Opinion of the Advocate General — ECLI:EU:T:2026:39
Date: 2026-01-21
Language of the case: German

Translation  T-150/25 – 1 
Case T-150/25 
Request for a preliminary ruling 
Date lodged: 
21 February 2025 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
30 January 2025 
Appellant on a point of law: 
Zollamt Österreich 
  
Verwaltungsgerichtshof (Supreme 
Administrative Court, Austria) 
  
EU 2025:0001-1 
(RO 2024/16/0013) 
30 January 2025 
The Supreme Administrative Court, […] hearing the appeal on a point of law 
lodged by the Zollamt Österreich (Customs Office, Austria; ‘the Customs Office’) 
in […] Vienna […] against the judgment of the Bundesfinanzgericht (Federal 
Finance Court, Austria) of 12 March 2024, RV/7200047/2023, concerning the 
amendment of binding tariff information (interested party: G GmbH in K […])  
has made the following 
Order: 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling under Article 267 TFEU: 
1. Are Articles 33, 34, 44 and 45 of Regulation (EU) No 952/2013 of the 
European Parliament and of the Council of 9 October 2013 laying down the 
Union Customs Code (OJ 2013 L 269, p. 1) – in view of the fact that, in 
accordance with Article 44(4) of that regulation, Member States are to 
ensure that the appeals procedure enables the prompt confirmation or 
correction of decisions taken by the customs authorities – to be interpreted 
as meaning that the decision on an appeal lodged under Article 44(2) of that 
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regulation against binding tariff information issued in accordance with 
Article 33 of that regulation is retroactive to the date on which that binding 
tariff information was issued by the customs office? 
2. If Question 1 is answered in the negative: 
Are Articles 33, 34, 44 and 45 of Regulation No 952/2013 to be interpreted 
as meaning that Member States may provide, in their national procedural 
rules, that the decision on an appeal lodged under Article 44(2) of that 
regulation against binding tariff information issued in accordance with 
Article 33 of that regulation is retroactive to the date on which that binding 
tariff information was issued by the customs office? 
Grounds: 
1 A. Facts and proceedings to date 
2 By means of a decision relating to binding tariff information (‘a BTI decision’) of 
27 October 2022, served on the same day, the Customs Office classified goods 
with the designation ‘single-use tourniquet’ (Einwegvenenstauer) – contrary to the 
classification proposal submitted by the applicant and now interested party – 
under commodity code 4008 2190 00 with a period of validity specified as being 
from 27 October 2022 to 26 October 2025. The interested party, a limited liability 
company, filed a complaint against that administrative decision, claiming that the 
classification made by the BTI decision was not reasoned and that it was not 
correct in its substance. It maintained that only interpretation tools and 
explanations were listed and reference made to the findings of the Technische 
Untersuchungsanstalt (Technical Analysis Centre, Austria). It argued that the right 
of parties to be heard was infringed and that access to those findings was not 
granted. According to the interested party, the goods should be classified under 
heading 4014. 
3 The Federal Finance Court, which became competent following a preliminary 
decision by the Customs Office dismissing the complaint and a request for referral 
(Vorlageantrag) subsequently filed, upheld the interested party’s complaint and 
amended the contested administrative decision to the effect that the goods at issue 
should be classified under commodity code 4014 9000 00. At the same time, the 
Verwaltungsgericht (Administrative Court; that is, the Federal Finance Court) 
held that an appeal on a point of law before the Supreme Administrative Court 
was admissible under Article 133(4) of the Bundes-Verfassungsgesetz (Federal 
Constitutional Law; ‘the B-VG’). 
4 The Customs Office has lodged the present appeal on a point of law 
(Amtsrevision) against that ruling. 
5 In support of the admissibility of the appeal on a point of law, the Customs Office 
submits, inter alia, that there is no case-law of the Supreme Administrative Court 
on the lawfulness of an amendment of a BTI decision by the Administrative Court 
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under Paragraph 279 of the Bundesabgabenordnung (Federal Fiscal Code; ‘the 
BAO’). Under Article 33(2)(a) and (b) of Regulation No 952/2013 (‘the Union 
Customs Code’ or ‘the UCC’), BTI decisions are to be binding in respect of the 
tariff classification of goods on the customs authorities, as against the holder of 
the decision, with effect from the date on which he or she receives, or is deemed 
to have received, notification of the decision. It argues that there is no doubt as to 
the notification of the BTI decision to the interested party, the subject of the 
appeal on a point of law in the present case. 
