Summary;Judgment — ECLI:EU:C:2025:1013
Date: 2025-12-18
Language of the case: French
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling - inadmissible
Origin: France

SUMMARY OF THE DISPUTE: 
The TENERGIE Group develops and operates electricity generating solar power 
plants in France. 
The company TENERGIE DEVELOPPEMENT purchases the materials needed to 
build the power plants from suppliers in various countries. In 2013, it selected the 
company UPSOLAR to coordinate the manufacture of solar panels by a 
Taiwanese subcontractor, TYNSOLAR COP. 
Starting in December 2013, photovoltaic solar panels were imported into Fos-sur-
Mer for release into free circulation and home use through Gontrand Frères and 
Kuehne Nagel, the customs representatives responsible for Ténergie 
Développement’s declarations. 
Following an international investigation conducted by OLAF (the European Anti-
Fraud Office) in 2014 in order to verify the customs origins of photovoltaic panels 
consigned from Taiwan and imported into Europe, the French Customs 
Administration carried out controls on imports by TENERGIE 
DEVELOPPEMENT. 
On 15 October 2015, it notified TENERGIE DEVELOPPEMENT of the outcome 
of the investigation, alleging that it had breached European anti-dumping 
regulations; on 15 December 2015, it issued an infringement notice relating to 
false declarations of origin in respect of the panels imported between 
18 December 2013 and 27 February 2014. 
An initial recovery notice was issued to the company on 2 March 2016. 
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On 21 November 2019, the Customs Directorate, following a summons to appear 
in annulment proceedings initiated by TENERGIE DEVELOPPEMENT, revoked 
the recovery notice of 2 March 2016 on the ground that the right to be heard had 
not been applied. 
Subsequently, on 11 December 2019, it issued to the company another notice 
concerning the outcome of the investigation. 
On 26 August 2020, it notified the company of a breach for failure to comply with 
customs regulations. 
A further recovery notice … was issued on 16 September 2020 in the sum of 
EUR 2 405 887 (EUR 1 979 575 in anti-dumping duty and EUR 426 321 in 
countervailing duty). 
The challenge issued by the person liable was rejected by the Regional Customs 
Director on 4 March 2021. 
By registered letter with acknowledgment of receipt dated 12 April 2021, 
TENERGIE DEVELOPPEMENT requested remission of the anti-dumping duties 
and countervailing duties that had been notified to it by recovery notice … of 
16 September 2020, in the sum of EUR 2 405 887. 
By registered letter with acknowledgment of receipt, dated 19 October 2021 the 
Regional Customs Director issued an unfavourable opinion. 
TENERGIE DEVELOPPEMENT brought proceedings against the Interregional 
Customs Directorate and the Office of the Interregional Collector of Customs 
Revenue before the Tribunal judiciaire de Marseille (Court of Marseille) by 
summons of 4 May 2021 for annulment of the recovery notice. 
By judgment dated 9 May 2023, the Court of Marseille dismissed the claims 
brought by TENERGIE DEVELOPPEMENT; the latter brought an appeal against 
that decision. 
On 18 May 2021, the Customs Administration registered a further request for 
remission from TENERGIE DEVELOPPEMENT. 
On 16 September 2021, the Regional Customs Directorate issued an unfavourable 
opinion in respect of that request for remission. 
By letter notified on 29 November 2021, it issued to the company a final refusal to 
remit the duties. 
Following the issuing of a writ dated 25 February 2022, TENERGIE 
DEVELOPPEMENT was successful in obtaining a summons for the Interregional 
Customs Directorate, Provence-Alpes-Côte d’Azur-Corse, the Regional Customs 
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Directorate, Marseille, and the Regional Director of Customs and Indirect Taxes, 
Marseille to appear before the Court of Marseille, claiming that the court should: 
– order the annulment of the decision rejecting the request for remission of duties 
received by the Administration on 19 April 2021; 
– order the remission in full of the anti-dumping duties, the countervailing duties 
and the default interest; 
– failing that, order the re-examination of the file by the Customs Administration 
and its transmission to the European Commission for examination; 
– order the Interregional Customs Directorate, Provence-Alpes-Côte d’Azur-
Corse, the Regional Customs Directorate, Marseille, and the Regional Director 
of Customs and Indirect Taxes jointly and severally to pay it the sum of 
EUR 50 000 in compensation for its losses. 
