Valsts ieņēmumu dienests v "Veloserviss” SIA.
Date: 2015-12-10
14. In that context, the tax authority begins by stating, according to the Augstākās tiesas Administratīvo lietu departaments (Administrative Chamber of the Supreme Court), that the Administratīvā apgabaltiesa (Regional Administrative Court) did not take into account the fact that, when the tax authority first conducted the examination of the customs declaration filed by Veloserviss, it did not have the communication from OLAF and, accordingly, it was not in a position to find that the submitted certificate of origin was incorrect. Next, it maintains that the Administratīvā apgabaltiesa (Regional Administrative Court) did not take into consideration the fact that Article 78(3) of the Customs Code is lex specialis  in relation to Article 23(1) of the Latvian Law on duties and taxes. Lastly, it asserts that the Court of Justice, in paragraph 40 of the judgment in Greencarrier Freight Services Latvia  (C‑571/12, EU:C:2014:102), stated that the customs authorities may communicate a new customs debt within a period of three years from the date on which that debt was incurred and that, consequently, the tax authority could supplement the original examination decision.
19. It is, moreover, clear from both Article 1 of the Customs Code, according to which the EU customs rules also consist of the provisions adopted at national level to implement it, and from the Court’s case-law, that whilst the Member States retain the power to provide for procedural rules in the scope of the Customs Code, they must also ensure that they comply with the Customs Code and, more generally, the requirements and relevant principles of EU law (see, by analogy, inter alia, judgment in CIVAD , C‑533/10, EU:C:2012:347, paragraph 23; order in Saupiquet  v Commission , C‑37/12 P, EU:C:2013:96, paragraph 39; and judgment in Kamino International Logistics and Datema Hellmann Worldwide Logistics , C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 77).
21. In order to determine, more specifically, whether or to what extent a Member State may provide for restrictions in that regard, it should be borne in mind, first of all, that Article 78 of the Customs Code introduces a procedure enabling the customs authorities, if necessary on their own initiative, to make a post-clearance amendment to the customs declaration, that is to say, after release of the goods covered by that declaration (see, to that effect, judgments in Overland Footwear , C‑468/03, EU:C:2005:624, paragraphs 62, 64 and 66, and Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraph 28).
22. To that end, those authorities may, under Article 78(1) of the Customs Code, amend the customs declaration, that is to say re-examine it (judgment in Overland Footwear , C‑468/03, EU:C:2005:624, paragraph 45).
23. Alternatively, under Article 78(2) of the Customs Code, the customs authorities may, in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the relevant documents and data and, depending on the circumstances, inspect the goods concerned (see, to that effect, judgment in Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraph 29).
24. If that re-examination or inspection indicates that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information, that is to say, that there were material errors or omissions, or errors of interpretation of the applicable law, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them (see, to that effect, judgment in Terex Equipment and Others , C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 62).
25. In that regard, the wording of Article 78 of the Customs Code does not contain any restrictions on customs authorities’ being able to amend or conduct a post-clearance examination within the meaning of Article 78(1) and (2) or on their being able to take the measures necessary to regularise the situation as provided for in Article 78(3).
26. Both the very purpose of the Customs Code, as stated inter alia in recital 5 in the preamble thereto, as being to ensure the correct application of the duties provided for therein (see, to that effect, judgment in Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraph 32), and the specific logic of Article 78 thereof, which is to bring the customs procedure into line with the actual situation by correcting material errors or omissions as well as errors of interpretation of the applicable law (see judgments in Terex Equipment and Others , C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 56, and Südzucker and Others , C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 47), weigh against an interpretation of that article which would preclude generally the customs authorities from amending or conducting other post-clearance examinations of customs declarations in order to regularise the situation.
27. Furthermore, it follows from settled case-law that customs authorities enjoy broad discretion in amending or conducting post-clearance examinations inter alia with a view to achieving those objectives (see, to that effect, judgments in Südzucker and Others , C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraphs 48 and 50, and also Digitalnet and Others , C‑320/11, C‑330/11, C‑382/11 and C‑383/11, EU:C:2012:745, paragraph 66).
28. It follows that Article 78(3) of the Customs Code must be interpreted as meaning that, within the framework of the obligations it imposes on the customs authorities, as a rule it allows those authorities to revise or conduct a post-clearance examination of a customs declaration and to regularise the situation by fixing a new customs debt.
30. It must be recalled that the principles of legal certainty and protection of legitimate expectations form part of the EU legal order and, as such, must be observed not only by the EU institutions but also by Member States in the exercise of the powers conferred on them by EU rules (see, to that effect, inter alia, judgments in Netto Supermarkt , C‑271/06, EU:C:2008:105, paragraph 18, and Plantanol , C‑201/08, EU:C:2009:539, paragraph 43).