6 The Customs Office submits that, by its decision, the Federal Finance Court 
intended to amend retroactively, in accordance with Paragraph 279 of the BAO, 
the BTI decision of the Customs Office, against which the complaint had been 
filed. It maintains that the UCC does not, however, allow such retroactive 
amendment of BTI decisions issued in a legally binding manner. 
7 Under Article 34(6) of the UCC, BTI decisions may not be amended. Under 
Article 34(3) of the UCC, BTI decisions are not to cease to be valid with 
retroactive effect. 
8 It submits that the conditions for the retroactive annulment of a BTI decision 
under Article 27(1) of the UCC were not fulfilled in the present case. 
9 According to the Customs Office, Paragraph 279 of the BAO allows the 
Administrative Court, inter alia, to amend the contested administrative decision in 
any way. In the event of an appeal on a point of law, that provision is overridden 
by the UCC rules as the primarily applicable law and therefore cannot be applied 
in the field of binding tariff information. 
10 B. Relevant provisions 
11 1. National law 
12 Paragraph 1(1) to (3); Paragraph 2(1) and Paragraphs 42 to 44 of the 
Bundesgesetz betreffend ergänzende Regelungen zur Durchführung des Zollrechts 
der Europäischen Gemeinschaften (Zollrechts-Durchführungsgesetz) (Federal 
Law concerning supplementary rules for the implementation of the customs law of 
the European Communities; ‘the ZollR-DG’) are worded as follows: 
‘Paragraph 1 (1) Customs law shall be implemented in the territory to which it 
applies in accordance with this Federal Law. 
(2) Customs law shall comprise the customs provisions of the European Union, 
this Federal Law and the regulations adopted pursuant to this Federal Law, in so 
far as they relate to the import or export of goods. 
(3) In so far as this Federal Law refers to provisions of other federal laws or 
legal acts of the European Union, those provisions shall be applied in the version 
in force. 
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Paragraph 2 (1) The customs law referred to in Paragraph 1 and the general 
provisions of fiscal law and international law applicable in Austria, in so far as 
they relate to the import or export of goods, shall also apply to all matters under 
EU and national law relating to the movement of goods across the borders of the 
area of application not covered by the Union Customs Code, including the levying 
of duties (other import or export duties) and other monetary payments, in so far as 
this Federal Law or the relevant legislation entrusts implementation to the customs 
administration, unless expressly provided otherwise. 
Paragraph 42 For appeals procedures within the meaning of Article 44 of 
the Union Customs Code, the following special rules shall apply within the scope 
of Paragraph 2(1). 
Paragraph 43 (1) A complaint may be lodged as the first step of an appeal 
against decisions by customs authorities (Article 44(2)(a) of the Union Customs 
Code). 
(2) Paragraphs 284 to 286 of the BAO shall apply with the proviso that, for 
customs decisions, the six-month period referred to in Paragraph 284(1) of the 
BAO shall be replaced by the time limit laid down in Article 22(3) of the Union 
Customs Code or a time limit for deciding on an application laid down in another 
provision of customs law. 
Paragraph 44 The right to lodge a complaint against an administrative 
decision fixing import duties within the time limit for lodging a complaint open to 
the declarant shall also be available to the jointly and severally liable consignee of 
the goods who took over the declarant’s goods. 
Paragraph 45 The provisions of Paragraph 262(2) to (4) of the BAO shall 
not apply. 
Paragraph 46 The proceedings before the Federal Finance Court shall 
constitute the second step of an appeal (Article 44(2)(b) of the Union Customs 
Code). Forwarding agents and carriers as well as rail or postal transport bodies 
shall also be authorised to be parties to the proceedings before the Federal Finance 
Court. 
Decisions within the meaning of customs legislation which are not administrative 
decisions within the meaning of the BAO shall also fall within the jurisdiction of 
the Federal Finance Court within the meaning of Article 130(2)(1) of the B-VG.’ 
13 Paragraph 1(1); Paragraph 2a and Paragraph 279 of the BAO are worded as 
follows: 
‘Paragraph 279 (1) Except in the cases referred to in Paragraph 278, the 
Administrative Court shall always issue a judgment on the merits. It shall be 
entitled, both in the operative part of the judgment and in the grounds thereof, to 
substitute its position for that of the tax authority and, consequently, to amend the 
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contested administrative decision in any way, to annul it or to dismiss the 
complaint against the administrative decision as unfounded. 
