OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 18 July 2013 ( 1 )

Case C‑180/12

Stoilov i Ko EOOD

v

Nachalnik na Mitnitsa Stolichna

(Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria))

‛Separate decisions and remedies relating to the same customs debt — Admissibility of the request for a preliminary ruling — No need to adjudicate — Res judicata — Articles 41 and 47 of the Charter — Principle of good administration — Right to an effective judicial remedy’

I – Introduction and admissibility of the request for a preliminary ruling

1. This request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) relates to the interpretation of subheadings 5407 61 30 and 6303 92 10 of the Combined Nomenclature for the year 2009 (‘the CN’), ( 2 ) and the interpretation of the Customs Code, ( 3 ) the principle of the protection of legitimate expectations, and Articles 41 and 47 of the Charter of Fundamental Rights of the European Union.

2. In fact, as I shall have the opportunity to demonstrate in this Opinion, underlying this reference is another question concerning its admissibility or, more accurately, the loss, in the course of the proceedings, of its purpose, which ought in my view to lead the Court to find that there is no longer any need to reply to the questions referred.

3. Before examining that question, it is, however, necessary to give a summary account of the course of the national legal proceedings in which Stoilov i Ko EOOD (‘Stoilov’) brought two more or less concomitant actions, based on the same subject matter, against two decisions adopted by the Nachalnik na Mitnitsa Stolichna (Director of Customs in Sofia, ‘the Nachalnik’) under the Customs Code.

4. In short, although, by a customs declaration lodged on 8 January 2009, Stoilov declared ‘materials for the manufacture of blinds’ originating in China under subheading 6303 92 10 of the CN, after verification and analysis of laboratory samples the customs authorities considered that the goods referred to in the declaration satisfied the criteria for classification under Chapter 54 of the CN and, more specifically, subheading 5407 61 30.

5. Consequently, on 27 April 2009, the Nachalnik served a decision on Stoilov (‘the notification decision’) pursuant to Article 221(1) of the Customs Code, ( 4 ) under which the goods referred to in the customs declaration of 8 January 2009 were classified under subheading 5407 61 30, thus entailing an increase in the rate of customs duty from 6.5% to 8% and the application of definitive antidumping duty of 74.8%. Under that decision, Stoilov was given seven days voluntarily to pay the corresponding amounts in accordance with Article 222 of the Customs Code. ( 5 )

6. Since Stoilov had not paid the sums claimed within the period prescribed, the Nachalnik adopted a decision under Article 232 of the Customs Code ( 6 ) for the enforced recovery of State debts dated 7 August 2009 (‘the recovery decision’).

7. After challenging that decision in September 2009 through administrative channels, requesting that an independent expert opinion be commissioned, in October 2009 Stoilov brought an action before the referring court seeking the setting aside of the recovery decision.

8. Meanwhile Stoilov had, some months previously, challenged the notification decision before the Administrativen sad Sofia-grad, which dismissed its application by judgment of 30 December 2010.

9. That judgment was the subject of an appeal to the Varhoven administrativen sad (Supreme Administrative Court), before which it was still pending when the present request for a preliminary ruling was made. It is clear none the less from the written observations submitted to the Court, and from the reply of the national court to the request for clarification made by the Court, that, by judgment of 5 July 2012, the Varhoven administrativen sad set aside the judgment of 30 December 2010 of the Administrativen sad Sofia-grad and annulled the notification decision. According to the information provided by the national court in its reply to the request for clarification, the Varhoven administrativen sad essentially held that the tariff classification determined by the Nachalnik, which was confirmed by the Administrativen sad Sofia-grad, was erroneous in the light of the documents and expert opinions contained in the file. Furthermore, the Varhoven administrativen sad found that Stoilov had acquired a legitimate expectation that the goods at issue would be classified under subheading 6303 92 10 since, in the case of numerous prior declarations in respect of identical goods originating from the same supplier in China, the customs authorities had accepted those imports after reviewing the documents and had applied the subheading in question without imposing any penalty.

10. In its reply to the request by the Court for clarification as to the effect of the annulment of the notification decision on the dispute in the main proceedings, the national court acknowledged, inter alia, that it is for it to verify whether the procedural conditions governing the lawfulness of the recovery decision, which include the notification decision, are satisfied.

