Opinion of the Advocate General — ECLI:EU:C:2024:993
Date: 2024-11-28
Language of the case: Estonian
Procedure: Reference for a preliminary ruling
Origin: Estonia

Anonymised version 
Translation C-745/23 – 1 
Case C-745/23 [Alenopik] i 
Request for a preliminary ruling 
Date lodged:  
5 December 2023 
Referring court:  
Riigikohus (Estonia) 
Date of the decision to refer:  
4 December 2023 
Appellant in cassation:  
Maksu- ja Tolliamet 
Respondent in cassation:  
UT 
  
ORDER 
… [not translated] 
Case – Administrative offence committed by UT, punishment under 
Paragraph 69(1) of the Tolliseadus (Law on Customs) 
… [not translated] 
OPERATIVE PART 
1. The European Court of Justice is asked to give a preliminary ruling on 
the following question: How is the exchange rate to be used as the basis 
for establishing the value of cash within the meaning of Article 3(1) of 
 
i This case has been given a fictitious name which is not the real name of any of the parties. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
2  
Anonymised version 
Regulation 2018/1672 of the European Parliament and of the Council to 
be determined in a situation involving a currency the exchange rate for 
which is not published by the European Central Bank? 
2. … [not translated] [stay of proceedings] 
FACTS AND COURSE OF THE PROCEEDINGS 
Out-of-court proceedings 
1 On 13 January 2023, the Maksu- ja Tolliamet (Tax and Customs Authority, 
Estonia) (‘the MTA’ or ‘the administrative authority’) drew up a report of an 
administrative offence in relation to UT. This stated that, on that same date, the 
person concerned, together with her daughter, MM, had walked across the border 
between the Russian Federation and the Republic of Estonia via the Narva border 
crossing point. She chose the green channel to cross the border, thereby indicating 
that she was not carrying any goods subject to an obligation to declare and that the 
quantity of those goods did not exceed the limits permitted by law. When the 
traveller was searched, she was found to have a total of 500 000 Ukrainian 
hryvnias in cash in her pockets, under the lining of her clothes and under the 
lining of the hood of her jacket.  
2 In accordance with Article 3(1) of Regulation 2018/1672 of the European 
Parliament and of the Council of 23 October 2018 … [not translated], carriers 
entering or leaving the Union and carrying cash of a value of EUR 10 000 or more 
must declare that cash to the competent authorities of the Member State through 
which they are entering or leaving the Union and make it available to them for 
control. In order to convert the 500 000 Ukrainian hryvnias which UT had on her 
into euros, the administrative authority relied on the exchange rate published on 
the website www.xe.com and concluded that, on the day of the border crossing, 
that cash had a value of approximately EUR 12 565. In accordance with 
Article 3(1) of Regulation 2018/1672, therefore, that money should have been 
declared. 
3 In her appeal, the person concerned explained to the administrative authority that 
the cash found did not belong to her and that she had not been aware of the 
obligation to declare the amount of that cash. The cash belonged to RR, a 
Ukrainian national who resident in Estonia who, because of the war there, could 
not manage his own money. He had therefore asked the daughter of the person 
concerned to bring the cash into Estonia. On checking the exchange rate for the 
Ukrainian hryvnia on the website www.tavid.ee, RR found that there was no need 
to declare the cash because its value was below EUR 10 000. He had passed that 
information on to UT’s daughter, who had informed the person concerned. The 
person concerned had not intended to bring the 500 000 Ukrainian hryvnias 
secretly into Estonia. She had hidden it under her clothes for fear of having it 
stolen. 
ALENOPIK 
 
3 
Anonymised version 
4 By decision of 13 February 2013, the administrative authority imposed on UT a 
fine in the amount of 150 fine units, i.e. EUR 600, for failure to declare cash, in 
accordance with Paragraph 69(1) of the Tolliseadus (Law on Customs, ‘the TS’). 
The administrative authority also decided to confiscate the undeclared 500 000 
Ukrainian hryvnias, on the basis of Paragraph 78(1) of the TS and Paragraph 83(2) 
and (6) of the Karistusseadustik (Criminal Code, ‘the KarS’). The administrative 
authority summarised the grounds for that decision as follows. 
