Gilbert Snauwaert and Others (C-124/08) and Géry Deschaumes (C-125/08) v Belgische Staat.
Date: 2009-07-16
15. In that connection, it should be pointed out that it is settled case-law that the need to provide an interpretation of Community law which will be of use to the referring court makes it necessary that the referring court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Case C-67/96 Albany [1999] ECR I‑5751, paragraph 39; Joined Cases C-51/96 and C-191/97 Deliège  [2000] ECR I‑2549, paragraph 30; and Case C-506/04 Wilson  [2006] ECR I‑8613, paragraph 38).
16. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court’s duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (see, inter alia, Albany , paragraph 40; Case C-145/03 Keller [2005] ECR I‑2529, paragraph 30; and Wilson , paragraph 39).
21. In that connection, it is sufficient to point out that it follows from the wording of Article 221(1) of the customs code that entry in the accounts, which, pursuant to Article 217(1) of the code, consists in entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import or export duty (Case C-201/04 Molenbergnatie  [2006] ECR I‑2049, paragraph 46).
22. Such a chronological order in the procedure for entry in the accounts and communication of the amount of duty, which is affirmed in the very heading of Section 1 of Chapter 3 of Title VII of the customs code (‘Entry in the accounts and communication of the amount of duty to the debtor’), must be observed if there are not to be differences in treatment as between the persons liable and if, moreover, the smooth operation of the customs union is not to be prejudiced ( Molenbergnatie , paragraph 47).
23. Consequently, the answer to the first question in Case C-124/08 and to the question in Case C-125/08 is that Article 221(1) of the customs code must be interpreted as meaning that the amount of import and export duty due may be validly communicated to the debtor by the customs authorities in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities.
The second question in Case C-124/08
25. First of all, it should be recalled that the expression ‘an act that could give rise to criminal court proceedings’ used in Article 221(3) of the customs code means acts which, under the legal system of the Member State whose competent authorities are seeking the post-clearance recovery of duties, may be classified as offences under national criminal law (see by analogy, in relation to Article 3 of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1), Case C‑273/90 Meico-Fell  [1991] ECR I‑5569, paragraph 9).
26. The Court has also had occasion to make it clear that classification by the customs authorities of an act as ‘an act that could give rise to criminal court proceedings’ does not constitute a finding that an infringement of criminal law has actually been committed. That classification is made only in the context and for the purposes of an administrative procedure whose sole purpose is to enable those authorities to make good incorrect or insufficient collection of import or export duties (see by analogy, in relation to Article 3 of Regulation No 1697/79, Case C‑62/06 ZF Zefeser [2007] ECR I‑11995, paragraph 28).
28. Second, it should be noted that the first sentence of Article 221(3) lays down a limitation rule whereby that communication is not to take place after the expiry of a period of three years from the date on which the customs debt was incurred.
29. As an exception to that rule, the second sentence of Article 221(3) stipulates that the customs authorities may, in so far as the provisions in force so allow, make such communication after the expiry of that period, where the customs authorities were unable, as a result of an act that could give rise to criminal court proceedings, to determine the exact amount of duty legally due.