11. At the hearing before the Court, the Nachalnik acknowledged that, owing to its annulment by the Varhoven administrativen sad, the notification decision no longer existed in the Bulgarian legal order.

12. With these matters in mind, it is important to note that it is not the task of the Court in the context of the cooperation provided for in Article 267 TFEU to give consultative opinions in abstracto, and that the subject matter of a request for a preliminary ruling may, in the course of proceedings before the Court, lose all or part of its relevance, in such a way as to deprive the replies that the Court might give to the request of their usefulness in contributing to the solution of disputes. ( 7 ) In other words, the assistance provided by the Court under Article 267 TFEU must enable national courts to give a decision which takes into account the judgment delivered in response to the request for a preliminary ruling. ( 8 )

13. Thus the Court has already ruled, pursuant to that case-law, that it is not necessary to give a ruling on a reference for a preliminary ruling, notwithstanding the national court’s wish to maintain it, where the dispute giving rise to the request ceases to exist in the course of the proceedings, in particular owing to an agreement between the parties ( 9 ) or to withdrawal of the main action. ( 10 )

14. Similarly, in the light of the factual situation brought before it, the Court takes the view that it is not necessary, in the absence of any subject matter, to reply to a request for a preliminary ruling where that request does not enable the factors to be discerned that are necessary for an interpretation of European Union law which the referring court considers might usefully be applied in order to resolve, in accordance with that law, the dispute before it. ( 11 )

15. It is true that the situation in this case does not correspond exactly to that situation.

16. However, it is clear that, in accordance with the case-law cited, and having regard to the information at the Court’s disposal, the referring court will, in resolving the dispute in the main proceedings, no longer be called upon to adopt a decision taking into account the judgment delivered in the preliminary reference proceedings, should the Court reply to the questions referred.

17. As the referring court stated in its reply to the Court’s request for clarification, the recovery decision has now been deprived of one of its conditions of external legality as a result of the annulment by the Varhoven administrativen sad of the notification decision, since that decision no longer exists in the Bulgarian legal order, as the Nachalnik also acknowledged. It will therefore be sufficient for the referring court to find, as indeed it could have already done once judgment of the Varhoven administrativen sad was delivered, that the recovery decision must necessarily be annulled by operation solely of domestic law, as Stoilov correctly argued at the hearing before the Court.

18. Although it is possible to understand the Nachalnik’s argument that under Bulgarian law the communication of the amount of a customs debt within the meaning of Article 221 of the Customs Code (that is to say, the notification decision in this case) and the enforced recovery of that debt under Article 232 of that Code must be classified as autonomous legal acts amenable to distinct legal remedies, the fact remains, as the European Commission very logically pointed out at the hearing before the Court, that a customs debt cannot be legally recovered by the national authorities if it is deprived of its very existence as a result of the annulment by the competent national courts of the decision by which it was established. Any other interpretation would lead to unjust enrichment on the part of the State.

19. The national court will therefore, as a result of the annulment of the notification decision by the Varhoven administrativen sad, have to take judicial notice of the fact that the recovery decision at issue in the main proceedings is now deprived of its essential condition of external validity, that is to say, the actual finding of the customs debt whose recovery is claimed and challenged before it, regardless of the replies which the Court might give to the four questions referred for a preliminary ruling by the national court.

20. To reply to those questions would therefore amount to providing a consultative opinion on hypothetical questions in disregard of the Court’s task in the context of the judicial cooperation instituted by Article 267 TFEU.

21. In addition, the referring court’s reply to the Court’s request for clarification discloses its wish to place the Court in the role of arbiter between its own assessment of the facts in the main proceedings and that of the Varhoven administrativen sad in its judgment overturning the decision of the Administrativen sad Sofia-grad of 30 December 2010 and setting aside the notification decision, in particular with regard to the evidence for classifying the goods in question under one or other of the contested tariff subheadings. ( 12 ) Yet it is obviously not for the Court to involve itself in the assessment of facts relating to the dispute in the main proceedings, still less to assume in this regard the function of arbiter between the highest court and a lower court of a Member State.

22. In my view it follows that the Court ought to declare that it is no longer necessary to reply to the question referred for a preliminary ruling.