5 UT had deliberately committed an administrative offence under Paragraph 69(1) 
of the TS. She had neither declared the 500 000 hryvnias in cash when crossing 
the border nor, later, before the customs inspection began, informed customs 
officials that the cash to be declared was hidden in her clothing. This showed that 
the cash had been hidden in order to conceal it from customs inspection. 
6 The person concerned had had every opportunity to obtain clarity on the rules 
governing cash declarations. This could have been done by telephone, by e-mail 
or by asking the customs official at the border crossing point. Information on 
declaring cash, also available in Russian, was published on the MTA website 
(www.emta.ee). It was quickly discernible from that website that the threshold for 
mandatory declaration was EUR 10 000. In cases where the European Central 
Bank did not set the exchange rate for a currency, that rate could be found on the 
website www.xe.com. Less frequently used exchange rates could also be searched 
for on the website of the central bank issuing the currency in question (for 
example, bank.gov.ua for Ukrainian hryvnias). 
Proceedings before the court of first instance 
7 Counsel for the defence challenged the administrative authority’s decision and 
asked the court of first instance to discontinue the administrative offence 
proceedings. In the alternative, counsel for the defence asked the court to reduce 
the penalty against UT, annul the confiscation and return the cash confiscated to 
the person concerned.  
8 The Viru Maakohus (Court of First Instance, Viru, Estonia) partially upheld the 
action at law and, by judgment of 28 April 2023, annulled the administrative 
authority’s decision in so far as it related to the confiscation and the penalty. By a 
new decision, that court imposed on UT a fine in the amount of 100 fine units, i.e. 
EUR 400. The court of first instance annulled the confiscation of the 500 000 
Ukrainian hyrvnias taken as evidence and returned that money to UT. The court’s 
reasoning can be summarised as follows. 
9 On 13 January 2023, UT had entered the Republic of Estonia from the Russian 
Federation without declaring 500 000 Ukrainian hyrvnias with a value, at that 
time, of approximately EUR 12 565. It was not until after customs officials had 
started to search her that UT had verbally informed them that she wished to 
declare that cash, although it had by then been too late to do so because, in having 
selected the green channel when crossing the border, the person concerned had 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
4  
Anonymised version 
already declared that she had no goods to declare. It was a matter of dispute 
whether UT had known that the amount of cash she was carrying should have 
been declared and whether the 500 000 hryvnias belonged to her. 
10 UT’s assertion that she had been entirely unaware of the obligation to declare the 
cash she was carrying was not credible. According to the search file, the cash 
found on her had been located in her pockets, under the lining of her clothes and 
under the lining of the hood of her jacket. The fact that she had concealed and 
hidden the cash to be declared before the customs inspection had taken place 
confirmed that UT had been aware of the obligation to declare the more than 
EUR 10 000 in cash which she had been carrying when crossing the border. UT 
had deliberately committed the administrative offence under Paragraph 69(1) of 
the TS.  
11 The witness RR had told the court that he had asked UT and her daughter to bring 
the cash into Estonia and hand it over to him there, as he was unable to manage 
his money himself because of the war in Ukraine. He had earned that money as a 
business person while living in Ukraine. On checking the exchange rate for the 
hryvnias at currency exchanges, he had found that the 500 000 hryvnias did not 
have to be declared because it had been worth less than EUR 10 000. He had 
passed that information on to UT’s daughter. The court held that it had no reason 
to doubt the witness’s testimony and that the undeclared cash therefore belonged 
to RR. 
Appeal in cassation 
12 On appealing the decision of the court of first instance, the administrative 
authority claimed that that decision should be set aside and its own decision 
enforced, or, in the alternative, that the administrative offence case be referred 
back to the court of first instance for a new hearing. 
Response to the appeal in cassation 
13 Defence counsel for the person concerned contends that the decision of the court 
of first instance should be confirmed and the appeal in cassation dismissed. 
