Prequ' Italia Srl v Agenzia delle Dogane e dei Monopoli.
Date: 2017-12-20
37


In that regard, it should be noted that, according to settled case-law, the procedure set out in Article 267 TFEU is an instrument of cooperation between the Court and the national courts, which gives the latter the responsibility to determine, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court (judgment of 12 October 2017, Kubicka, C‑218/16, EU:C:2017:755, paragraph 31 and the case-law cited).
38


Although the order for reference must, on pain of being declared inadmissible, comply with the requirements set out in Article 94 of the Rules of Procedure of the Court (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraphs 18, 19 and 21), the refusal to rule on a question referred for a preliminary ruling by a national court is however possible only where it is manifestly clear that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give a useful answer to the questions submitted to it (judgment of 12 October 2017, Kubicka, C‑218/16, EU:C:2017:755, paragraph 32 and the case-law cited).
45


In that regard, it should be noted that, according to settled case-law, observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 28 and the case-law cited).
46


In accordance with that principle, which applies where the authorities are minded to adopt a measure which will adversely affect an individual, 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 (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 30 and the case-law cited).
47


The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of EU law, even though the legislation applicable does not expressly provide for such a procedural requirement (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 38, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 31).
49


The Court has noted, in that regard, that the purpose of the rule that the addressee of an adverse decision must be placed in a position to submit his observations before that 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 (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 49, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 38).
50


However, according to settled case-law, the general principle of EU law of respect for the rights of the defence is not an unfettered prerogative but may be restricted, provided that the restrictions in fact correspond to objectives of public interest pursued by the measure in question and do not constitute, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed (see, to that effect, judgments of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 42, and of 9 November 2017, Ispas, C‑298/16, EU:C:2017:843, paragraph 35).
51


The Court has already acknowledged that the general interest of the European Union, and 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 (see, to that effect, judgments of 18 December 2008, Sopropé, C‑349/07, EU:C:2008:746, paragraph 41, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 54).
55


As is apparent from the Court’s case-law, such a fact may be of some importance when considering possible justifications for restricting the right to be heard before the adoption of an adverse decision (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 65).
56


However, in the absence of a hearing prior to the adoption of a demand for payment, the lodging of an objection or administrative appeal against that demand for payment should not 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 (judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 67).
58


As regards the customs recovery decisions, it is as a result of the general interest of the European Union in recovering its own revenue as soon as possible that the second paragraph 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 contested decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 68).
59


Since the provisions of EU 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, the national provisions implementing the conditions provided for in the second paragraph of Article 244 of the Customs Code for the grant of suspension of implementation must, in the absence of a prior hearing, ensure that those conditions are not applied or interpreted restrictively (see, to that effect, judgment of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 69 and 70).
62


In any event, it must be pointed out that the obligation of the national court to ensure the full effectiveness of EU law does not always result in the annulment of a contested decision, where the latter was adopted in infringement of the rights of the defence. According to settled case-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 (judgments of 10 September 2013, G. and R., C‑383/13 PPU, EU:C:2013:533, paragraph 38, and of 3 July 2014, Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraphs 78 and 79).