Opinion of the Advocate General — ECLI:EU:C:2020:108
Date: 2020-02-25
Language of the case: German
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

summary declaration, which is provisional. As flows from Article 29, the calculation of import duties depended on the declaration and, therefore, on the information provided by the declarant. 7 See judgment of 5 October 2006, ASM Lithography (C‑100/05, EU:C:2006:645, paragraph 33). 8 See judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraphs 61 to 64), and of 10 July 2019, CEVA Freight Holland (C‑249/18, EU:C:2019:587, paragraph 29). 9 See judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 65), and of 10 July 2019, CEVA Freight Holland (C‑249/18, EU:C:2019:587, paragraph 30). 10 Emphasis added. 11 See judgment of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 46). 12 See judgment of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 50. The Court has accepted that a declaration might be the subject of several requests for amendments. See judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 25), which, in the language of proceedings, namely Latvian, uses the terms ‘atkārtotu pārskatīšanu’. In the French version, that paragraph is worded as follows: ‘… ne contient de restriction ni en ce qui concerne la possibilité pour les autorités douanières de répéter une révision …’ (emphasis added). 13 See, to that effect, judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 52), and of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 62). 14 See, to that effect, judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 53), and of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 63). 15 See, to that effect, judgments of 5 October 2006, ASM Lithography (C‑100/05, EU:C:2006:645, paragraph 42); of 27 February 2014, Greencarrier Freight Services Latvia (C‑571/12, EU:C:2014:102, paragraph 40); and of 12 October 2017, X (C‑661/15, EU:C:2017:753, paragraph 63). For its part, Article 78 of the 1992 Customs Code did not provide for any specific time limit for the amendment of customs declarations. See judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 25). 16 See judgment of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 21). 17 See, to that effect, judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 25). 18 Judgment of 20 October 2005 (C‑468/03, EU:C:2005:624). See, also, to that effect, judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56). 19 See judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 70), and of 20 December 2017, Hamamatsu Photonics Deutschland (C‑529/16, EU:C:2017:984, paragraph 30). 20 In my view, the fact that the legislature inserted Article 78, and, moreover, the provisions relating to the legal regime of the declaration (Articles 59 to 77) in Title IV on the customs-approved treatment or use, can be explained by the simple fact that the primary purpose of a declaration is to determine the applicable customs procedure. It was therefore necessary to determine the legal regime applicable to that declaration before specifying its consequences. 21 Judgment of 14 January 2010 Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56). 22 In order to make this amendment, a power had to be granted to the former declarant, since it is only on this condition that, in accordance with Article 5(4) of the 1992 Customs Code, the latter might have applied for that amendment on behalf of the new declarant. In addition, it should be stressed that since Article 78 concerns the amendment of the declaration and not its replacement, the new declarant had to be considered as having been subrogated to the rights and obligations of the former declarant, including in regards to any time limit period. 23 Article 199 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), also provides that the declarant is responsible for the accuracy of the information given in the declaration. However, since that regulation is of a lower-ranking standard, which moreover has been partially annulled for breach of the provisions of the 1992 Customs Code (see judgment of 12 October 2017, X, C‑661/15, EU:C:2017:753, paragraph 67), it cannot be taken into account for the purpose of interpreting the provisions of that code. 24 See judgment of 15 September 2011, DP grup (C‑138/10, EU:C:2011:587, paragraphs 40 and 41). The principle of irrevocability of the declaration seems, however, to correspond more to the situation prevailing prior to the adoption of the 1992 Customs Code. Under that code, because of the adoption of Article 78, as well as the possibility of invalidating the declaration provided for in Article 66, the existence of such a principle seems more questionable. 