Provisional text

OPINION OF ADVOCATE GENERAL

RICHARD DE LA TOUR

delivered on 26 January 2023 ( )

Case C‑640/21

SC Zes Zollner Electronic SRL

v

Direcţia Regională Vamală Cluj – Biroul Vamal de Frontieră Aeroport Cluj Napoca

(Request for a preliminary ruling from the Tribunalul Cluj (Regional Court, Cluj, Romania))

(Reference for a preliminary ruling – Customs union – Regulation (EU) No 952/2013 – Incorrect customs declaration – Error characterised by the customs authority as an ‘administrative offence’ – Possibility for the declarant to correct the error to avoid a penalty)





I. Introduction

1. The present request for a preliminary ruling concerns the interpretation of Articles 173 and 174 of Regulation (EU) No 952/2013. ( )

2. The request was made in proceedings between SC Zes Zollner Electronic SRL (‘ZZE’), a Romanian undertaking, and the Direcţia Regională Vamală Cluj – Biroul Vamal de Frontieră Aeroport Cluj-Napoca (Cluj Regional Customs Directorate – Cluj-Napoca Airport Border Customs Office, Romania) concerning the latter’s decision to fine ZZE for removing from customs control 5 000 electronic integrated circuit parts and to request payment of an amount equal to the customs value of those goods, plus import duties and other duties owed.

3. Specifically, ZZE placed two orders with a Swiss company for a total of 10 000 electronic integrated circuits. On the same day, the Swiss company issued two separate invoices, each one for 5 000 parts and the amount of EUR 4 950.

4. Upon taking delivery of the consignment at its premises, ZZE discovered that it contained 10 000 electronic integrated circuits, whereas only goods relating to one of the two invoices, or 5 000 electronic integrated circuits, had been declared to the border customs office at Cluj-Napoca airport.

5. ZZE therefore applied to that office for the irregularity to be remedied by means of the adoption, by the customs authorities, of a decision to regularise the situation and to calculate the associated customs liability.

6. It is in this context that the Court of Justice is asked to rule on whether a customs declaration can be amended to include an excess quantity of goods, even though the customs authorities have already released the goods concerned. To that end, it should be clarified what is meant by the concept of ‘goods other’ than those which the customs declaration originally covered, within the meaning of Article 173(1) of the Union Customs Code.

7. The Court is also asked to rule on whether, in the event that such an amendment is not permitted, the invalidation of the customs declaration could be applied for under Article 174 of the Union Customs Code, even though the customs authorities have already released the goods concerned.

8. In this Opinion, following my analysis, I will propose that the Court rule that Article 173 of the Union Customs Code must be interpreted as meaning that first, an excess quantity of the same goods does not fall within the concept of ‘goods other’ than those which the original customs declaration covered, within the meaning of that article, if it can be shown that the second goods are identical to the first, in so far as they are classified in the same tariff subheading and could have been covered by the same declaration if a clerical error had not been made. and that, second, it does not preclude a customs declaration from being amended, after the release of those goods, to include a quantity of goods in excess of the goods originally declared, in so far as the application for amendment is accompanied by information allowing a connection to be established between that excess quantity and the import documents and where any suspicion of fraud is ruled out.

9. I would also suggest to the Court that Article 174 of the Union Customs Code should be interpreted as precluding, where an excess quantity of goods has not been entered in the original customs declaration, the competent customs authorities from invalidating that declaration after the goods have been released.

II. Legal framework

A. European Union law

10. Recitals 15 and 23 of the Union Customs Code state:

‘(15) The facilitation of legitimate trade and the fight against fraud require simple, rapid and standard customs procedures and processes …

…

(23) … It is necessary to ensure an appropriate level of effective, dissuasive and proportionate penalties throughout the internal market.’

11. Article 5 of that code, entitled ‘Definitions’, provides, in paragraphs 16 and 26:

‘For the purposes of the Code, the following definitions shall apply:

…

(16) “customs procedure” means any of the following procedures under which goods may be placed in accordance with the Code:

(a) release for free circulation;

(b) special procedures;

(c) export;

…

(26) “release of goods” means the act whereby the customs authorities make goods available for the purposes specified for the customs procedure under which they are placed’.

12. Article 15 of the Union Customs Code, entitled ‘Provision of information to the customs authorities’, provides in its paragraph 2:

‘The lodging of a customs declaration … shall render the person concerned responsible for all of the following:

(a) the accuracy and completeness of the information given in the declaration, notification or application;

(b) the authenticity, accuracy and validity of any document supporting the declaration, notification or application;

(c) where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations.