It also claims that they should be ordered in solidum to pay it the sum of 
EUR 10 000 under Article 700 of the Code of Civil Procedure and should be 
ordered jointly and severally to pay the costs. 
It contends that the French, European and Taiwanese customs authorities 
committed an error and that it could not reasonably detect that error and had acted 
in good faith. 
It concludes therefrom that the conditions for the remission of duties are met. 
It claims that the administration erred in so far as the European Commission, 
through OLAF (European Anti-Fraud Office), which had evidence that could 
establish that the solar panels supplied came from CHINA, did not carry out more 
thorough controls and did not warn the companies that had ordered those panels. 
Furthermore, it submits that the Customs Administration, which had carried out 
controls on the products the company had ordered and had evidence in that 
respect, should have conducted more thorough controls, or at least informed the 
company of its suspicions as to the true origin of the panels at the time of the 
initial checks in 2014. 
It claims that failure to raise any objections following a control constitutes an 
active error on the part of the Administration for the purposes of Article 119 of the 
European Customs Code; that the Taiwanese certificates of origin were not 
invalidated and were still available on the website of the Taiwanese Chamber of 
Commerce after the customs control; that the defendants had failed to provide 
evidence that the error on the part of the Taiwanese authorities resulted from the 
declarations by the subcontractor and UPSOLAR. 
It points out the error on the part of the Taiwanese authorities, which have the 
means to conduct on the spot checks of the place of manufacture of the materials 
and which did not invalidate the certificates of origin despite the on-the-spot 
TENERGIE 
 
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investigation by OLAF and the information received after the adoption of the 
European regulation of 2014. 
It alleges force majeure on the ground that the error was not detectable by the 
operator since it does not have the means of investigation or control available to 
the French customs authorities and the Taiwanese authorities. 
With regard to the difficulty of detecting the error, it observes that the rules that 
apply are particularly complex in an international context that is difficult for an 
SME to understand; that it is not a specialist in customs matters and could not 
carry out an in-depth analysis in order to discover the true origin of the panels 
[checked] by the Community authorities. 
It notes that before entering into a contractual relationship with UPSOLAR it 
arranged for an independent company to check the conditions in which the solar 
panels were manufactured by the Taiwanese subcontractor. It states that 
UPSOLAR informed it of the results of the on-the-spot checks carried out by the 
audit companies. 
It submits that the burden of proving that it could have detected the true origin of 
the panels lies with the Customs Administration making that claim. It argues that 
the OLAF report of November 2014 does not contain any evidence of conduct on 
its part intended to evade the payment of customs duties. 
It claims that it acted in good faith, as acknowledged in the infringement notice of 
15 December 2015. 
In the alternative, it seeks remission of duties on the ground of equity (Article 120 
of the Community Customs Code). It submits that it was in a special situation and 
was not guilty of any deception or obvious negligence and that the conditions for 
the remission of duties are met. 
It states that it has taken all the necessary steps to manage the commercial risk 
associated with the operation by carrying out on-the-spot investigations and 
checks. It also alleges that the Taiwanese authorities erred in failing to exercise 
supervision. 
In the further alternative, it claims that the French customs authorities infringed 
Article 41 of the Charter of Fundamental Rights and Article 22 of the Union 
Customs Code in that it was not afforded the right to be heard. It states that the 
final remission refusal was issued before the expiry of the 30-day period under the 
right to be heard and was notified to it on 21 September 2019, the very day on 
which its observations were submitted. 
It adds that it suffered loss as a result of the unfavourable decision of the Customs 
Administration. 
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The French Customs Administration contends that the claims should be dismissed. 
It further contends that TENERGIE DEVELOPPEMENT should be ordered to 
pay it the sum of EUR 3 000 in respect of irrecoverable costs. 
It submits that the certificate issued by the Taiwanese authorities does not provide 
proof of the customs origin of the goods under anti-dumping legislation. It states 
that the physical inspection in TAÏWAN that is mentioned related to panels that 
had been imported previously. 
It adds that the infringement notice of 15 December 2015 does not acknowledge 
there was an undetectable error but only that there was no evidence of bad faith on 
the part of TENERGIE DEVELOPPEMENT. 
