9 July 2020 (*1)

(Reference for a preliminary ruling – Customs union – Union Customs Code – Delegated Regulation (EU) 2015/2446 – Article 172(2) – Authorisation to use the end-use procedure – Retroactive effect – Concept of ‘exceptional circumstances’ – Amendment of the tariff classification – Expiry of validity of a decision relating to binding tariff information)

In Case C‑391/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria), made by decision of 10 May 2019, received at the Court on 21 May 2019, in the proceedings

‘Unipack’ AD

Direktor na Teritorialna direktsia ‘Dunavska’ of the Agentsia ‘Mitnitsi’,

Prokuror ot Varhovna administrativna prokuratura na Republika Bulgaria,

THE COURT (Eighth Chamber),

composed of L.S. Rossi, President of the Chamber, J. Malenovský and N. Wahl (Rapporteur), Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–‘Unipack’ АD, by D. Dobrev and L. Angelov, advokati,

–the Bulgarian Government, by L. Zaharieva and E. Petranova, acting as Agents,

–the European Commission, by F. Clotuche-Duvieusart, N. Nikolova, M. Salyková, N. Kuplewatzky and A. Caeiros, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 172(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).

2This request has been made in proceedings between ‘Unipack’ AD and the Direktor na Teritorialna direktsia ‘Dunavska’ of the Agentsia ‘Mitnitsi’ (Director of the regional head office for the ‘Danube region’, Central Customs Office, Bulgaria) and the Prokuror ot Varhovna administrativna prokuratura na Republika Bulgaria (Public Prosecutor, at the Supreme Administrative Public Prosecutor’s Office, Bulgaria) concerning the import of goods by Unipack before the date of acceptance of the application for authorisation to use the end-use procedure.

Legal context

EU law

Regulation (EU) No 952/2013

3Article 15 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 Union Customs Code’), concerning the provision of information to the customs authorities, provides:

(a)the accuracy and completeness of the information given in the declaration, notification or application;

(b)the authenticity, accuracy and validity of any document supporting the declaration, notification or application;

(c)where applicable, compliance with all of the obligations relating to the placing of the goods in question under the customs procedure concerned, or to the conduct of the authorised operations.

The first subparagraph shall also apply to the provision of any information in any other form required by, or given to, the customs authorities.

…

4Article 33 of the Union Customs Code, entitled ‘Decisions relating to binding information’, provides:

…

(a)on the customs authorities, as against the holder of the decision, only in respect of goods for which customs formalities are completed after the date on which the decision takes effect;

(b)on the holder of the decision, as against the customs authorities, only with effect from the date on which he or she receives, or is deemed to have received, notification of the decision.

…

5Article 34 of the Union Customs Code, concerning the management of decisions relating to binding information, states:

(a)the adoption of an amendment to the nomenclatures referred to in points (a) and (b) of Article 56(2);

(b)the adoption of measures referred to in Article 57(4);

with effect from the date of application of such amendment or measures.

…

6Article 129 of the Union Customs Code, concerning the amendment and invalidation of an entry summary declaration, reads as follows:

…

7Article 173(1) of the Union Customs Code, entitled ‘Amendment of a customs declaration’, is worded as follows:

‘The declarant shall, upon application, be permitted to amend one or more of the particulars of the customs declaration after that declaration has been accepted by customs. The amendment shall not render the customs declaration applicable to goods other than those which it originally covered.’

8Article 211 of the Union Customs Code, concerning the authorisation procedure, provides:

‘1. An authorisation from the customs authorities shall be required for the following:

(а)the use of the inward or outward processing procedure, the temporary admission procedure or the end-use procedure;

…

(a)there is a proven economic need;

(b)the application is not related to attempted deception;

(c)the applicant has proven on the basis of accounts or records that:

(i)all the requirements of the procedure are met;

(ii)where appropriate, the goods can be identified for the period involved;

(iii)such accounts or records allow the procedure to be controlled;

(d)all the formalities necessary to regularise the situation of the goods can be carried out, including, where necessary, the invalidation of the customs declarations concerned;

…

Customs authorities may grant an authorisation with retroactive effect also where the goods which were placed under a customs procedure are no longer available at the time when the application for such authorisation was accepted.

…’

Article 254(1) of the Union Customs Code, entitled ‘End-use procedure’ states:

‘Under the end-use procedure, goods may be released for free circulation under a duty exemption or at a reduced rate of duty on account of their specific use.’

