Fazenda Pública - Director Geral das Alfândegas v ZF Zefeser - Importação e Exportação de Produtos Alimentares Lda.
Date: 2007-12-18
14. In this regard, it must be noted that, although in the light of the division of responsibilities in the preliminary ruling procedure, the referring court alone can determine the subject-matter of the questions it proposes to refer to the Court, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction.
15. Such is the case, in particular, where the problem referred to the Court is purely hypothetical (see, to that effect, inter alia, Case C‑379/98 PreussenElektra  [2001] ECR I‑2099, paragraph 39; Case C‑390/99 Canal Satélite Digital  [2002] ECR I‑607, paragraph 19; and Case C‑380/01 Schneider  [2004] ECR I‑1389, paragraph 22). The spirit of cooperation which must prevail in the preliminary ruling procedure requires the national court to have regard to the function entrusted to the Court of Justice, which is to assist in the administration of justice in the Member States and not to deliver advisory opinions on general or hypothetical questions ( Schneider , paragraph 23, and Case C‑165/03 Längst  [2005] ECR I‑5637, paragraph 33).
22. It is therefore clear from the wording of that provision that the authorities which are competent to classify an act as ‘an act that could give rise to criminal court proceedings’ are those authorities which, owing to the commission of such an act, were unable to collect customs duties due and are thus seeking to recover those duties post-clearance. As is provided, inter alia, in Article 2(1) of Regulation No 1697/79, it is clear that it is for the customs authorities of the Member States to determine the amount of those duties and to bring an action for their recovery (see, to that effect, Case C‑273/90 Meico-Fell  [1991] ECR I‑5569, paragraph 11, and Joined Cases C‑153/94 and C‑204/94 Faroe Seafood and Others  [1996] ECR I‑2465, paragraph 16).
26. Consequently, for the purposes of applying Article 3, classification of an act as ‘an act that could give rise to criminal court proceedings’ within the meaning of the first paragraph of that article falls within the competence of the customs authorities required to determine the exact amount of the import duties or export duties in question.
28. 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 (see, to that effect, Meico-Fell , paragraph 9). As is clear from recitals one and two in the preamble to Regulation No 1697/79, 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.
29. Such classification is, naturally, without prejudice to the review which the courts of the Member States may carry out in respect of the decisions of the customs authorities and cannot impose any restriction on all the consequences, including those which relate to any reimbursement of duties improperly levied by those authorities, which, pursuant to national law, may flow from the decisions of those courts, in particular, of those ordering dismissal of the charges or the acquittal of the accused.
30. Accordingly, in the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to lay down the conditions enabling persons liable to payment to contest the application of the exception under Article 3 of Regulation No 1697/79 in relation to the limitation on actions for recovery of duties not collected and to request, in that respect, that consequences may be drawn from rulings in court proceedings, provided that those conditions are not less favourable than those governing similar domestic actions and that they do not render practically impossible the exercise of rights conferred by Community law (see, by analogy, inter alia, Case 811/79 Ariete [1980] ECR 2545, paragraph 12, Case C‑63/01 Evans  [2003] ECR I‑14447, paragraphs 75 and 76, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others  [2006] ECR I‑6619, paragraphs 62 and 77).