)(a) of the Union Customs Code. In its 
submission, it would be possible to consider that it was liable for the customs 
duties if a specific obligation existed which was laid down in the customs 
legislation and which it had failed to fulfil, but the [Administratīvā] apgabaltiesa 
(Regional Administrative Court) did not refer to any obligation of that kind. Nor 
did it find that the applicant had deliberately participated in the unlawful exit of 
the goods from the free zone or that the applicant knew or could have known that 
the goods were unlawfully exiting the free zone. The applicant relies on 
Article 178(1)(c) of Delegated Regulation 2015/2446, stating that, in accordance 
with that provision, it had an obligation to include in the records referred to in 
Article 214(1) of the Union Customs Code data that unequivocally allowed the 
identification of customs documents other than customs declarations, of any other 
documents relevant to the placing of goods under a special procedure and of any 
other documents relevant to the corresponding discharge of the procedure. The 
applicant claims that it kept the required records in accordance with the permit 
issued by the VID and that it handed the goods over to the carrier on the basis of 
the CMRs submitted, on which, in line with the usual practice of the VID, it was 
possible to see the status of the goods indicated by the customs official, in other 
words, that they were Union goods, the signature of the customs official and the 
customs office stamp. Accordingly, in the applicant’s submission, it was entitled 
to consider that the customs procedure for the goods had been discharged and that 
the goods had been released for free circulation, which also discharged the ‘free 
zone’ special procedure for the goods, and that all the obligations under the 
legislation had been complied with. The current procedure approved by the 
customs authority provides that it is the customs authority official who, by 
connecting to the applicant’s electronic records system, alters the customs status 
of the goods, in other words, he or she confirms the change of customs status of 
the goods, and the applicant, relying on that information, discharges the ‘free 
zone’ special procedure. 
12 The VID submits that the applicant did not correctly discharge the ‘free zone’ 
special procedure because, when allowing the goods to exit the free zone, it did 
not ensure that those goods were placed under a subsequent customs procedure. 
The VID contends that, under Article 178(1)(b) of Delegated Regulation 
2015/2446, the applicant was required to include in the records referred to in 
Article 214(1) of the Union Customs Code, the MRN or, where it does not exist, 
any other number or code identifying the customs declarations by means of which 
the goods are placed under the special procedure and, where the procedure has 
been discharged in accordance with Article 215(1) of the Code, information about 
the manner in which the procedure was discharged. The VID argues that it was 
not possible to certify the customs status of the goods by means of a note from the 
customs authority on the CMR. Consequently, the applicant had a duty to include 
the MRN in its records system, which would have made it possible to identify the 
customs declaration on which the change of customs status of the goods from 
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‘non-Union goods’ to ‘Union goods’ was based, and it should have ensured that 
that change of status had actually taken place. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 In the present case, the Senāts (Supreme Court) must decide whether the applicant 
is liable for the customs debt incurred as a result of failure to comply with the 
obligations incumbent on it under Article 79(1)(a) and (3)(a) of the Union 
Customs Code. In order to settle that question, it is necessary to determine which 
obligations under the legislation the applicant, as the holder of a free zone permit, 
failed to comply with when it discharged the ‘free zone’ special procedure. 
14 The Senāts (Supreme Court) is unsure whether the applicant would have been able 
to determine the customs procedure and the customs status of the goods or 
whether those checks would have been effective, since the applicant would have 
been required to carry out those checks extensively, it did not have access to the 
electronic customs data processing system and it would have been unable to 
establish at all, for example, the veracity of the T2L document, a document which 
is checked by the customs authorities themselves. 
15 At the material time in the main proceedings, the usual practice of the VID was 
for customs authority officials to confirm customs status before goods left the port 
and to make the relevant notes (customs status of the goods, customs checkpoint 
stamp and signature of the customs official) on exit documents (generally CMRs). 
The current procedure also stipulates that it is the customs official that must 
confirm the change of customs status of the goods and the applicant, relying on 
the information provided by the official, is to discharge the ‘free zone’ special 
procedure. 
16 Accordingly, the Senāts (Supreme Court) is uncertain whether the fact that the 
VID requires the MRN of the customs declaration to be indicated in the 
applicant’s record system in order to show the change of customs status of the 
goods is justified and lawful. It wishes to clarify whether the ‘free zone’ special 
procedure can be discharged without including the MRN in the records system 
and whether the holder of the procedure may discharge it on the basis of a note 
relating to the customs status of the goods made by a customs authority official on 
the transport document for the goods (CMR), without verifying for itself that the 
application of the customs status to the goods is valid. In the event of a negative 
answer, the Senāts (Supreme Court) asks what the scope is of the checks that the 
applicant should have carried out. 
17 If the applicant is found to have failed to fulfil its obligations in relation to the 
customs procedure, the Senāts (Supreme Court) wishes to clarify whether the 
applicant could have had a legitimate expectation that the customs status of the 
goods had been altered, based on the existing practice of the customs authorities. 
The Senāts (Supreme Court) has uncertainties regarding the case-law of the Court 
of Justice according to which the principle of the protection of legitimate 
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expectations cannot be relied upon against an unambiguous provision of European 
Union law; nor can the conduct of a national authority responsible for applying 
European Union law, which acts in breach of that law, give rise to a legitimate 
expectation on the part of a trader of beneficial treatment contrary to European 
Union law (judgment of 7 April 2011, Sony Supply Chain Solutions (Europe), 
C-153/10, EU:C:2011:224, paragraph 47). 
18 Lastly, the Senāts (Supreme Court) asks whether, if, nevertheless, it is found that 
the applicant breached the customs procedure and could not have had a legitimate 
expectation, in a situation like that in the present case, in which another judgment 
of a national court has ruled, in relation to the same parties and the same questions 
of fact and law, that the applicant did not breach the customs procedure, priority 
must be given to the principle of res judicata, thereby exempting the applicant 
from the customs debt, or whether the obligation, established in the Union’s 
financial interests, to pay the customs debt must prevail.