It denies any error on the part of the customs services themselves by active 
conduct on its own part. It states that it has never supported the operator’s view as 
to the origin of the imported goods. It replies that the goods themselves and the 
documents that accompanied them gave no reason to question their origin from 
December 2013 until May 2014. It states that it had no evidence capable of 
establishing the erroneous origin of the goods before it received OLAF’s findings 
after its mission in November 2014; that the authorities of a third country are not 
entitled to express a view on the non-preferential origin of goods in the context of 
the anti-dumping policy of the European authorities and that no cooperation 
agreement exists between the Taiwanese and European authorities in this regard. 
It concludes therefrom that the error by the Taiwanese authorities cannot be 
accepted as a condition for the remission of duties. It adds that the OLAF 
investigation revealed fraud with regard to the issuing of certificates of origin; that 
a passive error cannot be accepted since it did not accept the declarations although 
it had evidence enabling it to detect reporting errors and that, since the error on the 
part of the authorities is not serious, it is unnecessary to examine the condition 
relating to its undetectable nature or the one concerning the good faith of the 
operator. 
In the alternative regarding equity, it replies that bad faith on the part of a supplier 
is not a special circumstance for the operator but an inherent business risk in 
respect of which the supplier may be covered. It adds that the failure of its 
supplier, UPSOLAR does not constitute an exceptional situation that the European 
Union should bear. 
In the further alternative, it relies on an error in the date of the administration’s 
letter of reply, which was sent by registered post with acknowledgment of receipt 
on 26 November 2021. It states that TENERGIE DEVELOPPEMENT did not 
provide any new evidence in relation to that provided previously. 
An order terminating the proceedings was issued on 27 March 2023 and the case 
was scheduled for a hearing on 11 September 2023. 
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In its submissions lodged on 29 August 2023, the Customs Administration sought 
a repeal of the terminating order so as to be able to rely on the judgment delivered 
on 9 May 2023. 
This case was sent for preparation for the hearing on 23 October 2023. 
In its submissions lodged on 22 October 2023, TENERGIE DEVELOPPEMENT 
sought a reference to the European Court of Justice for a preliminary ruling and a 
stay of proceedings. 
In its latest submissions in the interlocutory proceedings, lodged on 10 February 
2024, TENERGIE DEVELOPPEMENT claims that the judge preparing the case 
for the hearing should: 
– declare its action admissible and well-founded; 
– consequently, order relief and/or remission of the duties assessed in the sum of 
EUR 2 405 887 together with default interest and penalties, 
– refer, as appropriate, to the Court of Justice of the European Union for a 
preliminary ruling under Article 267 TFEU the following question: 
[…] [questions set out in the operative part] 
– stay the proceedings in respect of the application pending the decision of the 
Court of Justice of the European Union. 
It states that it used numerous external resources by conducting audits through 
independent companies; that the European Commission initiated an international 
investigation by OLAF; that the Customs Administration should have made it 
aware of the body of evidence which could suggest that the panels might have 
come from China; that the Customs Administration failed in its duty of care; that 
it carried out documentary checks and a physical inspection on 24 February 2014 
without finding any anomaly regarding the origin of the goods; and that the 
Customs Administration accepted and validated importation of the goods for 
release into free circulation and home use. 
It submits that it sought the benefit of remission both on the ground of the error of 
the competent authorities and on the ground of the equity clause; that the French 
Customs Administration, which has no discretion in the matter, was required to 
transmit the file to the European Commission for it to take a decision. 
In its latest submissions, lodged on 9 January 2024, the French Customs 
Administration seeks a declaration that the conditions for remission under 
Article 119 and Article 120 of the Union Customs Code are not met; that the 
wording of Article 116 of the Union Customs Code is clear and requires no 
interpretation; that there is no need to transmit TENERGIE’s request for remission 
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to the European Commission and that consequently its claims should be 
dismissed; and that costs should be reserved. 
It argues that there is no need for it to transmit the file to the Commission since in 
its view the conditions laid down in Article 116 of the Union Customs Code are 
not met; the Commission has not failed to fulfil its obligations; it has not 
committed any error within the meaning of Article 119 of the Union Customs 
Code; the circumstances in the present case are linked to the outcome of a 
European Union investigation; Customs did not support the operator’s view as to 
the declared origin of the goods, either at the time of the import operations or at 
the time of the controls carried out subsequently by the Fos Customs Office and 
the Regional Investigation Service; the Administration cannot be criticised for 
accepting certificates of non-preferential origin since such documents were not 
required for imports; the French Customs Authorities did not commit any active 
error since it had no reason to doubt the origin declared and they did not misapply 
the relevant regulations. 