Delegated Regulation 2015/2446

Article 172 of Delegated Regulation 2015/2446, entitled ‘Retroactive effect’, provides:

…’

Regulation (EC) No 925/2009

Council Regulation (EC) No 925/2009 of 24 September 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 262, p. 1), provides, in Article 1:

Country

Company

Anti-dumping duty

TARIC additional code

…

PRC

…

…

…

All other companies

30,0%

A999

…

Implementing Regulation (EU) 2017/271

Commission Implementing Regulation (EU) 2017/271 of 16 February 2017 extending the definitive anti-dumping duty imposed by Council Regulation (EC) No 925/2009 on imports of certain aluminium foil originating in the People's Republic of China to imports of slightly modified certain aluminium foil (OJ 2017 L 40, p. 51), states, in Article 1:

aluminium foil of a thickness of not less than 0,007 mm and less than 0,008 mm, regardless of the width of the rolls, whether or not annealed, currently falling within CN code ex76071119 (TARIC code 7607111930) or

…

…’

The dispute in the main proceedings and the question referred for a preliminary ruling

Unipack is a company that manufactures composite packaging for liquid and bulk products. On 28 September 2015, the Bulgarian customs authorities issued to Unipack a decision relating to binding tariff information, within the meaning of Article 33 of the Union Customs Code, for a period of six years in relation to the tariff classification of ‘aluminium foil’ which at that time was covered by TARIC code 7607111990.

That tariff code was deleted on 1 June 2016, rendering inoperative the binding tariff information decision previously issued. Unipack made nine subsequent imports over almost 10 months regardless of the deletion of the previous TARIC code 7607111990 and without any objection being made by the Bulgarian customs authorities to imports made under an incorrect TARIC code.

…

On 13 and 27 June 2017, Unipack made two imports of aluminium foil originating in China, which were declared under TARIC code 7607111993. By a decision of the head of the Svishtov Customs Office (Bulgaria) of 4 September 2017, the TARIC code declared was corrected and TARIC code 7607111930 used.

16That decision led to the Bulgarian customs authorities imposing additional customs duties, as the goods in question were now subject to an anti-dumping duty of 30% under Implementing Regulation 2017/271.

17On 13 September 2017, the head of the Svishtov Customs Office accepted the application made by Unipack on 18 August 2017 for authorisation to use the end-use procedure, with effect from 31 August 2017.

18By an action before the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo, Bulgaria), Unipack disputed the date on which the decision to grant the end-use procedure took effect and requested that the procedure be applied retroactively, with effect from 13 June 2017, for the product ‘aluminium foil’, claiming that there were ‘exceptional circumstances’ within the meaning of Article 172 of Delegated Regulation 2015/2446.

19By a decision of 31 May 2018, the Administrativen sad Veliko Tarnovo (Administrative Court, Veliko Tarnovo) varied the contested decision, giving it retroactive effect from the date on which Unipack submitted its application, namely 18 August 2017, and dismissed the action as to the remainder. Unipack appealed on a point of law to the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria).

20Taking the view that resolution of the dispute before it required interpretation of the concept of ‘exceptional circumstances’ in Article 172(2) of Delegated Regulation 2015/2446, the Varhoven administrativen sad (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does it constitute exceptional circumstances within the meaning of Article 172(2) of [Delegated Regulation 2015/2446] which would provide a basis for the granting of authorisation with retroactive effect pursuant to Article 211(2) of the Union Customs Code for the use of the end-use customs procedure pursuant to Article 254 of the Union Customs Code in relation to an import of products that took place before the date of acceptance of the application for authorisation and after the expiry of the validity of a [binding tariff information] decision in favour of the holder of the procedure for those products due to an amendment to the Combined Nomenclature, if, in the period (of approximately 10 months) between the expiry of the validity of the [binding tariff information] decision and the import for which the use of the end-use procedure was requested, several (nine) imports of products were made without the customs authorities having corrected the declared Combined Nomenclature code, and the goods were used for a purpose exempted from the anti-dumping duty?’

