OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 9 June 2011 (1)

Case C‑138/10

‘DP grup’ EOOD

v

Direktor na Agentsia ‘Mitnitsi’

(Reference for a preliminary ruling from the Administrativen sad Sofia‑grad, (Bulgaria))

(Customs union – Regulation (EEC) No 2913/92 – Acceptance by the customs authorities of a customs declaration – Scope of the acceptance – Classification of the acceptance as a decision – Article 4 of Regulation No 2913/92 – Acceptance of the declaration with notice of subsequent verification of the particulars following examination of the goods – Right to contest the acceptance – Access to the jurisdiction of the national courts)

1.        By the present reference for a preliminary ruling, the Administrativen sad Sofia-grad asks three questions concerning, principally, the interpretation of Articles 4, 62 and 63 of Regulation (EEC) No 2913/92 establishing the Community Customs Code. (2) The questions specifically relate to what is known as the ‘acceptance of customs declarations’; the Court is asked to rule on the subject‑matter and the nature of that act of the customs authorities, and also on whether it is possible to contest such an act before the national courts.

2.        The main difficulty of this case lies in the mixed nature of the acceptance of a customs declaration, since it is an act which is expressed in a physical document, is standardised by European Union law and includes more than one voluntary declaration: that of the declarant of the goods, on the one hand, and that of the customs authorities, on the other. The uncertainties harboured by the Administrativen sad Sofia-grad have arisen as a result of the particular documentary format in which the disputed act is recorded.

I –  Legal framework

3.        Regulation No 2913/92 provides the following definition of ‘decision’ in Article 4(5):

‘“Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons; this term covers, inter alia, binding information within the meaning of Article 12.’

4.        With regard to decisions which grant rights to individuals, Article 8(1) of the regulation lays down a specific set of rules for the annulment of such decisions.

‘A decision favourable to the person concerned shall be annulled if it was issued on the basis of incorrect or incomplete information and

–        the applicant knew or should reasonably have known that the information was incorrect or incomplete, and

–        such decision could not have been taken on the basis of correct or complete information.’

5.        The rules governing customs declarations and their acceptance and subsequent revision are set out in Article 62 et seq. of Regulation No 2913/92, the following provisions of which are relevant for the purposes of these proceedings:

‘Article 62

1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

2. The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.

Article 63

Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs.

...

Article 65

The declara[nt] shall, at his request, be authorised to amend one or more of the particulars of the declaration after it has been accepted by customs. The amendment shall not have the effect of rendering the declaration applicable to goods other than those it originally covered.

However, no amendment shall be permitted where authorisation is requested after the customs authorities:

(a)       have informed the declarant that they intend to examine the goods; or,

(b)       have established that the particulars in question are incorrect; or

(c)       have released the goods.

Article 66

1. The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure covered by that declaration or that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.

Nevertheless, where the customs authorities have informed the declarant of their intention to examine the goods, a request for invalidation of the declaration shall not be accepted until after the examination has taken place.

2. The declaration shall not be invalidated after the goods have been released, expect in cases defined in accordance with the committee procedure.

3. Invalidation of the declaration shall be without prejudice to the application of the penal provisions in force.

...

Article 68

For the verification of declarations which they have accepted, the customs authorities may:

(a)       examine the documents covering the declaration and the documents accompanying it. The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration;

(b)       examine the goods and take samples for analysis or for detailed examination.

...

Article 71

1. The results of verifying the declaration shall be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed.

2. Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.

...

Article 78

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.’

