–

OSTP Italy Srl, by R. Dominici, A. Macchi, F. Munari and S. Pedemonte, avvocati,

–

the Italian Government, by G. Palmieri, acting as Agent, and by F. Meloncelli, avvocato dello Stato,

–

the European Commission, by F. Clotuche-Duvieusart and F. Moro, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Articles 43 to 45 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’).

2

The request has been made in proceedings between OSTP Italy Srl (‘OSTP’) and the Agenzia delle Dogane e dei Monopoli, Ufficio delle Dogane di Genova 1 (Customs and Monopolies Agency, Genoa Customs Office 1, Italy), the Agenzia delle Dogane e dei Monopoli, Ufficio delle Dogane di Genova 2 (Customs and Monopolies Agency, Genoa Customs Office 2, Italy) (together, ‘the Customs and Monopolies Agency’) and the Agenzia delle Entrate – Riscossione – Genova (Revenue Agency – Recovery – Genoa, Italy) (‘the tax authority’), concerning the enforcement of a claim relating to traditional own resources of the European Union, which was annulled by decision of a national court but in respect of which appeal proceedings are pending.

3

Under Article 43 of the Union Customs Code, entitled ‘Decisions taken by a judicial authority’:

‘Articles 44 and 45 shall not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision relating to the application of the customs legislation taken by a judicial authority, or by customs authorities acting as judicial authorities.’

4

Article 44 of that code, entitled ‘Right of appeal’, provides:

‘1.   Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of customs legislation which concerns him directly and individually.

Any person who has applied to the customs authorities for a decision and has not obtained a decision on that application within the time limits referred to in Article 22(3) shall also be entitled to exercise the right of appeal.

2.   The right of appeal may be exercised in at least two steps:

3.   The appeal shall be lodged in the Member State where the decision was taken or was applied for.

4.   Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’

5

Article 45 of that code, entitled ‘Suspension of implementation’, provides:

‘1.   The submission of an appeal shall not cause implementation of the disputed decision to be suspended.

2.   The customs authorities shall, however, suspend implementation of such a decision in whole or in part where they have good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.

3.   In the cases referred to in paragraph 2, where the disputed decision has the effect of causing import or export duty to be payable, suspension of implementation of that decision shall be conditional upon the provision of a guarantee, unless it is established, on the basis of a documented assessment, that such a guarantee would be likely to cause the debtor serious economic or social difficulties.’

6

Article 90, entitled ‘Compulsory guarantee’, of that code provides, in the first subparagraph of paragraph 1:

‘Where it is compulsory for a guarantee to be provided, the customs authorities shall fix the amount of such guarantee at a level equal to the precise amount of import or export duty corresponding to the customs debt and of other charges where that amount can be established with certainty at the time when the guarantee is required.’

7

Article 98 of the Union Customs Code, titled ‘Release of the guarantee’, provides:

‘1.   The customs authorities shall release the guarantee immediately when the customs debt or liability for other charges is extinguished or can no longer arise.

2.   Where the customs debt or liability for other charges has been extinguished in part, or may arise only in respect of part of the amount which has been secured, a corresponding part of the guarantee shall be released accordingly at the request of the person concerned, unless the amount involved does not justify such action.’

8

Article 124(1) of that code, headed ‘Extinguishment’, is worded as follows:

‘Without prejudice to the provisions in force relating to non-recovery of the amount of import or export duty corresponding to a customs debt in the event of the judicially established insolvency of the debtor, a customs debt on import or export shall be extinguished in any of the following ways:

…

…

…’

9

Article 2 of Council Regulation (EU, Euratom) No 609/2014 of 26 May 2014 on the methods and procedure for making available the traditional, VAT and GNI-based own resources and on the measures to meet cash requirements (OJ 2014 L 168 p. 39), as amended by Council Regulation (EU, Euratom) 2016/804 of 17 May 2016 (OJ 2016 L 132, p. 85) (‘Regulation No 609/2014’), entitled ‘Date of establishment of traditional own resources’, provides, in paragraph 1:

‘For the purpose of applying this Regulation, the Union’s entitlement to the traditional own resources referred to in Article 2(1)(a) of [Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of the European Union (OJ 2014 L 168, p. 105),] shall be established as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor.’

10

Article 13 of Regulation No 609/2014, entitled ‘Irrecoverable amounts’, provides, in paragraphs 1 and 2:

‘1.   Member States shall take all requisite measures to ensure that the amounts corresponding to the entitlements established under Article 2 are made available to the [European] Commission as specified in this Regulation.

2.   Member States shall be released from the obligation to place at the disposal of the Commission the amounts corresponding to entitlements established under Article 2 which prove irrecoverable for either of the following reasons:

Member States may be released from the obligation to place at the disposal of the Commission the amounts corresponding to entitlements established under Article 2 where those entitlements prove irrecoverable due to the deferral of the entry in the accounts or the notification of the customs debt in order not to prejudice a criminal investigation affecting the financial interests of the Union.

Amounts of established entitlements shall be declared irrecoverable by a decision of the competent administrative authority finding that they cannot be recovered.

Amounts of established entitlements shall be deemed irrecoverable, at the latest, after a period of five years from the date on which the amount has been established in accordance with Article 2 or, in the event of an administrative or judicial appeal, the final decision has been given, notified or published.

…’

11

Decision 2014/335 repealed and replaced Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17).