…

Where the declaration or notification is lodged, the application is submitted, or information is provided, by a customs representative of the person concerned, as referred to in Article 18, that customs representative shall also be bound by the obligations set out in the first subparagraph of this paragraph.’

13. Article 42 of that code, entitled ‘Application of penalties’, provides, in its paragraph 1:

‘Each Member State shall provide for penalties for failure to comply with the customs legislation. Such penalties shall be effective, proportionate and dissuasive.’

14. Under Article 173 of the code, entitled ‘Amendment of a customs declaration’:

‘1. The declarant shall, upon application, be permitted to amend one or more of the particulars of the customs declaration after that declaration has been accepted by customs. The amendment shall not render the customs declaration applicable to goods other than those which it originally covered.

2. No such amendment shall be permitted where it is applied for after any of the following events:

(a) the customs authorities have informed the declarant that they intend to examine the goods;

(b) the customs authorities have established that the particulars of the customs declaration are incorrect;

(c) the customs authorities have released the goods.

3. Upon application by the declarant, within three years of the date of acceptance of the customs declaration, the amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.’

15. Article 174 of the same code, entitled ‘Invalidation of a customs declaration’, is worded as follows:

‘1. The customs authorities shall, upon application by the declarant, invalidate a customs declaration already accepted in either of the following cases:

(a) where they are satisfied that the goods are immediately to be placed under another customs procedure;

(b) where they are satisfied that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.

However, where the customs authorities have informed the declarant of their intention to examine the goods, an application for invalidation of the customs declaration shall not be accepted before the examination has taken place.

2. The customs declaration shall not be invalidated after the goods have been released unless where otherwise provided.’

16. Article 175 of the Union Customs Code provides:

‘The [European] Commission shall be empowered to adopt delegated acts, in accordance with Article 284, in order to determine the cases where the customs declaration is invalidated after the release of the goods, as referred to in Article 174(2).’

17. Article 176 of the code provides:

‘The Commission shall specify, by means of implementing acts, the procedural rules for:

…

(c) amending the customs declaration after the release of the goods in accordance with Article 173(3).

…’

18. Under Article 194 of the code, entitled ‘Release of the goods’:

‘1. Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.

…

2. All the goods covered by the same declaration shall be released at the same time.

For the purposes of the first subparagraph, where a customs declaration covers goods falling under two or more items the particulars relating to goods falling under each item shall be deemed to constitute a separate customs declaration.’

B. Romanian law

1. Law No 86/2006 on the Romanian Customs Code

19. In accordance with Article 68 of Legea nr. 86/2006 privind Codul vamal al României (Law No 86/2006 on the Romanian Customs Code) ( ) of 10 April 2006, goods may, with the agreement of the customs authority, be examined or sampled, on request, for the purpose of granting a customs-approved treatment or use.

20. Article 100 of that law provides:

‘1. The customs authority may, of its own motion or at the request of the declarant, amend the customs declaration within 5 years of the date of release.

2. Within the time limit laid down in paragraph 1, the customs authority shall check all documents, records and entries relating to the goods released from customs or subsequent commercial transactions involving those goods. The check may be carried out on the declarant, on any other person directly or indirectly involved in a professional capacity in said transactions or on any other person possessing said documents or having information pertaining thereto. The goods may also be physically checked, if they still exist.

3. Where, after rechecking the declaration or post-release control, it is found that the provisions governing the customs procedure in question have been applied on the basis of inaccurate or incomplete information, the customs authority shall take measures to regularise the situation, taking into account the new information available.

4. The customs authority shall specify the format of the document required to regularise the situation and the instructions for completing it.

5. Where it is found that a customs debt is incurred or that overpayments have been made, the customs authority shall take measures to recover the missing amounts or to refund the overpayments in accordance with the legal provisions.

6. In the context of the post-release control of declarations, the customs authority shall determine, in accordance with paragraph 3, any overpayments or underpayments in respect of other taxes due to the State in connection with customs procedures and shall take measures to recover the missing amounts identified. Overpayments relating to such taxes shall be refunded in accordance with the applicable legal rules.

7. Where the infringement of customs regulations constitutes an administrative offence or a criminal offence, as the case may be, the customs authority shall be required to apply the penalties in respect of the administrative offence or to refer the matter to the criminal investigation authorities.

8. The accepted and registered customs declaration and the document referred to in paragraph 4 shall constitute a debt instrument.’

2. The Regulation implementing the Romanian Customs Code

21. Under Article 653(a) of the Regulamentul de aplicare a Codului vamal al României (Regulation implementing the Romanian Customs Code), approved by Hotărârea Guvernului nr. 707/2006 (Government Decision No 707/2006) of 7 June 2006, ( ) the removal from customs supervision of any goods or merchandise that must be placed under a customs procedure constitutes an administrative offence liable to give rise to a fine ranging from 3 000 to 8 000 Romanian lei (RON) (approximately EUR 635 to EUR 1 693). ( ) In this case, the goods will also be confiscated.

