OPINION OF ADVOCATE GENERAL
MARTÍN y PÉREZ DE NANCLARES
delivered on 21 January 2026 (1)
Case T-150/25
Zollamt Österreich,
interested party: G GmbH
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))
( Reference for a preliminary ruling – Customs Union – Union Customs Code – Article 33 of Regulation (EU) No 952/2013 – Decision relating to binding tariff information – Article 34(3) to (6) of Regulation No 952/2013 – Cessation of validity, annulment and revocation of decisions relating to binding tariff information – Article 44(4) of Regulation No 952/2013 – Appeal against a decision relating to binding tariff information – Amendment – Retroactive effect of a judicial decision )
I.      Introduction
1.        The question of the temporal effects of rules is a classic theme in legal doctrine. Since Roman law, the general principle that ‘rules do not have retroactive effect’ (2) has applied, particularly where rules that sanction or restrict rights are at stake. That is one of the basic tenets underpinning the need for certainty and legal security. By contrast, the response to the question of the temporal effects of legal decisions over time is less emphatic, particularly in the case of decisions relating to the annulment of legal acts.
2.        That is precisely the key and novel issue raised in the present case. Indeed, it gives the General Court the opportunity to examine the temporal effects of a decision adopted by a national judicial authority, in accordance with Article 44 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (3) (‘the Union Customs Code’), with regard to a decision relating to binding tariff information (a ‘BTI decision’).
3.        A BTI decision is a document by which the customs authorities of Member States of the European Union inform economic operators, at their request, of the tariff heading (laid down in the customs nomenclature) under which goods which those economic operators intend to import or export should be classified. That information, which involves the interpretation of the combined nomenclature of goods, allows economic operators to predict the levels of customs duties (which they are likely to have to pay) and also to calculate the total amount of export refund (which they are likely to receive under the common agricultural policy). (4)
4.        The purpose of introducing that practice was to ensure a measure of legal certainty for economic operators when carrying on their activities but also to facilitate the work of the customs services themselves and secure a more uniform application of EU customs law. (5)
5.        The dispute in the main proceedings is between an economic operator and the Zollamt Österreich (Customs Office, Austria; ‘the Customs Office’) concerning a BTI decision. The two parties to the main proceedings disagree on the tariff classification of goods marketed by the economic operator.
6.        The Bundesfinanzgericht (Federal Finance Court, Austria), upholding a complaint made by the economic operator, amended the BTI decision.
7.        Following an appeal on a point of law, the referring court questions whether the decision of the Bundesfinanzgericht (Federal Finance Court) has effect ex tunc.
II.    Legal framework
A.      European Union law
8.        Recital 26 of the Union Customs Code states that ‘in order to secure a balance between, on the one hand, the need for customs authorities to ensure the correct application of the customs legislation and, on the other, the right of economic operators to be treated fairly, the customs authorities should be granted extensive powers of control and economic operators a right of appeal.’
9.        Article 33 of the Union Customs Code, headed ‘Decisions relating to binding information’, provides, in paragraph 1, that ‘the customs authorities shall, upon application, take decisions relating to [BTI] …’.
10.      Article 34 of that code, headed ‘Management of decisions relating to [BTI]’, provides:
‘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.
…
3.      BTI … decisions shall not cease to be valid with retroactive effect.
4.      By way of derogation from Article 23(3) and Article 27, BTI … decisions shall be annulled where they are based on inaccurate or incomplete information from the applicants.
5.      BTI … 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 … decisions may not be amended.
…’
11.      Article 43 of the same code provides that ‘Articles 44 and 45 shall not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision relating to the application of the customs legislation taken by a judicial authority, or by customs authorities acting as judicial authorities.’
12.      Under Article 44 of the Union Customs Code, headed ‘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.
…
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 …;
(b)      subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body …
…
4.      Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’
13.      Under Article 45 of that code, headed ‘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.
…’
B.      Austrian law
14.      Paragraph 279 of the Bundesabgabenordnung (Federal Fiscal Code; ‘the BAO’), is worded as follows:
‘1.      Except in the cases referred to in Paragraph 278, the Verwaltungsgericht [(Administrative Court, Austria)] 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 contested decision, to annul it or to dismiss the complaint as unfounded.
