Opinion of the Advocate General — ECLI:EU:C:2023:56
Date: 2023-01-26
Language of the case: Romanian
Subject matter: Free movement of goods;Internal market - Principles;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-640/21 – 1 
Case C-640/21 
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: 
19 October 2021 
Referring court: 
Tribunalul Cluj (Romania) 
Date of the decision to refer: 
25 August 2021 
Appellant: 
SC Zes Zollner Electronic SRL 
Respondent: 
Direcția Regională Vamală Cluj – Biroul Vamal de Frontieră 
Aeroport Cluj-Napoca 
  
Subject matter of the main proceedings 
Appeal brought against a judgment in an administrative-law action seeking the 
annulment of a report establishing and penalising an administrative customs 
offence. 
Subject matter and legal basis of the request for a preliminary ruling 
On the basis of Article 267 TFEU, the Court is asked for an interpretation of 
Articles 173 and 174 of Regulation (EU) No 952/2013 of the European Parliament 
and of the Council of 9 October 2013 laying down the Union Customs Code 
(‘Regulation No 952/2013’). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-640/21 
 
2  
Questions referred for a preliminary ruling 
1. Does Article 173 or Article 174 of Regulation No 952/2013 apply where the 
consignee of the goods reports a quantity in excess of that stated in the original 
customs declaration? 
2. Does the expression ‘goods other than those which [the customs declaration] 
originally covered’ within the meaning of Article 173 of the regulation refer to 
goods that differ quantitatively or qualitatively, or both? 
3. In the case of a quantitative difference that exceeds the quantity of goods 
stated in the customs declaration, does the consignee of the goods have any 
procedural remedy under the [abovementioned] regulation enabling the consignee 
to correct the errors without incurring administrative or criminal penalties? 
Provisions of EU law relied on 
Articles 173 and 174 of Regulation No 952/2013. 
Provisions of national law relied on 
Article 2 of Legea nr. 86/2006 privind Codul vamal al României (Law 
No 86/2006 laying down the Romanian Customs Code), which essentially 
provides that the entry into or exit from the country of goods is allowed only at 
State border crossing points and that, at the border crossing point, the goods are 
subject to customs control and the application of customs legislation only by the 
customs authority. 
Articles 653 to 656 of the Hotărârea Guvernului nr. 707/2006 pentru aprobarea 
Regulamentului de aplicare a Codului vamal al României (Government Decree 
No 707/2006 approving the regulation implementing the Romanian Customs 
Code). Pursuant to those provisions, it is an administrative offence to remove from 
customs supervision any goods that should be placed under a customs procedure. 
In this case, the goods are confiscated and a fine imposed of between Romanian 
lei (RON) 3 000 and 8 000. If the goods can no longer be identified, the person 
who committed the administrative offence is required to pay the value of those 
goods. Administrative customs offences are recorded by customs staff in a report 
establishing the administrative offence. 
Succinct presentation of the facts and procedure in the main proceedings 
1 Following the report dated 2 September 2019 establishing the administrative 
offence, the company SC Zes Zollner Electronic SRL (‘the appellant’) was fined 
RON 3 000 for having committed the administrative offence of removing from 
customs supervision 5 000 electronic integrated circuit parts with a value of 
ZES ZOLLNER ELECTRONIC 
 