22. Article 654 of that regulation provides that, in the case of the administrative offence provided for in Article 653(a), where the goods can no longer be identified, the offender is required to pay the amount corresponding to the customs value of the goods, plus import duties and other duties legally owed, corresponding to the taxes determined at the time of release for free circulation of the goods. With regard to the extinguishment of the customs debt, this measure has the same legal effect as the confiscation of the goods.

III. Facts in the main proceedings and the questions referred for a preliminary ruling

23. ZZE placed two orders with its Swiss partner, the company EM Microelectronic Marin SA, for a total of 10 000 electronic integrated circuits. The Swiss partner issued two separate invoices: invoice No VFE19-03168 of 2 July 2019, for 5 000 parts and the amount of EUR 4 950; and invoice No VFE19-03169 of 2 July 2019, also for 5 000 parts and the amount of EUR 4 950.

24. On 4 July 2019, ZZE received the import notice for air waybill No 1Z3022056899895681, for a consignment weighing 2.7 kg and with a value of EUR 4 950. On the basis of that document, only goods relating to invoice No VFE19-03169, including transport costs, were declared to the border customs office at Cluj-Napoca airport.

25. Upon taking delivery of the consignment, ZZE discovered that it contained double the quantity stated on invoice No VFE19-03169 and that the supplier had issued, on the same day, invoice No VFE19-03168, which had not been included in the declaration made to the customs authorities.

26. On 9 July 2019, ZZE applied to the border customs office at Cluj-Napoca airport for the irregularity to be remedied by means of the adoption, by the customs authorities, of a decision to regularise the situation and to calculate the associated customs liability.

27. On 2 September 2019, the competent customs authorities issued a report in which they declared that ZZE had intentionally removed from customs supervision the goods relating to invoice No VFE19-03168. Accordingly, they fined ZZE RON 3 000 (approximately EUR 635) ( ) and imposed an additional fine of RON 27 839 (approximately EUR 5 893) ( ) pursuant to Article 654 of the Regulation implementing the Romanian Customs Code for the administrative offence provided for in Article 653(a) of that regulation.

28. ZZE challenged that report before the Romanian courts.

29. The Judecătoria Cluj-Napoca (Court of First Instance, Cluj-Napoca, Romania) dismissed ZZE’s action at first instance. The court held that the contested report had been issued in accordance with formally applicable provisions and that, as to its substance, ZZE had been unable to dispute the facts established by the report, which is presumed to be valid and justified. According to the court, the offence provided for in Article 653(a) of the Regulation implementing the Romanian Customs Code may be committed either intentionally or through negligence. Therefore, the application of that provision is not confined to the intentional commission of the acts referred to therein. As holder of the goods at issue in the main proceedings, ZZE was obliged to check the goods placed under a customs procedure and to make the correct declaration, being responsible for any negligence in the matter. The fact that, a few days after the release of the goods that it received, ZZE referred the matter to the competent customs authorities with a view to regularising its situation does not, in the opinion of the court of first instance, preclude the facts alleged by the competent authority from constituting an infringement.

30. Moreover, the court held that Article 173 of the Union Customs Code was not applicable in the present case, since that article does not allow a customs declaration to be amended where such an amendment would render that declaration applicable to goods other than those which it originally covered.

31. As for the fine imposed on ZZE, the court of first instance held that it was the minimum statutory fine and was proportional to the degree of risk posed to society. According to that court, it had been necessary to fine ZZE for its conduct since the warning issued in the case of minor infringements, even where the relevant legislative framework did not expressly provide for it, was not sufficient to convince ZZE of the need to comply with the law.

32. The court of first instance further held that the additional fine imposed on ZZE under Article 654 of the Regulation implementing the Romanian Customs Code was appropriate. Specifically, in view of the time that elapsed between the date on which the goods at issue were removed from customs supervision and the date on which the matter was referred to the customs authorities, as well as the fact that, in 2019, ZZE imported goods of the same type from the same supplier on eight other occasions, the Cluj Regional Customs Directorate would not have been able to identify the goods removed from customs supervision. Furthermore, ZZE could have presented the goods at issue once it had referred the matter to the customs authorities, which it did not do.