2.      By the annulment of the contested decision, the proceedings shall be reinstated at the stage they were at prior to the adoption of that decision.
…’
III. Facts of the dispute and request for a preliminary ruling
15.      On 27 October 2022, at the request of the undertaking G GmbH, the Customs Office issued a BTI decision for goods with the designation ‘single-use tourniquet’, which it classified under commodity code 4008 2190 00, with a period of validity specified as being from 27 October 2022 to 26 October 2025.
16.      On 22 November 2022, G filed a complaint against that decision, arguing that the tariff classification was materially incorrect. The Customs Office dismissed that complaint.
17.      By decision of 12 March 2024, the Bundesfinanzgericht (Federal Finance Court) upheld G’s complaint and amended the contested BTI decision to the effect that the goods at issue should be classified under commodity code 4014 9000 00.
18.      The Customs Office lodged an appeal on a point of law before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), against the decision of the Bundesfinanzgericht (Federal Finance Court). It considers that, by its decision based on Paragraph 279 of the BAO, the Bundesfinanzgericht (Federal Finance Court) intended to amend the BTI decision retroactively, which the Union Customs Code, in particular Article 34(3) and (6) thereof, does not permit. Moreover, the conditions for the retroactive annulment of a BTI, as provided for in Article 27(1) of that code, were not met in this case.
19.      The referring court points out that, under Paragraph 279(1) of the BAO, the Bundesfinanzgericht (Federal Finance Court) is 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, to annul it or to reject the complaint against that decision as unfounded. Moreover, in accordance with Paragraph 279 of the BAO, the decision of the Bundesfinanzgericht (Federal Finance Court) at issue in the main proceedings is retroactive to the date on which the BTI was issued by the Customs Office, which is consistent with the principle of effective judicial protection required under EU law.
20.      However, the referring court states, in essence, that Article 34 of the Union Customs Code has expressly provided for situations in which BTI cease to be valid, are revoked or are annulled, and the temporal effects of such occurrences. On this occasion, it points out that, under Article 34(5) of the Union Customs Code, BTI decisions are not to be revoked upon application by the holder of the decision, that under Article 34(3) thereof, BTI decisions are not to cease to be valid with retroactive effect and that under Article 34(6) thereof, BTI decisions may not be amended.
21.      In those circumstances, the referring court has doubts as to whether those provisions of the Union Customs Code have scope for appeals lodged under Article 44 of the Union Customs Code and if so, what that scope is.
22.      In those circumstances the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and, pursuant to Article 267 TFEU, to refer the following questions for a preliminary ruling:
‘(1)      Are Articles 33, 34, 44 and 45 [of the Union Customs Code] – in view of the fact that, in accordance with Article 44(4) [of that code], 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 [the Union Customs Code] against [BTI] issued in accordance with Article 33 of that [code] is retroactive to the date on which that [BTI] was issued by the customs office?
(2)      If Question 1 is answered in the negative, are Articles 33, 34, 44 and 45 of [the Union Customs Code] 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 [code] against [BTI] issued in accordance with Article 33 of that [code] is retroactive to the date on which that [BTI] was issued by the customs office?’
IV.    Proceedings before the Court of Justice and the General Court
23.      The present request for a preliminary ruling was lodged at the Registry of the Court of Justice on 21 February 2025. Pursuant to Article 50b of the Statute of the Court of Justice of the European Union, the request was referred to the General Court.
24.      G, the Italian Government and the European Commission have submitted written observations. The Commission participated in the hearing held on 10 December 2025.
V.      Legal assessment
25.      By referring those two questions, which I propose to examine together, the referring court asks, in essence, whether a national provision, under which the decision on an appeal lodged, in accordance with Article 44(2) of the Union Customs Code, against a BTI decision issued under Article 33 thereof, has retroactive effect to the date on which that BTI decision was issued by the customs authorities, is compatible with EU law.