23. Should the Court none the less decide not to adopt this analysis, the observations which follow are intended to reply briefly and in the alternative to the questions asked by the referring court.

II – Analysis, in the alternative, of the questions referred for a preliminary ruling

A – First question referred for a preliminary ruling

24. By its first question referred for a preliminary ruling the national court is asking whether ‘the goods – rolled-up strips of non-woven fabric for the production of interior blinds – [are] to be assigned to CN code 5407 61 30 in accordance with the characteristics of the goods as “woven fabric” or CN code 6303 92 10 corresponding to their sole intended purpose – for interior blinds – for the purposes of tariff classification according to the [CN], taking the following into consideration: (a) the term “made-up” article within the meaning of Note 7 … in Section XI (“Textiles and textile articles”) of the [CN], interpreted in conjunction with point 2(a) of the general rules of interpretation concerning the terms “incomplete or unfinished article” having regard to the case mentioned in point 2(c) of those rules, the characteristics of the goods at issue in the present proceedings and the possibility that a single end-product is produced from them; (b) the question of whether the term “woven fabrics” in Chapter 54, subheading 5407 61 30, of the [CN] covers fabric strips, which, like the end-product forming their single intended purpose – interior blinds –, also come with fixed edges on the long side, having regard also to the express reference to that product in subheading 6303 92 10 of the [CN]?’

25. That question echoes the dispute at the origin of the main proceedings, as Stoilov declared the imported goods as coming under Chapter 63 of the CN whereas the customs authorities considered that the goods covered by that declaration met the conditions for classification under Chapter 54 of the CN.

26. I should point out that the CN is based on the Harmonised Commodity Description and Coding System drawn up by the World Customs Organisation and uses the same headings and six-digit subheadings, only the seventh and eighth digits forming subdivisions specific to the CN. In Part II, ‘Table of duties’, the CN includes a classification of goods into sections, chapters, headings and subheadings.

27. Section XI of the CN is entitled ‘Textiles and Textile Articles’. Under note 7 of that section ‘made up’ means inter alia: ‘(a) cut otherwise than into squares or rectangles; (b) produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets); (c) hemmed or with rolled edges.’

28. Both Chapter 54 and Chapter 63 of the CN appear in Section XI.

29. Chapter 54, entitled ‘Man made filaments, strip and the like of man-made textile materials’, includes in particular heading 5407 ‘Woven fabrics of synthetic filament yarn …’, which itself includes subheading 5407 61 30 ‘Other woven fabrics containing 85% or more by weight of non-textured polyester filaments, dyed’. ( 13 )

30. Chapter 63, subchapter I, of the CN, which is entitled ‘Other made-up textile articles’, includes heading 6303 ‘Curtains (including drapes) and interior blinds; curtain or bed valances’, which in turn includes subheading 6303 92 10 ‘Other [than knitted or crocheted] – of synthetic fibres – nonwovens’. According to note 1 to Chapter 63 of the CN, subchapter I, which includes goods of any textile fabric, ‘applies only to made-up articles’.

31. It should also be recalled that the CN lays down preliminary provisions of a general nature relating to its interpretation. It follows in particular from those provisions that any reference in a heading to an article is to be taken to include a reference to that article incomplete or unfinished, provided that, as presented, the incomplete or unfinished article has the essential character of the complete or finished article. It is also to be taken to include a reference to that article complete or finished, or falling to be classified as complete or finished by virtue of that rule, when presented unassembled or disassembled. ( 14 ) Those provisions also state that, when goods are capable of being classified under different headings they must first be classified under the most specific heading, ( 15 ) it being understood that the classification is lawfully to be determined in accordance with the terms of the headings, since the wording of the titles of sections, chapters or subchapters have only indicative value. ( 16 )

32. It should also be pointed out that in the essence of a specific connecting factor the goods at issue must be classified, regard being had to their objective characteristics and properties, as defined by the wording of the CN heading, which, in the interests of legal certainty and in order to facilitate review, constitute the decisive criterion for the tariff classification of the goods. ( 17 )

33. Although the Court has at times considered the question of the customs classification of a certain item, it is not in principle for it, in the context of a reference for a preliminary ruling and the consequent delimitation of competences between the European Union judicature and the national courts, to determine such a question, since that is for the referring court in the light of the facts of the dispute before it and the interpretation of European Union law which the Court provides it with. ( 18 )

34. In that connection, I consider that the national court is seeking in essence principally to determine the scope of ‘made up’ articles within the meaning of note 7 of Section XI of the CN, so as to enable it to verify whether the goods declared by Stoilov, that is to say ‘materials for the manufacture of blinds’, may indeed come within one of the subheadings of Chapter 63 of the CN.