33. The court of first instance therefore dismissed the action brought as unfounded.

34. ZZE appealed against that decision before the Tribunalul Cluj (Regional Court, Cluj, Romania), claiming, first, that it had brought the alleged administrative offence to the attention of the customs authorities itself; second, that it was not actually a removal from customs supervision, but a simple clerical error; and third, that it had not been accused of any administrative offence in similar cases in the past, since the competent customs authorities had applied the procedure laid down in Article 173 of the Union Customs Code.

35. The referring court notes that different approaches have been taken by the customs authorities and the courts as regards the interpretation of Article 173 of the Union Customs Code, and in particular, paragraph 3 thereof, thereby infringing the principle of legal certainty. The referring court holds that, if Article 173 of that code did not apply in the present case, there should still be another legal means of correcting an error such as that which ZZE claims to have made; namely, either the remedy provided for in Article 174 of that code, or another procedural remedy not involving severe penalties that might deter ZZE from complying with the rules in force.

36. The referring court points out, in that regard, that ZZE had acted in good faith and had only made a clerical error.

37. In those circumstances, the Tribunalul Cluj (Regional Court, Cluj) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does Article 173 or Article 174 of Regulation No 952/2013 apply where the consignee of the goods reports a quantity in excess of that stated in the original customs declaration?

(2) Does the expression ‘goods other than those which [the customs declaration] originally covered’ within the meaning of Article 173 of the regulation refer to goods that differ quantitatively or qualitatively, or both?

(3) In the case of a quantitative difference that exceeds the quantity of goods stated in the customs declaration, does the consignee of the goods have any procedural remedy under the [abovementioned] regulation enabling the consignee to correct the errors without incurring administrative or criminal penalties?’

38. Written observations have been submitted by the Romanian and Estonian Governments and the Commission.

IV. Assessment

A. Preliminary observations

39. As a preliminary point, I note that the Union Customs Code is based on a controlled system of declarations ( ) that seeks to keep customs formalities and controls to a minimum while preventing fraud and irregularities that could harm the EU budget. It is because of the importance of those prior declarations for the proper functioning of the customs union that Article 15 of that code places an obligation on declarants to provide accurate and complete information. ( )

40. In this context, the principle of immutability of customs declarations is a fundamental principle of customs law, and is a corollary to the obligation to make a proper declaration which is incumbent on any declarant. ( )

41. However, this principle of immutability requires moderation. ( ) Thus, although that principle has not been called into question, Articles 173 and 174 of the Union Customs Code allow a customs declaration to be amended or invalidated, even though the goods have already been released.

42. It is on that basis, and bearing in mind their exceptional nature, that I will interpret those provisions.

43. By its first question, the referring court is asking, in essence, whether Article 173 or Article 174 of the Union Customs Code, respectively, permit the amendment or invalidation of a customs declaration so as to include an excess quantity of goods, even though the customs authorities have already released the goods concerned.

44. By its second question, the referring court is asking whether the expression ‘goods other than those which [the customs declaration] originally covered’, within the meaning of Article 173 of the Union Customs Code, refers to goods that differ quantitatively or qualitatively, or both.

45. In other words, the referring court is asking whether an excess quantity of goods covered by a separate invoice from goods already declared should be regarded as falling within the concept of ‘goods other’ than those which the customs declaration originally covered.

46. This second question is, in my view, the key to answering the first question concerning the applicability of Article 173 of the Union Customs Code to a situation such as that at issue in the main proceedings.

47. It is clear from the combined reading of Article 173(3) and Article 173(1) of that code that under no circumstances may the amendment of a customs declaration be permitted, before or after the release of the goods, if that amendment renders the customs declaration applicable to ‘goods other’ than those which it originally covered, which conversely means that the amendment is possible if it concerns identical goods.

48. I propose therefore that the first and second questions be answered together, first by determining what is meant by the concept of ‘goods other’ than those which the customs declaration originally covered, and second by ascertaining whether and to what extent it is possible to amend a customs declaration after the customs authorities have released the goods concerned.

49. I will then examine whether Article 174 of the Union Customs Code makes provision for a procedure that would apply in a situation such as the one at issue in the main proceedings, before answering the third question.

B. The concept of ‘goods other’ than those which the original customs declaration covered

50. The referring court is asking whether the concept of ‘goods other’ than those which the customs declaration originally covered, within the meaning of Article 173(1) of the Union Customs Code, refers to goods that differ quantitatively or qualitatively, or both.

51. First, I note that neither the Union Customs Code, nor Delegated Regulation (EU) 2015/2446, ( ) nor Implementing Regulation (EU) 2015/2447 ( ) specify the concept of ‘goods other’.

