Case C‑276/16

Prequ’ Italia Srl

v

Agenzia delle Dogane e dei Monopoli

(Request for a preliminary ruling from the Corte suprema di cassazione)

(Reference for a preliminary ruling — Principle of protection of the rights of the defence — Right to be heard — Regulation (EEC) No 2913/92 — Community Customs Code — Article 244 — Recovery of a customs debt — Lack of prior hearing of the addressee before the adoption of an amended tax assessment — Right of the addressee to obtain suspension of the implementation of the amended tax assessment — Lack of automatic suspension in the event of the bringing of administrative proceedings — Reference to the conditions provided for in Article 244 of the Customs Code)

Summary — Judgment of the Court (Seventh Chamber), 20 December 2017

EU law — Principles — Rights of defence — Right to be heard — Scope — Amended tax assessment adopted by the customs authorities, in the absence of a prior hearing — National legislation restricted to providing the possibility to request the suspension of the implementation of that assessment until its possible amendment — Lack of automatic suspension — Lack of restriction of the grant of suspension of implementation in the event of doubts concerning the conformity of the assessment with the customs legislation or in the event of fear of irreparable damage — Infringement of the rights of the defence — Lack

(Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 244)

The right of any person to be heard before the adoption of a decision likely to adversely affect his interests must be interpreted as meaning that the rights of defence of the addressee of an amended tax assessment adopted by the customs authorities, in the absence of a prior hearing of the person concerned, are not infringed if the national legislation which allows the person concerned to contest that measure in the context of an administrative review merely provides the possibility to request the suspension of the implementation of that measure until its possible amendment by referring to Article 244 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 without the initiation of an administrative appeal automatically suspending the implementation of the contested measure, since the application of the second paragraph of Article 244 of that regulation, by the customs authorities, does not restrict the grant of a suspension of implementation where there are reasons to doubt the conformity of the contested decision with the customs legislation or that irreparable damage is to be feared for the person concerned.

As regards the customs recovery decisions, it is as a result of the general interest of the European Union in recovering its own revenue as soon as possible that the second paragraph of Article 244 of the Customs Code provides that the lodging of an appeal against a demand for payment has the effect of suspending implementation of that demand only where there is good reason to believe that the contested decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 68).

Since the provisions of EU law, such as those of the Customs Code, must be interpreted in the light of the fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures, the national provisions implementing the conditions provided for in the second paragraph of Article 244 of the Customs Code for the grant of suspension of implementation must, in the absence of a prior hearing, ensure that those conditions are not applied or interpreted restrictively (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 69 and 70).

Where the addressee of amended tax assessments such as those at issue in the main proceedings has the possibility of obtaining the suspension of the implementation of those measures until their possible amendment and where, in the context of the administrative procedure, the conditions referred to in Article 244 of the Customs Code are not applied restrictively, which it is for the national court to assess, there is no infringement of respect for the rights of defence of the addressee of the amended tax assessments.

(see paras 58, 59, 61, 63, operative part)