35. As the Commission in particular noted, in order for the goods in question to come within that chapter, they must have the characteristics of made up articles, which, according to that chapter, include interior blinds.

36. Only two of the alternative criteria set out in note 7 of Section XI of the CN appear at first sight to be relevant. According to the Commission and the Nachalnik, as the goods at issue are rectangular in form, they do not correspond to the criterion set out in Note 7(a) of Section XI, which covers only articles ‘cut otherwise than into squares or rectangles’. However, that assessment, which is ultimately a matter for the referring court, does not appear to me to be particularly persuasive in the case of interior blinds which are generally rectangular in form. To infer, as those parties do, that Chapter 63 is not applicable appears to me to go too far. At the very most it could be inferred from the rectangular shape of the goods at issue that they do not come within the first criterion of note 7 of Section XI.

37. In that connection, it is important to note that note 7(b) of that section mentions as coming within the concept of made up articles those which are ‘produced in the finished state, ready for use’.

38. Not only did Stoilov rely on that provision at the hearing before the Court, explaining that the goods at issue are intended only for simple assembly, but the Varhoven administrativen sad, in its judgment of 5 July 2012 cited above, also adjudged that those goods were imported ready for use without it being possible to derive anything from them other than interior blinds.

39. It is also important to stress that, under the general provisions of the CN, reference to an article in a given heading covers that article, even in an incomplete or non-finished state, provided that in its present state it displays the essential characteristics of the complete or finished article or is presented in a disassembled or non-assembled state.

40. It will therefore be for the national court to verify, in the light of all the matters of fact and law set out before it, whether the goods at issue may be regarded as articles obtained in their finished state and ready for use, so that they may come within Chapter 63 of the CN.

41. If that is not the case, those goods ought to come under Chapter 54 of the CN.

42. The – disputed – considerations of the parties concerned as to whether the textiles at issue are woven or non-woven seem to me to be relevant only for determining the appropriate subheading, and not for determining the relevant chapter of the CN, which is the only really fundamental question in my opinion.

B – Second question referred

43. By its second question, the referring court is essentially asking whether the view may be taken that the person making the customs declaration and responsible for the importation has a legitimate expectation in the goods receiving a specific tariff classification where (a) in regard to a customs declaration which was made earlier in respect of identical goods with the same tariff code, following a physical examination by the customs authorities relating in particular to tariff classification and officially recorded, no samples were taken for analysis and the goods were found to be consistent with the declaration, and (b) no such examinations took place after the release of the goods in the case of five previous customs declarations of identical goods with the same tariff code, some before and others after the date of the official report of the customs examination establishing that the tariff code was correct.

44. This question would, in my opinion, be of relevance only if the referring court were to find that the goods should be classified in accordance with the recovery decision in Chapter 54 of the CN.

45. In the converse situation, that decision would have to be set aside on the sole ground of an error in classifying the goods at issue without the national court having to have recourse to the possible existence of a legitimate expectation on the part of Stoilov that the goods be classified under Chapter 63.

46. On the basis of this delimitation of the reply, it should be pointed out that, under Article 68 of the Customs Code, the customs authorities may verify the declarations accepted by them by means either of a documentary inspection under subparagraph (a) of that provision or an examination of the goods accompanied, where necessary, by samples taken for analysis or an in-depth examination in accordance with subparagraph (b) of that article.

47. In the present case the referring court states in its question that, in connection with a number of customs declarations made by Stoilov in respect of identical goods under the same tariff classification (Chapter 63 of the CN) prior to the declaration at issue in the main proceedings, the customs authorities in one case conducted a physical examination of the imported goods and in other cases accepted the declarations made by Stoilov following a simple documentary inspection and did not oppose the tariff classification declared.