25 See, to that effect, judgment of 20 December 2017, Hamamatsu Photonics Deutschland (C‑529/16, EU:C:2017:984, paragraphs 30 to 34). Moreover, in its judgment of 17 September 2014, Baltic Agro (C‑3/13, EU:C:2014:2227), the Court was asked about the validity of Article 66 of the 1992 Customs Code. The national court had doubts as to whether that provision might infringe the principle of equal treatment, since it did not allow an incorrect customs declaration to be cancelled in order to correct the consignee of the goods. In this respect, the Court answered in the negative without calling into question this premiss. On the contrary, the Court recalled the obligation for the declarant to provide information as accurately as possible (see paragraphs 41 to 46 of this judgment). 26 See judgment of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 31). 27 See judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 63), and of 27 February 2014, Greencarrier Freight Services Latvia (C‑571/12, EU:C:2014:102, paragraph 33). 28 See, for example, judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56); of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 47); and of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 50); and of 10 July 2019, CEVA Freight Holland (C‑249/18, EU:C:2019:587, paragraph 32). 29 See judgment of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 70). However, in paragraph 30 of its judgment of 20 December 2017, Hamamatsu Photonics Deutschland (C‑529/16, EU:C:2017:984), the Court ruled that the cases permitting the subsequent adjustment of the transaction value were limited to specific situations relating, inter alia, to quality defects or faulty workmanship in the goods discovered after their release for free circulation. 30 See judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 65). 31 See judgment of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 47). 32 See judgment of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 52). 33 It is true that the Court held that customs authorities had a broad discretion to decide whether or not to grant the declarant’s application for an amendment. See judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 27). However, this statement must be placed in context, namely, that it refers to the possibility for the administration to carry out a review ex officio. With regard to follow-ups to a request for amendment, in the light of the Court’s case-law mentioned above, that discretion appears to be relatively limited. In my view, the use of the term ‘may’ in Article 78 was explained by the fact that this provision recognises both the possibility for the administration to rectify certain information and the existence of a right on the part of the registrant to request for amendments to be made in the declaration. 34 See judgment of 27 February 2014, Greencarrier Freight Services Latvia (C‑571/12, EU:C:2014:102, paragraph 32). See, also, judgment of 15 September 2011, DP grup (C‑138/10, EU:C:2011:587, paragraph 37). 35 As well as these three circumstances, it could have been inferred from Article 66(1) of the 1992 Customs Code that such a choice could, in principle, only be modified through an invalidation. 36 See judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 47), and of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 53). However, as ruled by the Court in its judgment of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 50), the mere fact that physically inspecting the goods is no longer feasible does not mean that any revision of a declaration was impossible. It is only when such checks were necessary to comply with and to fulfil the objectives of European Union legislation that such a ground was able to be used to reject an application for an amendment. In particular, that circumstance did not prevent an a posteriori control of the qualification given to the goods carried out on the basis of the description made of these goods in the declaration. See judgments of 22 November 2012, Digitalnet and Others (C‑320/11, C‑330/11, C‑382/11 and C‑383/11, EU:C:2012:745, paragraphs 65 to 67), and of 27 February 2014, Greencarrier Freight Services Latvia (C‑571/12, EU:C:2014:102, paragraph 36). 37 See, in particular, judgments of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 54), and of 5 October 2006, ASM Lithography (C‑100/05, EU:C:2006:645, paragraph 43). 38 See, for example, judgment of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 69). 39 See judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 51). 