31. First of all, according to the Court’s settled case-law, the principle of the protection of legal certainty is aimed at ensuring foreseeability of situations and legal relations and requires, inter alia, that the tax position of the taxable person, having regard to his rights and obligations vis-à-vis the tax or customs authorities, not to be open to challenge indefinitely (see, to that effect, inter alia, judgments in Alstom Power Hydro , C‑472/08, EU:C:2010:32, paragraph 16, and Elsacom , C‑294/11, EU:C:2012:382, paragraph 29).
32. The Court has held consistently that laying down reasonable time-limits for bringing proceedings, under either national law or EU law, serves the interests of legal certainty which protects both the individual and the authorities concerned; such time-limits are not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by EU law (see, to that effect, judgments in Barth , C‑542/08, EU:C:2010:193, paragraph 28, and CIVAD , C‑533/10, EU:C:2012:347, paragraph 23).
34. However, although Article 78 of the Customs Code does not institute any specific time-limit in this respect, the customs authorities, in accordance with Article 221(3) thereof, may communicate a new customs debt within a period of three years from the date on which that debt was incurred (see judgment in Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraph 40).
35. Once that period has expired, the debt is time-barred and, consequently, extinguished within the meaning of Article 233 of the Customs Code (see judgment in Direct Parcel Distribution Belgium , C‑264/08, EU:C:2010:43, paragraph 43).
36. Given that once the three-year time-limit from the time the customs debt was incurred has expired, it is no longer possible to communicate a new customs debt and thus regularise the situation arising from a revision or post-clearance examination within the meaning of Article 78(3) of the Customs Code, the principle of legal certainty requires that Member States must be free to limit the use of the procedure provided for under that provision after expiry of the three-year period as from the date on which the initial customs debt was incurred, inter alia by imposing a time-limit on revision (see, to that effect, judgment in Greencarrier Freight Services Latvia , C‑571/12, EU:C:2014:102, paragraphs 40 and 41).
39. Secondly, as to the principle of the protection of legitimate expectations, it is clear from the Court’s settled case-law that any economic operator on whose part the national authorities have promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. However, where a prudent and circumspect economic operator could have foreseen that the adoption of a measure is likely to affect his interests, he cannot plead that principle if the measure is adopted. Furthermore, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the national authorities in the exercise of their discretionary power will be maintained (see, inter alia, judgment in Plantanol , C‑201/08, EU:C:2009:539, paragraph 53).
40. Regarding the issue whether a taxable person may rely on the principle of legitimate expectations in the event of a revision or post-clearance examination and the fixing of the relevant customs debt, it is clear from the Court’s case-law that that taxable person may not base a legitimate expectation that certificates are valid by virtue of having been initially accepted by the customs authorities of a Member State, given that the role of those authorities in an initial acceptance of declarations does not preclude subsequent examinations from being conducted or prevent the consequences which may result from those examinations (see, to that effect, judgments in Van Gend & Loos and Expeditiebedrijf Bosman  v Commission , 98/83 and 230/83, EU:C:1984:342, paragraph 20, and Faroe Seafood and Others , C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 93).
41. During the three-year period which runs from the time when the initial customs debt referred to in paragraph 34 above is incurred, a taxable person must, as an economic operator, accept the risk and make the necessary arrangements in order to guard against the risks of the customs authorities revising their decision on the customs debt in the light of new information in their possession following examinations (see, to that effect, judgment in Lagura Vermögensverwaltung , C‑438/11, EU:C:2012:703, paragraph 30).
43. Thirdly, it should be observed that the taxable person always has the option of objecting to post-clearance imposition of customs duties under the specific and cumulative conditions laid down in Article 220(2)(b) of the Customs Code, the objective of which is the protection of the taxable person’s legitimate expectations as to the soundness of the factors figuring in the decision to recover or not recover the customs duties (see judgment in Agrover , C‑173/06, EU:C:2007:612, paragraphs 30 and 31).
44. According to the Court’s consistent case-law, moreover, the taxable person’s legitimate expectations attract the protection provided for in that article only if it was the competent authorities ‘themselves’ which created the basis for those expectations. Thus, only errors attributable to acts of the competent authorities create entitlement to the waiver of subsequent recovery of customs duties (see, to that effect, judgments in Mecanarte , C‑348/89, EU:C:1991:278, paragraphs 19 and 23, and Agrover , C‑173/06, EU:C:2007:612, paragraph 31).