Written question of the Riigikohus (Supreme Court, Estonia) 
14 In accordance with Article 1731(1) of the Väärteomenetluse seadustik (Law of 
procedure for administrative offences), the Riigikohus (Supreme Court) put the 
following questions to the administrative authority: 
1. On what legal basis (please indicate the specific legal act and provision 
thereof) does the MTA use the exchange rate published on the website 
www.xe.com to convert the value of Ukrainian hryvnias into euros? 
2. Where can a person crossing the border find information on the exchange 
rate which the MTA uses to convert the value of Ukrainian hryvnias into euros? 
ALENOPIK 
 
5 
Anonymised version 
3. Does the MTA consider that the information to the effect that the conversion 
of the value of Ukrainian hryvnias into euros is based on the data available on the 
website www.xe.com is accessible to a reasonably aware person? 
Administrative authority’s answer 
15 When converting a currency in order to determine a customs value, the MTA 
relies on Article 53 of Regulation No 952/2013 of the European Parliament and of 
the Council of 9 October 2013 (EU Customs Code) and Articles 48 and 146 of 
Commission Implementing Regulation 2015/2447 of 24 November 2015. In the 
case of currencies the exchange rates for which are not published by the European 
Central Bank, the administrative authority uses the website www.xe.com, which 
was selected on the basis of the practices and preferences of other Member States. 
16 Persons bringing cash into Estonia from a non-EU country are obliged to 
familiarise themselves beforehand with the border-crossing customs procedures in 
place both in the country of origin and in the country of destination. Persons 
crossing the border have reasonable opportunities to do this. Information on the 
obligation to declare cash can be found, for example, on the MTA’s website, in 
the Estonian- and Russian-language leaflets distributed at border-crossing points 
and on information boards. Anyone crossing the border who has neglected to 
check the details concerning the import and export of cash before crossing the 
border can choose the red channel at the border crossing point and decide there, in 
cooperation with the customs official, whether a cash declaration is necessary. 
RELEVANT LEGISLATION 
EU law 
17 Regulation (EU) 2018/1672 of the European Parliament and of the Council of 
23 October 2018 on controls on cash entering or leaving the Union and 
repealing Regulation (EU) No 1889/2005: 
„… 
Article 1 
Subject matter 
This Regulation provides for a system of controls with respect to cash entering or 
leaving the Union to complement the legal framework for the prevention of 
money laundering and terrorist financing laid down in Directive (EU) 2015/849. 
… 
Article 3 
Obligation to declare accompanied cash 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
6  
Anonymised version 
(1) Carriers who carry cash of a value of EUR 10 000 or more shall declare that 
cash to the competent authorities of the Member State through which they are 
entering or leaving the Union and make it available to them for control. The 
obligation to declare cash shall not be deemed to be fulfilled if the information 
provided is incorrect or incomplete or if the cash is not made available for control. 
…“ 
18 Regulation (EU) No 952/2013 of the European Parliament and of the Council 
of 9 October 2013 laying down the Union Customs Code: 
„… 
CHAPTER 3 
Currency conversion and time limits 
Article 53 
Currency conversion 
(1) The competent authorities shall publish and/or make available on the Internet 
the rate of exchange applicable where the conversion of currency is necessary for 
one of the following reasons: 
a) because factors used to determine the customs value of goods are expressed 
in a currency other than that of the Member State where the customs value is 
determined;  
b) because the value of the euro is required in national currencies for the 
purposes of determining the tariff classification of goods and the amount of 
import and export duty, including value thresholds in the Common Customs 
Tariff. 
(2) Where the conversion of currency is necessary for reasons other than those 
referred to in paragraph 1, the value of the euro in national currencies to be 
applied within the framework of the customs legislation shall be fixed at least 
once a year. 
…’ 
19 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 Community Customs Code: 
„… 
CHAPTER 3 
ALENOPIK 
 
7 
Anonymised version 
Currency conversion 
Article 48 
Provisions on tariff exchange rate 
(Article 53 of the Code) 
(1) The value of the euro, where required in accordance with Article 53(1)(b) of 
the Code, shall be fixed once a month. 
The exchange rate to be used shall be the most recent rate set by the European 
Central Bank prior to the penultimate day of the month and shall apply throughout 
the following month. 