26.      As a preliminary point, it seems appropriate to point out that, whilst the referring court states that, under Paragraph 279(1) of the BAO, the Bundesfinanzgericht (Federal Finance Court) is able to amend the BTI decision issued by the customs authorities, it does not ask whether that power of amendment is compatible with Article 44 of the Union Customs Code. (6) It merely seeks to determine the temporal effects of a decision adopted by a national court in relation to BTI matters.
27.      In this way, the referring court is requesting an interpretation of Article 44(4) of the Union Customs Code. In particular, it is asking whether the amendment required by that provision in the event of the appeal being upheld must have retroactive effect and whether the rules set out more specifically in Article 33 and in Article 34(3) to (6) of that code are likely to influence the appropriate response to its question.
28.      In that regard, in accordance with settled case-law, it is necessary, when interpreting a provision of EU law, to consider not only its wording but also its context and the objectives of the legislation of which it forms part. (7)
29.      In that context, I propose to begin my analysis with an interpretation of Article 44(4) of the Union Customs Code (A), before assessing the compatibility of Paragraph 279 of the BAO with that provision (B).
A.      Interpretation of Article 44(4) of the Union Customs Code
30.      Having regard to the doubts raised by the referring court, particularly as to any influence that Articles 33 and 34 of the Union Customs Code may have on the interpretation of Article 44(4) of that code, I think it preferable to begin by analysing the context and objectives pursued by those various provisions (1), before I address the actual wording of Article 44(4) of that code and, therefore, its scope (2).
1.      Context and objectives of Articles 33, 34 and 44 of the Union Customs Code
31.      In the first place, and to better understand the objective pursued by Article 44 of the Union Customs Code and, in particular, Article 44(4) thereof, I think it would be helpful to go back a little way and to recall the context in which the right of appeal for economic operators emerged, in relation to customs matters at EU level.
32.      The Commission became involved in rights of appeal for economic operators in the early 1980s by submitting, on 29 January 1981, a proposal for a Council directive on the harmonisation of provisions laid down by law, regulation or administrative action concerning the exercise of the right of appeal in respect of customs matters. (8)
33.      In essence, it emphasised that in view of the significant disparities among Member States as to the consequences of an appeal lodged against a customs decision, it was deemed necessary to establish at Community level the conditions for exercising such an appeal.
34.      Consequently, Article 2(1) of that proposal provided for the possibility of applying for a decision regarding the application of law on customs matters to be annulled or amended. Article 7 thereof provided that the lodging of an appeal is not to cause implementation of the disputed decision to be suspended, unless the customs authority decided otherwise.
35.      However, it was not until Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the Old Customs Code’) (9) and the adoption of Articles 243 to 246 thereof, that a genuine right of appeal for economic operators was established.
36.      Then, on the adoption of Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code), (10) a new element was introduced relative to Article 243 of the Old Customs Code. Article 23(4) of that regulation introduced the obligation on Member States to ensure that the appeals procedure enabled the prompt confirmation or correction of decisions taken by the customs authorities.
37.      Lastly, Article 44(4) of the Union Customs Code reproduces Article 23(4) of Regulation No 450/2008.
38.      To my mind, that addition, which is at the heart of the present case, reflects the EU legislature’s wish to further regulate and harmonise the consequences of rejecting or allowing an appeal in respect of customs matters, and also, as the Commission stated at the hearing, further to ensure the effectiveness and efficiency of judicial protection for economic operators.
39.      In the second place, I think it is also worth emphasising that it is in pursuance of the objective to secure a balance between, on the one hand, the need for customs authorities to ensure the correct application of the customs legislation and, on the other, the right of economic operators to be treated fairly, that customs authorities were granted extensive powers of control and economic operators a right of appeal. (11)
40.      In that regard, the right of appeal for economic operators was designed to protect them from potential abuse on the part of customs authorities or from mistakes they might make when applying the customs legislation.