48. The referring court is therefore asking whether any legitimate expectation arose on the part of Stoilov owing to the assurances that it obtained from the customs authorities when, in verifying Stoilov’s customs declarations in regard to previous imports, they accepted the classification of the same goods in Chapter 63 of the CN.

49. In that connection it should be borne in mind that the Customs Code introduced procedures in Articles 220(2)(b) and 239 concerning, respectively, absence of subsequent entry into the accounts of customs duties by the customs authorities and remission of those duties, both of which pursue the same objective, namely to limit the payment of import duties solely to situations compatible with observance of the fundamental principle of the protection of legitimate expectations. ( 19 )

50. According to the case-law on the first of those articles, a taxpayer is entitled to expect those duties not to be recovered, subject to three cumulative conditions being met. ( 20 )

51. First, the failure to collect the duties must have been the result of an error made by the competent authorities themselves. Next, the error made by them must be such that it could not reasonably be detected by the person liable, acting in good faith, notwithstanding his professional experience and the care expected of him. Lastly, the taxpayer must have complied with all the provisions laid down by the legislation in force as far as his customs declaration is concerned. ( 21 )

52. As regards the first condition, that is to say that there should have been an error by the competent authorities, the Court has stated that only errors attributable to acts of the authorities create entitlement to the waiver of post-clearance recovery of customs duties, ( 22 ) it being understood that the mere fact of an incorrect declaration by the person liable does not suffice to exclude any possibility of an error attributable to the competent authorities. ( 23 )

53. As to the detectable nature of the error committed by the competent authorities, the Court has held that this must be determined in the light of the complexity of the rules concerned and of the period of time during which the authorities persisted in their error, ( 24 ) while in regard to the criterion of the care to be taken by a professional person, the Court has stated that that person is obliged to supply the competent customs authorities with all the necessary information required by the rules of European Union law and any national provisions which supplement or transpose them, in relation to the customs treatment requested for the goods in question. ( 25 )

54. In general terms, it is for the referring court to ascertain whether all those conditions are met, the points mentioned above not necessarily being exhaustive.

55. In that connection I shall restrict myself merely to highlighting some aspects which lead me to take the view that the conditions governing non-recovery of customs duties seem to be met.

56. Thus it is clear from the order for reference that, prior to the dispute in the main proceedings, the customs authorities, in verifying Stoilov’s customs declarations, physically examined goods identical to those to which the dispute relates, of the same origin and classified in Chapter 63 of the CN.

57. By conducting a physical examination of the goods, the customs authorities have therefore in my opinion acted, within the meaning of the case-law, and their act appears, moreover, to have been confirmed by successive documentary checks.

58. Although the referring court does not provide information on the period during which national customs authorities accepted the tariff classification declared by Stoilov, which it is for that court to ascertain, it nevertheless seems that this practice involved several declarations over a period of time.

59. Furthermore, I doubt that the error by the competent authorities could reasonably have been detected by a reasonably diligent economic operator, given the fact that those authorities, in the context of an in-depth examination, had to call for a technical expert investigation, using a microscope after infra-red spectroscopy, leading them definitively to refuse the classification declared by Stoilov for the importation of the goods in question.

C – Third question referred

60. By its third question, the referring court is asking whether ‘Article 243(1) of [the Customs Code], having regard to observance of the principle of res judicata, [is] to be interpreted as meaning that an appeal can be brought against an act under Article 232(1)(a) of that code only if the act was adopted on the ground of a payment not being made within the period prescribed, and at the same time establishes the amount of import duty, and constitutes an enforceable order for the collection of the duty under the national law of the Member State’.

61. As has been rightly noted by the Commission, beyond the particularly obscure wording of this question, it is not easy to understand what the referring court is essentially asking.

62. Over and above this general reservation, which could simply mean that this question should be declared inadmissible, it could nevertheless be understood in the light of the circumstances surrounding these proceedings.

63. Indeed, by focusing attention on the principle of res judicata, the referring court appears to wish to pre-empt a possible judgment of the Varhoven administrativen sad annulling its judgment of 30 December 2010 on the notification decision, by asking whether under the Customs Code only the recovery decision should be regarded as an actionable act, thus meaning that the notification decision is not actionable, and hence depriving of any authority over the judgment that it will have to deliver a judgment of the Varhoven administrativen sad annulling the notification decision.