However, where the rate applicable at the start of the month differs by more than 
5% from the rate set by the European Central Bank prior to the 15th of that same 
month, the latter rate shall apply from the 15th until the end of the month in 
question. 
(2) Where the conversion of currency is necessary for any of the reasons referred 
to in Article 53(2) of the Code, the value of the euro in national currencies to be 
applied shall be the rate set by the European Central Bank on the first working day 
of October; this rate shall apply with effect from 1 January of the following year. 
(3) Member States may maintain unchanged the value in national currency of the 
amount determined in euro if, at the time of the annual adjustment, the conversion 
of that amount, leads to an alteration of less than 5% in the value expressed in 
national currency. Member States may round upwards or downwards to the 
nearest decimal point the sum arrived at after conversion. 
… 
CHAPTER 3 
Value of goods for customs purposes 
Article 146 
Currency conversion for customs valuation purposes 
(Article 53(1)(a) of the Code) 
(1) In accordance with Article 53(1)(a) of the Code, the following rates of 
exchange shall be used for currency conversion for customs valuation purposes: 
a) the rate of exchange published by the European Central bank, for the 
Member States whose currency is the euro; 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
8  
Anonymised version 
b) the rate of exchange published by the competent national authority or, where 
the national authority has designated a private bank for the purposes of 
publishing the rate of exchange, the rate published by that private bank, for 
the Member States whose currency is not the euro.  
(2) The rate of exchange to be used in accordance with paragraph 1 shall be the 
rate of exchange published on the second last Wednesday of each month. 
Where no rate of exchange has been published on that day, the most recently 
published rate shall apply. 
(3) The rate of exchange shall apply for a month, beginning on the first day of the 
following month. 
(4) Where a rate of exchange has not been published as referred to in paragraphs 1 
and 2, the rate to be used for the application of Article 53(1)(a) of the Code shall 
be determined by the Member State concerned. This rate must reflect the value of 
the currency of the Member State concerned as closely as possible.  
…’ 
Estonian law 
20 Tsiviilseadustiku üldosa seadus (Law on the General Part of the Civil Code) 
‘… 
Paragraph 48 Definition of object 
Object means things, rights and other assets that may form the subject of a right. 
… 
Paragraph 65 Value of an object 
The value of an object is deemed to be its normal value, unless otherwise provided 
for by law or legal transaction. The normal value of an object shall be its average 
local selling price (market price). 
…“ 
POSITION OF THE CHAMBER 
21 … [not translated] The imposition of a penalty on UT in accordance with 
Article 69(1) of the TS presupposes that it is established that the cash value, 
within the meaning of Article 3(1) of Regulation 2018/1672 … [not translated], of 
the 500 000 Ukrainian hryvnias which she imported from Russia into Estonia 
without declaring it amounted to at least EUR 10 000 at the time when the offence 
was committed. Whether or not that was the case depends on the exchange rate 
ALENOPIK 
 
9 
Anonymised version 
used as the basis for converting hryvnias to euros. The European Central Bank 
does not publish the exchange rate for the Ukrainian hryvnia. In this 
administrative offence case, it is common ground that one of the few service 
providers which bought hryvnias from private individuals on the Estonian market 
(Tavid AS) did so at an exchange rate on the basis of which the value of 500 000 
hryvnias was less than EUR 10 000. However, on the basis of the exchange rate 
that was published on the website www.xe.com, mentioned by the administrative 
authority, the person concerned crossed the border carrying hryvnias worth more 
than EUR 10 000.  
22 Since neither the text of the relevant EU regulations nor the previous case-law of 
the Court of Justice allows clear conclusions to be drawn as to how the correct 
exchange rate is to be determined in this case, this Chamber considers it expedient 
to ask the Court of Justice for a preliminary ruling on this question. This Chamber 
draws the Court’s attention to the following details. 
23 Regulation 2018/1672 … [not translated] concerns the monitoring of cash entering 
or leaving the European Union. Article 3 lays down the obligation to declare cash. 