41.      In the third place, in order to understand the relationship between Articles 33, 34 and 44 of the Union Customs Code, it is necessary to focus on their respective roles within the Union Customs Code.
42.      First of all, those provisions are in different sections of that code. Thus, Articles 33 and 34 are in Section 3, headed ‘Decisions relating to the application of the customs legislation’, whereas Article 44 is in Section 6, headed ‘Appeals’.
43.      Broadly speaking, decisions adopted in accordance with Articles 33 and 34 of the Union Customs Code are made by customs authorities, which act as administrative authorities and enforce substantive rules, whereas decisions adopted in accordance with Article 44 of that code are made either by a judicial authority or by a customs authority acting as a judicial authority, within the framework of administrative disputes.
44.      In other words, Articles 33 and 34 of the Union Customs Code, on the one hand, and Article 44 of that code, on the other hand, seek to regulate separate procedures and to delimit the powers of different authorities. (12)
45.      Accordingly, Articles 33 and 34 of the Union Customs Code seek to delineate the powers conferred on customs authorities, as administrative authority. More specifically, Article 33 regulates the procedure that leads to a BTI decision being issued, whereas Article 34 focuses on how those authorities manage those decisions.
46.      In that context, Article 34(3) of the Union Customs Code seeks to regulate the temporal effects of a BTI decision ceasing to be valid, in the event that, due to circumstances listed in Article 34(1) thereof arising, such a BTI decision ceased to be valid before the end of the period covered by Article 33(3) of that code.
47.      Article 34(4) of that code concerns the specific case of a BTI decision being annulled, by customs authorities, in the event of the applicant providing inaccurate or incomplete information, whereas Article 34(5) thereof concerns the revocation of BTI decisions and Article 34(6) thereof provides that BTI decisions may not be amended.
48.      Article 44 of the same code covers disputes relating to decisions adopted by the customs authorities. Article 44(1) thus provides that any person has the right to appeal against any decision taken by the customs authorities which concerns him or her directly and individually (13) and Article 44(2) to (4) thereof provides the general principles that should guide the Member States in drawing up their procedural rules in the matter.
49.      In the fourth place, it will not have escaped the reader’s notice that the terminology used in Articles 33 and 34 of the Union Customs Code, and in Article 44(4) of that code, is different. Indeed, whereas decisions adopted by customs authorities may result in the cessation of validity, annulment or revocation of BTI decisions, the consequences of decisions adopted by judicial authorities will be either confirmation (in the event of the appeal being dismissed) or amendment (in the event of the appeal being upheld) of the BTI decisions contested before them. The latter aspect appears to me to be particularly important, since the correction of a decision necessarily implies its amendment and, as regards BTI decisions, the exercise of that power is reserved to the judicial authorities.
50.      In my view, it is apparent from all those elements that, on the one hand, Articles 33 and 34 and, on the other hand, Article 44 of the Union Customs Code must be examined separately when assessing their scope. Thus, the temporal effects of the customs authorities’ decisions cannot affect or have any influence on those of the judicial authorities’ decisions. More generally, it does not appear to me that the EU legislature intended to align the treatment of judicial authorities’ decisions with that of customs authorities’ decisions. In that regard, the fact that it is apparent from Article 34 of that code that only annulments of BTI decisions by customs authorities, under the conditions set out in Article 34(4) thereof, have retroactive effect, and not cessations of validity or revocations of BTI decisions, is not relevant to the interpretation of the scope of Article 44 of that code. In particular, in my view, as a matter of principle, it cannot justify finding that amendments of BTI decisions, following a national court decision in accordance with Article 44(4) of that code, cannot have retroactive effect.
51.      In those circumstances, it seems to me that there is no need to dwell on the temporal effects of annulment, revocation or cessation of validity decisions adopted by customs authorities under Article 34 of the Union Customs Code in order to determine the temporal effects of decisions by judicial authorities, understood in the broadest sense, adopted on the basis of Article 44 of that code.