52. Second, the adjective ‘other’, from the Latin alter, means something that is distinct or different from persons or things in the same category. ( ) While this definition suggests that ‘goods other’ are those that have a different nature or characteristics from the goods that the original customs declaration covered, this remains a rather broad term. Accordingly, it cannot be excluded that an additional quantity of identical goods may be regarded as ‘goods other’ within the meaning of Article 173(1) of the Union Customs Code.

53. Third, the different language versions of this article fail to clarify this concept. The Spanish (‘mercancías distintas’), German (‘andere Waren’), French (‘marchandises autres’), Italian (‘merci diverse’) and Romanian (‘altor mărfuri’) versions all literally refer to the concept of ‘goods other’.

54. According to the wording of the Union Customs Code, this concept may cover both goods of a different nature and characteristics (qualitative difference) and goods of the same nature, but in different quantities (quantitative difference) from those that the original customs declaration covered.

55. However, if we focus on the logic of the text, it is possible to reach a different conclusion as to what is included in the concept of ‘goods other’ than those which the customs declaration originally covered.

56. We must bear in mind that the Union Customs Code is based on a system of declarations that seeks to limit customs formalities and controls while preventing fraud and irregularities which could harm the Union budget. ( )

57. It follows from that system that, on the one hand, customs declarations may be accepted immediately, as provided for in Article 172 of the Union Customs Code. On the other hand, the Court of Justice recognises that, in order to guarantee rapid and efficient procedures for the release for free circulation, the customs authorities do not necessarily make a detailed inspection of all goods declared to customs, which would serve neither the interests of traders nor the interests of those authorities. ( )

58. Thus, it seems to me that two criteria are decisive for determining that an excess quantity of goods does not constitute ‘goods other’ than those which the customs declaration originally covered, within the meaning of Article 173(1) of the Union Customs Code.

59. First, the goods covered by the amendment could have been covered by the same original customs declaration if a clerical error had not been made, since only the quantity of goods declared was different.

60. That argument is supported by Article 222 of Implementing Regulation (EU) 2015/2447, which provides that where a customs declaration covers two or more items of goods, the particulars stated in that declaration relating to each item are to be regarded as constituting a separate customs declaration. However, except where specific goods contained in a consignment are subject to different measures, goods contained in a consignment are to be regarded as constituting a single item, particularly when they are classified in a single tariff subheading.

61. Thus, contrary to the Commission’s assertion, since the application to amend the customs declaration relates to an excess quantity of goods identical to those which the original customs declaration covered, and which are classified in the same tariff subheading as those goods, such an amendment could be accepted, since all the goods could have been covered by a single customs declaration.

62. Second, since the goods covered by the amending customs declaration are identical to the goods covered by the original customs declaration, it is not necessary to physically check the goods again. A fortiori, the same applies where the goods covered by the original customs declaration were not physically checked prior to the acceptance of that declaration and the release of the goods.

63. Indeed, the Court has held that Article 78 of Council Regulation (EEC) No 2913/92 ( ) permitted the customs authorities to apply the results of a partial examination of goods covered by a customs declaration to goods covered by earlier customs declarations submitted by the same customs declarant, which were not and can no longer be examined since the release has been granted, where those goods are identical. ( )

64. In addition, excess goods may be described as identical to those covered by the original customs declaration, taking into account the particulars supplied stating that the goods come from the same manufacturer and are identical as regards their name, appearance and composition. ( ) Therefore, it is my view that the excess quantity of goods should not fall within the concept of ‘goods other’ within the meaning of Article 173(1) of the Union Customs Code, in order to prohibit the amendment of the customs declaration.

65. Consequently, I propose that the Court rule that an excess quantity of the same goods does not fall within the concept of ‘goods other’ than those which the original customs declaration covered, within the meaning of Article 173(1) of the Union Customs Code, if it can be shown that the second goods are identical to the first, in so far as they are classified in the same tariff subheading and could have been covered by a single declaration if a clerical error had not been made.

C. The possibility of amending the customs declaration after the release of the goods

66. In so far as an excess quantity of goods does not fall within the concept of ‘goods other’ within the meaning of Article 173(1) of the Union Customs Code, the customs declaration may be amended until the goods have been released. It is necessary therefore to consider whether the application to amend a customs declaration in order to add that excess quantity may be authorised after the goods have been released under Article 173(3) of that code.

67. As a reminder, Article 173(2)(c) of the Union Customs Code provides that the amendment of a customs declaration cannot be permitted if it is applied for after the customs authorities have released the goods.

68. By way of exception, Article 173(3) of that code provides that the amendment of the customs declaration may be permitted after release of the goods in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.

69. As far as that possibility is concerned, the development of the provisions governing the procedure for amending a customs declaration in the various texts that have governed the matter in succession seems to me to be significant.