(2) By the annulment of the contested administrative decision, the proceedings 
shall be reinstated at the stage they were at prior to the adoption of that decision. 
(3) In proceedings relating to administrative decisions which amend, annul or 
replace judgments (Paragraph 1), the tax authorities shall be bound by the legal 
interpretation relevant to the judgment set out in those proceedings. The same 
shall apply where the judgment covers a shorter period than that of the subsequent 
administrative decision.’ 
14 2. European Union law 
15 Article 33 of the UCC is worded as follows: 
‘Article 33 
Decisions relating to binding information 
1. The customs authorities shall, upon application, take decisions relating to 
binding tariff information (BTI decisions), or decisions relating to binding origin 
information (BOI decisions). 
Such an application shall not be accepted in any of the following circumstances: 
(a) where the application is made, or has already been made, at the same or 
another customs office, by or on behalf of the holder of a decision in respect 
of the same goods and, for BOI decisions, under the same circumstances 
determining the acquisition of origin; 
(b) where the application does not relate to any intended use of the BTI or BOI 
decision or any intended use of a customs procedure. 
2. BTI or BOI decisions shall be binding, only in respect of the tariff 
classification or determination of the origin of goods: 
(a) on the customs authorities, as against the holder of the decision, only in 
respect of goods for which customs formalities are completed after the date 
on which the decision takes effect; 
(b) on the holder of the decision, as against the customs authorities, only with 
effect from the date on which he or she receives, or is deemed to have 
received, notification of the decision. 
3. BTI or BOI decisions shall be valid for a period of three years from the date 
on which the decision takes effect. 
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4. For the application of a BTI or BOI decision in the context of a particular 
customs procedure, the holder of the decision shall be able to prove that: 
(a) in the case of a BTI decision, the goods declared correspond in every respect 
to those described in the decision; 
(b) in the case of a BOI decision, the goods in question and the circumstances 
determining the acquisition of origin correspond in every respect to the 
goods and the circumstances described in the decision.’ 
16 Article 34 of the UCC, as amended by Regulation (EU) 2019/474 of the European 
Parliament and of the Council of 19 March 2019 (OJ 2019 L 83, p. 38), is worded 
as follows: 
‘Article 34 
Management of decisions relating to binding information 
1. A BTI decision shall cease to be valid before the end of the period referred 
to in Article 33(3) where it no longer conforms to the law, as a result of either of 
the following: 
(a) the adoption of an amendment to the nomenclatures referred to in points (a) 
and (b) of Article 56(2); 
(b) the adoption of measures referred to in Article 57(4); 
with effect from the date of application of such amendment or measures. 
2. A BOI decision shall cease to be valid before the end of the period referred 
to in Article 33(3) in any of the following cases: 
(a) where a regulation is adopted or an agreement is concluded by, and becomes 
applicable in, the Union, and the BOI decision no longer conforms to the 
law thereby laid down, with effect from the date of application of that 
regulation or agreement; 
(b) where it is no longer compatible with the Agreement on Rules of Origin 
established in the World Trade Organisation (WTO) or with the explanatory 
notes or an origin opinion adopted for the interpretation of that Agreement, 
with effect from the date of their publication in the Official Journal of the 
European Union. 
3. BTI or BOI decisions shall not cease to be valid with retroactive effect. 
4. By way of derogation from Article 23(3) and Article 27, BTI and BOI 
decisions shall be annulled where they are based on inaccurate or incomplete 
information from the applicants. 
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5. BTI and BOI decisions shall be revoked in accordance with Article 23(3) 
and Article 28. However, such decisions shall not be revoked upon application by 
the holder of the decision. 
6. BTI and BOI decisions may not be amended. 
7. The customs authorities shall revoke BTI decisions: 
(a) where they are no longer compatible with the interpretation of any of the 
nomenclatures referred to in points (a) and (b) of Article 56(2) resulting 
from any of the following: 
(i) explanatory notes referred to in the second indent of point (a) of Article 9(1) 
of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and 
statistical nomenclature and on the Common Customs Tariff, with effect 
from the date of their publication in the Official Journal of the European 
Union; 
(ii) a judgment of the Court of Justice of the European Union, with effect 
from the date of publication of the operative part of the judgment in 
the Official Journal of the European Union; 
(iii) classification decisions, classification opinions or amendments of 
the explanatory notes to the Nomenclature of the Harmonized 
Commodity Description and Coding System, adopted by the 
Organization set-up by the Convention establishing a Customs 
Co-operation Council, done at Brussels on 15 December 1950, 
with effect from the date of publication of the Commission 
Communication in the “C” series of the Official Journal of the 
European Union; or 
(b) in other specific cases. 