2.      Scope of Article 44(4) of the Union Customs Code
52.      Article 44(4) of the Union Customs Code states that Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.
53.      In that regard, I recall that, according to settled case-law, the meaning and scope of terms for which EU law provides no definition and for which EU law makes no reference to the law of the Member States must be determined according to their meaning in everyday language, whilst considering the context in which they occur and the purposes of the rules of which they form part. (14)
54.      The word ‘correction’ is not defined in the Union Customs Code. However, in its broadest sense, a correction is intended to rectify an error, the purpose of it being for that instrument to appear as it should have appeared when it was adopted. (15) Therefore, the word ‘correction’ itself conveys the very notion of retroactivity.
55.      It is certainly true that, in principle, one speaks of ‘correction’ when it comes to rectifying material errors, namely spelling mistakes, grammatical errors, obvious inaccuracies or even miscalculations and that, conversely, one cannot speak of a simple ‘correction’ when the modification results in a change to the content of the instrument concerned, or, in other words, alters its substance. (16)
56.      However, the correction envisaged in the context of Article 44(4) of the Union Customs Code is a consequence of the judicial authority’s decision to uphold the appeal lodged by the economic operator. In that context, and particularly in view of the right to an effective remedy, the word ‘correction’ cannot be interpreted as meaning ‘[to] rectify a material error’ but rather as being aimed at ‘righting a wrong’, if I may use that expression. That said, ultimately, the principle remains the same: it is a matter of presenting the BTI decision as it should have appeared when it was first adopted.
57.      That is why, in my view, Article 44(4) of the Union Customs Code should be interpreted as meaning that the correction made to a BTI decision does, in principle, have effect ex tunc.
58.      Moreover, that interpretation seems to me to be consistent with the balance to be struck between, first, the principle of legal certainty and, second, the right to effective judicial protection guaranteed by the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.
59.      According to the settled case-law of the Court of Justice, recognition of the finality of an administrative decision, which is acquired upon expiry of reasonable time limits for legal remedies or by exhaustion of those remedies, contributes to legal certainty, without rendering practically impossible or excessively difficult the exercise of rights conferred by the legal system. (17)
60.      Accordingly, the principle of legal certainty requires only that the effects of a BTI decision subject to appeal do not become final, that is to say, ‘set in stone’, until such time as the appeal has been dismissed or, if there has been no appeal, upon expiry of the time limits provided for that purpose.
61.      I consider, therefore, that the principle of legal certainty cannot be invoked to justify maintaining the effects of a BTI decision in the period between its entry into force and the granting of a legal appeal brought against it. The contrary solution would lead to such effects becoming definitive, whereas the illegality of the BTI decision would have been established by the national judicial authority and that decision itself would not therefore have acquired such a status.
62.      Similarly, it would be contrary to the right to effective judicial protection to allow the effects of a BTI decision deemed unlawful to stand, since such effects would remain in force with regard to an economic operator that had nevertheless lodged an appeal against the BTI decision, within the prescribed time limits. In that regard, to hold that the correction should not have retroactive effect would lead to serious consequences for the economic operator, which would find itself deprived of the tariff classification it had nonetheless claimed from the outset, despite the fact that the error resulted in no way from action on its part but from an incorrect assessment on the part of the customs authorities.
63.      Lastly, to consider the correction provided for in Article 44(4) of the Union Customs Code as merely having an ex tunc effect does not appear to be compatible with the objective of Article 45(2) of that code, which is to ensure the effectiveness of appeals.
64.      The latter provision provides that the customs authorities shall suspend implementation of the disputed decision in whole or in part, in particular where they have good reason to believe that irreparable damage is to be feared for the person concerned.
65.      However, the Court of Justice has already had occasion to state, in essence, that the condition of ‘irreparable damage’ requires examination as to whether the possible annulment of the contested decision would make it possible to reverse the situation that would have been brought about by its immediate implementation. (18)
66.      Accordingly, the suspension of implementation goes hand in hand with the possibility of amending retroactively the legal position of the person who lodged the appeal.
67.      For the sake of completeness, I think it would be useful to address the observation put forward by the Italian Government that it would be difficult to ensure effective knowledge, by all the other Member States, of a national decision to annul or correct with retroactive effect.
