Information;Order — ECLI:EU:C:2021:538
Date: 2021-07-01
Language of the case: Hungarian
Court formation: Sixth Chamber
Subject matter: Free movement of goods;Internal market - Principles;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Hungary

summary, it 
concluded that, in the light of the suspension, the prescription period was 3 years 
plus 30 days, and that the decisions which the applicant was contesting were taken 
within that period (outside the 3 years but within the period of 3 years and 
30 days). 
The applicant filed an appeal against the judgment at first instance. 
By order […] dated 14 May 2020, the Kúria (Supreme Court) overturned the 
judgment […] of the Administrative and Labour Court, Szekszárd, of 
19 December 2018 and, in view of the reorganisation that had taken place in the 
interim, referred the case to the Pécs Court for a new decision. 
The Supreme Court’s position with regard to prescription was as follows. 
First, it ruled that the judgment at first instance did not satisfy the relevant 
procedural requirements, since it did not set out the facts relating to prescription. 
It also found that the court of first instance had incorrectly interpreted national and 
EU provisions on the right to express views and the right to be heard. 
The Supreme Court noted that, under Article 103(1) and (3), customs debts expire 
3 years after the date on which the debt is incurred, which in the present case was 
when the goods were released for free circulation. That prescription period is 
extended by the time allowed for the appeal process (Article 44, Right of appeal) 
or by the time granted to the applicant in which to express views prior to a 
decision taken upon application which adversely affects him (Article 22). The 
procedures at issue in the present proceedings were post-release controls 
performed ex officio, and therefore Article 22(6) of the Customs Code, which 
deals with procedures undertaken upon application, did not apply. Since ― as was 
acknowledged by both the defendant and the court of first instance ― several of 
the first-tier decisions were communicated to the applicant after the expiry of the 
3-year prescription period, and since Article 22(6) of the Customs Code did not 
apply, the customs debt and the VAT identified in those decisions had expired, 
and therefore the authority could not demand payment. 
However, the Supreme Court stated that, in terms of content, the so-called ‘right 
to be heard’ conferred on the applicant by Article 22(6) of the Customs Code must 
be considered to be the same as the provisions on infringement in Article 40 of the 
Customs Law, which implements Article 46 of the Customs Code and which, 
therefore, forms part of the rules governing controls carried out by the customs 
authority. Under those rules, the person under inspection must be notified of the 
report containing the findings of the control and he may express views on those 
findings; any observations must be submitted to the customs body performing the 
control within a mandatory period of 15 days from the date of notification 
(Article 40(3) and (4) of the Customs Law). 
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The Supreme Court held that, while prescription is a bar to the collection of 
customs debts and other charges levied by the State, it cannot be grounds for 
denying the person concerned his rights and, thus, for failing to grant the right to 
express views pursuant to Article 40(5) of the Customs Law. The Supreme Court 
accepted the applicant’s argument that the person concerned may lawfully be 
denied that right where, due to the behaviour or circumstances of the person 
concerned or to matters beyond the authority’s control, there are objective grounds 
that jeopardise the collection of the customs debt or other charges. To restrict the 
rights of the person concerned as a result of the adoption by the authority of a 
measure that is out of time would breach the fundamental right to a fair procedure. 
However, in the opinion of the Supreme Court, since the authority granted the 
applicant the right to be heard, and the applicant exercised that right in writing, the 
authority did not actually deprive the applicant of its right to express views in the 
present case, and therefore the procedure followed by the authority did not breach 
the fundamental rights of the person concerned, even though some decisions did 
result in the determination of customs and tax debts that had expired. 
The Supreme Court also set out its substantive objections to the proceedings heard 
by the court of first instance. 
It ruled that, in the new hearing of the case, the court of first instance must 
establish the facts of the case to the extent necessary to rule on the action, and that 
the court could not declare that debts in respect of customs or other charges levied 
by the State were lawful where the debts were notified more than 3 years ago.  
In the new hearing the defendant submitted arguments on the issue of prescription. 
