Case C-75/09

Agra Srl

v

Agenzia Dogane – Ufficio delle Dogane di Alessandria

(Reference for a preliminary ruling from the Commissione tributaria provinciale di Alessandria)

(Regulation (EEC) No 2913/92 – Community Customs Code – Article 221(3) and (4) – Post-clearance recovery of the customs debt – Limitation period – Act which could give rise to criminal court proceedings)

Summary of the Judgment

Customs union – Incurring and recovery of a customs debt – Communication to the debtor of the amount of duty within a period of three years from the date on which the customs debt was incurred

(Council Regulation No 2913/92, Art. 221(3) and (4)

Article 221(3) and (4) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, must be interpreted as not precluding national legislation under which, when the failure to pay customs duty has its origins in a criminal offence, time for the purposes of the limitation period for recovery of the customs debt is to run from the date on which the order or judgment in the criminal proceedings becomes final.

Indeed, first, Article 221(4) of the Customs Code does not itself lay down any limitation period or grounds for the suspension or interruption of the limitation period applicable. Secondly, by merely referring to ‘the conditions set out in the provisions in force’, Article 221(4) of the Customs Code makes a renvoi to national law with regard to the rules governing extinction of the customs debt through the passage of time, when that debt arises as a result of an act that, at the time it was committed, was liable to give rise to criminal court proceedings.

(see paras 33-36, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

17 June 2010 ( )

(Regulation (EEC) No 2913/92 – Community Customs Code – Article 221(3) and (4) – Post-clearance recovery of the customs debt – Limitation period – Act which could give rise to criminal court proceedings)

In Case C‑75/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Commissione tributaria provinciale di Alessandria (Italy), made by decision of 28 January 2009, received at the Court on 20 February 2009, in the proceedings

Agra Srl

v

Agenzia Dogane – Ufficio delle Dogane di Alessandria,

THE COURT (Fourth Chamber),

composed of J.‑C. Bonichot, President of the Chamber, C. Toader (Rapporteur), K. Schiemann, P. Kūris and L. Bay Larsen, Judges,

Advocate General: E. Sharpston,

Registrar: R. Şereş,

having regard to the written procedure and further to the hearing on 3 March 2010,

after considering the observations submitted on behalf of:

– Agra Srl, by C. D’Andria, avvocato,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. Albenzio and F. Arena, avvocati dello Stato,

– the Czech Government, by M. Smolek, acting as Agent,

– the Greek Government, by S. Spyropoulos, I. Bakopoulos and M. Tassopoulou, acting as Agents,

– the European Commission, by L. Bouyon and B.-R. Killmann, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 221(3) and (4) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’).

2 The reference was submitted in the course of proceedings between Agra Srl (‘Agra’) and the Agenzia Dogane – Ufficio delle Dogane di Alessandria (Customs Authority – Alessandria Customs Office; ‘the Italian customs authority’) regarding a measure for post-clearance recovery of a customs debt.

Legal context

European Union law (‘EU law’)

3 Article 9(4) of Commission Regulation (EC) No 954/2002 of 4 June 2002 opening and providing for the administration of a tariff quota for frozen meat of bovine animals covered by CN code 0202 and products covered by CN code 0206 29 91 (1 July 2002 to 30 June 2003) (OJ 2002 L 147, p. 8) provides:

‘Where in the proof of import or export referred to in paragraph 2 two or more applicants are entered as having the same postal address or where the applicants at the time of application are registered for [value added tax (‘VAT’)] purposes on the same postal address or where Member States have any other serious grounds to suspect that operators are related, Member States shall verify that such applicants are not related to one another within the meaning of Article 143 of Commission Regulation (EEC) No 2454/93 [of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1)]. Where related applicants are consequently identified, all applications concerned shall be rejected.

…’

4 Paragraphs 3 and 4 of Article 221 of the Customs Code provide:

‘3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.

4. Where the customs debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three-year period referred to in paragraph 3.’

National law

5 Article 11 of Legislative Decree No 374 of 8 November 1990 reorganising the customs institutions and revising the procedures for assessment and review in the context of the implementation of Directives 79/695/EEC of 24 July 1979 and 82/57/EEC of 17 December 1981, relating to procedures for the release of goods for free circulation, and Directives 81/177/EEC of 24 February 1981 and 82/347/EEC of 23 April 1982 on procedures for the export of Community goods (GURI No 291 of 14 December 1990, ‘Decree No 374/1990’), is worded as follows:

‘1. The customs office may revise an assessment which has become definitive, even if the goods covered by that assessment have been put at the free disposal of the operator or have already left the customs territory. The revision shall be carried out by the customs office of its own motion or where the operator concerned has made a request to that effect which must, if it is not to be time-barred, be submitted within three years of the date on which the assessment became definitive.