Reference is made to the pleadings referred to above for a fuller account of the 
submissions and claims of the parties. 
GROUNDS OF THE DECISION: 
According to Article 49(2) of the Code of Civil Procedure, ‘Where the resolution 
of a dispute depends on an issue giving rise to serious difficulty and falling within 
the jurisdiction of the administrative courts, the judicial court before which the 
matter has initially been brought shall refer that issue to the competent 
administrative court. … It shall stay the proceedings pending a decision on the 
question referred.’ 
According to Article 378 of the Code of Civil Procedure, ‘the decision to stay the 
proceedings shall suspend the [progress] of the proceedings for the duration [or] 
until the occurrence of the event it shall determine’. 
Article 267 of the Treaty on the Functioning of the European Union reads: 
‘The Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: 
(a) the interpretation of the Treaties, 
(b) the validity and interpretation of acts of the institutions, bodies, offices or 
agencies of the Union. 
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. 
TENERGIE 
 
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Where any such question is raised in a case pending before a court or tribunal of 
a Member State against whose decisions there is no judicial remedy under 
national law, that court or tribunal shall bring the matter before the Court. …’ 
Article 116 of the Union Customs Code provides that: 
‘1. Subject to the conditions laid down in this Section, amounts of import or 
export duty shall be repaid or remitted on any of the following grounds: 
(a) overcharged amounts of import or export duty: 
(b) defective goods or goods not complying with the terms of the contract; 
(c) error by the competent authorities; 
(d) equity. 
… 
3. Where the customs authorities consider that repayment or remission should 
be granted on the basis of Article 119 or 120, the Member State concerned shall 
transmit the file to the Commission for decision in any of the following cases: 
(a) where the customs authorities consider that the special circumstances are 
the result of the Commission failing in its obligations; 
(b) where the customs authorities consider that the Commission committed an 
error within the meaning of Article 119; 
(c) where the circumstances of the case relate to the findings of a Union 
investigation carried out under Council Regulation (EC) No 515/97 of 13 March 
1997 on mutual assistance between the administrative authorities of the Member 
States and cooperation between the latter and the Commission to ensure the 
correct application of the law on customs and agricultural matters, or under any 
other Union legislation or any agreement concluded by the Union with countries 
or groups of countries in which provision is made for carrying out such Union 
investigations; 
(d) where the amount for which the person concerned may be liable in respect 
of one or more import or export operations equals or exceeds EUR 500 000 as a 
result of an error or special circumstances. 
Notwithstanding the first subparagraph, files shall not be transmitted in either of 
the following situations: 
(a) where the Commission has already adopted a decision on a case involving 
comparable issues of fact and of law; 
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(b) where the Commission is already considering a case involving comparable 
issues of fact and of law. 
4. Subject to the rules of competence for a decision, where the customs 
authorities themselves discover within the periods referred to in Article 121(1) 
that an amount of import or export duty is repayable or remissible pursuant to 
Articles 117, 119 or 120 they shall repay or remit on their own initiative. 
5. No repayment or remission shall be granted when the situation which led to 
the notification of the customs debt results from deception by the debtor. 
6. Repayment shall not give rise to the payment of interest by the customs 
authorities concerned. 
However, interest shall be paid where a decision granting repayment is not 
implemented within three months of the date on which that decision was taken, 
unless the failure to meet the deadline was outside the control of the customs 
authorities. 
In such cases, the interest shall be paid from the date of expiry of the three-month 
period until the date of repayment. The rate of interest shall be established in 
accordance with Article 112. 
7. Where the customs authorities have granted repayment or remission in 
error, the original customs debt shall be reinstated in so far as it is not time-
barred under Article 103.’ 
Article 119 – Error by the competent authorities 
‘1. In cases other than those referred to in the second subparagraph of 
Article 116(1) and in Articles 117, 118 and 120, an amount of import or export 
duty shall be repaid or remitted where, as a result of an error on the part of the 
competent authorities, the amount corresponding to the customs debt initially 
notified was lower than the amount payable, provided the following conditions 
are met: 
(a) the debtor could not reasonably have detected that error; and 
(b) the debtor was acting in good faith. 
