Judgment — ECLI:EU:C:2008:746
Date: 2008-12-18
Language of the case: Portuguese
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Free movement of goods;Principles, objectives and tasks of the Treaties;Customs Union;Own resources
Concepts: Own resources of the Communities;Rights of the defence and procedural guarantees
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 1. Community law – General principles of law – Fundamental rights – Rights of the defence – Period laid down by national law in a procedure for the recovery of customs duties (Art. 6 EU) 2. Own resources of the European Communities – Post-clearance recovery of import or export duties – Rights of the defence (Art. 6 EU) 1. With regard to recovery of a customs debt for the purpose of effecting post-clearance recovery of customs import duties, a period of 8 to 15 days allowed to an importer suspected of having committed a customs offence in which to submit its observations complies in principle with the requirements of Community law. Such a period does not, as a matter of principle, make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the Community legal order. The undertakings which may be affected by the procedure are professionals which have recourse to importation on a regular basis. Furthermore, the applicable Community legislation provides that those undertakings must be able to furnish proof, for the purposes of inspection, of the lawfulness of all the transactions that they have effected. Lastly, the general interest of the European Community and, in particular, the interest in recovering its own revenue as soon as possible mean that inspections must be capable of being carried out promptly and effectively. (see paras 41, 52, operative part 1) 2. It is for the national court before which the case has been brought to ascertain, having regard to the specific circumstances of the case, whether, in the context of a post-clearance recovery of import duties, the period actually allowed to an importer made it possible for it to be given a proper hearing by the customs authorities. Various criteria may be applied for that purpose. In the case of imports from Asian countries, factors such as the complexity of the transactions in question, the distance involved or even the quality of the relations normally maintained with the competent local authorities may be significant. Likewise, regard must be had to the size of the undertaking and to the question whether or not it normally maintains commercial relations with the country in question. Furthermore, circumstances, which may make it possible to establish that the undertaking concerned was, in any event, given the opportunity to set out its views in the course of the inspection, must also be taken into consideration. Thus, an inspection procedure carried out over a number of months, which includes on-the-spot checks and a hearing of the undertaking concerned, the declarations of which are placed on the file, may justify the assumption that that undertaking was aware of the reasons why the inspection procedure had been carried out and the nature of the facts alleged against it. The national court must also ascertain whether, in the light of the period which elapsed between the time when the authorities concerned received the importer’s observations and the date on which they took their decision, they can be deemed to have taken due account of the observations sent to them. (see paras 44-46, 53-54, operative part 2-3)