70. The Community Customs Code laid down two separate procedures, applying, respectively, before or after the release of the goods, to amendments capable of being made to the information taken into account in determining the customs value and, hence, import duties. ( )

71. Article 65 of that code provided for the possibility for the declarant to amend one or more particulars of the customs declaration after its acceptance and before the goods were released by the customs authorities. That right was explained by the fact that, until release, the customs authorities could, if necessary, easily check the accuracy of the amendments by physically examining the goods. ( )

72. Article 78 of that code established a more restrictive procedure by granting the customs authorities the possibility of carrying out, of their own motion or at the request of the declarant, the revision of the customs declaration after release of the goods, at a time when their presentation may be impossible and the import duties have already been determined. Any such revision was subject to the assessment of the customs authorities as regards both its principle and its result. ( )

73. The specific logic of Article 78, which was to bring the customs procedure into line with the actual situation by rectifying technical errors or omissions, weighed against an interpretation of that article which would preclude generally the customs authorities from amending or conducting other post-clearance examinations of customs declarations in order to regularise the situation. ( )

74. Regulation (EC) No 450/2008 repealed ( ) the Community Customs Code and introduced Article 113, paragraphs 1 and 2 of which had identical wording to Article 173(1) and (2) of the Union Customs Code. Article 113(3) provided for the possibility for the Commission to adopt measures to define cases in which the amendment could be authorised after the goods had been released. However, the Commission never availed itself of that possibility.

75. Article 173(3) of the Union Customs Code now provides for the possibility for customs authorities to permit the amendment of a customs declaration after release of the goods, but only in order for the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned.

76. It follows from the development of those provisions that, on the one hand, the customs authorities may take the necessary measures to restore the situation in the light of the new information available and that, on the other hand, they may check the documents and data relating to import transactions and examine the goods, if they can still be presented.

77. In that respect, the Court has clarified that, where the declarant applies for an amendment of the customs declaration, as part of a first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in that declaration and in the application for amendment. ( )

78. Furthermore, an amendment to information which can be verified by a simple documentary check is not comparable to an amendment to information concerning the nature or characteristics of the goods, since the customs authorities may refuse to make an amendment where the facts to be verified require physical verification and, following the release of the goods, the latter can no longer be presented to them. ( )

79. However, since, in the main proceedings, the information to be verified relates to the quantity of the goods to be declared, and not to their nature or characteristics (because they are identical to the goods covered by the original customs declaration), it is conceivable that there is nothing to prevent the customs declaration from being amended under Article 173 of the Union Customs Code, even though the first goods have already been released.

80. The Court, interpreting Article 78 of the Community Customs Code, recognised that, even if, at the time when the application for the amendment to the customs declaration was submitted, a physical check of the goods had become impossible, that amendment could still be envisaged if the absence of such a check in a specific case does not necessarily prevent those objectives from being fulfilled, taking account of the particular circumstances of that case. ( )

81. What matters is to ensure that the amendment applied for is not liable to compromise the other objectives of the customs rules, including the objective of combating fraud. ( ) It should also be borne in mind that Article 42(1) of the Union Customs Code provides that penalties for failure to comply with the customs legislation must be effective, proportionate and dissuasive. Therefore, it follows, in my view, that the irregularity of a customs declaration without fraudulent intent should not be punished severely.

82. Thus, despite the difficulty of conducting reliable physical checks, the application for amendment of the customs declaration after release of the goods should be accompanied by information capable of preventing the objective of combating fraud from being compromised and making it possible to establish a connection between the excess quantity of goods covered by that application for amendment and the import documents. ( )

83. In making that assessment, the customs authorities must take into account information such as the fact that the excess goods and the goods already declared are classified in the same tariff subheading, that all the goods received by the declarant were transported at the same time and in the same consignment, or that the declarant’s supplier has issued two successive invoices for the goods concerned. Similarly, the customs authorities must take into account the fact that the application for amendment of the customs declaration was made voluntarily, that it was made within a short period of time after the declaration and that any suspicion of fraud can be ruled out.

84. Moreover, as regards the condition laid down in Article 173(3) of the Union Customs Code, according to which the amendment of the customs declaration after the release of the goods should only enable the declarant to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned, it must be borne in mind that Article 158(1) of that code provides that all goods intended to be placed under a customs procedure must be covered by a customs declaration appropriate for the particular procedure.

85. Therefore, it could be argued that, since an excess quantity of goods was not covered by the original customs declaration and has not yet been placed under a specific customs procedure, amending that declaration to add the excess goods would not enable the declarant to comply with those obligations.