…

5. If the revision, carried out by the customs office of its own motion or following a party’s request to that effect, reveals inaccuracies, omissions or errors relating to the information on which the assessment is based, the office shall make the corresponding correction which it shall communicate to the operator concerned by serving on him a notice to that effect. Where a correction is made following a revision carried out by the customs office of its own motion, the notice must, if it is not to be time-barred, be served within three years of the date on which the assessment became definitive.

…’

6 Article 84 of Decree of the President of the Republic No 43 of 23 January 1973, adopting the Consolidated customs laws (GURI No 80 of 28 March 1973, ‘the Consolidated Customs Laws’) provides:

‘1. The [substantive] right of the State to recover customs duties shall be extinguished on expiry of a period of five years.

…

3. Where the failure to pay customs duties has its origins, in whole or in part, in a criminal offence, time for the purposes of the limitation period shall run from the date on which the order or judgment in the criminal proceedings becomes final.

…’

7 Under Article 29 of Law No 428 of 29 December 1990 laying down implementing provisions in respect of the obligations stemming from the Italian Republic’s membership of the European Communities (GURI No 10 of 12 January 1991), the limitation period provided for in Article 84 of the Consolidated Customs Laws was reduced to three years.

The dispute in the main proceedings and the question referred for a preliminary ruling

8 Agra imported frozen boned meat (covered by CN Code 0202 30 90 90) as part of the annual quota (sub-quota II) established by Regulation No 954/2002.

9 In order to obtain the import licences, Agra lodged an import application in which it declared that it met the conditions laid down in Article 9 of Regulation No 954/2002. One of those conditions was that there had to be no link with companies or firms of other Member States which had submitted similar applications before 14 June 2002.

10 In the course of an inspection carried out at Agra’s premises on 12 February 2007, the Guardia di Finanza di Milano (Milan Revenue Enforcement Officers) found a number of irregularities relating to those conditions.

11 The official record of that inspection gave rise, first, to a criminal investigation.

12 Secondly, relying on the same record, the Italian customs authority issued a reassessment notice on 28 February 2008 regarding the customs declarations lodged by Agra, in accordance with which it sought to recover a total principal amount of EUR 141 125.49 by way of import duties and VAT, plus EUR 47 298.45 by way of interest.

13 That reassessment notice was served on Agra on 11 March 2008.

14 Agra disputed the reassessment notice before the Commissione Tributaria Provinciale di Alessandria (Provincial Tax Court, Alessandria), submitting that the right to carry out reassessment of customs declarations had been extinguished. According to Agra, that right was subject to a limitation period of three years from the date of the customs declarations. Given that the declarations at issue had been lodged on 13 August, 18 September and 23 October 2002 respectively, the corresponding limitation periods fell to be regarded as having expired on 13 August, 18 September and 23 October 2005 respectively.

15 The Italian customs authority relies, for its part, on the fact that the limitation period may be suspended or interrupted, as provided for in Article 221 of the Customs Code and, specifically, in Article 221(4), under which the exact amount of the customs debt may be communicated after the expiry of the three-year period where the customs authorities have not been in a position to determine the exact amount of the duty because of acts liable to give rise to criminal court proceedings.

16 According to the Italian customs authority, Article 221(4) of the Customs Code must be interpreted in conjunction with Article 84 of the Consolidated Customs Laws, pursuant to which, where the failure to pay customs duties has its origins, in whole or in part, in a criminal offence, time for the purposes of the limitation period is to run from the date on which the judgment in the criminal proceedings becomes final.

17 In those circumstances, the Commissione tributaria provinciale di Alessandria decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘In the light of Article 11 of [Legislative Decree No 374 of 8 November 1990], read in conjunction with Article 221(3) and (4) of [the Customs Code], regard being had to Article 84(3) of the [Consolidated Customs Laws], is the right of the [customs authority] to revise the assessment [of the customs debt] extinguished, and/or is it time-barred, on the expiry of the three-year period from the date of the customs declaration, or can those time-limits be interrupted and/or suspended pending the outcome of criminal proceedings for infringement of the customs rules relating to the assessment?’

The question referred for a preliminary ruling

Observations submitted to the Court

18 In the present proceedings, observations have been lodged by Agra, the Italian, Czech and Greek Governments and by the European Commission.

19 Agra claims that the Court should either hold that a condition for the application of Article 221(4) of the Customs Code is the occurrence of at least one procedural event in the course of the three years covered by the limitation period, or declare that it is for the domestic legal order to define the conditions for the application of that provision.

20 Agra submits that, although the customs authorities are undoubtedly competent to declare, for the purposes of the administrative procedures, that an act has occurred which could give rise to criminal court proceedings, the principle of legal certainty requires those authorities to act within the three years covered by the limitation period.

21 In that connection, Agra relies on the interpretation given by the Corte suprema di cassazione (Court of Cassation) of Article 84 of the Consolidated Customs Laws and Article 221 of the Customs Code, according to which, for the running of the three-year limitation period to be interrupted, an act of those authorities must take place in the course of those three years.

