1. This request for a preliminary ruling concerns the interpretation of Article 78(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’).
2. The request has been made in proceedings between the Valsts ieņēmumu dienests (the Latvian tax authority) (‘the tax authority’) and ‘Veloserviss’ SIA (‘Veloserviss’) concerning the charging of import duties and value added tax (VAT), together with interest for late payment, during a post-clearance examination of a customs declaration. Legal context EU law
3. Article 78 of the Customs Code, entitled ‘Post-clearance examination of declarations’, provides: ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. 2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced. 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’
4. Under Article 221(1), (3) and (4) of the Customs Code: ‘1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures. ... 3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. ... 4. Where the customs debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three-year period referred to in paragraph 3.’ Latvian law
5. Article 23(1) of the Latvian Law on duties and taxes provides: ‘The tax authority shall establish or specify, after the tax inspection, the amounts which must be stated in the mandatory sections of the disclosure statements and tax returns, the income which is taxable (or losses) and the tax assessment (or the rate), on the basis of the tax legislation, and shall impose fines within three years following expiry of the period for payment fixed in the legislation. If a tax inspection has been carried out for the corresponding tax year relating to a specific tax, an element of a tax return, a rate or any other levy provided for by statute for the tax period in question, the decision on that inspection will be final and may be reviewed only if criminal proceedings are initiated for fraud, falsification of documents or evasion of payment of taxes or similar charges or for other offences which may affect the determination of the tax owing.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
6. On 17 May 2007, Veloserviss imported into the European Union bicycles originating in Cambodia, for release for free circulation. In accordance with the certificate of origin issued by the Cambodian Government on 16 February 2007, Veloserviss paid neither custom duties nor VAT.
7. In 2008 the tax authority undertook an initial examination relating to the period when the bicycles at issue were imported, and found that there was no irregularity in relation to them. Veloserviss complied with the decision made after that.
8. In 2010, the tax authority received information from the European Anti-Fraud Office (OLAF) to the effect that the certificate of origin issued by the Cambodian Government in respect of the goods in question did not comply with the requirements of EU law.
9. On the basis of that information, the tax authority conducted a second post-clearance examination of the single administrative document completed by Veloserviss, and found that customs duties exemptions had been unduly granted in respect of those goods.
10. Consequently, by decision of 23 July 2010, the tax authority ordered Veloserviss to pay the relevant customs duties and VAT, together with interest for late payment.
11. Veloserviss subsequently brought an action for annulment of that decision.
12. After examination of the case on appeal, the Administratīvā apgabaltiesa (Regional Administrative Court) upheld the annulment of the decision of 23 July 2010 by its judgment of 27 March 2014, considering inter alia that, under Article 23(1) of the Latvian Law on duties and taxes, the tax authority was not empowered to conduct a fresh post-clearance examination of the declared goods in question, as the first examination had given rise to a legitimate expectation on the part of Veloserviss and Veloserviss had complied with all requirements relating to the filing of the customs declaration, in that it could not objectively know that the competent Cambodian authority had issued an incorrect certificate. Consequently, Veloserviss had acted in good faith.
13. The tax authority appealed against that judgment before the referring court.
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.
15. The referring court observes in that regard that, whilst Latvian law restricts the possibility of conducting repeated tax inspections, Article 78(3) of the Customs Code provides for a general right for customs authorities to conduct post-clearance examinations and to prevent non-compliance with customs duty payment obligations, although it does not limit the possibility of conducting repeated examinations. Those rights must however be exercised with due regard for the general principles of administrative proceedings, including the rules and provisions of national law. There are accordingly doubts surrounding the interpretation of Article 78(3) of the Customs Code, which is a decisive provision for the outcome of the present dispute.
