Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna.
Date: 2011-03-31
24. In that regard, it is sufficient to point out that, in accordance with settled case-law, the Court has jurisdiction to rule on questions referred by the national court even where the facts of the proceedings before that court fall outside the scope of EU law, provided that, in regulating situations not covered by EU law, the domestic legislation has adopted the same solutions as those adopted under EU law. The Court has consistently held that the legal order of the European Union clearly has an interest in ensuring that, in order to forestall future divergences of interpretation, every provision of EU law is interpreted uniformly, irrespective of the circumstances in which that provision is to apply (see, to that effect, inter alia, Case C‑130/95 Giloy  [1997] ECR I‑4291, paragraphs 19 to 28; Case C‑267/99 Adam  [2001] ECR I‑7467, paragraphs 23 to 29; Case C‑43/00 Andersen og Jensen  [2002] ECR I‑379, paragraphs 15 to 19; Case C‑3/04 Poseidon Chartering  [2006] ECR I‑2505, paragraphs 14 to 19; and Case C-205/09 Eredics and Sápi  [2010] ECR I-0000, paragraph 33).
26. By its first question, the national court is essentially asking whether Article 232(1)(b) of the Customs Code is to be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid.
27. In that regard, it should be noted that, according to the actual wording of Article 232(1)(b) of the Customs Code, interest on arrears is to be charged over and above the amount of duty ‘where the amount of duty has not been paid within the prescribed period’.
28. As a consequence, the collection of interest on arrears is conditional upon failure to pay the duty by the deadline set and such collection may not be made where the debtor has paid the customs debt within the time allowed.
29. Interest on arrears is thus intended to offset the consequences arising as a result of the payment not having been made by the deadline set and, in particular, to prevent the person who owes the customs debt from taking unfair advantage of the fact that the amounts owing by way of customs debt remain available to him beyond the deadline set for its settlement. It is against that background that Article 232(1)(b) of the Customs Code provides that the rate of interest on arrears cannot be lower than the rate of credit interest.
30. That interpretation, both literal and teleological, is confirmed by the broad logic of Article 232 of the Customs Code, in that Article 232(2)(c) provides that the customs authorities may waive collection of interest on arrears if the duty is paid within five days of the expiry of the period prescribed for payment.
31. The fact that payment of the customs debt in the five days following the deadline entitles the authorities to waive the interest on arrears necessarily means that that deadline must also be the starting point for calculating that interest.
32. Consequently, in accordance with Article 232(1)(b) of the Customs Code, interest on arrears may be charged only in respect of the period falling after the deadline for payment of the customs debt, since it is not the role of that provision either to prevent the financial losses sustained by the customs authorities or to compensate for the advantages accruing to traders because of the delay, brought about by the behaviour of those traders, before the customs debt is entered in the accounts for the purposes of the Customs Code and before the amount of the debt, or the debtor owing the debt, is determined.
33. Where the customs debt is incurred on the basis of Articles 202 to 205 and Articles 210, 211 and 220 of the Customs Code, all of which concern situations involving breach by the trader concerned of the EU customs legislation, neither the Customs Code nor the implementing regulation provides for specific measures, such as an increase in the customs duty corresponding to the amount which would have been incurred by way of interest on arrears for the period falling between the date on which the customs debt was incurred and the date of its entry in the accounts, or between the date on which the customs debt originally entered in the accounts fell due and the date on which it was subsequently entered in the accounts (see, to that effect, Case C‑91/02 Hannl-Hofstetter  [2003] ECR I‑12077, paragraphs 19 and 23).
34. Accordingly, in the light of the foregoing considerations, the answer to the first question is that Article 232(1)(b) of the Customs Code must be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid.
The second question
41. In that regard, it should be borne in mind that, as regards customs offences, the Court has pointed out that, in the absence of harmonisation of EU legislation in that field, the Member States are competent to choose the penalties which seem appropriate to them. They must, however, exercise that competence in accordance with EU law and its general principles (see Case C-213/99 de Andrade [2000] ECR I‑11083, paragraph 20, and Hannl-Hofstetter , paragraph 18).
42. Those principles include the principle of the legality of criminal offences and penalties (see Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 46). That principle implies that legislation must define clearly offences and the penalties which they attract. That requirement is satisfied where the individual concerned is able, on the basis of the wording of the relevant provision and, if need be, with the help of the interpretative guidance given by the courts, to know which acts or omissions will make him criminally liable (see Advocaten voor de Wereld , paragraph 50, and judgment of 22 May 2008 in Case C-266/06 P Evonik Degussa v Commission  [2008], not published in the ECR, paragraph 39).