Kamino International Logistics BV and Datema Hellmann Worldwide Logistics BV v Staatssecretaris van Financiën.
Date: 2014-07-03
28. In that regard, it should be noted that observance of the rights of the defence is a fundamental principle of European Union law, in which the right to be heard in all proceedings is inherent ( Sopropé , EU:C:2008:746, paragraphs 33 and 36, and M , C‑277/11, EU:C:2012:744, paragraphs 81 and 82).
29. The right to be heard in all proceedings is now affirmed not only in Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, which ensure respect for both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 of the Charter, which guarantees the right to good administration. Article 41(2) provides that the right to good administration includes, inter alia, the right of every person to be heard before any individual measure which would affect him adversely is taken ( M , EU:C:2012:744, paragraphs 82 and 83). However, as the Charter of Fundamental Rights of the European Union entered into force on 1 December 2009, it does not apply as such to the proceedings that led to the demands for payment of 2 and 28 April 2005 (see, by analogy, Sabou , C‑276/12, EU:C:2013:678, paragraph 25).
30. In accordance with that principle, which applies where the authorities are minded to adopt a measure which will adversely affect an individual ( Sopropé , EU:C:2008:746, paragraph 36), the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision ( Sopropé , EU:C:2008:746, paragraph 37).
31. The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of European Union law, even though the legislation applicable does not expressly provide for such a procedural requirement (see Sopropé , EU:C:2008:746, paragraph 38; M , EU:C:2012:744, paragraph 86; and G and R , C‑383/13 PPU, EU:C:2013:533, paragraph 32).
38. According to the Court, the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before the decision is adopted is to enable the competent authority effectively to take into account all relevant information. In order to ensure that the person or undertaking concerned is in fact protected, the purpose of that rule is, inter alia, to enable them to correct an error or submit such information relating to their personal circumstances as will argue in favour of the adoption or non-adoption of the decision, or in favour of its having a specific content ( Sopropé , EU:C:2008:746, paragraph 49).
42. However, settled case-law also holds that fundamental rights, such as respect for the rights of the defence, do not appear as unfettered prerogatives, but may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the measure in question and that they do not constitute, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed ( G and R , EU:C:2013:533, paragraph 33, and Texdata Software , C‑418/11, EU:C:2013:588, paragraph 84).
51. The Court has held that, while the principle of respect for the rights of the defence applies, inter alia, to a post-clearance recovery procedure, in relations between a debtor and a Member State, it cannot however, as regards the relations between the Member States and the European Union, result in a Member State being entitled to disregard its obligation to enter in the accounts, within the time-limits laid down by European Union legislation, the entitlement of the European Union to its own resources ( Commission v Spain , EU:C:2006:132, paragraph 33, and Commission v Italy , EU:C:2010:347, paragraph 45).
53. Lastly, in paragraph 46 of Commission v Italy , EU:C:2010:347, the Court also noted that entry in the accounts and notification of the amount of customs duty owed, and the crediting of the own resources, do not prevent the debtor challenging, under Article 243 et seq. of the Customs Code, the obligation imposed on him by means of all the arguments at his disposal.
54. As regards, in the second place, the question of whether the rights of the defence of the interested parties in the main proceedings were observed, when they could submit their observations only in the objection procedure, it must be noted that the general interest of the European Union, in particular the interest in recovering its own revenue as soon as possible, means that inspections must be capable of being carried out promptly and effectively ( Sopropé , EU:C:2008:746, paragraph 41).
55. Moreover, it is apparent from the case-law of the Court that, in the context of an appeal lodged against an adverse decision, a subsequent  hearing may, under certain conditions, be able to ensure observance of the right to be heard (see, by analogy, Texdata Software , EU:C:2013:588, paragraph 85).
56. With regard to decisions of the customs authorities, according to the first subparagraph of Article 243 of the Customs Code, any person has the right to appeal against decisions taken pursuant to customs legislation which concern him directly and individually. However, as the referring court and the Commission point out, the lodging of an appeal pursuant to Article 243 of the Customs Code does not, under the first subparagraph of Article 244 of that code, in principle, cause implementation of the disputed decision to be suspended. As the appeal does not have suspensory effect, it does not preclude the immediate implementation of that decision. The second subparagraph of Article 244 of the Customs Code, however, authorises the customs authorities to suspend, in whole or in part, implementation of the decision where they have good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned. Moreover, the third subparagraph of Article 244 of the Customs Code requires, in that case, the lodging of a security.
65. It follows from paragraph 85 of Texdata Software , EU:C:2013:588 that the latter characteristic may be of some importance when considering possible justifications for restricting the right to be heard before the adoption of an adverse decision.
66. Thus, in that judgment, the Court held that the imposition of a penalty without prior notice or the opportunity to be heard before the penalty is imposed does not appear to impair the core of the fundamental right at issue, since the submission of a reasoned objection agai nst the decision imposing the penalty renders that decision immediately inoperable and triggers an ordinary procedure under which there is a right to be heard ( Texdata Software , EU:C:2013:588, paragraph 85).
67. However, it cannot be inferred from the case-law cited in the previous paragraph that, in the absence of a hearing before the adoption of a demand for payment, the lodging of an objection or administrative appeal against that demand for payment must necessarily have the effect of automatically suspending implementation of the demand for payment in order to ensure observance of the right to be heard in connection with that objection or appeal.
68. Having regard to the general interest of the European Union in recovering its own revenue as soon as possible, noted in paragraph 54 above, the second subparagraph 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 disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.
69. It should be recalled that the Court has consistently held that provisions of European Union 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 (see, to that effect, judgment in Österreichischer Rundfunk and Others , C‑465/00, C‑138/01 and C‑139/01, EU:C:2003:294, paragraph 68, and Google Spain and Google , C‑131/12, EU:C:2014:317, paragraph 68).
70. In such circumstances, the national provisions implementing the conditions laid down by the second subparagraph of Article 244 of the Customs Code for the grant of suspension of implementation should, in the absence of a prior hearing, ensure that those conditions, namely the existence of good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned, are not applied or interpreted restrictively.
75. In that regard, it should be noted at the outset that the Court has previously stated that, where neither the conditions under which observance of the rights of the defence is to be ensured nor the consequences of the infringement of those rights are laid down by European Union law, those conditions and consequences are governed by national law, provided that the rules adopted to that effect are the same as those to which individuals in comparable situations under national law are subject (principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (principle of effectiveness) (see G and R , EU:C:2013:533, paragraph 35 and the case-law cited).
77. None the less, while the Member States may allow the exercise of the rights of the defence under the same rules as those governing internal situations, those rules must comply with European Union law and, in particular, must not undermine the effectiveness of the Customs Code ( G and R , EU:C:2013:533, paragraph 36).
78. As indicated by the Commission, the obligation of the national court to ensure that European Union law is fully effective does not have the effect of requiring that a disputed decision, because it has been adopted in infringement of the rights of the defence, in particular the right to be heard, must be annulled in all cases.
79. According to European Union law, an infringement of the rights of the defence, in particular the right to be heard, results in the annulment of the decision taken at the end of the administrative procedure at issue only if, had it not been for such an irregularity, the outcome of the procedure might have been different (see, to that effect, France  v Commission , C‑301/87, EU:C:1990:67, paragraph 31; Germany  v Commission , C‑288/96, EU:C:2000:537, paragraph 101; Foshan Shunde Yongjian Housewares & Hardware  v Council , C‑141/08 P, EU:C:2009:598, paragraph 94; and G and R , EU:C:2013:533, paragraph 38).