40 See judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraphs 53 to 66). In this case, a customs agent acting on behalf of Terex or purchasers used the code 10 00 in the declarations, indicating the export of Community goods, instead of code 31 51 used for the re-export of goods for which duties are suspended. The Court held at paragraph 65 that Article 78 of the 1992 Customs Code permits the amendment of the export declaration to correct the Customs Code. To the extent that the Court has made general statements concerning the scope of Article 78 of the Customs Code, that judgment may be read as holding that a power of amendment of the choice of customs procedure existed under Article 78 of the Customs Code as long as the customs procedure in question was applied erroneously and that the objectives of the 1992 Customs Code were not threatened. It is also possible to understand the solution that the Court reached in this case as limited to situations involving an error in the code chosen. Consequently, the Court’s assertion could be taken as being confined to permitting the amendment of customs codes which were inconsistent with the customs procedure chosen, and not as implying a general power to amend the customs procedure chosen in a declaration. While the description of the facts does not specify whether the declaration included, in addition to the said code, the chosen customs procedure, this second reading would be, in my view, more convincing. Indeed, in the light of Article 66, and as the choice of customs procedure is the key element of the declaration, it could only have been changed by means of invalidation. 41 It is true that Article 66(2) provided that a declaration might have been invalidated after the goods had been released in certain cases. However, that provision did not have the effect of extending the scope of Article 66, but only of permitting an invalidation to take place after the release had been granted in certain cases, which nonetheless fell within the scope of Article 66, as defined in its first paragraph. 42 Indeed, as I explained in points 26 and 56 of this Opinion, the primary purpose of the customs declaration is to assign a specific customs procedure to certain goods. 43 See judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56). 44 See Article 233 of the 1992 Customs Code. 45 This conclusion is not called into question by judgment of 15 September 2011, DP grup (C‑138/10, EU:C:2011:587). Although the Court refers in that case, which concerned an error of calculation, to the possibility of invalidation, it does not follow from that judgment that the Court ruled on the possibility of such an invalidation in a situation such as that at issue in the main proceedings of that case. The Court confined itself to answering the question raised by pointing out that, while it was not possible for a judge to annul a declaration, the declarant could, in certain situations, seek the invalidation of the declaration. In my view, the fact that the Court did not wish to take a position on the possibility of invalidation in circumstances such as those at issue in this case is clear from the fact that, in the presentation of the legal framework, the Court did not even specify which cases of invalidation were permissible under the implementing regulation. 46 See judgment of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 54). 47 See also judgments of 14 May 1996, Faroe Seafood and Others (C‑153/94 and C‑204/94, EU:C:1996:198, paragraphs 108 and 109), and of 7 April 2011, Sony Supply Chain Solutions (Europe) (C‑153/10, EU:C:2011:224, paragraph 28). 48 Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 2000 L 152, p .1). 49 See, for example, judgments of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 56); of 16 October 2014, Nordex Food (C‑334/13, EU:C:2014:2294, paragraph 59); and of 16 October 2014, VAEX Varkens- en Veehandel (C‑387/13, EU:C:2014:2296, paragraph 34). 50 See, to that effect, judgment of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 66). 51 See, for example, judgment of 13 March 2014, SICES and Others, (C‑155/13, EU:C:2014:145). 52 See Article 192 of the 1992 Customs Code. 53 Admittedly, any amendment of a declaration generates costs for the administration, but since Article 78(3) specifies that amendments must be made ‘in accordance with any provisions laid down’, Members States were entitled, if they wanted, to pass those costs on to the declarant. 54 See, to that effect, judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 41). 55 See points 51 to 53 of this Opinion. 56 See, to that effect, judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 47 et seq.), and of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56 et seq.). 57 See, to that effect, judgments of 20 October 2005, Overland Footwear (C‑468/03, EU:C:2005:624, paragraph 63), and of 10 July 2019, CEVA Freight Holland (C‑249/18, EU:C:2019:587, paragraph 32). 58 Judgment of 10 July 2019 (C‑249/18, EU:C:2019:587). 59 Indeed, the importer is free to choose, from among the prices agreed for each of these sales, the one he or she will use as a basis for determining the customs value of the goods concerned, provided that he or she was able to provide, in respect of the price he or she chooses, all the elements and documents necessary for the customs authorities (ibid., paragraph 25). 60 See judgment of 10 July 2019, CEVA Freight Holland (C‑249/18, EU:C:2019:587, paragraphs 26, and 36 to 39). 61 See judgment of 7 April 2011, Sony Supply Chain Solutions (Europe) (C‑153/10, EU:C:2011:224, paragraph 30).