II –  Facts

6.        On 13 March 2007, using the appropriate form, the company ‘DP grup’ EOOD (‘DP grup’) made a customs declaration to the Kremikovtsi customs office for the importation from Brazil of goods described as ‘frozen and boneless turkey leg, prepared with white pepper’. The declaration was accepted on the same date and the number 07ВG005102Н0019921, the personal stamp number 1341 and the signature of a customs authority were entered in box number 2 of the form. Separately, the customs official who accepted the declaration stated the following on the reverse of the declaration form:

‘Documentary examination in respect of box 44 in accordance with Article 218 of the Regulation for the implementation of the Community Customs Code carried out. Tariff heading in box No 33 corresponds to the description of the goods in box No 31 and to the TARIC. Customs value determined in accordance with Article 29 of the Customs Code. Not a product covered by a preferential system. The requirements for being placed under the “end-use” procedure are satisfied. Record of a detailed customs examination at Sofia Airport (No 120/13.03.2007). Owing to suspicion of an incorrect tariff classification, samples were taken for a laboratory examination by the Central Chemical Laboratory (Order No 1/13.03.07). Lodging of a cash deposit. Report of the Central Chemical Laboratory (No 00005/14.03.07). Position of the Central Customs Administration on the tariff classification (No 4417/190/17.04.2007).’

7.        On 25 March 2007, the customs official released the goods.

8.        Following the results of the laboratory analysis, the customs authority notified DP grup by letter of 17 April 2007 that an irregularity had been found in the customs declaration due to the incorrect tariff classification of the goods declared, and therefore the payment of certain amounts was required.

9.        DP grup contested the acceptance of the customs declaration before the Administrativen sad Sofia-grad, arguing that the declarant – in other words, itself – had not indicated correctly the tariff heading, while the customs authority had accepted that tariff heading and had ‘confirmed the tariff code of the goods’ by means of the signature confirming acceptance, which, in its opinion, constitutes a ground for annulment.

10.      On 21 July 2008, the Administrativen sad Sofia-grad decided that the proceedings were inadmissible owing to the lack of a challengeable administrative act by a customs authority. In reply to the appeal lodged by DP grup against that decision, the Varhoven administrativen sad held that the ruling of inadmissibility by the Administrativen sad Sofia-grad was unlawful and referred the case back to that court for a ruling as appropriate.

11.      At that point in the procedure before the national court, the Administrativen sad Sofia-grad decided to stay the proceedings in order to make the present reference for a preliminary ruling.

III –  The questions referred and the procedure before the Court of Justice

12.      The reference for a preliminary ruling, which was lodged at the Registry of the Court on 15 March 2010, refers the following three questions:

‘(1)  In the circumstances of the main proceedings, is Article 63 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as requiring the customs authority to carry out only an examination of the conformity of the customs declaration with the requirements of Article 62 of that regulation by merely undertaking an examination of documents to the extent specified in Article 68 of the regulation, and to take a decision concerning acceptance of the customs declaration solely on the basis of the documents presented, where a doubt has arisen as to the correctness of the tariff code of the goods and an expert report is necessary in order to determine that code?

(2)       In the circumstances of the main proceedings, is the decision of the customs authority concerning immediate acceptance of the customs declaration pursuant to Article 63 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be regarded as a decision of a customs authority in accordance with Article 4(5) in conjunction with Article 8(1), first indent, of the Customs Code, and this in respect of the entire content of the customs declaration made, when at the same time the following circumstances are present:

(a)      the customs authority’s decision concerning acceptance of the customs declaration was taken solely on the basis of the documents presented together with the customs declaration;

(b)      when the required examinations were being carried out prior to acceptance of the customs declaration, the suspicion existed that the tariff code declared for the goods was not correct;

(c)      when the required examinations were being carried out prior to acceptance of the customs declaration, the information on the content of the goods declared, which is relevant for the purposes of correct determination of the tariff code, was incomplete;

(d)      during the examination prior to acceptance of the declaration, a sample was taken in order that an expert report could be drawn up for the purpose of correct determination of the tariff code of the goods?

(3)       In the circumstances of the main proceedings, is Article 63 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code to be interpreted as meaning that:

(a)      it allows the lawfulness of acceptance of the customs declaration to be contested before a court after release of the goods, or that

(b)      acceptance of the customs declaration is not contestable, because it merely records the declaration of the goods to the customs authorities and determines the date on which the customs debt on importation is incurred and does not constitute a decision by the customs authority as to the correct tariff classification and the amount of duties due on the basis of that declaration?’