According to paragraph 1 of that article, carriers who carry cash of a value of 
EUR 10 000 or more must declare that cash to the competent authorities of the 
Member State through which they are entering or leaving the Union and make it 
available to them for control. The obligation to declare cash is deemed not to be 
fulfilled if the information provided is incorrect or incomplete or the cash is not 
made available for control. In accordance with Article 14 of that regulation, each 
Member State is to introduce penalties applicable in the event of failure to comply 
with the obligation to declare accompanied cash laid down in Article 3. In 
Estonian law, such an infringement is punishable under Paragraph 69 of the TS, 
which provides for liability for the movement of goods or cash to be declared 
from a non-EU country or from Estonia to a non-EU country in the event of 
failure to declare the goods or cash concerned (if the value of the undeclared cash 
exceeds EUR 40 000, such an act may constitute a criminal offence under 
Paragraph 391 of the KarS). 
24 However, neither Regulation 2018/1672 nor the regulation implementing it 
(Commission Implementing Regulation [EU] 2021/776 of 11 May 2021) specifies 
the legal basis on which the competent authority of a Member State must set the 
exchange rate for the foreign currency with which the carrier enters or leaves the 
territory of the European Union. The procedure for converting into euros foreign-
currency cash carried across the EU customs border is not regulated either in the 
Law on Customs or in any other national law.  
25 In this administrative offence case, the person concerned entered Estonia carrying 
500 000 Ukrainian hryvnias in cash, which she did not declare to the competent 
authorities. On the basis of the exchange rate published on the website 
www.xe.com, the MTA estimated the value of the 500 000 Ukrainian hryvnias to 
be approximately EUR 12 565 on 13 January 2023. In answer to the question as to 
the legal basis on which the MTA uses the exchange rate published on the website 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
10  
Anonymised version 
www.xe.com to convert the value of Ukrainian hryvnias to euros, the 
administrative authority stated that it uses the rates published on that website for 
currencies the exchange rates for which are not published by the European Central 
Bank. It had been guided in its choice of website by the practices and preferences 
of other Member States. The administrative authority has not mentioned any legal 
basis whereby the exchange rates published on the website www.xe.com could be 
regarded as being legally relevant. 
26 The administrative authority noted that the determination of the customs value of 
foreign-currency cash is governed by Regulation No 952/2013 … [not translated] 
laying down the Union Customs Code (‘the CC’) and Commission Implementing 
Regulation 2015/2447 … [not translated] laying down detailed rules for 
implementing certain provisions of Regulation No 952/2013 (‘the CCIR’). 
According to Article 1 of the CC, that regulation lays down the general rules and 
procedures applicable to goods brought into or taken out of the customs territory 
of the Union. Currency conversion is governed by Article 53, paragraph 1 of 
which provides that the competent authorities are to publish and/or make available 
on the Internet the rate of exchange applicable where the conversion currency is 
necessary a) because factors used to determine the customs value of goods are 
expressed in a currency other than that of the Member State where the customs 
value is determined, or b) because the value of the euro is required in national 
currencies for the purposes of determining the tariff classification of goods and the 
amount of import and export duty, including value thresholds in the Common 
Customs Tariff. In accordance with paragraph 2 of that article, where the 
conversion of currency is necessary for reasons other than those referred to in 
paragraph 1, the value of the euro in national currencies to be applied within the 
framework of the customs legislation is to be fixed at least once a year.  
27 Since controls on cash entering or leaving the Union are governed by the separate 
Regulation 2018/1672, this Chamber is, first of all, not convinced that the general 
rules referred to in the preceding paragraph are an appropriate basis for 
determining the obligation laid down in Article 3(1) of Regulation 2018/1672. 
This approach is further militated against by the fact that Regulation 2018/1672 
does not at any point refer to the application of the CC. It is also unclear whether 
cash is to be regarded as goods within the meaning of the CC. Whether cash 
constitutes goods will determine, inter alia, whether – in the event that the CC is 
found to be applicable – the conversion of foreign currencies into euros should be 
governed by Article 53(1)(a) or (2) of the CC. Article 53(1)(b) of the CC, which 
deals with currency conversion for the purposes of the tariff classification of 
goods and the determination of the amount of import or export duty, is probably 
not relevant. The applicability of Article 53(1)(a) or (2) of the CC will in turn 
determine which provisions of the CCIR may be regarded as relevant. 