64. In other words, what the referring court is asking is whether only the recovery decision adopted under Article 232 of the Customs Code constitutes an actionable act, the notification decision being on this view only a preparatory act not amenable to legal action.

65. If that is the question, it ought to receive a clearly negative reply.

66. By confining itself to stating, in Article 243(1), that any person has the right to bring an appeal against decisions taken by the customs authorities relating to the application of the customs rules and which relate to him directly and individually, the Customs Code certainly does not preclude the Member States, like the Republic of Bulgaria, as also acknowledged by the referring court and the Nachalnik, from categorising the communication referred to in Article 221(1) of that code (in this case the notification decision) as an actionable act under national law.

67. Moreover, by ruling substantively on the notification decision in its judgment of 30 December 2010, the Administrativen sad Sofia-grad itself acknowledged that that decision was an act adversely affecting Stoilov.

68. Therefore the provisions of the Customs Code do not preclude the notification decision and the recovery decision from both being regarded as acts adversely affecting the importer and, consequently, from both forming the subject-matter of a legal action before the national courts.

D – Fourth question referred

69. By its fourth and final question the referring court asks whether ‘Articles 41(2)(a) and 47 of the [Charter are] to be interpreted as meaning that, when an application for the taking of evidence by means of an independent expert’s report, requested by the debtor after receipt of a communication in accordance with Article 221(1) of [the Customs Code], was not expressly responded to by the customs authorities and was not mentioned in the grounds for later decisions, there is an irremediable infringement of the right to good administration and the rights of the defence in administrative proceedings, which can no longer be remedied in the judicial proceedings because in the circumstances of the main proceedings, it is only before the court of first instance that the person concerned has the chance to prove his objections regarding the tariff classification of the goods by putting questions to an independent expert’.

70. Certain observations are called for concerning the subject-matter of this question.

71. First, it strikes me as being badly put, inasmuch as it refers to Article 47 of the Charter, that is to say, the guarantee of an effective judicial remedy, whereas the referring court is essentially setting out arguments concerning observance of the right to a fair hearing in administrative proceedings.

72. Moreover, if it were desired to reply to the question from the point of view of Article 47 of the Charter, in the light of all the elements of the case in the main proceedings, there is no doubt that Stoilov had the possibility of bringing legal proceedings against the recovery decision, proceedings which are in fact pending before the referring court. Furthermore, to all intents and purposes, I wish to stress that Stoilov was also able to bring an action against the notification decision, in the course of which the independent expert opinion was commissioned and on the basis of which Stoilov’s appeal to the Varhoven administrativen sad was upheld.

73. Secondly, it should be pointed out that the referring court raises a question as to observance of the right to be heard in the administrative phase following adoption of the notification decision, interpreting that right as including also the right to be provided with an independent expert opinion, a request for an expert opinion which would chronologically have preceded the adoption of the recovery decision.

74. However, that premise appears not to tally with the facts of the dispute in the main proceedings, since Stoilov made the request for an independent opinion after the adoption of the recovery decision. ( 26 )

75. In order to retain the usefulness of the question, and disregarding any ‘right’ to an independent expert opinion, the question could be reformulated as seeking to ascertain whether observance of the right to be heard enshrined in Article 41(2)(a) of the Charter is incumbent upon the customs authorities prior to the adoption of a recovery decision, such as that at issue in the main proceedings, founded on Article 232 of the Customs Code.

76. In that connection, there is no doubt that, because the recovery decision was adopted under national legislation clearly falling within the scope of European Union law, namely the Customs Code, that situation comes under the ‘implementing’ of Union law by a Member State for the purposes of Article 51(1) of the Charter, so that the rights conferred by the Charter apply. ( 27 )

77. The Court has previously held that Article 41(2)(a) of the Charter, in the context of the right of persons to have their affairs handled in accordance with the principles of good administration, guarantees them the right to be heard in any proceedings which may lead to an act having adverse effect, ( 28 ) and the Court has moreover applied that right in the context of recovery proceedings in relation to a customs debt. ( 29 )