13.      Observations were lodged, within the period indicated in Article 23 of the Statute of the Court of Justice, by the defendant in the main proceedings, the Bulgarian, Czech, Spanish and Netherlands Governments, and the Commission.

14.      At the hearing on 17 March 2011, oral argument was presented by the defendant’s representative and by the agents for the Bulgarian, Czech and Spanish governments and the Commission.

IV –  Analysis of the reference for a preliminary ruling

A –    Preliminary remarks

15.      By its three questions, the referring court enquires about the subject-matter, scope and legal nature of the acceptances which customs authorities issue in respect of customs declarations.

16.      In order to provide a helpful reply to those questions, I believe that it is appropriate, first of all, to point out the essential aspects of the customs procedure, as set out in Regulation No 2913/92.

17.      The creation of a common tariff in the territory of the Union entailed the adoption of a common body of rules applicable to the procedures for the entry, exit and transit of goods within the internal market. (3) To that end, Regulation No 2913/92, which recasts the earlier regulations, provides that all goods must be placed under one of the customs procedures set out in Article 4(16). The act whereby the goods are placed under a particular customs procedure, with all the legal consequences which that entails, is expressed in a declaration issued by the importer, which may be made in writing, using a data-processing technique or by means of a normal declaration. (4)

18.      That declaration is not a minor step in the customs procedure because it entails important legal effects. The subject-matter of the declaration, which the person presenting the goods is required to draw up, determines the applicable customs procedure and the customs duties payable, thereby creating, so to speak, a ‘snapshot’ of the object of the procedure. To that end, Regulation (EC) No 2454/93 (5) sets out, in Annexes 31 to 34, the exact format of the document in which the declaration is made, clearly indicating in its boxes the particulars which must be provided to the customs authorities so that they may adopt the appropriate decisions.

19.      The declaration in question is, therefore, confined to precise, standardised material and, in the interests of efficiency, it is not necessary to supply any particulars other than those expressly referred to in Article 62 of Regulation No 2913/92. That article simply provides that the declaration must include the declarant’s signature and must contain the ‘particulars necessary for implementation of the provisions governing the customs procedure’ concerned.

20.      That strictness stems from the need to reconcile the objectives of promptness and legal certainty which underpin the customs procedures. In view of the obvious bureaucratic difficulties which strict application of the customs provisions, and monitoring of compliance with them, entails, Regulation No 2913/92 requires declarants to include solely and exclusively specific particulars. (6) In addition, the right of rectification of the declaration is restricted to situations where the customs authorities have not examined the goods or released the goods. Thus, the declarant is urged to supply truthful and correct information because otherwise he may be liable to the imposition of a penalty. (7)

21.      In addition, the administrative authorities are obliged to accept immediately a declaration where the conditions referred to in Article 62 of Regulation No 2913/92 are satisfied and the goods have been presented to customs. The acceptance of the declaration is also an act, this time of the customs authorities, and its legal consequences are important. The most significant of these is temporal in nature because, as a general rule, the date of acceptance operates as the relevant moment for the purposes of all the provisions governing the customs procedure for which the goods are declared. (8) In addition, after acceptance, the declarant is permitted to amend one or more of the particulars of the declaration, (9) provided that the authorities do not proceed to examine the goods or consider that there are incorrect particulars in the declaration.

22.      In short, the declaration is the act requesting the commencement of the customs procedure, while the acceptance of that request constitutes the act of formal commencement of the customs procedure. Both acts could be described as two sides of the same coin, expressed together in a single document the particulars of which have been supplied by more than one individual. However, the parallel between the two documents does not mean that they are not separate from one another. The declaration is an essential condition for the acceptance but that does not mean that the acceptance cannot be examined individually. Each act has its own set of rules and relates to different individuals and subject-matter. It is specifically the autonomous character of the acceptance about which the referring court enquires, an autonomy which, as I will explain below, entails certain legal consequences.

