1 This request for a preliminary ruling concerns the validity of Article 172(1) and (2) of Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1).
2 The request has been made in proceedings between Siegfried PharmaChemikalien Minden GmbH (‘Siegfried Pharma’) and the Hauptzollamt Bielefeld (Main Customs Office, Bielefeld, Germany) (‘the Main Customs Office’) concerning an application for a retroactive inward processing authorisation.
3 Recital 39 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Customs Code’) states: ‘In order to protect the financial interests of the [European] Union and of the Member States and to supplement the rules concerning the customs debt and the guarantees, the power to adopt delegated acts in accordance with Article 290 TFEU should be delegated to the [European] Commission in respect of the place of incurrence of the customs debt, the calculation of the amount of import and export duty, the guarantee of that amount and the recovery, repayment, remission and extinguishment of the customs debt.’
4 It follows from Article 5(2)(a) of the Customs Code that ‘customs legislation’ includes inter alia ‘[that code] and the provisions supplementing or implementing it adopted at Union or national level’.
5 Section 3 of Chapter 2 of Title I of the Customs Code, entitled ‘Decisions relating to the application of the customs legislation’, contains Article 22 of that code, paragraphs 2 and 4 of which provide: ‘2. Customs authorities shall, without delay and at the latest within 30 days of receipt of the application for a decision, verify whether the conditions for the acceptance of that application are fulfilled. Where the customs authorities establish that the application contains all the information required in order for them to be able to take the decision, they shall communicate its acceptance to the applicant within the period specified in the first subparagraph. … 4. Except where otherwise specified in the decision or in the customs legislation, the decision shall take effect from the date on which the applicant receives it, or is deemed to have received it. …’
6 Article 24 of the Customs Code provides: ‘The Commission shall be empowered to adopt delegated acts in accordance with Article 284, in order to determine: … (d) the cases, referred to in Article 22(4), where the decision takes effect from a date which is different from the date on which the applicant receives it or is deemed to have received it; …’
7 Article 211 of that code states: ‘1. An authorisation from the customs authorities shall be required for the following: (a) the use of the inward or outward processing procedure, the temporary admission procedure or the end-use procedure; … 2. The customs authorities shall grant an authorisation with retroactive effect, where all of the following conditions are fulfilled: (a) there is a proven economic need; … (e) no authorisation with retroactive effect has been granted to the applicant within three years of the date on which the application was accepted; … (h) where an application concerns renewal of an authorisation for the same kind of operation and goods, the application is submitted within three years of expiry of the original authorisation. …’
8 Article 212 of that code is worded as follows: ‘The Commission shall be empowered to adopt delegated acts, in accordance with Article 284, in order to determine: (a) the conditions for granting the authorisation for the procedures referred to in Article 211(1); …’
9 Article 284 of the Customs Code, entitled ‘Exercise of the delegation’, confers on the Commission the power to adopt, in particular, the delegated acts referred to in Articles 24 and 212 of that code and specifies the conditions for exercising that delegation.
10 Recitals 1 and 14 of Delegated Regulation 2015/2446 state: ‘(1) [The Customs Code], in its consistency with [the FEU Treaty], delegates on the Commission the power to supplement certain non-essential elements of [that code], in accordance with Article 290 TFEU. … … (14) In certain cases a decision should take effect from a date which is different from the date on which the applicant receives it or is deemed to have received it, namely when the applicant has requested a different date of effect or the effect of the decision is conditional to the completion of certain formalities by the applicant. Those cases should be thoroughly identified, for the sake of clarity and legal certainty.’