16. In those circumstances, the Augstākās tiesas Administratīvo lietu departaments (Administrative Chamber of the Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Should Article 78(3) of [the Customs Code] be interpreted as meaning that the principle of the protection of legitimate expectations limits the possibility of undertaking for a second time a post-clearance examination and revising the results of the first post-clearance examination? (2) May the national law of a Member State establish the procedure for the undertaking of post-clearance examinations provided for in Article 78(3) of [the Customs Code] and limits on the revision of the results of those examinations? (3) Should Article 78(3) of [the Customs Code] be interpreted as meaning that national legislation may legitimately contain limitations on the revision of the results of a first post-clearance examination, if information is received indicating that the provisions governing the customs procedure were applied on the basis of incorrect and incomplete information, a matter which was not known at the time of adopting the decision on the first post-clearance examination?’ Consideration of the questions referred
17. By its questions, which it is appropriate to consider together, the referring court asks, in essence, whether and to what extent Article 78(3) of the Customs Code must be interpreted as precluding national rules, such as those at issue in the main proceedings, which limit the possibility for customs authorities to undertake for a second time a post-clearance examination and to regularise the situation by fixing a new customs debt where: (i) the competent tax authority receives information indicating that the provisions governing the customs procedure were applied on the basis of incorrect or incomplete information, and (ii) that information was not known at the time of adopting the decision on the first post-clearance examination.
18. In order to answer that question, it should be observed, as a preliminary point, that Article 78(3) of the Customs Code states that the customs authorities are to take the measures referred to therein ‘in accordance with any provisions laid down’.
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).
20. Thus, subject to that proviso, the Member States in principle retain jurisdiction to adopt rules governing post-clearance examinations as provided for in Article 78(3) of the Customs Code.
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.
29. However, when customs authorities revise customs declarations and take the measures necessary in order to regularise the situation, they must comply with the relevant requirements under general principles of EU law, including those deriving from the principle of legal certainty and its corollary, the principle of the protection of legitimate expectations.
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).
33. Accordingly, as Article 78 of the Customs Code does not lay down any time-limit for post-clearance examination of customs declarations, under the general principle of legal certainty the Member States are free to make that procedure subject to a reasonable time-limit.
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).
37. During that three-year period, however, a Member State’s national rules must, as observed in paragraphs 25 to 28 above, allow the customs authorities once again to take measures to restore the situation arising from a revision or post-clearance examination under Article 78(3) of the Customs Code, inter alia by amending the customs debt. It must, moreover, be possible take such a measure even after expiry of that period in a situation where a customs debt is the result, within the meaning of Article 221(4) of the Customs Code, of an act which, on the date it was committed, could give rise to criminal court proceedings, which it is for the referring court to verify.
38. A fortiori - and in situations other than as just referred to - amendments and post-clearance examinations as provided for in Article 78(1) and (2) which are carried out repeatedly should be considered consistent with the principle of legal certainty, at the very least during the three-year period from the time the customs debt was incurred, since, as observed by the Commission, revisions and post-clearance examinations do not necessarily affect the legal position of the taxable person concerned.
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).
42. It follows that the principle of the protection of legitimate expectations does not generally preclude the customs authorities from subsequently revising or conducting post-clearance examinations and regularising the situation as provided for in Article 78(3) of the Customs Code.
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).
45. Nevertheless, subject to verification by the referring court, that does not seem to be the case in the case in the main proceedings, given that, inter alia, the facts as described by that court indicate that the re-examination was carried out following the provision of information about the certificate of origin, gleaned from an OLAF report, which was not known to the customs authorities on the date of adoption of the decision on the initial post-clearance examination.
46. In the light of all the foregoing considerations, the answer to the questions referred is that Article 78(3) of the Customs Code must be interpreted as precluding national rules, such as those at issue in the main proceedings, under which a restriction is placed on the customs authorities’ powers to conduct re-examinations or post-clearance examinations and to regularise the situation by fixing a new customs debt, provided that that restriction refers to a three-year period from the time the initial customs debt was incurred, which it is for the national court to verify. Costs
47. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.