B –    The first question

23.      By its first question, the referring court asks about the scope of Article 63 of Regulation No 2913/92, according to which, where written declarations comply with ‘the conditions laid down in Article 62’ they must be ‘accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs’. The referring court wishes to know whether, where a doubt has arisen as to the correctness of the tariff code of the goods declared and the customs authority has requested an expert report in order to determine that code, the acceptance referred to in Article 63 is restricted solely to verification of compliance with the formal conditions set out in Article 62, or whether, on the contrary, it may also involve an examination of other aspects of the declaration.

24.      As I stated in points 19 and 20 of this Opinion, the formalised system of declaration and acceptance is designed to enable proper compliance with and monitoring of customs procedures. The declarant has a duty to furnish certain items when making the declaration, and the acceptance is limited to verifying that those items are present. The automatic nature of the system is important because it provides legal certainty to economic operators and to the authorities, thereby restricting discretion in the exercise of the supervisory role performed by the authorities. In addition, the declarant is urged to provide accurate information, because otherwise, if doubts are raised and an examination is carried out, the declarant will have lost his right of rectification. Accordingly, the strictness to which the declaration and the acceptance are subject is an essential requirement of the system. (10)

25.      It is precisely because Article 63 of Regulation No 2913/92 provides only that three items must be furnished (signature, ‘particulars necessary’ and goods) that the article requires the authorities to issue the acceptance after establishing that those requirements have been satisfied. As is clear from the wording of the provision, it is an act adopted within very precise parameters which significantly limit the discretion of the customs authority. Not only must the declaration be accepted, it must be accepted ‘immediately’ if ‘the conditions laid down in Article 62’ are satisfied, a situation which, furthermore, arose in the instant case.

26.      In the light of the foregoing, Article 63 precludes the customs authorities from refusing acceptance on the basis of matters other than the ones referred to in that article. At first sight, that conclusion might appear to be somewhat rigid but an analysis of the procedure as a whole reveals that this solution is perfectly reasonable.

27.      Where the customs authorities find that the requirements of Article 63 are satisfied they have a duty to issue (‘immediately’) the acceptance but that does not mean that the authorities do not subsequently have other powers available to them to verify compliance with the customs legislation. On the contrary, under Article 68, the authorities are empowered to carry out an examination of the documents covering the declaration and the documents accompanying it and also of the goods, which includes the taking of samples for a detailed analysis. The power to examine the goods includes the right of the authorities to take the appropriate measures in the light of the subsequent results. It is apparent from the foregoing that the customs authorities are subject to restrictions when carrying out an examination at the time of issuing the acceptance, but that has no bearing on their capacity to verify whether the information supplied by the declarant is correct.

28.      Accordingly, I share the view of all the Member States which have submitted observations in these preliminary-ruling proceedings, that Article 63 lays down a strict supervisory framework for the customs authorities, limiting their examination of the declaration solely and exclusively to the conditions set out in that article. But, as I have stated, since there is nothing to preclude the customs authorities from carrying out an examination of the goods, the results of which may be obtained after their release, the strict nature of the examination provided for in Article 63 does not limit the supervisory powers of the authorities. (11) On the contrary, the provisions laid down in Regulation No 2913/92 are aimed at securing a flexible, standardised procedure which in turn ensures regularisation of the legal position, including at a subsequent time.

29.      Consequently, I propose that the Court should reply to the first question referred for a preliminary ruling, declaring that, for the purposes of acceptance of the customs declaration, Article 63 of Regulation No 2913/92 must be interpreted as meaning that it requires the customs authorities to carry out only an examination of the conformity of the customs declaration with the requirements of Article 62 of that regulation. For those purposes, the authorities must confine themselves merely to undertaking an examination of documents to the extent specified in Article 63 of the regulation and to taking a decision concerning acceptance of the customs declaration solely on the basis of the documents presented.