86. I do not share that view.

87. First, I believe that, in order to comply with his or her obligations relating to the placing of the goods under the customs procedure concerned, the declarant must be able to correct any clerical errors made during the original customs declaration, as opposed to cases where that declaration must be invalidated when the goods have been placed under the incorrect customs procedure.

88. In that respect, Article 174(1) of the Union Customs Code allows the invalidation of a customs declaration which has already been accepted, before the release of the goods, where those goods are immediately placed under another customs procedure or where, as a result of special circumstances, the customs procedure under which the goods were placed is no longer appropriate.

89. Similarly, after release of the goods, Article 148 of Delegated Regulation 2015/2446 allows such an invalidation in very specific cases, such as, in particular, where the goods have been declared in error instead of other goods or in more than one customs declaration, or where the goods have been placed under a customs procedure other than that under which they should have been placed, or have been placed under the customs warehousing procedure and can no longer be placed under that procedure.

90. To enable the declarant to fulfil his or her obligations relating to the placing of the goods under the customs procedure concerned, within the meaning of Article 173(3) of the Union Customs Code, therefore consists of amending a clerical error made during the original customs declaration, and not in withdrawing the goods from a specific customs procedure or placing them under a different customs procedure, contrary to what is provided for in Article 174 of that code.

91. Second, in so far as the goods in question have already entered the territory of the European Union, have been presented to the customs authorities in the same consignment as other identical goods which were covered by the original customs declaration and which have already been released, and in so far as all the goods could have been covered by the same declaration, to consider that those first goods were not placed under a specific customs procedure is, in my view, irrelevant.

92. Indeed, unlike a case in which the goods were removed from customs supervision either because, although identical to the goods covered by the original customs declaration, they were imported in a different consignment or because, despite being imported in the same consignment, they were of a different nature from the goods originally declared, the situation at issue in the main proceedings consists of amending a simple clerical error, namely a statistical value relating to the quantity of goods declared.

93. Therefore, it is my view that, since the excess goods have already been imported into the territory of the European Union in the same consignment as other identical goods, which were covered by the original customs declaration and which have already been released, amending the customs declaration to add that quantity of goods enables the declarant to comply with the obligations relating to the placing of all the goods under the customs procedure concerned.

94. In the light of that information, I propose that the Court rule that Article 173(3) of the Union Customs Code must be interpreted as meaning that it does not preclude a customs declaration from being amended, after the release of the goods, to include a quantity of goods in excess of those originally declared, in so far as the application for amendment is accompanied by information allowing a connection to be established between that excess quantity and the import documents, and where any suspicion of fraud is ruled out, which is for the referring court to ascertain.

D. Article 174 of the Union Customs Code

95. By its first question, the referring court is asking, in essence, whether, where the consignee finds that the goods are in excess of the quantity indicated in the original customs declaration, Article 174 of the Union Customs Code applies, even after the goods have been released.

96. Specifically, the referring court is seeking to ascertain whether, in the event that Article 173 of that code does not apply to a situation such as the one at issue in the main proceedings, Article 174 of that code would constitute another legal means of correcting the error made which does not involve severe penalties that could deter ZZE from complying with the rules in force.

97. As specified in Article 174(2) of the Union Customs Code, the invalidation of a customs declaration is not possible, unless otherwise provided, after the goods have been released.

98. However, Article 175 of that code adds that the Commission is empowered to adopt delegated acts in order to determine the cases where the customs declaration is invalidated after the release of the goods, as referred to in Article 174(2) of that code.

99. In accordance with Article 175, the Commission adopted Delegated Regulation 2015/2446, Article 148 of which lays down the conditions in which the invalidation of a customs declaration may be authorised even after the goods have been released.

100. Under Article 148(1) to (3) of that delegated regulation, these are cases where (i) it is established that goods have been declared in error for a customs procedure under which a customs debt on import is incurred instead of being declared for another customs procedure; (ii) it is established that the goods have been declared in error instead of other goods, for a customs procedure for which a customs debt on import is incurred; and (iii) goods which have been sold under a distance contract have been released for free circulation and are returned.

101. In addition, Article 148(4) of that delegated regulation provides that the customs declaration is to be invalidated after the goods have been released in cases where (i) goods are released for export, re-export or outward processing and have not left the customs territory of the Union; (ii) Union goods have been declared in error for a customs procedure applicable to non-Union goods, and their customs status as Union goods has been proved; (iii) goods have been erroneously declared under more than one customs declaration; (iv) an authorisation with retroactive effect is granted; and (v) goods have been placed under the customs warehousing procedure and can no longer be placed under that procedure.

