Opinion of the Advocate General — ECLI:EU:C:2021:120
Date: 2021-02-11
Language of the case: Dutch
Subject matter: Free movement of goods;Internal market - Principles;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

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: 
27 January 2020 
Referring court: 
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer: 
24 January 2020 
Applicant: 
Staatssecretaris van Financiën 
Defendant: 
Jumbocarry Trading GmbH 
  
Subject of the action in the main proceedings 
The main proceedings concern a dispute between the Staatssecretaris van 
Financiën (State Secretary for Finance) and Jumbocarry Trading GmbH (‘the 
interested party’) relating to a request for payment of customs duties issued to the 
latter.  
Subject and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU relates to the prescription of customs 
debts. More particularly, the question is whether provisions on the suspension of 
the period of limitation of a customs debt can be applied to a customs debt which 
was incurred before the date on which those provisions were declared applicable, 
but which is not yet time-barred as of that date.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-39/20 
 
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Questions referred 
1. Are Articles 103(3)(b) and 124(1)(a) of Regulation (EU) No 952/2013 of the 
European Parliament and of the Council of 9 October 2013 laying down the 
Union Customs Code applicable to a customs debt that was incurred before 
1 May 2016 and whose period of limitation had not yet expired as of that 
date?  
2. If the answer to the first question is in the affirmative, does the principle of 
legal certainty or the principle of legitimate expectations preclude that 
applicability?  
Provisions of European Union law cited 
– Article 221(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 
establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘CCC’) 
– Articles 22(6), 29, 103(1) and (3), 124(1)(a), and 288(2) of Regulation (EU) 
No 952/2013 of the European Parliament and of the Council of 9 October 2013 
laying down the Union Customs Code (OJ 2013 L 269, p. 1; ‘UCC’)  
– Article 8(1) of 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 (OJ 2015 L 343, p. 1; ‘DUCC’) 
Brief summary of the facts and the procedure in the main proceedings 
1 On 4 July 2013, the interested party made a declaration for release for free 
circulation of a consignment of porcelain goods. She accordingly indicated 
Bangladesh as the country of origin, on the basis of which a preferential rate of 
customs duty of zero per cent was applied. When the certificate of origin 
submitted for that purpose proved to be false, the Inspecteur van de 
Belastingdienst (Tax Inspector) informed the interested party in writing on 1 June 
2016 of his intention to proceed with post-clearance recovery of customs duties at 
the normal rate of 12 per cent. In the same letter, he gave the interested party the 
opportunity to express her point of view on the matter within 30 days. On 18 July 
2016, the customs debt in question, which had been incurred on 4 July 2013, was 
notified to the interested party by means of a request for payment.  
2 The dispute before the court of second instance, the Gerechtshof Amsterdam 
(Court of Appeal, Amsterdam; ‘the Gerechtshof’), was whether the customs debt 
had already been extinguished as of 18 July 2016.  
STAATSSECRETARIS VAN FINANCIËN 
 
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Main submissions of the parties to the main proceedings  
3 The Gerechtshof stated at the outset that Article 124(1)(a) UCC provides that the 
customs debt is extinguished where the debtor can no longer be notified of the 
customs debt, in accordance with Article 103 UCC, that is to say, within three 
years from the incurrence of the customs debt. This would mean that the present 
customs debt was already extinguished before 18 July 2016. Article 103(3)(b) 
UCC, however, provides that that three-year period is to be suspended from the 
date on which the customs authorities communicated their intention to notify the 
customs debt until the end of the period within which the debtor is given the 
opportunity to express his or her point of view. By virtue of Article 8(1) DUCC, 
that period is 30 days. Applying Article 103(3)(b), the customs debt at issue 
would therefore not yet have been extinguished as of 18 July 2016. 
4 According to the Gerechtshof, however, in a case such as the one at issue here, the 
principles of legal certainty and of legitimate expectations enshrined in EU law 
preclude the application of the aforementioned provisions. According to the 
Gerechtshof, at the time that the customs debt was incurred (4 July 2013), it was 
not clear and foreseeable to the interested party — in view of the date of 
publication of the UCC (10 October 2013) — that she could be faced with 
suspension of the limitation period by a 30-day period. Therefore, in the opinion 
of the Gerechtshof, whether the customs debt was notified to the interested party 
in good time should be assessed on the basis of the CCC (the predecessor of the 
UCC). Article 221(3) of the CCC also provided for a 3-year limitation period, but 
not for its suspension. For that reason, the Gerechtshof held that the customs debt 
had already been extinguished on 18 July 2016 due to time-barring.  
5 The Staatssecretaris van Financiën subsequently brought an appeal in cassation 
before the Hoge Raad (Supreme Court). The plea is directed against the findings 
of the Gerechtshof set out above.  
Brief summary of the reasons for the referral 
6 According to the case-law of the Court of Justice, when determining the temporal 
scope of a new provision, a distinction must be drawn between procedural rules 
and substantive rules. Procedural rules are generally considered to apply from the 
day on which they enter into force. That is in contrast to substantive rules, which 
are usually interpreted as applying to situations existing before their entry into 
force only in so far as it clearly follows from their terms, objectives or general 
scheme that such effect must be given to them. Furthermore, a new rule of law 
applies from the entry into force of the act by which it was introduced, and while 
such a rule does not apply to situations which arose and became definitive before 
that entry into force, it does apply immediately to the future consequences of a 
situation that arose when the old legal regime was in force and to new legal 
situations. According to Article 288(2) UCC, the provisions relevant to the present 
case became applicable on 1 May 2016. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-39/20 
 