C –    The second question

30.      Next, the referring court enquires about the legal nature of the acceptance of the customs declaration in the circumstances of the present case, where, prior to issuing the acceptance, the customs authorities took samples of the goods for the purposes of ensuring the correct application of the customs nomenclature. More specifically, the referring court asks the Court to determine whether the acceptance, as an act of the customs authorities, constitutes a decision within the meaning of Article 4(5) of Regulation No 2913/92.

31.      At this juncture, it is appropriate to note that there is a striking difference in positions between the parties to the main proceedings which is not surprising – and also between the Commissioner and the Member States, which have submitted observations in these proceedings. While DP grup argued before the referring court that the acceptance granted by the customs authorities is by its nature a decision, as did the Kingdom of Spain and the Commission in the preliminary ruling proceedings – the defendant, the Republic of Bulgaria, the Czech Republic and the Netherlands all took the opposite view. However, as I will explain below, the difference in opinions is more formal than substantive since, with the exception of DP grup, all those who have submitted observations believe, albeit on the basis of different arguments, that contesting the acceptance does not support the appellant’s substantive claims.

32.      It is common knowledge that the definition of ‘decision’ in Article 4(5) of Regulation No 2913/92 is based on the capacity of an act to have ‘legal effects on one or more specific or identifiable persons’. Such a succinct description, based on effects which the regulation does not specify, explains why additional criteria have been necessary to establish an autonomous definition of the concept. Thus, in his Opinion in de Andrade, (12) Advocate General Fennelly took the view that, in addition to the criteria referred to in Article 4(5), a decision is an act ‘manifesting the exercise of a judgment or of a discretion’, being ‘an act taken after consideration of various factors and, under Community law, such an act would have to set out the grounds or reasons which led to that exercise of discretion in order that its addressee be in a position to mount an effective challenge to its validity’. (13)

33.      On the basis of the definition proposed by Advocate General Fennelly, which the Court of Justice followed when it adopted the same solution in that case, I consider that, for an act of the customs authorities to constitute a ‘decision’, it must identify an addressee, it must have legal effects and, in addition, it must be the manifestation and result of the exercise of a discretion.

34.      With regard to the identification of the addressee, it is clear that the acceptance of the declaration always complies with this condition because one of the requirements laid down in Article 62 is the declarant’s signature. If the addressee is not identified by name in the declaration, there can be no acceptance; the addressee will, accordingly, always be identified.

35.      The acceptance also creates legal effects for the addressee, both where it is granted and where it is refused. In the first instance, the acceptance constitutes the moment in time when the legal customs relationship arises, and from that point the rights laid down in the applicable customs procedure come into play. (14) In the second instance, refusal to issue an acceptance means that goods cannot be made subject to a customs procedure, an outcome which has important financial, and therefore also legal, consequences. Thus, a customs acceptance gives rise to legal effects within the meaning of Article 4(5) of Regulation No 2913/92.

36.      Finally, it is necessary to determine whether the decision of the customs authorities to issue the acceptance has a discretionary element. Discretion may be the result of a cognitive process concerning the facts to which the provision must be applied, or of a legal assessment relating to the legal consequences of compliance with that provision. (15) Viewed in that way, discretion arises when the terms of the provision concerned are applied to the facts or when the consequences of applying the provision to the facts are determined, where there is more than one possible way of addressing those consequences.

37.      In the case of a customs acceptance, discretion clearly attaches to the facts, as is apparent from Articles 62 and 63 of Regulation No 2913/92. The customs authorities must issue an acceptance when the three conditions referred to are satisfied: presentation of a signed declaration, inclusion of the particulars necessary for the implementation of the applicable customs procedure, and presentation of the goods. Of those three conditions, the second affords the customs authorities a measure of discretion, since it will be necessary to determine whether or not the declarant has provided the ‘necessary’ particulars. However, the legal consequence referred to in Article 63 does not afford the customs authorities any discretion: they must either accept or not accept the declaration.