11 Article 172 of that delegated regulation, entitled ‘Retroactive effect’, provides: ‘1. Where the customs authorities grant an authorisation with retroactive effect in accordance with Article 211(2) of [the Customs Code], the authorisation shall take effect at the earliest on the date of acceptance of the application. 2. In exceptional circumstances, the customs authorities may allow an authorisation referred to in paragraph 1 to take effect at the earliest one year, in case of goods covered by Annex 71-02 three months, before the date of acceptance of the application. …’
12 In November 2018, Siegfried Pharma submitted an application to the Main Customs Office for an authorisation for inward processing, pursuant to Article 211(1)(a) of the Customs Code, for goods imported from China. That application did not contain all the information and documents required, which was pointed out to Siegfried Pharma by the Main Customs Office. Siegfried Pharma did not immediately complete its application and, until 18 July 2019, declared goods for release for free circulation. As such, it paid customs duties amounting to EUR 1 173 497.14.
13 On 12 April 2021, Siegfried Pharma applied to the Main Customs Office to be issued with an inward processing authorisation with retroactive effect, pursuant to Article 211(2) of the Customs Code, for the goods it had imported from China, referring to its previous application. In doing so, it sought to eliminate, retrospectively, the economic disadvantages suffered as a result of the payment of those customs duties. By a decision of 11 July 2021, the Main Customs Office rejected Siegfried Pharma’s application on the grounds that it had still not provided all the necessary documentation. Moreover, that company had not demonstrated the existence of an economic need within the meaning of Article 211(2)(a) of that code.
14 Siegfried Pharma lodged a complaint against that decision, arguing that the condition relating to economic need, laid down in the latter provision, was fulfilled and that the Commission had exceeded its powers by limiting in time the retroactive effect of such an authorisation in Article 172 of Delegated Regulation 2015/2446. There was no provision empowering the Commission to adopt that article and, in any event, it had exceeded the legal framework defined in Article 211(2) of the Customs Code.
15 The Main Customs Office rejected that complaint in a decision dated 26 July 2023, and Siegfried Pharma has challenged that decision before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany), which is the referring court. That court finds that, pursuant to Article 172(1) and (2) of Delegated Regulation 2015/2446 (‘the contested provision’), the granting of a retroactive authorisation to Siegfried Pharma under Article 211(2) of the Customs Code would not result in the extinguishment of that company’s customs debt. The application for an inward processing authorisation was accepted, within the meaning of Article 22(2) of that code, by the Main Customs Office only on 14 July 2021, and the last importation subject to customs duties took place in 2019, more than one year before the date of acceptance of that application.
16 That court expresses doubts as to the validity of the contested provision on the ground that the Commission was not empowered to adopt provisions limiting retroactive authorisations in time. It notes that the Commission relied on Article 24(d) of the Customs Code in adopting the contested provision. It also notes that, under Article 212(a) of that code, the Commission is empowered to adopt delegated acts to determine the conditions for granting the authorisation for the procedures referred to in paragraph 1 of Article 211 thereof, namely - in particular - the inward processing procedure. By contrast, Article 212(a) of that code does not expressly refer to paragraph 2 of Article 211 thereof, which specifically concerns authorisations with retroactive effect.
17 The referring court considers that the respective wordings of Article 24(d) and Article 212(a) of the Customs Code do not make it possible to determine whether the Commission may adopt acts which ‘supplement’ the non-essential elements of the Customs Code or acts which ‘amend’ them, within the meaning of the first subparagraph of Article 290(1) TFEU.
18 That court further notes that Article 211(2) of that code does not lay down any time limits concerning the retroactive effect of authorisations, which would suggest that the contested provision could not introduce such limits. Furthermore, the time frame could constitute an ‘essential element’ of EU customs law, meaning that it could not be delegated, in accordance with the second subparagraph of Article 290(1) TFEU.
19 Furthermore, the referring court questions whether the contested provision satisfies the requirement to state reasons laid down in the second paragraph of Article 296 TFEU, as the reasons given in general terms in recital 14 of Delegated Regulation 2015/2446 are not sufficient.
20 In those circumstances, the Finanzgericht Düsseldorf (Finance Court, Düsseldorf) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Is [the contested provision] valid?’