…’ 
Article 120 – Equity 
‘1. In cases other than those referred to in the second subparagraph of 
Article 116(1) and in Articles 117, 118 and 119 an amount of import or export 
duty shall be repaid or remitted in the interest of equity where a customs debt is 
incurred under special circumstances in which no deception or obvious 
negligence may be attributed to the debtor. 
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2. The special circumstances referred to in paragraph 1 shall be deemed to 
exist where it is clear from the circumstances of the case that the debtor is in an 
exceptional situation as compared with other operators engaged in the same 
business, and that, in the absence of such circumstances, he or she would not have 
suffered disadvantage by the collection of the amount of import or export duty.’ 
In the case of a dispute before a court of first instance against whose decision an 
appeal may be brought, a reference to the Court of Justice of the European Union 
for interpretation is optional. 
In the present case, the resolution of this dispute concerns a question raising a 
serious difficulty. 
TENERGIE DEVELOPPEMENT considers that, at the time the goods were 
presented to customs, it provided all the necessary documents, in particular the 
Taiwanese certificate of origin, and that the French Customs Authorities, despite 
the physical inspection of the goods in February 2014 and the questions raised by 
the customs representative, did not express the slightest reservation or point out 
any anomaly regarding the origin of the goods; and that it therefore accepted and 
validated the importation of the goods for release into free circulation and home 
use. 
It therefore considers that acceptance of the customs declaration bearing an 
incorrect tariff classification of the goods concerned amounted to an error within 
the meaning of Article 119 of the Union Customs Code. 
It also states, first, that from the time OLAF opened the investigation the EU and 
French authorities were aware of the risks associated with the imports and should 
have warned economic operators of the risks involved; secondly, the Customs 
Administration, whose control was based mainly on the findings of the 
international investigation carried out by OLAF, which complied precisely with 
the criteria laid down in Articles 2 and 20 of Council Regulation (EC) No 515/97 
of 13 March 1997, should have transmitted its request for remission to the 
European Commission. 
In that regard, it is important to note that the OLAF report states that on 
24 November 2014, OLAF received information from the Taiwanese customs 
authorities concerning the transhipment via Taiwan to the EU of more than 1 200 
containers containing solar panels originating in or dispatched from the People’s 
Republic of China. That information concerned imports in the free zone (customs 
declaration F1) into Taiwan and reexports of [those] goods from Taiwan’s free 
zones (customs declaration F5). An initial analysis of the information supplied by 
OLAF showed that a total of 925 individual containers containing solar panels 
could be matched to imports into the EU declared by Member States. 
Thus, in order to comply with the objective of the mechanism designed to enable 
the Commission to ensure consistent Community case-law on this matter and 
avoid any obstacle to the consistent application of the Union Customs Code, it is 
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permissible for TENERGIE DEVELOPPEMENT to raise the question whether 
the Customs Administration should have ensured the file was transmitted to the 
European Commission. 
Consequently, it is sound administration of justice to stay the proceedings and 
make a reference to the Court of Justice of the European Union, which has 
jurisdiction to give a preliminary ruling on the following questions raised by 
TENERGIE DEVELOPPEMENT: 
[…] [statement of the questions referred for a preliminary ruling set out in the 
operative part] 
[…] [national procedural matters] 
ON THOSE GROUNDS: 
[…] [national procedure] 
I hereby order reference to be made to the Court of Justice of the European 
Union for a preliminary ruling on the following questions raised by TENERGIE 
DEVELOPPEMENT: 
1. Where, as in the present case, the applicant company satisfies the 
conditions set out in Articles 119 and 120 of the Union Customs Code, must 
Article 116 of that code be interpreted as imposing an obligation on the 
competent national authorities to transmit to the European Commission the 
file requesting remission of the duties notified? 
2. If the answer is that those national authorities have no discretion in 
such a case, will failure to comply with the obligation to transmit the file 
requesting remission to the European Commission lead to remission of the 
duties and penalties claimed? 
3. If the answer is to the second question is in the negative, does the 
principle that a Member State is required to make reparation for loss or 
damage caused to individuals as a result of a breach of European Union 
law – provided that breach is entirely attributable to that State – apply in 
situations in which that Member State has misapplied Article 116 of the 
Union Customs Code, where the obligation to transmit the file requesting 
remission of the duties which it lays down is regarded as conferring rights 
on individuals, that breach is sufficiently serious and there is a direct causal 
link between that breach and the damage sustained by the injured party? 
[…] [stay of proceedings] 
[…] [national procedural matters]