78. It must be pointed out that the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. ( 30 )

79. In the M case, which concerned the examination of an application for asylum and an application for subsidiary protection, the Court also stated that when a Member State has chosen to institute two distinct and successive sets of proceedings, the right of the person concerned to be heard must be fully guaranteed in each one of those proceedings. ( 31 ) The Court added that observance of that right was all the more necessary since the conditions governing the grant of refugee status and those governing the obtaining of subsidiary protection were different, although the national authority had founded the rejection of both applications on analogous grounds. ( 32 )

80. Without wishing to deny certain differences between the M case and the main proceedings, the question none the less arises as to whether the requirement that the right to be heard must be observed prior to the adoption of each individual administrative act applies by analogy in a context such as that of the dispute in the main proceedings, that is, where two decisions have been adopted successively – notification then recovery – and have virtually identical subject-matter.

81. While observing that the two decisions at issue are autonomous ones, the Nachalnik argued at the hearing before the Court that observance of the right to be heard during the period leading up to the adoption of the notification decision removes observance of the right to be heard in the procedure leading to the adoption of the recovery decision.

82. Although the referring court provides no information as to whether Stoilov was effectively able to make known his observations about the customs authority’s intention to adopt the notification decision, even if such were the case I none the less consider that the existence and exercise of such a right would not mean that an operator such as Stoilov would have no opportunity to be heard during the administrative phase leading to the adoption of the recovery decision.

83. The observations that an economic operator is entitled to formulate prior to adoption of a notification decision within the meaning of Article 220 of the Customs Code differ in content from those which he may submit to the authorities before they order him to pay a customs debt under Article 232 of that Code.

84. In the former case – and where the communication adopted under Article 220 of the Customs Code is in the nature of an act adversely affecting the person concerned, which is the case under Bulgarian law – exercise of the right to be heard may include a challenge to the tariff classification of the goods. Under Articles 224 to 229 of the Customs Code, it may also include the statement of reasons, including those of an economic and social nature, giving rise to a request to the authorities for deferral of payment of the amount claimed or seeking the grant of payment facilities. In the latter case the economic operator may, prior to adoption of the recovery decision accompanied by a request for payment of interest for late payment, explain the reasons, including those of an economic or social nature, which preclude that interest from being claimed and request the authorities to waive it pursuant to Article 232(2) of the Customs Code.

85. As the contents of the observations which may be made under the two procedures do not fully overlap, only observance of the right to be heard in each of the phases leading to the two decisions will enable the economic operator to put forward his point of view usefully and effectively.

86. Finally, it is for the national court to draw, in accordance with its domestic law, the conclusions from an infringement of the right enshrined in Article 41(2)(a) of the Charter, while observing the principles of effectiveness and equivalence. Thus, in accordance with that right and those principles, it will be for it to ascertain in particular whether such an infringement ipso facto entails the annulment of the recovery decision or whether such a consequence is subject to proof by the economic operator concerned that, if the right to be heard had not been infringed, the procedure could have yielded a different result.

III – Conclusion

87. In the light of the considerations set out at points 12 to 22 of this Opinion, I propose that the Court declare that there is no need to rule on the request for a preliminary ruling made by the Administrativen sad Sofia-grad (Bulgaria) by decision of 4 April 2012.

( 1 ) Original language: French.

( 2 ) The CN appears at Annex I of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff Council (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008 (OJ 1987 L 291, p. 1).

( 3 ) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1) (‘the Customs Code’).

( 4 ) According to that provision, as soon as it has been entered in the accounts, the amount of duty is to be communicated to the debtor in accordance with appropriate procedures.

( 5 ) Pursuant to that provision, amounts of duty communicated in accordance with Article 221 are to be paid by debtors in principle within a period not exceeding 10 days from the communication.

( 6 ) That article provides, in particular, that, where the amount of duty due has not been paid within the prescribed period, the customs authorities are to avail themselves of all options open to them under the legislation in force, including enforcement, to secure payment of that amount.

( 7 ) See, to that effect, Case C-314/96 Djabali [1998] ECR I-1149, paragraph 19; Case C-225/02 García Blanco [2005] ECR I-523, paragraph 28; order in Case C-155/11 PPU Mohammad Imran [2011] ECR I-5095, paragraph 21; and order of 22 October 2012 in Case C‑252/11 Šujetová [2012] ECR, paragraph 15.