22 The Greek Government maintains, in substance, that the limitation period relating to the customs debt is suspended where the suspected customs infringement could give rise to criminal court proceedings and has ultimately prevented the competent customs authority from determining the exact amount of the duty. The Greek Government accordingly proposes that the answer to the question referred for a preliminary ruling should be that the right to recover the customs debt cannot be extinguished pursuant to Article 221(3) of the Customs Code where that debt results from an act which could give rise to criminal court proceedings.

23 The Italian and Czech Governments argue, in substance, as does the Commission, that Article 221(4) of the Customs Code does not preclude legislation such as that at issue in the main proceedings and that all issues linked to the extinction of the right to recover customs debts resulting from an act punishable under criminal law are a matter for national law.

24 In that respect, the Commission notes that Article 221(4) of the Customs Code does not lay down a limitation period; nor does it set out grounds for the suspension or interruption of such a period. In particular, that provision does not require suspension of the limitation period for the duration of appeal proceedings, contrary to the provision made under Article 221(3) of the Customs Code.

25 However, according to the Czech Government and the Commission, the national legislature does not enjoy absolute freedom. First, the legislation of the Member States must be consistent with the principles of equivalence and effectiveness. Secondly, a restriction on the running of the limitation period must be justified by objectives in the public interest, necessary and proportionate to the legitimate objective pursued.

26 It is argued that the referring court is the best placed to examine the compatibility with those principles of the national legislation at issue in the main proceedings.

The Court’s answer

27 The first point to be noted is that it is not for the Court, in proceedings brought under Article 234 EC, to rule on the compatibility of national legislation with EU law. However, the Court does have jurisdiction to provide the national court with all the criteria for the interpretation of EU law necessary to enable that court to rule on such compatibility (see Case C‑414/02 Spedition Ulustrans [2004] ECR I‑8633, paragraph 23 and the case-law cited).

28 It is apparent from the order for reference that the national court is inquiring as to the consistency with EU law of legislation which provides that, where the failure to pay customs duty stems from a criminal offence, time for the purposes of the limitation period is to run from the date on which the order or judgment in the criminal proceedings becomes final.

29 From that point of view, it must be held that the referring court is essentially inquiring whether Article 221(3) and (4) of the Customs Code preclude national legislation such as that at issue in the main proceedings, under which, where the failure to pay customs duty has its origins in a criminal offence, time for the purposes of the limitation period is to run from the date on which the order or judgment in the criminal proceedings becomes final.

30 It should first be noted that it is settled case-law that the first sentence of Article 221(3) of the Customs Code lays down a limitation rule whereby the communication of the amount of import or export duty due is not to take place after the expiry of a period of three years from the date on which the customs debt was incurred (see, to that effect, Case C‑201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 39, and Joined Cases C‑124/08 and C‑125/08 Snauwaert and Others [2009] ECR I-0000, paragraph 28).

31 The second sentence of Article 221(3) of the Customs Code provides that, following the lodging of an appeal within the meaning of Article 243 thereof, that limitation period is to be suspended for the duration of the appeal proceedings.

32 As an exception to the rule referred to in paragraph 30 above, Article 221(4) of the Customs Code provides that the customs authorities may, under the conditions set out in the provisions in force, make such communication after the expiry of that period where the fact that those authorities have been unable to determine the exact amount of duty legally due is attributable to an act which could give rise to criminal court proceedings (Snauwaert and Others, paragraph 29).

33 In that connection, it should be noted, first, that Article 221(4) of the Customs Code does not itself lay down any limitation period or grounds for the suspension or interruption of the limitation period applicable. In particular, in contrast with the provision made under Article 221(3), Article 221(4) does not require the limitation period to be suspended for the duration of appeal proceedings.

34 Secondly, it should be observed that, by merely referring to ‘the conditions set out in the provisions in force’, Article 221(4) of the Customs Code defers to national law as regards the rules governing the extinction of the customs debt through the passage of time, where that debt arises as a result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings.

35 Accordingly, in so far as EU law does not lay down common rules in this field, it is for each Member State to determine the rules governing the extinction, through the passage of time, of customs debts which it has not been possible to assess because of an act which could give rise to criminal court proceedings (see, by analogy, Case C-91/02 Hannl-Hofstetter [2003] ECR I‑12077, paragraphs 18 to 20, and Molenbergnatie, paragraph 53).

36 Having regard to all the above considerations, the answer to the question referred is that Article 221(3) and (4) of the Customs Code must be interpreted as not precluding national legislation under which, where the failure to pay customs duty has its origins in a criminal offence, time for the purposes of the limitation period for recovery of the customs debt is to run from the date on which the order or judgment in the criminal proceedings becomes final.

Costs

37 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 221(3) and (4) 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, must be interpreted as not precluding national legislation under which, where the failure to pay customs duty has its origins in a criminal offence, time for the purposes of the limitation period for recovery of the customs debt is to run from the date on which the order or judgment in the criminal proceedings becomes final.

[Signatures]