38.      Accordingly, the degree of latitude which the authorities have when it comes to determining whether the particulars are ‘necessary’ is the sole discretionary element available to them. Moreover, even though it concerns a specific aspect, only a limited margin of discretion attaches to the acceptance. (16)

39.      In the light of the foregoing, it must be concluded that the acceptance of the customs declaration, as an act of the authorities which identifies an addressee, has legal effects and entails a discretionary element, constitutes a ‘decision’ within the meaning of Article 4(5) of Regulation No 2913/92.

D –    The third question

40.      The third and final question referred by the Administrativen sad Sofia-grad concerns whether it is possible to challenge an acceptance issued by the customs authorities.

41.      Articles 243 to 246 of Regulation No 2913/92 lay down the rules governing appeals against the decisions taken by the customs authorities. Those articles guarantee that any person has the right to appeal against decisions taken by the authorities ‘which concern him directly and individually’, regardless of whether such decisions are express or implied. (17)

42.      In addition, as a complement to those provisions, Article 9 of the regulation lays down rules governing revocation of acts of the customs authorities; unfavourable acts may be modified in all cases while favourable acts may be modified where the person making the request acted in bad faith or unlawfully.

43.      The set of provisions on appeals and revocation demonstrates that any act of the customs authorities which has legal effects, whether favourable or unfavourable, may be modified either by the authorities which adopted it or by the courts. The effectiveness which characterises the customs provisions does not, in principle, involve restrictions on the right to challenge acts adopted by the authorities. That is consistent with the importance which European Union law attaches to the right of access to justice.

44.      The European Union guarantees the right to seek protection from the courts against any acts which infringe the rights, freedoms and lawful interests recognised by the Union, the most important matter being that recourse to the courts be effective both in the sense that it must be legally capable of securing compensation, where appropriate, for the infringement complained of and in the sense that it must be a viable remedy, in other words, one which is governed by conditions which do not render it impossible or very difficult to exercise. (18) That is confirmed by Article 47 of the Charter of Fundamental Rights of the European Union and by an abundant body of case-law of the European Court of Human Rights on its interpretation of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. (19) Accordingly, it is not possible to accept any interpretation of Regulation No 2913/92 which extinguishes or restricts the declarant’s right of access to a national court.

45.      With regard to the acceptances issued by the customs authorities, with which the present case is concerned, the following remarks are appropriate.

46.      Given that an acceptance is a decision within the meaning of Article 4(5) of Regulation No 2913/92, there is a presumption that it may be challenged for the simple reason that it is classified under that category. An act which creates legal effects for an individual may always be the subject of proceedings. Accordingly, contrary to what the Netherlands Government appears to suggest in its written observations, an act is not a ‘decision’ because it may be challenged; rather, it may be challenged because it is a ‘decision’.

47.      Thus, the term ‘acceptance’ must be construed broadly, that is, as referring to both a positive reply accepting the declaration and a negative reply, because the customs authorities may refuse the declaration presented to them and, consequently, adversely affect the declarant’s legal position. In that case, the acceptance, or rather the refusal of the authorities to issue it, is always open to appeal pursuant to Article 243 of Regulation No 2913/92.

48.      Finally, it should be noted that the acceptance is a restricted decision with specific subject-matter, as I indicated in points 24 to 29 of this Opinion. Article 63 of Regulation No 2913/92 limits the discretion of the customs authorities to the matters set out therein, by reference to Article 62, and limits the decision-making power of the public authorities to verifying that the declaration has been signed, that the goods have been presented and that the necessary documents have been submitted. I have already explained that the last of these entails the exercise of a limited degree of discretion but, in any event, the acceptance may refer only to those three matters. Therefore, the right of appeal against the decision, and the revision of that decision, relates only to one of the three matters on which the customs authorities must make a determination.