The defendant considers that in the order […] [of 14 May 2020], the Supreme 
Court’s conclusions on the exercise of the right to be heard and prescription are 
contrary both to the practice of the customs authorities and to the legislation. 
According to the Supreme Court, the procedures at issue in the present 
proceedings were post-release controls performed ex officio, and therefore 
Article 22(6) of the Customs Code, which deals with procedures undertaken upon 
application, did not apply. The Supreme Court drew parallels between the exercise 
of the right to express views and the exercise of the right to be heard, and it ruled 
that, since the customs authority had granted the applicant the right to be heard, it 
had not actually deprived the applicant of its right to express views; however, 
some decisions were communicated to the applicant after the expiry of the 3-year 
prescription period and, therefore, since Article 22(6) of the Customs Code did not 
apply, the customs and VAT debts in those decisions had expired. 
According to the defendant, this conclusion is fundamentally incorrect. 
Article 22(6) of the Customs Code provides that, before taking a decision which 
would adversely affect the applicant, the customs authorities must communicate 
the grounds on which they intend to base their decision to the applicant, who must 
be given the opportunity to express his or her point of view within a period 
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prescribed from the date on which he or she receives that communication or is 
deemed to have received it. 
Pursuant to Article 29 of the Customs Code, except when a customs authority acts 
as a judicial authority (which is not the case in Hungary), Article 22(4), (5), (6) 
and (7), Article 23(3) and Articles 26, 27 and 28 also apply to decisions taken by 
the customs authorities without prior application by the person concerned. 
Article 102(3) of the Customs Code provides that, except where the amount of 
import or export duty payable has been entered in the customs declaration and is 
equal to the payment obligation calculated by the customs authorities, the customs 
debt is to be notified to the debtor by the customs authorities when they are in a 
position to determine the amount of import or export duty payable and take a 
decision thereon. 
In the view of the defendant, taken together, these provisions show that where a 
decision ― taken ex officio rather than upon application by the person concerned 
― notifies a payment obligation which has been identified as the result of a post-
release control, the debtor must be granted the right to be heard if the decision 
adversely affects him ― and a payment obligation that is identified after the event 
always adversely affects the debtor. 
With regard to prescription, Article 103(3)(b) of the Customs Code clearly 
establishes that the period allowed for the purposes of exercising the right to be 
heard cannot be part of the prescription period. The former period runs from the 
communication of the right to be heard until the expiry of the period granted by 
the customs authority in which to exercise that right. 
According to the order of the Supreme Court, in terms of content, the right 
conferred on the applicant by Article 22(6) of the Customs Code must be 
considered to be the same as the provisions on infringement in Article 40 of the 
Customs Law (in force at the time the control was carried out), which implements 
Article 46 of the Customs Code and which, therefore, forms part of the rules 
governing controls carried out by the customs authority. Under those rules, the 
person under inspection must be notified of the report containing the findings of 
the control and he may express views on those findings; any observations must be 
submitted to the customs body performing the control within a mandatory period 
of 15 days from the date of notification. The Supreme Court held that, while 
prescription is a bar to the collection of customs debts and other charges levied by 
the State, it cannot be grounds for denying the person concerned his rights and, 
thus, for failing to grant the right to express views pursuant to Article 40(5) of the 
Customs Law. 
The defendant contends that, contrary to the ruling in the order of the Supreme 
Court, Article 40(4) and (5) of the Customs Law did not undermine the right 
conferred on the person concerned by Article 22(6) of the Customs Code and by 
Article 8(1) of Commission Delegated Regulation (EU) 2015/2446 supplementing 
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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, 
since the 30-day period otherwise provided for in EU legislation for the exercise 
of the right to be heard must also be granted in the case of post-release controls. 
These provisions in the Customs Law established a period of 15 days ― running 
in parallel with the right to be heard ― in which to express views. However, that 
period does not give rise to the suspension of the prescription period, which is 
why the provisions laid down that the customs authority should not grant the 
debtor that right if there is a risk that the prescription period will expire. 