21 By its question, the referring court asks, in essence, whether the contested provision is invalid on the grounds, first, that the Commission exceeded the limits of the powers delegated to it under Article 24(d) and Article 212(a) of the Customs Code and, secondly, that the reasoning given for the contested provision does not satisfy the requirement laid down in the second paragraph of Article 296 TFEU.
22 The first ground for invalidity raised by the referring court concerns whether the Commission exceeded the limits of the delegations of power provided for in Article 24(d) and Article 212(a) of the Customs Code by providing that an inward processing authorisation with retroactive effect is to take effect at the earliest on the date of acceptance of the application or, exceptionally, at the earliest one year before that date.
23 Under the first subparagraph of Article 290(1) TFEU, ‘a legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.’
24 That possibility of delegating powers aims to enable the EU legislature to focus on the essential elements of a piece of legislation and on the non-essential elements in respect of which it deems it appropriate to legislate, while entrusting the Commission with the task of ‘supplementing’ certain non-essential elements of the legislative act adopted or ‘amending’ such elements in the context of a delegation conferred on it. The two categories of delegated powers laid down in Article 290(1) TFEU are thus clearly distinguished (see, to that effect, judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraphs 40 and 54).
25 In accordance with the first sentence of the second subparagraph of Article 290(1) TFEU, the objectives, content, scope and duration of the delegation of power must be explicitly defined in the legislative act granting such a delegation. That requirement implies that the purpose of granting a delegated power is to achieve the adoption of rules coming within the regulatory framework as defined by the basic legislative act (judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 30 and the case-law cited). Furthermore, it follows from the second sentence of that subparagraph that the essential elements of the matter in question must be laid down in the basic legislation and cannot be delegated. It follows from the case-law that those essential elements are those which, in order to be adopted, require political choices falling within the responsibilities of the EU legislature (judgment of 11 May 2017, Dyson v Commission, C‑44/16 P, EU:C:2017:357, paragraphs 59 and 61 and the case-law cited).
26 In this case, it should be noted, as a preliminary point, that Article 284 of the Customs Code, first, merely empowers the Commission, in general terms, to adopt, inter alia, the delegated acts referred to in Articles 24 and 212 thereof and, secondly, specifies the conditions for exercising that delegation.
27 Furthermore, the respective wordings of Article 24(d) and Article 212(a) of that code also do not enable a decision to be made as to whether the Commission was empowered to supplement or amend that code.
28 Those provisions empower the Commission to adopt delegated acts in accordance with Article 284 of the Customs Code in order to ‘determine’, respectively, the cases, referred to in Article 22(4) of that code, where the decision takes effect from a date which is different from the date on which the applicant receives it or is deemed to have received it, and the conditions for granting the authorisation for the procedures referred to in Article 211(1) of that code.
29 Article 290(1) TFEU provides for only two categories of delegated powers, namely the powers to ‘supplement’ and to ‘amend’ the legislative act. Consequently, the possibility to ‘determine’ certain non-essential elements of such an act is not provided for in that article (see, to that effect, judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 32).
30 As is apparent from the Court’s case-law, where the EU legislature confers a power to ‘supplement’ a legislative act on the Commission, it decides not to legislate comprehensively and merely establishes the essential elements, while leaving it to the Commission to ‘flesh out’ those elements. The Commission’s authority is thus limited, in compliance with the entirety of the legislative act, adopted by the legislature, to development in detail of non-essential elements of the legislation in question that the legislature has not specified. By contrast, the delegation of a power to ‘amend’ a legislative act aims to authorise the Commission to modify or repeal non-essential elements laid down by the legislature in that act. In cases where the Commission exercises that power, it is not required to act in compliance with the elements that the authority conferred on it aims precisely to ‘amend’ (see, to that effect, judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraphs 41 and 42).