3 
EUR 4 590. As an additional penalty, the value of the goods not cleared through 
customs was confiscated for the amount of RON 27 839. 
2 According to the report establishing the administrative offence, the customs 
authority found that on 4 July 2019 the appellant had received 10 000 electronic 
integrated circuit parts from its Swiss partner, the company EM Microelectronic 
Marin SA. The Swiss company had issued two invoices with consecutive numbers 
and the same date of 2 July 2019, each for a quantity of 5 000 parts and a value of 
EUR 4 950. Despite the fact that there were two invoices, each for 5 000 
electronic integrated circuit parts, the appellant filed a single electronic transport 
document with the Biroul Vamal de Frontieră Aeroport Cluj-Napoca (Cluj-
Napoca Airport Border Customs Office) in which only 5 000 parts were released 
for free circulation. However, a total quantity of 10 000 electronic integrated 
circuit parts had been recorded in its accounts as having been brought into the 
country. 
3 The customs authority thus concluded that the appellant had removed 5 000 
electronic integrated circuit parts from customs supervision, with a value of 
EUR 4 590. It therefore issued the abovementioned report establishing the 
administrative offence. 
4 The appellant challenged the report establishing the administrative offence by 
means of an administrative-law action. 
5 The first-instance court dismissed the action. In the grounds of its judgment, that 
court found, in essence, that the offence of removing goods from customs 
supervision may be negligent rather than intentional as the appellant argues. As 
holder of the goods, the appellant was required to check the goods which it had 
placed under a customs procedure and to submit a correct customs declaration. 
6 On the other hand, according to the referring court, the fact that the appellant 
contacted the customs authority a few days later about the uncleared goods does 
not preclude liability for the offence. 
7 The appellant argues that it was a case of a clerical error for the purposes of 
Article 173(3) of Regulation No 952/2013, and therefore the customs declaration 
may be amended. However, the first-instance court held that paragraph 1 of that 
article expressly provides that the amendment cannot render the customs 
declaration applicable to goods other than those which it originally covered. 
Accordingly, the appellant’s claim that the respondent should have corrected the 
customs declaration to include the uncleared goods covered by the second invoice 
is not legally founded. 
8 The appellant lodged an appeal before the referring court against the judgment 
given by the first-instance court. In the grounds of its appeal, it stated that it had 
been wrongly held that the appellant had removed the 5 000 electronic integrated 
circuit parts from customs supervision. On the contrary, it had acted in good faith 
and had brought the alleged wrongful act to the attention of the customs 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-640/21 
 
4  
authorities itself, with the result that it was not a case of removal from customs 
supervision, but of a clerical error. The appellant submits that similar errors have 
occurred previously in the course of its activities, but that in those cases, the 
procedure followed was the one laid down in Article 173 of Regulation 
No 952/2013, whereby the customs authority adopted amending decisions without 
imposing administrative penalties. 
9 Consequently, according to the appellant, the procedure followed by the customs 
authorities was inconsistent and infringed the principle of legal certainty. 
10 It therefore asked the referring court to refer a question to the Court of Justice for 
a preliminary ruling on the interpretation of Regulation No 952/2013. 
11 The appellant’s request to bring the case before the Court was notified to the 
respondent customs authority, although that authority has not made its views 
known. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 The referring court notes that the outcome of the case depends on the application 
and interpretation of Article 173 of Regulation No 952/2013, since the question of 
whether that article applies in the present case, as well as the interpretation of the 
concept of ‘goods other than those which [the customs declaration] originally 
covered’, contained in that provision, constitute the grounds of the dispute in the 
present case. 
13 According to the referring court, the application and interpretation of that article 
have given rise to different solutions in national practice, both at the level of the 
customs authorities and at the level of the courts. It is apparent from the evidence 
adduced in the proceedings that the same customs authority has treated the same 
question differently, thereby infringing the principle of legal certainty. 
14 In the present case, both the customs authority and the first-instance court held 
that Article 173 of Regulation No 952/2013 did not apply, considering that the 
text in question could not cover goods other than the 5 000 electronic integrated 
circuit parts for which the customs declaration was drawn up. However, the 
appellant submits that that article does apply and therefore the situation can be 
regularised without its being liable for an administrative offence. 
15 In that context, the referring court asks the Court to determine whether Article 173 
or Article 174 of Regulation No 952/2013 applies to the main proceedings. 
Furthermore, it raises the question of whether that regulation provides for any 
other procedural remedy allowing errors such as that at issue in the present case to 
be corrected, without giving rise to liability for an administrative offence. 
16 According to the referring court, the appellant acted in good faith and the alleged 
wrongful act was caused by a genuine clerical error. The appellant placed two 
ZES ZOLLNER ELECTRONIC 
 
5 
orders with its Swiss partner and the latter issued two consecutive invoices, both 
for the same quantity of goods and the same value. The goods were sent by 
courier, although there was some confusion when completing the customs 
formalities since the invoices were identical and the goods were sent with the 
same transport document. Once the goods had reached their destination and had 
been received by the appellant, the latter contacted the customs authorities with a 
view to regularising the situation. It did not expect to be penalised since, in similar 
situations, the customs authorities had issued amending decisions without 
imposing administrative penalties. 
17 Lastly, the referring court reiterates that it is clear that the administrative practice 
infringes the principle of legal certainty and that the outcome of the case depends 
on how Regulation No 952/2013 is interpreted and applied in the present case.