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7 It cannot be inferred beyond reasonable doubt from the case-law of the Court of 
Justice whether a rule providing for the suspension of the limitation period – as is 
the case with Article 103(3) UCC – must be regarded as a substantive rule. 
8 In the judgment in the Molenbergnatie case (C-201/04, EU:C:2006:136, 
paragraph 41), the Court of Justice held, with regard to the applicability of the 
provisions of the then new CCC, that it was appropriate to apply to the facts 
underlying the customs debts which had occurred prior to the entry into force of 
the CCC, on the one hand, the substantive rules of the earlier legislation and, on 
the other hand, the procedural rules of the CCC. In that context, the Court of 
Justice then held, in relation to Article 221(3) of the CCC as it stood on 1 January 
1994:  
‘It must therefore be held that, since on expiry of the period prescribed by 
Article 221(3) of the Customs Code the debt is time-barred and, 
consequently, extinguished, that provision enacts a substantive rule.’  
9 In so far as the three-year period for the recovery of a customs debt under the 
provisions of the CCC had expired on 1 May 2016, it may be inferred from the 
Molenbergnatie judgment that the debtor concerned was ultimately in a situation 
from which he derives certain rights and to which no new legal rules may be 
applied. In the present case, however, the customs debt of the interested party was 
not yet time-barred on 1 May 2016. In that respect, the situation of the interested 
party differs from the situation to which paragraph 41 of the Molenbergnatie 
judgment relates.  
10 On the one hand, it could be argued that the suspension of the limitation period for 
a customs debt prevents the definitive extinguishment of a customs debt. Seen in 
that light, the limitation rule itself, the determination of the limitation period and 
the anticipated cases of suspension of that period must be regarded as a coherent 
set of rules. That would mean that, on 4 July 2013, as regards the coherent set of 
prescription rules laid down in the CDW, the interested party was ultimately in a 
situation from which she derives certain rights, with the result that both 
Article 103 and Article 124(1) UCC may not be applied to her in so far as they 
contain divergent legal rules. It is then irrelevant that the customs debt of the 
interested party was not yet time-barred on 1 May 2016.  
11 On the other hand, it may be argued that a rule which is dependent on the expiry 
of a time limit must be distinguished from rules which make the expiry of that 
time limit dependent on a procedural act during the post-clearance recovery 
process. Thus, in the present case, the running of the limitation period is 
temporarily halted because of the obligation, laid down in Article 22(6) UCC, to 
give the debtor a hearing prior to the notification of the customs debt. That 
temporary cessation as a result of the performance of a procedural act (giving the 
interested party a hearing) can then be regarded as a procedural rule that is 
inextricably linked to Article 22(6) UCC. Because procedural rules are considered 
to apply from the day on which they enter into force, that would mean that 
STAATSSECRETARIS VAN FINANCIËN 
 
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Articles 124(1)(a) and 103 UCC became immediately applicable once post-
clearance recovery proceedings were initiated on or after 1 May 2016 for a 
customs debt that had arisen under the operation of the CCC.  
12 In the light of the foregoing considerations, it is not possible simply to infer from 
the nature of Articles 124(1)(a) and 103(3) UCC whether those provisions applied 
on 1 May 2016 to the intended post-clearance recovery of a customs debt which 
arose during the operation of the CCC and which had not yet been extinguished on 
1 May 2016 under the CDW due to time-barring. For that reason, the Hoge Raad 
is referring the first question to the Court of Justice for a preliminary ruling.  
13 If that first question is answered in the affirmative, the question remains whether 
the Gerechtshof is correct in its assessment that the application of the relevant 
provisions of the CCU is contrary to the principles of legal certainty and 
legitimate expectations laid down in EU law and that they must therefore not be 
applied in respect of the interested party.  
14 It could be argued that, at the time the customs debt was incurred, it was not clear 
and foreseeable that the customs legislation with regard to post-clearance recovery 
and prescription would be amended in such a way as to codify the right to be 
heard in all cases prior to such recovery by the customs authorities, with the 
consequence that the limitation period is suspended for the duration of the period 
provided for in Article 8(1) DUCC.  
15 It could also be argued that, when making the customs declaration, the debtor may 
not assume that procedural rules will remain unchanged. In amending a procedural 
rule, the EU legislature must have weighed up, on the one hand, the European 
Union interests served by that measure and, on the other hand, the interests of an 
interested party not to see his or her legal position deteriorate. The assessment of 
this balancing of interests by the EU legislature is not a matter for the national 
courts, but falls within the jurisdiction of the Court of Justice. In that regard, it is 
important to know whether the EU legislature was entitled to attach to the new 
rule that a debtor must always be given the opportunity to be heard for 30 days 
before the recovery of a customs debt, the consequence of which may be that the 
limitation period would be suspended for that same period. Since the legal 
position of the debtor in that case is strengthened by the introduction of an 
absolute right to have the opportunity to express his or her opinion for 30 days, it 
cannot be said, in the Hoge Raad’s view, that the fact that it goes hand in hand 
with the suspension of the limitation period by a corresponding length of time 
constitutes such a deterioration in the debtor’s position that it justifies disapplying 
Article 103(3) UCC. However, because there is doubt in that regard, the Hoge 
Raad is referring the second question for a preliminary ruling.