31 The differences established in the preceding paragraph of the present judgment between the two categories of delegated powers referred to in Article 290(1) TFEU preclude the Commission from being granted the power to determine the nature of the delegated power conferred on it. Under those conditions, and in order to ensure the transparency of the legislative process, that provision requires the legislature to determine the nature of the delegation that it intends to confer on the Commission (judgment of 17 March 2016, Parliament v Commission, C‑286/14, EU:C:2016:183, paragraph 46).
32 In that regard, it should be noted, in the first place, that recital 39 of the Customs Code states that, in order to protect the financial interests of the Union and of the Member States and to ‘supplement’ the rules concerning the customs debt and the guarantees, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of, inter alia, the extinguishment of the customs debt. Both recital 1 of Delegated Regulation 2015/2446 and the very title thereof show that the Commission understood the power conferred on it by Article 284 of that code in that way.
33 In the second place, the contested provision fleshes out Article 211(2) of the Customs Code by limiting, in particular, the retroactive effect of an inward processing authorisation.
34 Admittedly, Article 212(a) of that code only empowers the Commission to determine the conditions for granting the authorisation for the procedures referred to in Article 211(1) of that code, so that that power does not cover Article 211(2) thereof.
35 That being so, it was not necessary to refer to Article 211(2) of the Customs Code in Article 212(a) thereof, given that, under Article 24(d) of that code, read in conjunction with Article 22(4) thereof, the Commission was already empowered to supplement the rules laid down in the Customs Code concerning the temporal effects of customs authorisations, in particular inward processing authorisations.
36 It follows from Article 22(4) of the Customs Code, a provision which the Commission is empowered to supplement by Article 24(d) of that code, that the decision of a customs authority relating to the application of the customs legislation is to take effect from the date on which the applicant receives it or is deemed to have received it, except where otherwise specified in that decision or in the customs legislation. It is apparent from Article 5(2)(a) of the Customs Code that ‘customs legislation’ covers, in particular, that code and the provisions supplementing or implementing it adopted at Union or national level. It follows that Delegated Regulation 2015/2446 is undoubtedly part of customs legislation within the meaning of Article 5(2)(a) of that code and that, as such, it was capable of altering the date from which a decision of a customs authority relating to the application of the customs legislation is to take effect.
37 Furthermore, the silence of the EU legislature in Article 211(2) of the Customs Code regarding the temporal aspect of the retroactive effect of inward processing authorisations does not in any way amount to prohibiting the Commission from limiting in time the possibility of issuing such an authorisation. On the contrary, it illustrates that, where the EU legislature confers a power to ‘supplement’ a legislative act on the Commission, it decides not to legislate comprehensively and merely establishes the essential elements, while leaving it to the Commission to ‘flesh out’ those elements, as has been pointed out in paragraph 30 of the present judgment.
38 Moreover, Article 211(2) of the Customs Code cannot be regarded as having already settled the question of the effect of decisions on authorisations with retroactive effect, given that it mainly governs the substantive conditions for the issue of such authorisations (see, to that effect, judgment of 21 October 2021, Beeren-, Wild-, Feinfrucht, C‑825/19, EU:C:2021:869, paragraph 33). In particular, the requirements set out in Article 211(2)(e) and (h) of that code are not intended to determine the date from which such decisions are to take effect. In accordance with those requirements, such authorisations may not have been granted to the applicant within three years of the date on which the application was accepted. Furthermore, an application for renewal of an authorisation must be submitted within three years of expiry of the initial authorisation.
39 In the third place, by limiting, in particular, the retroactive effect of an inward processing authorisation, the contested provision does not alter an essential rule of the Customs Code. The mere limitation in time of the retroactive effect of such an authorisation, which is provided for in general terms by the Customs Code, does not in any way imply the need to make political choices falling within the specific responsibilities of the EU legislature, as that limitation is not intended to give concrete shape to the fundamental guidelines of EU policy (see, to that effect, judgment of 27 October 1992, Germany v Commission, C‑240/90, EU:C:1992:408, paragraph 37).