Article 48(2) of the CCIR concerns the setting of the euro exchange rate for the 
purposes referred to in Article 53(2) of the CC and Article 146 concerns currency 
conversion for the purposes referred to in Article 53(1)(a) of the CC.  
ALENOPIK 
 
11 
Anonymised version 
28 If, however, it is assumed that the determination of whether an amount of cash 
reaches the threshold laid down in Article 3(1) of Regulation 2018/1672 is also a 
situation referred to in Article 53(1)(a) of the CC, the competent authority should 
publish the applicable exchange rate and/or make it available on the internet. In 
accordance with Article 146(1)(a) of the CCIR, which clarifies that provision, the 
exchange rate published by the European Central Bank is to be used for currency 
conversion for customs valuation purposes. In cases where the required exchange 
rate is not published by the European Central Bank, the first sentence of 
Article 146(4) of the CCIR may be relevant. This provides that, where a rate of 
exchange has not been published as referred to in paragraphs 1 and 2 of that 
article, the rate to be used for the application of Article 53(1)(a) of the CC is to be 
determined by the Member State concerned. The second sentence of 
Article 146(4) of the CCIR, according to which the rate to be determined by the 
Member State concerned must reflect the prevailing value of the currency of the 
Member State concerned as closely as possible, is, however, ambiguous. It casts 
doubt on whether the provision in question is intended to govern not the 
determination of the exchange rate required to convert a third-country currency 
into euros, but only the conversion into euros of the currency of a Member State 
which has not joined the euro zone.  
29 In the event that it is appropriate for the obligation to declare cash to be 
determined by reference to Article 53(2) of the CC, meaning that this constitutes a 
currency conversion for a purpose other than that referred to in Article 53(1) of 
the CC, the wording of that provision, according to which the value of the euro in 
national currencies 1 to be applied within the framework of the customs legislation 
is to be fixed at least once a year, is confusing. The term ‘national currencies’ 
indicates that that provision too governs only the conversion into euros of the 
currency of a Member State which has not joined the euro zone, and that that rule 
does not apply in cases where a third-country currency is converted into euros. 
This is indirectly confirmed not least by the fact that Article 48(2) of the CCIR 
states that the exchange rates published by the European Central Bank are to form 
the basis for currency conversion in the cases referred to in Article 53(2). 
30 Under Estonian law, that is to say Paragraph 48 of the Tsiviilseadustiku üldosa 
seadus (Law on the General Part of the Civil Code) (‘the TsÜS’), cash is an object 
the value of which, in accordance with Paragraph 65 thereof, is deemed to be its 
normal value, unless otherwise provided for by law or legal transaction. The 
normal value of an object is its average local selling price. For the purposes of 
determining the average local selling price in euros of a foreign currency, it is 
appropriate to take into account the exchange rate at which that foreign currency 
can be exchanged for euros, particularly on the local market. This is usually most 
 
1  [German] Translator’s Note: The wording of the Estonian-language version of Article 53(1) of 
the CC departs here from the wording of the German-language version of that provision. 
Whereas the Estonian-language version refers to ‘omavääring (‘national currency’), the 
German-language version refers to ‘Währungen der Mitgliedstaaten’ (currencies of the Member 
States). 
REQUEST FOR A PRELIMINARY RULING OF 4.12.2023 – CASE C-745/23 
 
12  
Anonymised version 
accurately reflected in the exchange rates published by currency exchanges for 
currency exchange purposes. According to the information on the website of 
Tavid AS, the buying rate for Ukrainian hryvnias on 13 January 2023 was 52.7. 
At that exchange rate, the value of 500 000 Ukrainian hryvnias on the day on 
which the person concerned crossed the border was EUR 9 487.67. 
31 In the light of all the foregoing, this Chamber considers it necessary, in order to 
enable it to decide on the appeal in cassation brought by the administrative 
authority, to ask the Court of Justice of the European Union to give a preliminary 
under subparagraph (b) of the first paragraph, and the third paragraph, of 
Article 267 of the Treaty on the Functioning of the European Union. … [not 
translated] [stay of proceedings] 
… [not translated]