49.      Turning now to the facts of the main proceedings, DP grup appealed against the acceptance of the declaration concerned, which was issued by the Bulgarian customs authorities. That acceptance was issued in accordance with the power granted to customs authorities by Article 68(b) of Regulation No 2913/92, in other words, the authorities gave notice that the acceptance was subject to the outcome of an examination of the goods. That was what the Bulgarian customs authorities stated on the reverse of the declaration and their suspicions regarding the correctness of the customs classification declared were justified because the laboratory tests confirmed that there had been an error on the part of the declarant, who was subsequently required to make an additional payment. It was only after learning that the authorities required it to make such a payment that the declarant decided to lodge an appeal against the acceptance which had originally been issued.

50.      In the light of the facts, it is apparent that the first-instance court committed an error of law when it held that the acceptance of the declaration by the customs authorities was not a challengeable act. As I stated above, the acceptance was in fact a decision which had legal effects and which involved the exercise of a discretion. It is, in short, a challengeable act for the purposes of Article 243 of Regulation No 2913/92, because it does in some measure have effects on the declarant’s legal position.

51.      In this case, the customs authorities did not adopt a decision regarding the appropriate classification of the imported goods. As I stated in points 24 to 29 of this Opinion, the acceptance is a formal confirmation that the conditions laid down in Article 63 of Regulation No 2913/92 have been satisfied. The acceptance does not entail the exercise of discretion, other than in relation to verification that the necessary documents have been submitted as part of the procedure. As regards the customs classification, the acceptance is a decision which does not constitute the actual act of classification; rather, it allows the customs authorities, immediately or subsequently, to verify or amend the declaration and require proper compliance with the legislation. To put it another way, the acceptance is not a decision regarding the customs classification but rather a procedural act which enables the commencement of the procedure. From that perspective, an appeal against the acceptance may certainly concern the matters referred to in Article 63, but what the regulation does not provide for, by means of the acceptance procedure, is a type of universal remedy whereby it is possible to challenge any matters deriving from the customs legislation.

52.      That said, the action brought by DP grup in the present case concerns the customs classification which the customs authorities ‘approved’ when they accepted the declaration, rather than the acceptance as such, particularly since the error complained of in the acceptance did not originate in the acceptance itself but in the declaration issued by DP grup. The appellant does not, therefore, seek to challenge an act which affects its rights but rather to secure the annulment of an act which could be used as grounds for the imposition of an administrative penalty.

53.      Accordingly, in the light of the foregoing considerations, Article 63 of Regulation No 2913/92, construed in the light of Article 243 of that regulation, must be interpreted as meaning that the declarant may contest before a court the lawfulness of the acceptance of the customs declaration, provided that the ground of appeal is directed at the verification by the customs authorities of one of the essential conditions for the acceptance, as set out in Article 63.

V –  Conclusion

54.      In the light of the foregoing considerations, I propose that the Court should reply to the questions referred by the Administrativen sad Sofia grad as follows:

(1)       Article 63 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that it requires the customs authorities to carry out only an examination of the conformity of the customs declaration with the requirements of Article 62 of that regulation. For those purposes, the authorities must confine themselves merely to undertaking an examination of documents to the extent specified in Article 63 of the regulation and to taking a decision concerning the acceptance of the customs declaration solely on the basis of the documents presented, including where a doubt has arisen as to the correctness of the tariff code of the goods and an expert report is necessary in order to determine that code.

(2)       The acceptance of the customs declaration, as an act of the authorities which identifies an addressee, has legal effects and entails a discretionary element, constitutes a ‘decision’ within the meaning of Article 4(5) of Regulation No 2913/92.

(3)       Article 63 of Regulation No 2913/92, construed in the light of Article 243 of that regulation, must be interpreted as meaning that the declarant may contest before a court the lawfulness of the acceptance of the customs declaration, provided that the ground of appeal is directed at the verification by the customs authorities of one of the essential conditions for the acceptance, as set out in Article 63.