68.      I am not convinced by that argument, due to the information exchange system set up at EU level. In that regard, it should be noted that, in accordance with Article 21(1) of 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, (19) for the exchange and storage of information pertaining to applications and decisions related to BTI or to any subsequent event which may affect the original application or decision, an electronic system set up for those purposes pursuant to Article 16(1) of the Union Customs Code shall be used. In that regard, information shall be made available through that system by the competent customs authority without delay and at the latest within seven days of the authority gaining knowledge of the information.
69.      Consequently, and as stated by the Commission at the hearing, when a BTI decision is annulled or amended following a national court decision, the information is entered into that electronic system by the customs authority concerned without delay and it is then visible to all the other customs authorities.
B.      Compatibility of Paragraph 279 of the BAO with Article 44 of the Union Customs Code
70.      The referring court finds, in accordance with Paragraph 279 of the BAO, that the decision adopted by the Federal Finance Court is retroactive to the date on which the BTI decision was issued by the Customs Office.
71.      In that regard, I recall that it is not for the Court of Justice or the General Court, in the context of a reference for a preliminary ruling, to rule on the interpretation of national law, as that is exclusively for the national court. The Court of Justice or the General Court must take account, under the division of jurisdiction between the courts of the European Union and the national courts, of the factual and legislative context in which the questions referred to the Court of Justice or the General Court are set, as described in the order for reference. (20)
72.      It should therefore be noted that, according to Paragraph 279 of the BAO, decisions to amend BTI decisions adopted by the Bundesfinanzgericht (Federal Finance Court) have retroactive effect. According to the referring court, that assessment corresponds with the prevailing view in Austria. (21)
73.      That being so, it should be noted that the Court of Justice has already had occasion, in its order of 19 January 2005, SmithKline Beecham (C‑206/03, EU:C:2005:31, paragraph 52), to state that it is for the competent authorities and the courts of a Member State to take, within the sphere of their competence, all the measures, general or particular, necessary to remedy the non-compliance of incorrect BTI. Such particular measures include, more particularly, the annulment of the incorrect BTI and the adoption of new information in keeping with EU law.
74.      That order was made under the Old Customs Code.
75.      Accordingly, the Court of Justice specified that the detailed procedural rules applicable fell within the ambit of Articles 243 to 246 of the Old Customs Code and, as an ancillary matter, by virtue of Article 245 of that Old Customs Code and of the principle of the procedural authority of the Member States, within the ambit of the domestic legal order of each Member State, provided that such rules were not less favourable than those governing similar domestic situations (principle of equivalence) and were not framed in such a way as to render impossible in practice or excessively difficult the exercise of rights conferred by EU law (principle of effectiveness). (22)
76.      Finally, it is important to stress that, according to the Court of Justice, the procedure for and the effects of the decisions adopted by the national court hearing the action fall, within the bounds set by the principles of equivalence and effectiveness, within the ambit of domestic law. (23)
77.      To my mind, that case-law, given under the Old Customs Code, remains relevant as regards the procedure for the decisions adopted by the national courts, since, on that point, Articles 43 to 45 of the Union Customs Code are, so to speak, identical to Articles 243 to 246 of the Old Customs Code. Therefore, they merely provide for the right of appeal for the persons concerned, the need for a dual level of control, the Member State competent to deal with it and cases of suspension of implementation of decisions by customs authorities against which an appeal has been lodged. In other words and in accordance with Article 43 of the Union Customs Code, (24) those provisions do not mention the procedure applicable to decisions adopted by the national courts.
78.      By contrast, as regards the effects of decisions adopted by the national courts, I think the solution chosen by the Court of Justice needs to be qualified. In particular, according to Article 44(4) of the Union Customs Code, Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities. That provision had no equivalent in the Old Customs Code. (25)
79.      Admittedly, Article 44(4) of the Union Customs Code does not specify when or how the correction of BTI decisions should be made, (26) though it does require a prompt response following an appeal. It seems to me, however, that that provision requires, first, Member States to adopt measures enabling an economic operator to obtain a legally compliant BTI decision and, second, the retroactivity of the amendment thus made. That is precisely the objective pursued by Paragraph 279 of the BAO.