40 In the fourth place, it appears necessary that the effect of decisions relating to authorisations with retroactive effect should not be unlimited in time, but should be regulated and specified in customs legislation. In that regard, the contested provision serves to ensure the objectives of clarity and legal certainty, referred to in recital 14 of Delegated Regulation 2015/2446, as well as the principle of equal treatment between legal subjects. That principle requires, in particular, that comparable situations must not be treated differently unless such treatment is objectively justified (see, to that effect, judgment of 22 April 2021, Austrian Airlines, C‑826/19, EU:C:2021:318, paragraph 41 and the case-law cited). In the absence of harmonisation at Union level as regards the date from which those decisions are to take effect, the practices of the customs authorities of the Member States in that regard are likely to vary significantly in comparable situations, without this being objectively justified.
41 In the fifth and last place, provisions such as Article 211(2) of the Customs Code, governing the application of an exemption from customs duties, constitute a derogation from the principle that goods imported into the European Union are, as a general rule, subject to customs duties. As such, they must, as derogating provisions, be interpreted strictly (see, to that effect, judgments of 17 February 2011, Marishipping and Transport, C‑11/10, EU:C:2011:91, paragraph 16, and of 12 December 2024, Malmö Motorrenovering, C‑781/23, EU:C:2024:1014, paragraph 21).
42 Thus, by limiting, in particular, the retroactive effect of an inward processing authorisation granted in accordance with Article 211(2) of the Customs Code, the contested provision has merely applied the rule that derogations from that principle are to be interpreted strictly and, in so doing, has contributed to the protection of the financial interests of the Union, as set out in particular in recital 39 of that code.
43 In the light of the foregoing considerations, it must be held that the first ground for invalidity raised by the referring court is not such as to render the contested provision invalid.
44 The second ground for invalidity raised by that court concerns the question whether the statement of reasons for the contested provision satisfies the requirement to state reasons laid down in the second paragraph of Article 296 TFEU.
45 According to case-law, the statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the EU authority which adopted the contested measure. The statement of reasons must therefore enable the persons concerned to ascertain the reasons for that measure and enable the Court to exercise its power of judicial review. However, it is not required to go into every relevant point of fact and law. In addition, as regards measures of general application, the statement of reasons may be limited to indicating, first, the general situation which led to the adoption of the measure at issue and, secondly, the general objectives which that measure is intended to achieve. Consequently, if the contested measure clearly discloses the essential objective pursued by the institution concerned, it would be excessive to require a specific statement of reasons for each of the technical choices made by that institution (see, to that effect, judgment of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraphs 88 to 90).
46 In this case, it should be noted that recital 14 of Delegated Regulation 2015/2446 sets out the reasons why it is necessary to determine the dates from which decisions relating to the application of the customs legislation are to take effect. According to that recital, for the sake of clarity and legal certainty, the cases in which such a decision should take effect from a date which is different from the date on which the applicant receives it or is deemed to have received it should be thoroughly identified. This should be done in particular when the applicant has requested a different date of effect.
47 It follows that the essential objective pursued by the Commission is apparent from Delegated Regulation 2015/2446, so that that institution has satisfied the requirement to state reasons and, therefore, examination of the second ground for invalidity raised by the referring court, relating to a possible failure by the Commission to comply with that requirement, is not such as to render the contested provision invalid.
48 The statement of reasons for Delegated Regulation 2015/2446 did not need to be detailed, particularly given that the contested provision was introduced in a context that was well known to the economic operators concerned, as it essentially perpetuated the previous legal situation. As the Commission has pointed out in its written observations, like the contested provision, Article 508(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1), provided for a retroactive effect limited to one year in respect of inward processing authorisations.
49 In the light of all the foregoing considerations, the answer to the question referred is that consideration of that question has disclosed no factor of such a kind as to affect the validity of the contested provision.
50 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.