Consideration of the question referred

21By its question, the referring court asks, in essence, whether Article 172(2) of Delegated Regulation 2015/2446 must be interpreted as meaning that matters such as the early expiry of the validity of a binding tariff information decision due to an amendment to the combined nomenclature, a failure by the customs authorities to take action in relation to imports bearing an incorrect code or the fact that the goods have been used for a purpose exempted from anti-dumping duty constitute ‘exceptional circumstances’ within the meaning of that provision, for the purposes of the grant, under Article 254 of the Union Customs Code, of a retroactive authorisation to use the end-use procedure provided for in that latter article.

22As a preliminary point, it should be recalled that the Union Customs Code is based on a system of declarations (see, to that effect, judgment of 15 September 2011, DP grup, C‑138/10, EU:C:2011:587, paragraphs 33 and 34) with the aim of keeping customs formalities and controls to a minimum while preventing fraud or irregularities that could harm the EU budget. Because of the importance of those prior declarations for the proper functioning of the customs union, the Union Customs Code, in Article 15, places an obligation on declarants to provide accurate and complete information.

23More specifically, the end-use procedure provided for in Article 254 of the Union Customs Code allows goods to be released for free circulation with total or partial exemption from duties according to their specific use. It relies on a system of prior authorisation following the submission of an application by the operators concerned, in accordance with Articles 211 and 254 of the Union Customs Code. Under Article 172 of Delegated Regulation 2015/2446, when an authorisation is granted it takes effect at the earliest on the date of acceptance of the application. It is only by way of derogation, where there are ‘exceptional circumstances’, that paragraph 2 of that article provides that an authorisation may take effect earlier than the date of acceptance of the application.

24Finally, Article 1(4) of Implementing Regulation 2017/271 provides that the same system of prior authorisation of the end-use procedure applies to applications for exemption from anti-dumping duty on imports of certain categories of aluminium foil intended for non-household use. That regulation therefore provides not only that domestic customs legislation remains applicable but also makes an exemption from anti-dumping duty subject to compliance with the conditions for use of the end-use procedure laid down in Article 254 of the Union Customs Code.

25In that regard, it should be noted that neither of the parties to the main proceedings disputes the fact that there was no prior declaration nor that imports were carried out under incorrect tariff codes without any amendment being made as permitted under Articles 129 and 173 of the Union Customs Code.

26It is therefore necessary to examine the three circumstances referred to in the order for reference in order to determine whether they may constitute ‘exceptional circumstances’ within the meaning of Article 172(2) of Delegated Regulation 2015/2446.

27In the first place, with regard to the amendment of the tariff classification of the imported goods and the consequential early expiry of the validity of binding tariff information decisions, it must be held that that is not a matter on which an importer can rely in order to avoid the obligation to provide accurate and complete information under Article 15 of the Union Customs Code. In accordance with Article 34(1)(a) of that code, a binding tariff information decision ceases to be valid where it no longer conforms to the law, inter alia where there is an amendment to the nomenclature, such as occurred in the main proceedings. An economic operator can therefore not rely on failure to comply with that amendment to submit inaccurate declarations or to avoid the obligation to make a prior declaration.

28In the second place, with regard to the question of the customs authorities’ acceptance of declarations with incorrect codes being used as justification for the non-amendment of the tariff code declared, the Court has already had occasion to reject such an argument, pointing out that a careful operator, who has acquainted himself or herself with a classification regulation published in the Official Journal of the European Communities, cannot simply continue to import his or her goods under an incorrect code on the sole ground that that classification has been accepted by the customs authorities (judgment of 20 November 2008, Heuschen & Schrouff Oriëntal Foods Trading v Commission, C‑38/07 P, EU:C:2008:641, paragraph 64).

29In the third place, with regard to the fact that the goods were used for a purpose exempted from anti-dumping duty, it should be noted that, under Article 1(4) of Implementing Regulation 2017/271, a product such as the one at issue ‘shall be exempted from definitive anti-dumping duty if it is imported for other uses than the use of household foil’, subject to compliance with the customs provisions on the end-use procedure, in particular Article 254 of the Union Customs Code. Consequently, although the use of the goods is a ground for exemption from anti-dumping duty, it cannot justify the importer’s failure to comply with the procedure for applying for an exemption from anti-dumping duties established by that regulation.

30It follows that none of the circumstances mentioned by the referring court is capable of constituting an ‘exceptional circumstance’ within the meaning of Article 172(2) of Delegated Regulation 2015/2446, without there being any need to define that concept further. The failure to comply with obligations under the Union Customs Code and measures resulting from it cannot justify more favourable treatment of the economic operator responsible for that failure.