102. However, none of those hypotheses apply to the situation at issue in the main proceedings.

103. Moreover, there is nothing to suggest that Article 174 of the Union Customs Code constitutes an alternative legal means to Article 173 of that code, allowing for the avoidance of severe penalties that might deter the declarant from complying with the rules in force.

104. I conclude from this that Article 174 of the Union Customs Code does not permit a customs declaration to be invalidated in order to include an excess quantity of goods, once the customs authorities have released the goods concerned.

105. Accordingly, I propose that the Court rule that Article 174 of the Union Customs Code must be interpreted as precluding the customs authorities from invalidating, after the goods have been released, a customs declaration that has already been accepted where an excess quantity of goods was not entered in that declaration.

E. The third question

106. By its third question, the referring court is asking whether, in the case of a quantitative difference that exceeds the quantity of goods stated in the original customs declaration, the consignee of the goods has any procedural remedy enabling the consignee to correct the errors without incurring administrative or criminal penalties.

107. In that regard, the justification for making a request for a preliminary ruling is not for advisory opinions to be delivered on general or hypothetical questions, but rather that it is necessary for the effective resolution of a dispute concerning EU law ( ) and for which the interpretation of that law is useful.

108. Yet it is not clear from the order for reference that the answer to the third question would effectively make it possible to settle the dispute in the main proceedings, since the referring court is not asking the Court to interpret a rule of EU law, but to find a solution to the dispute. In that respect, I find this question inadmissible. In any event, if, as I propose, the Court takes the view that the customs declaration may be amended under Article 173(3) of the Union Customs Code, that question becomes moot.

109. As to the referring court’s questions on the severity of the penalties imposed, I would point out that, according to the case-law of the Court of Justice, the penalties provided for in Article 42 of the Union Customs Code do not seek to penalise possible fraudulent or unlawful activities but any failure to comply with the customs legislation. ( )

110. Nevertheless, according to that article, the penalties provided for by the Member States must be not only effective and dissuasive, but also proportionate.

111. It is worth recalling in this connection that, in the absence of harmonisation of European Union legislation in the field of sanctions applicable where conditions laid down by arrangements under that legislation are not complied with, Member States are empowered to choose the sanctions which seem to them to be appropriate. They must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality. ( )

112. In particular, the administrative measures or the measures imposing penalties permitted under the national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation, and furthermore, they must not be disproportionate to those objectives. ( )

113. Furthermore, the severity of a penalty must correspond to the seriousness of the offence concerned, that requirement following from the principle of proportionality of penalties in Article 49(3) of the Charter of Fundamental Rights of the European Union. ( )

114. In this case, however, a penalty consisting of a fine and the obligation to pay a sum corresponding to the value of the excess goods seems disproportionate.

115. The amount of the penalty goes beyond the limits of what is necessary to ensure, inter alia, that the goods at issue are not removed from customs supervision, since ZZE, of its own volition and within a reasonable time, lodged an application with the competent customs office for the irregularity to be remedied. Moreover, the risk of fraud is extremely limited.

116. On the contrary, penalising declarants in a case such as this would deter them from applying for their situation to be regularised and would encourage them to conceal any excess quantity of goods that, in error, had not been declared.

117. Such a penalty would therefore be counterproductive in that it would encourage declarants to evade their obligation to pay import duties and thus undermine the objective of combating fraud and protecting the Union budget.

118. I conclude that, in a situation such as that at issue in the main proceedings and in the absence of any risk of fraud against the applicable customs legislation, the penalties provided for by Romanian legislation do not comply with the principle of proportionality as set out in Article 42 of the Union Customs Code and Article 49(3) of the Charter of Fundamental Rights.

V. Conclusion

119. Having regard to the foregoing considerations, I propose that the Court answer the questions referred by the Tribunalul Cluj (Regional Court, Cluj, Romania) as follows:

(1) Article 173(1) 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 an excess quantity of the same goods does not fall within the concept of ‘goods other’ than those which the original customs declaration covered, within the meaning of that article, if it can be shown that the second goods are identical to the first, in so far as they are classified in the same tariff subheading and could have been covered by the same declaration if a clerical error had not been made.

(2) Article 173(3) of Regulation No 952/2013

must be interpreted as meaning that it does not preclude a customs declaration from being amended, after the release of the goods, to include a quantity of goods in excess of the goods originally declared, in so far as the application for amendment is accompanied by information allowing a connection to be established between that excess quantity and the import documents and where any suspicion of fraud is ruled out.

(3) Article 174 of Regulation No 952/2013

must be interpreted as meaning that it precludes the competent customs authorities, where an excess quantity of goods has not been entered in the original customs declaration, from invalidating that declaration after the goods have been released.