Official Journal of the European Union

C 135/11

(Joined Cases C-29/13 and C-30/13) (<span class="super">1</span>)

((Reference for a preliminary ruling - Community Customs Code - Articles 243 and 245 - Regulation (EEC) No 2454/93 - Article 181a - Decision amenable to review - Admissibility of legal proceedings where a prior administrative complaint has not been made - Principle of respect for the rights of defence))

2014/C 135/12

Language of the case: Bulgarian

Referring court

Parties to the main proceedings

Applicant: Global Trans Lodzhistik OOD

Defendant: Nachalnik na Mitnitsa Stolichna

Re:

Requests for a preliminary ruling — Administrativen sad Sofia-grad — Interpretation of Articles 243 and 245 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Article 181a(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation No 2913/92 (OJ 1993 L 253, p. 1) — Principles of the rights of the defence and res judicata — Appeal against a decision of the customs authority to recover a posteriori customs debts even in cases of final decisions of that authority — Admissibility of legal proceedings where a prior administrative complaint has not been made — Decision of the customs authority taken in breach of procedural requirements — Obligation for a court in such a situation to make a ruling without taking account of the requirement of a prior administrative appeal.

Operative part of the judgment

1.First, a decision, such as one of those at issue in the main proceedings, rectifying, on the basis of Article 30(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, the customs value of goods with the consequence that the declarant is served with a tax adjustment in respect of value added tax, constitutes a challengeable act for the purposes of Article 243 of Regulation No 2913/92. Secondly, having regard to the general principles of respect for the rights of the defence and <span class="italic">res judicata</span>, Article 245 of Regulation No 2913/92 does not preclude national legislation, such as that at issue in the main proceedings, which makes provision for two separate appeal procedures for challenging decisions of the customs authorities, where that legislation does not run counter to either the principle of equivalence or the principle of effectiveness.

2.Article 243 of Regulation No 2913/92 does not provide that the admissibility of judicial proceedings against decisions adopted on the basis of Article 181a(2) of Regulation No 2454/93, as amended by Regulation No 3254/94, is subject to the condition that the administrative remedies available to challenge those decisions have been exhausted beforehand.

3.Article 181a(2) of Regulation No 2454/93, as amended by Regulation No 3254/94, must be interpreted as meaning that a decision adopted under that article must be regarded as final and capable of being challenged by way of a direct action before an independent judicial authority, even where it was adopted in breach of the right of the person concerned to be heard and to raise objections.

4.In the event of a breach of the right of the person concerned to be heard and to raise objections under Article 181a(2) of Regulation No 2454/93, as amended by Regulation No 3254/94, it is for the national court to determine, having regard to the particular circumstances of the case before it and in the light of the principles of equivalence and effectiveness, whether, where the decision which was adopted in breach of the principle of respect for the rights of the defence must be annulled on that ground, it must give a ruling in the action brought against that decision or whether it can consider referring the matter back to the competent administrative authority.

(<span class="super">1</span>) OJ C 108, 13.4.2013.