( 8 ) See, to that effect, Djabali, paragraph 18; García Blanco, paragraph 27; Case C‑492/11 Di Donna [2013] ECR, paragraph 26; and order in Šujetová, paragraph 14.

( 9 ) The situation with the order in Mohammad Imran.

( 10 ) As in the Šujetová case.

( 11 ) See Case C-132/81 Vlaeminck [1982] ECR 2953, paragraph 13, and Case C-11/07 Eckelkamp and Others [2008] ECR I-6845, paragraph 34.

( 12 ) The national court clarified that the judgment of the Varhoven administrativen sad was not res judicata in its regard in so far as the judgment is not in the nature of an interpretative decision but merely applies customs law (and therefore the provisions of the Customs Code). The question of the relationship between observance of Union law and of the principle of res judicata does not therefore arise in this case. On that relationship, see in particular Case C-224/01 Köbler [2003] ECR I-10239; Case C-234/04 Kapferer [2006] ECR I-2585; and Case C-2/08 Fallimento Olimpiclub [2009] ECR I-7501.

( 13 ) The category of ‘Other woven fabrics’ is understood to exclude woven fabrics obtained from high tenacity yarn of nylon or other polyamides or of polyesters, woven fabrics obtained from strip or the like, fabrics specified in note 9 to Section XI, other woven fabrics containing 85% of more by weight of filaments of nylon or other polyamides and other woven fabrics containing 85% or more by weight of textured polyester filaments.

( 14 ) Title 1 of Part One of the CN, section A2(a).

( 15 ) Title 1 of Part One of the CN, section A3(a).

( 16 ) Title 1 of Part One of the CN, section A1.

( 17 ) See in particular Case C-42/99 Eru Portuguesa [2000] ECR I-7691, paragraph 13.

( 18 ) As the Court has frequently pointed out (see most recently Case C‑558/11 Kurcums Metal [2012] ECR, paragraph 28), when the Court is requested to give a preliminary ruling on a matter of tariff classification, its task is to provide the national court with guidance on the criteria which will enable that court to classify the goods at issue correctly in the CN, rather than to effect that classification itself, in particular since the Court does not necessarily have available to it all the information which is essential in that regard. In any event, the national court is in a better position to do so.

( 19 ) See, to that effect, Case C-375/07 Heuschen & Schrouff Oriëntal Foods Trading [2008] ECR I-8691, paragraph 57 and the case-law cited, and order in Case C-552/08 P Agrar-Invest-Tatschl v Commission [2009] ECR I-9265, paragraph 52.

( 20 ) See, inter alia, to that effect, Case C-348/89 Mecanarte [1991] ECR I-3277, paragraphs 20 and 23; Case C-250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 12; Case C-251/00 Ilumitrónica [2002] ECR I-10433, paragraph 37; and order in Agrar-Invest-Tatschl v Commission, paragraph 51.

( 21 ) See, in particular, Hewlett Packard France, paragraph 13, and Ilumitrónica, paragraph 38.

( 22 ) See Mecanarte, paragraph 23, and Ilumitrónica, paragraph 42.

( 23 ) See, to that effect, Ilumitrónica, paragraph 45.

( 24 ) Ibid, paragraph 56 and the case-law cited.

( 25 ) Ibid, paragraph 61 and the case-law cited.

( 26 ) See points 6 and 7 above.

( 27 ) See, to that effect, Case C‑617/10 Åkerberg Fransson [2013] ECR, paragraph 21.

( 28 ) Case C‑277/11 M [2012] ECR, paragraphs 83 to 85.

( 29 ) See Case C-349/07 Sopropé [2008] ECR I-10369, paragraph 41, and Case C-423/08 Commission v Italy [2010] ECR I-5449, paragraph 45. Observance of the right to be heard prior to the adoption of the communication referred to in Article 220 of the Customs Code is also the subject matter of a request for a preliminary ruling in Case C‑129/13 Kamino International Logistics, pending before the Court.

( 30 ) See, in particular, Sopropé, paragraph 37, and M, paragraph 87.

( 31 ) M., cited above, paragraph 91.

( 32 ) Ibid. (paragraph 92).