(However, the defendant notes that these provisions are not included in the current 
legislation.) 
According to Article 114(2)(i) of the az uniós vámjog végrehajtásáról szóló 2017. 
évi CLII. törvény (Law CLII of 2017 on the implementation of Union customs 
law), communication of the right to be heard is a mandatory substantive provision 
applicable to reports on customs controls ― including post-release controls. In the 
current customs legislation there are still no specific time periods for exercising 
the right to be heard that are different from those laid down in EU customs 
legislation; therefore, the time allowed in the case of post-release controls is also 
30 days, in accordance with Article 8(1) of Delegated Regulation 2015/2446. 
While the wording of Article 103(3)(b) of the Customs Code is clear as regards 
prescription, Article 126 of Law CLII of 2017 stipulates that, when calculating the 
time period allowed for communicating customs debts, only one suspension to 
allow for the granting of a right to be heard is permitted, for a maximum of 
30 days, irrespective of the number of debtors; the suspension begins to run on the 
commencement of the first period allowed for the exercise of the right to be heard. 
Therefore, in the opinion of the defendant, Article 22(6) and Articles 29 and 103 
of the Customs Code clearly apply to the right to be heard, and do so regardless 
whether the procedure is commenced upon application or ex officio. 
However, the defendant notes that, in so far as an interpretation is required of EU 
legislation [in this case, the Customs Code, Delegated Regulation 2015/2446 and 
Commission Implementing Regulation (EU) 2015/2447 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], 
the second [paragraph] of Article 267 of the Treaty on the Functioning of the 
European Union (TFEU) establishes that where such a question is raised before 
any court or tribunal of a Member State, that court or tribunal may, if it considers 
that a decision on the question is necessary to enable it to give judgment, request 
the Court to give a ruling thereon. 
According to the judgment of the Court of Justice of the European Union in Case 
C-334/08, [the management] of any State organ ― including the Hungarian court 
of cassation ― is a matter for the Hungarian State, and the conduct of any State 
organ is, in principle, attributable to the State (judgment of the Court of Justice of 
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the European Union, C-334/08, paragraph 39). Therefore, if a national court 
against whose decision there is no judicial remedy issues a judgment in respect of 
the interpretation of EU law without referring the matter to the Court of Justice of 
the European Union, and that judgment has a negative impact on EU budget 
revenue, the Hungarian State must accept responsibility for the financial 
consequences of the national court’s decision. 
In the light of the above […] [procedural matters of domestic law], at the 
defendant’s request, the referring court refers the following question to the Court 
of Justice of the European Union for a preliminary ruling: 
‘Must Article 22(6) and Article 29 of Regulation (EU) No 952/2013 of the 
European Parliament and of the Council laying down the Union Customs 
Code be interpreted as meaning that, with regard to procedures carried out 
by a customs authority which is not acting in a judicial capacity, that 
authority must grant a right to be heard in procedures undertaken ex officio 
as well as in those undertaken on application? 
The referring court attaches the following provisions of national law relied on by 
the parties: 
A polgári perrendtartásról szóló 1952. évi III. törvény (Law III of 1952, 
Code of Civil Procedure): Article 155/A(1) to (3) 
A közigazgatási hatósági eljárás és szolgáltatás általános szabályairól szóló 
2004. évi CXL. törvény (Law CXL of 2004 laying down general provisions 
on administrative services and procedure): Article 71(1) to (5) 
Az uniós vámjog végrehajtásáról szóló 2016. évi XIII. törvény (Law XIII of 
2016 on the implementation of Union customs law) (the Customs Law), in 
force until 31 December 2017: Article 40 
Az uniós vámjog végrehajtásáról szóló 2017. évi CLII. törvény (Law CLII 
of 2017 on the implementation of Union customs law): Articles 114 and 126 
[…] [procedural matters of domestic law] 
Pécs, 30 October 2020.    […] [signature]