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1 – Original language: Spanish.

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2 – Council Regulation of 12 October 1992 (OJ 1992 L 302, p. 1).

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3 – See, generally, Berr, C.J. and Trémeau, H., Le droit douanier, Communautaire et national, 7th ed., 2006.

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4 – Article 61 of Regulation No 2913/92.

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5 –      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).

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6 – See Fabio, M., Customs Law of the European Union, Wolters Kluwer, 2010, sections 6.2.1 to 6.2.3.

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7 – See, in that connection, the Opinion of Advocate General Poiares Maduro in Case C‑468/03 Overland Footwear [2005] ECR I‑8937, points 33 to 35.

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8 – Article 67 of Regulation No 2913/92.

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9 – Article 65 of Regulation No 2913/92.

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10 – See Lyons, T., EC Customs Law, Oxford University Press, Oxford, 2001, p. 283 et seq.

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11 – In that connection, the Opinion of Advocate General Cosmas in Case C‑66/99 D. Wandel [2001] ECR I‑873 is illuminating, since, at point 46, it draws attention to the conditional nature of the acceptance where the goods have been examined: ‘It is clear from the wording of the above provisions and the need to ensure their effectiveness that, where a declaration is accepted without any verification of the particulars contained in it, not only is a customs debt incurred at that point, but the amount of that debt is also definitively determined. On the other hand, where a declaration is accepted with an order for verification of the particulars contained in it, the customs debt formally arises, but is not definitive, because, until such time as the goods have been examined and the particulars in the declaration verified, the amount of the particular debt has not been definitively determined and confirmed. Consequently, it must be accepted that, in this second case, until the above particulars have been verified, the duties lawfully due have not been definitively imposed, and the goods have not yet been definitively released for free circulation.’

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12 – Case C‑213/99 [2000] ECR I‑11083.

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13 – Point 55 of the Opinion.

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14 – Article 67 of Regulation (EC) No 2913/92.

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15 – See, generally, Koch, H.J., Unbestimmte Rechtsbegriffe und Ermessensermächtigungen im Verwaltungsrecht, Metzner, Frankfurt, 1979; Bacigalupo, M., La discrecionalidad administrativa. Estructura normativa, control judicial y límites constitucionales de su atribución, Marcial Pons, Madrid, 1997, and the comparative analysis and analysis of European Union law in von Danwitz, T., Europäisches Verwaltungsrecht, Springer, Berlin-Heidelberg, 2008, pp. 30, 33, 50, 71, 87, 107 and 361 et seq.

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16 – I believe that it is appropriate to note, as the Commission pointed out at the hearing, that a number of courts of the Member States have given judgment on this matter, in some cases without considering it necessary to seek a preliminary ruling; those courts also held that the acceptance constitutes a decision within the meaning of Article 4(5) of Regulation No 2913/92. See in that connection the judgments of the German Bundesfinanzhof of 21 July 2009 (VII R 2/08) and 5 October 2009 (VII B 254/98).

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17 – The second subparagraph of paragraph 1 refers to the right to appeal against the silence of the customs authorities.

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18 – See, inter alia, Case 222/84 Johnston [1986] ECR 1651, paragraphs 18 and 19; Case 222/86 Heylens and Others [1987] ECR 4097, paragraph 14; Case C‑424/99 Commission v Austria [2001] ECR I‑9285, paragraph 45; Case C‑50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I‑6677, paragraph 39; Case C‑467/01 Eribrand [2003] ECR I‑6471, paragraph 61; and Case C‑279/09 DEB Deutsche Energiehandels-und Beratungsgesellschaft [2010] ECR I‑0000, paragraph 29.

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19 – On Article 47 of the Charter and its relationship with the case-law of the European Court of Human Rights, see my Opinion in Case C‑69/10 Samba Diouf (judgment pending), points 38 to 44, and the Opinion of Advocate General Bot in Case C‑108/10 Scattolon (judgment pending), points 122 to 126.