80.      In those circumstances, I am of the view that Article 44(4) of the Union Customs Code must be interpreted as meaning that it does not preclude a national provision, such as the one at issue in the main proceedings, under which the decision on an appeal, lodged in accordance with Article 44(2) of that code, against a BTI decision issued under Article 33 of that same code, has retroactive effect from the date of issue of that BTI decision by the customs authorities.
VI.    Conclusion
81.      In the light of the foregoing considerations, I propose to respond to the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) as follows:
Article 44(4) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code
must be interpreted as meaning that it does not preclude a national provision, such as the one at issue in the main proceedings, under which the decision on an appeal, lodged in accordance with Article 44(2) of that code, against a decision relating to binding tariff information issued under Article 33 of that same code, has retroactive effect from the date of issue of that decision by the customs authorities.
Mr. Martín y Pérez de Nanclares
Delivered in open court in Luxembourg on 21 January 2026.
[Signatures]
1      Original language: French.
2      That principle appears in the frontispiece of the Justinian Code: ‘Leges et constitutiones futuris certum est dare forman negotiis, non ad facta praeterita revocari, nisi nominatim et de praeterito tempore et adhuc pendentibus negotiis, cautum sit’ (Book 1, Title 14, Law 7).
3      OJ 2013 L 269, p. 1.
4      Opinion of Advocate General Léger in Joined Cases Timmermans Transport and Hoogenboom Production (C‑133/02 and C‑134/02, EU:C:2003:460, paragraph 4).
5      See, to that effect, judgment of 29 January 1998, Lopex Export (C‑315/96, EU:C:1998:31, paragraph 19). The underlying objective was also to avoid excessive litigation with economic operators: Albert, J.-L., ‘Droit douanier européen’, JurisClasseur Europe Traité – Synthèse, LexisNexis, 2021, paragraph 35.
6      For all intents and purposes, in my view the case-law of the Court of Justice should rather be interpreted as not precluding national courts from exercising a power of amendment in that regard (see, to that effect, order of 19 January 2005, SmithKline Beecham, C‑206/03, EU:C:2005:31, paragraph 55, and judgment of 14 April 2011, British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 94).
7      See judgment of 21 December 2023, G.K. and Others (European Public Prosecutor’s Office) (C‑281/22, EU:C:2023:1018, paragraph 46 and the case-law cited).
8      OJ 1981 C 33, p. 2; for an overview of the development of the right of appeal in customs matters, see Walsh, T., European Union Customs Code, Kluwer Law International, Alphen aan den Rijn, 2015, pp. 985 to 1021 (p. 986).
9      OJ 1992 L 302, p. 1.
10      OJ 2008 L 145, p. 1.
11      Recital 26 of the Union Customs Code.
12      As regards the division of powers between customs authorities and judicial authorities in customs controls matters, see judgment of 21 September 2023, OGL-Food Trade Lebensmittelvertrieb (C‑770/21, EU:C:2023:690, paragraphs 69 and 72).
13      As a reminder, the right of appeal thus established does not specifically concern BTI decisions but covers all decisions adopted by customs authorities.
14      See judgment of 20 November 2025, Servoprax (Medical tourniquets) (C‑631/23, EU:C:2025:906, paragraph 45 and the case-law cited).
15      That notion appears to me to be confirmed when we compare, in accordance with the rules of interpretation laid down by the Court of Justice (see, to that effect, judgment of 5 December 2024, Network One Distribution, C‑506/23, EU:C:2024:1003, paragraph 27 and the case-law cited), the different language versions of Article 44(4) of the Union Customs Code: ‘corrección’ in Spanish; ‘correction’ in English; ‘Berichtigung’ in German and ‘correzione’ in Italian.