8. BOI decisions shall be revoked: 
(a) where they are no longer compatible with a judgment of the Court of Justice 
of the European Union, with effect from the date of publication of the 
operative part of the judgment in the Official Journal of the European Union; 
or 
(b) in other specific cases. 
9. Where a BTI or BOI decision ceases to be valid in accordance with point (b) 
of paragraph 1 or with paragraph 2, or is revoked in accordance with paragraph 5, 
7 or 8, the BTI or BOI decision may still be used in respect of binding contracts 
which were based upon that decision and were concluded before it ceased to be 
valid or was revoked. That extended use shall not apply where a BOI decision is 
taken for goods to be exported. 
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The extended use referred to in the first subparagraph shall not exceed six months 
from the date on which the BTI or BOI decision ceases to be valid or is revoked. 
However, a measure referred to in Article 57(4) or in Article 67 may exclude that 
extended use or lay down a shorter period of time. In the case of products for 
which an import or export certificate is submitted when customs formalities are 
carried out, the period of six months shall be replaced by the period of validity of 
the certificate. 
In order to benefit from the extended use of a BTI or BOI decision, the holder of 
that decision shall lodge an application to the customs authority that took the 
decision within 30 days of the date on which it ceases to be valid or is revoked, 
indicating the quantities for which a period of extended use is requested and the 
Member State or Member States in which goods will be cleared under the period 
of extended use. That customs authority shall take a decision on the extended use 
and notify the holder, without delay, and at the latest within 30 days of the date on 
which it receives all the information required in order to enable it to take that 
decision. 
10. The Commission shall notify the customs authorities where: 
(a) the taking of BTI and BOI decisions, for goods whose correct and uniform 
tariff classification or determination of origin is not ensured, is suspended; 
or 
(b) the suspension referred to in point (a) is withdrawn. 
11. The Commission may adopt decisions requesting Member States to revoke 
BTI or BOI decisions, to ensure a correct and uniform tariff classification or 
determination of the origin of goods.’ 
17 Articles 44 and 45 of the UCC are worded as follows: 
‘Article 44 
Right of appeal 
1. Any person shall have the right to appeal against any decision taken by the 
customs authorities relating to the application of the customs legislation which 
concerns him or her directly and individually. 
Any person who has applied to the customs authorities for a decision and has not 
obtained a decision on that application within the time limits referred to in 
Article 22(3) shall also be entitled to exercise the right of appeal.  
2. The right of appeal may be exercised in at least two steps: 
(a) initially, before the customs authorities or a judicial authority or other body 
designated for that purpose by the Member States; 
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(b) subsequently, before a higher independent body, which may be a judicial 
authority or an equivalent specialised body, according to the provisions in 
force in the Member States. 
3. The appeal shall be lodged in the Member State where the decision was 
taken or was applied for.  
4. Member States shall ensure that the appeals procedure enables the prompt 
confirmation or correction of decisions taken by the customs authorities. 
Article 45 
Suspension of implementation 
1. The submission of an appeal shall not cause implementation of the disputed 
decision to be suspended. 
2. The customs authorities shall, however, suspend implementation of such a 
decision in whole or in part where they have good reason to believe that the 
disputed decision is inconsistent with the customs legislation or that irreparable 
damage is to be feared for the person concerned. 
3. In the cases referred to in paragraph 2, where the disputed decision has the 
effect of causing import or export duty to be payable, suspension of 
implementation of that decision shall be conditional upon the provision of a 
guarantee, unless it is established, on the basis of a documented assessment, that 
such a guarantee would be likely to cause the debtor serious economic or social 
difficulties.’ 
18 Article 20 of the 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 Union Customs Code (OJ 2015 L 343, p. 558) is worded 
as follows: 
‘Article 20 
Monitoring of BTI decisions 
When customs formalities are being fulfilled by or on behalf of the holder of a 
BTI decision in respect of goods covered by the BTI decision, this shall be 
indicated in the customs declaration by stating the BTI decision reference 
number.’ 
