19.9.2016

Official Journal of the European Union

C 343/36

(Case C-407/16)

(2016/C 343/49)

Language of the case: Latvian

Referring court

Parties to the main proceedings

Applicant: SIA ‘Aqua Pro’

Defendant: Valsts ieņēmumu dienests

Questions referred

a)Is Article 220(1) and (2)(b) of Council Regulation (EEC) No 2913/92 (1) of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that the amount of duty payable recognised by the tax authority is to be regarded as entered in the accounts by the tax authority when it decides to enter that amount in the accounts or when it establishes the obligation to pay the duty, regardless of whether that decision has been subject to an administrative appeal and challenged in court proceedings?

b)Are Articles 236 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that when the tax authority has adopted the decision to enter the corresponding amount of duty in the accounts and has established the debtor’s obligation to pay it (the decision adopted by the Latvian Tax Authority in the present case), but that debtor has brought an administrative appeal against that decision and challenged it in court proceedings, it is necessary to apply at the same time for remission or repayment of that duty, in accordance with Articles 236 or 239 of the regulation (or, in that case, is the application challenging the decision of the aforementioned tax authority to be regarded also as an application for remission or repayment of the tax debt)? If so, what is the difference in substance between the review of the lawfulness of the administrative decision to enter the duty in the accounts and the obligation to pay the duty, on the one hand, and the matter which must be resolved in accordance with Article 236, on the other?

c)Is the first subparagraph of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that the fact that an appeal has been brought against the tax authority’s decision establishing the obligation to pay the duty, and the duration of the legal proceedings, extend the time limit for submitting the application for remission or repayment of the duty (or justify failure to comply with it)?

d)If the question of whether, in this case, the duty should be entered in the accounts or remitted is to be decided regardless of the decision of the European Commission adopted in relation to another Member State (in this case, Finland), should the customs authority or the court, having regard to Article 869(b) of Commission Regulation (EEC) No 2454/93 (2) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code and also to the amount of the possible duty in the case under consideration, refer the question of non-entry or remission of the duty to the European Commission?

a)When Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code is applied, should a subsequent check be made on the circumstances relating to the conduct of the authorities and the exporter of the third country (in the present case, Cambodia), which were investigated in connection with the OLAF mission? Or should it be considered that the general description of the circumstances contained in the OLAF report on the aforementioned conduct constitutes evidence?

b)Is the information obtained in the subsequent check, even if it refers to the case of a specific Member State, crucial to the OLAF report?

c)Is Article 875 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 to be interpreted as meaning that the European Commission’s decision, adopted in accordance with the aforementioned OLAF report in respect of another Member State (in that case, Finland), is binding on the Member State?

d)Should the subsequent check be carried out and should the information obtained thereby be used if the European Commission, on the basis of the OLAF report, has adopted a decision not to enter the duty in the accounts in relation to another Member State and has applied Article 875 of the regulation implementing the Customs Code?

When the existence of reasonable grounds and good faith in the conduct of the taxable person is evaluated for the purposes of applying Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, may it be relevant in the specific circumstances that the merchandise import transaction is based on a distribution agreement?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

(2) 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).