16      With regard to amendments made to a regulation, see the limits set by the Court of Justice in its judgments of 2 June 1994, AC-ATEL Electronics Vertriebs (C‑30/93, EU:C:1994:224, paragraphs 20 to 24), and of 22 December 2010, Premis Medical (C‑273/09, EU:C:2010:809, paragraphs 29, 30, 36 and 59); as regards the limits to amendment of decisions adopted by the European Union Intellectual Property Office and the Community Plant Variety Office, see the respective judgments of 9 September 2011, dm-drogerie markt v OHIM – Distribuciones Mylar (dm) (T‑36/09, EU:T:2011:449, paragraphs 74 and 75), and of 25 June 2020, Siberia Oriental v CPVO (Siberia) (T‑737/18, EU:T:2020:289, paragraph 53); as concerns the limits to amendment of decisions adopted by the Court of Justice and by the General Court, see respectively orders of 24 November 2022, European Food and Others (C‑333/19, not published, EU:C:2022:936, paragraph 6 and the case-law cited), and of 27 May 2024, EVH v Commission (T‑53/21 REC, not published, EU:T:2024:338, paragraphs 9 and 11 and the case-law cited).
17      See, to that effect, judgments of 13 January 2004, Kühne & Heitz (C‑453/00, EU:C:2004:17, paragraph 24); of 12 February 2008, Kempter (C‑2/06, EU:C:2008:78, paragraphs 57 and 58); of 27 June 2013, Agrokonsulting-04 (C‑93/12, EU:C:2013:432, paragraph 48); and of 9 September 2021, Adler Real Estate and Others (C‑546/18, EU:C:2021:711, paragraph 38).
18      Conversely, it is also necessary to examine whether suspension of operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed (see, to that effect and by analogy, judgment of 17 July 1997, Giloy, C‑130/95, EU:C:1997:372, paragraphs 35 and 36).
19      OJ 2015 L 343, p. 558.
20      See, to that effect, orders Koukou (C‑519/08, EU:C:2009:269, paragraph 43 and the case-law cited) and Wamo (C‑288/10, EU:C:2011:443, paragraph 27).
21      According to Austrian doctrine, the effect ex tunc of decisions adopted in application of Paragraph 279 of the BAO stems from the wording in subparagraph 2 of that provision, and from the right to an effective remedy. See, in that regard, Fischerlehner, J., Das neue Abgabenverfahren, Manz, Vienna, 2013, p. 325, and Gunacker-Slawitsch, B., ‘III. Das Verfahren vor dem Bundesfinanzgericht’, in Ehrke-Rabel, T. (ed.), Rechtsmittelverfahren in Abgabensachen, Manz, Vienna, 2013, pp. 37 to 101 (pp. 77 and 78). Explicitly confirming the effect ex tunc of decisions to amend: Ritz, C., ‘§ 279 BAO’, in Ritz, C. and Koran, B.U. (ed.), BAO – Bundesabgabenordnung, 8th ed., Linde, Vienna, 2025, paragraphs 2 and 18.
22      Order of 19 January 2005, SmithKline Beecham (C‑206/03, EU:C:2005:31, paragraph 53).
23      Order of 19 January 2005, SmithKline Beecham (C‑206/03, EU:C:2005:31, paragraph 55).
24      See, to that effect, judgment of 11 April 2024, OSTP Italy (C‑770/22, EU:C:2024:299, paragraph 47).
25      See point 36 of the present Opinion. It should be noted, however, that retroactive amendment of a BTI decision pursuant to an appeal brought before national courts was already being practised under the Old Customs Code, at least in certain Member States (see, to that effect, judgment of 7 April 2011, Sony Supply Chain Solutions (Europe), C‑153/10, EU:C:2011:224, paragraphs 16 and 17).
26      Thus, for example, Articles 44 and 45 of the Union Customs Code do not preclude national legislation providing for immediate implementation of judgments at first instance that have not yet become final, any more than they require national legislation to provide that such judgments have that feature (see, to that effect, judgment of 11 April 2024, OSTP Italy, C‑770/22, EU:C:2024:299, paragraph 42).