19 C. Explanation of the questions referred for a preliminary ruling 
20 In accordance with Article 44(4) of the UCC, Member States are to ensure that the 
appeals procedure enables the prompt confirmation or correction of decisions 
taken by the customs authorities. That provision therefore leaves it to the Member 
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States to lay down the detailed rules of the appeals procedure. The UCC contains 
basic provisions in that regard. Thus, in accordance with Article 45(1) of the 
UCC, the submission of an appeal is not to cause implementation of the disputed 
decision to be suspended. 
21 In Austria, Paragraph 46 of the ZollR-DG provides that the proceedings before the 
Federal Finance Court are to constitute the second step of an appeal 
(Article 44(2)(b) of the UCC). 
22 Under Paragraph 2a of the BAO, the provisions of the BAO are to apply mutatis 
mutandis to proceedings before the Federal Finance Court, in so far as they apply 
to the proceedings of the defendant tax authority. In accordance with 
Paragraph 1(1) of the BAO, the provisions of the BAO are to apply to matters 
relating to import and export duties only in so far as customs legislation does not 
provide otherwise. 
23 Under Paragraph 279(1) of the BAO, the Federal Finance Court is to be entitled, 
both in the operative part of the judgment and in the grounds thereof, to substitute 
its position for that of the tax authority and, consequently, to amend the contested 
administrative decision in any way, to annul it or to dismiss the complaint against 
the administrative decision as unfounded. 
24 Judgments on the merits in the context of Paragraph 279 of the BAO have effect 
ex tunc, according to the prevailing view in Austria (see Ellinger/Sutter/Urtz, 
BAO, Third edition, Paragraph 279 para. 21; Fischerlehner in 
Fischerlehner/Brennsteiner, Abgabenverfahren I BAO, Third edition, 
Paragraph 279 para. 8; Ritz/Koran, BAO, Seventh edition, Paragraph 279, BAO 
para. 18). 
25 In the present case, it is common ground that the Customs Office issued the 
interested party with a BTI decision according to which the goods in question 
were to be classified under commodity code 4008 2190 00. That decision was 
notified to the interested party and therefore took effect in accordance with 
Article 22(4) of the UCC. 
26 The interested party lodged an appeal against the BTI decision within the time 
limit – initially, under Article 44(2)(a) of the UCC and, subsequently, as a second-
step appeal under Article 44(2)(b) of the UCC. No suspension of implementation 
under Article 45(2) of the UCC was ordered. 
27 The Federal Finance Court upheld the interested party’s second-step appeal and 
amended the BTI decision to the effect that the goods should be classified under 
commodity code 4014 9000 00. In accordance with Paragraph 279 of the BAO, 
that decision is retroactive to the date on which the BTI was issued by the 
Customs Office. Such an interpretation is consistent with the effective judicial 
protection required under EU law. 
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28 It is true that the UCC expressly provides for retroactive annulments of BTI 
decisions. Thus, under Article 34(4) of the UCC, BTI decisions are to be annulled 
where they are based on inaccurate or incomplete information from the applicants. 
In addition, under Article 34(5) of the UCC, BTI decisions are to be revoked in 
accordance with Article 23(3) and Article 28 of the UCC. However, such 
decisions are not to be revoked upon application by the holder of the decision. It is 
not disputed that the conditions of Article 34(4) and (5) of the UCC were not 
satisfied in the present case. 
29 Under Article 34(3) of the UCC, BTI decisions are not to cease to be valid with 
retroactive effect. Article 34(6) of the UCC provides that BTI decisions may not 
be amended. The Supreme Administrative Court has doubts as to whether the 
abovementioned provisions have scope for appeals under Article 44 of the UCC, 
and if so, what that scope is. In that regard, the Supreme Administrative Court is 
uncertain whether the requirements of the UCC already provide, in principle, for 
the decision on the appeal to take effect as from the time when the BTI decision 
was issued or preclude this, or whether, at most, they make it possible to establish 
such effect by means of the procedural rules in force in the Member States. 
30 Overall, the interpretation of EU law relating to these questions does not appear to 
be so obvious as to leave no scope for any reasonable doubt (see Court of Justice 
of the European Union, judgment of 4 October 2018, Commission v French 
Republic, C-416/17, paragraph 110). 
31 The questions are therefore referred to the Court of Justice of the European Union 
for a preliminary ruling under Article 267 TFEU. 
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