12

Article 2(1)(a) of Decision 2014/335, which reproduces Article 2(1)(a) of Decision 2007/436, provides:

‘Revenue from the following shall constitute own resources entered in the budget of the Union:

…’

13

Article 47 of decreto legislativo n. 546 – Disposizioni sul processo tributario in attuazione della delega al Governo contenuta nell’art. 30 della legge 30 dicembre 1991, n. 413 (Legislative Decree No 546 on the tax procedure pursuant to the delegated powers given to the Government under Article 30 of Law No 413 of 30 December 1991) of 31 December 1992 (GURI No 9 of 13 January 1993, Ordinary Supplement No 8) (‘Legislative Decree No 546/1992’) provides, in essence, that where an applicant challenges an act by the tax authority and that act may cause the applicant serious and irreparable damage, that applicant may apply for provisional suspension of implementation of that act until the substance of the action has been examined.

14

Article 67-bis of that legislative decree, relating to provisional implementation, provides that judgments handed down by tax courts may be implemented.

15

Article 68 of the legislative decree, headed ‘Payment of the tax while proceedings are pending’, provides:

‘1.   Even by derogation from individual tax laws, where the collection by instalments of the tax which is the subject of proceedings before the [tax] courts is foreseen:

In the cases referred to in the preceding subparagraphs, the amounts already paid shall, in any event, be deducted from the amounts payable.

2.   Should the action be upheld, the tax overpaid in relation to the ruling by the commissione tributaria provinciale [(Provincial Tax Court)], with related interest provided for under tax law, must be repaid automatically within the 90 days following notification of the judgment. Should the repayment not be made, the taxpayer may request implementation in accordance with Article 70 from the commissione tributaria provinciale [(Provincial Tax Court)] or, should the judgment be the subject of an appeal at subsequent stages of the proceedings, from the commissione tributaria regionale [(Regional Tax Court)].

3.   …

3-bis Payment, pending delivery of the judgment, of the traditional own resources referred to in Article 2(1)(a) of Decision [2007/436] and value added tax levied on imports remains governed by Council Regulation (EEC) No 2913/92 of 12 October 1992 [establishing the Community Customs Code (OJ 1992 L 302, p. 1),] as amended by the [Union Customs Code] and by the other relevant provisions of EU law on such matters.’

16

Article 69 of Legislative Decree No 546/1992, headed ‘Implementation of judgments in favour of the taxpayer’, provides:

‘1.   Judgments ordering payment of amounts in favour of the taxpayer and those delivered on appeal against land-registration notices referred to in Article 2(2) may be implemented immediately. However, the payment of amounts exceeding ten thousand euro, other than costs, may be made subject by the court, also having regard to the solvency conditions of the applicant, to the provision of a suitable guarantee.

…

4.   The payment of amounts due following the judgment must be made within 90 days of notification thereof or submission of the guarantee referred to in paragraph 2, if it is payable.

5.   Should the judgment not be implemented, the taxpayer may request compliance in accordance with Article 70 from the commissione tributaria provinciale [(Provincial Tax Court)] or, should the judgment be the subject of an appeal at subsequent stages of the proceedings, from the commissione tributaria regionale [(Regional Tax Court)].’

17

The Customs and Monopolies Agency, Genoa Customs Office 2, addressed to OSTP, on 9 October 2019, additional and amending tax notices relating to anti-dumping duties payable in respect of imports of steel tubes from non-member countries on the ground, inter alia, that those tubes had been made out to have been imported from India, when they in fact originated from China. Those notices were followed the next day by notifications of decisions imposing fines on OSTP.

18

The Customs and Monopolies Agency, Genoa Customs Office 1, also addressed to OSTP, on the same ground, an amending tax notice, followed by a decision imposing fines on that company.

19

All the tax notices and fines were annulled in their entirety by the referring court by judgments of 17 and 19 May 2021.

20

The Customs and Monopolies Agency appealed against those judgments before the Corte di giustizia tributaria di secondo grado della Liguria (formerly Commissione tributaria regionale della Liguria) (Tax Court of Appeal, Liguria, formerly Regional Tax Court, Liguria, Italy), which did not formally hand down a decision suspending implementation of those judgments.

21

On 26 January 2022, the tax authority sent OSTP a preliminary notice of registration of a mortgage, informing it that, in the event of non-payment of the amounts referred to in the tax notices, a mortgage would be registered on its properties for an amount equal to twice that debt.

22

OSTP challenged that notice before the referring court, arguing that, under national legislation governing collection of customs duties and taxes, where a court of first instance has upheld, wholly or in part, an action brought against a tax notice, the amounts claimed under that tax notice are no longer payable.

23

The Customs and Monopolies Agency appeared in the second set of proceedings. It asserts that there is no longer any need to adjudicate, given that OSTP has since paid the amounts in the annulled tax notices in their entirety, which leads to the action having become devoid of purpose.

24

In the alternative, the Customs and Monopolies Agency relies, in support of the position defended by the tax authority, on Order No 22012 of the Corte suprema di cassazione (Supreme Court of Cassation) of 13 October 2020.

25

In that order, the Corte suprema di cassazione (Supreme Court of Cassation) observed, in essence, that, under Article 45 of the Union Customs Code, the bringing of administrative or court proceedings does not cause implementation of a decision relating to the application of customs legislation to be suspended and that, in accordance with Article 98 of that code, a guarantee for a customs debt cannot be released if, inter alia, the debt has not been extinguished.

26

That court inferred, first of all, that measures taken by the customs authorities must be regarded as immediately implementable; next, that the protection of taxpayers against the potentially irreparable nature of the damage liable to be suffered on account of the unlawfulness of the tax notice must be regarded as guaranteed by the possibility of applying for remission of duty, suspension of implementation of the amending notice or, during proceedings, an application for suspension of implementation of the tax measure, and that, last, a non-definitive decision of the judicial authority in favour of the taxpayer does not mean that that taxpayer is entitled to restitution of the duties that have already been paid, given that the amounts paid remain as a guarantee of payment of the customs debt until it has been extinguished definitively.

27

Having regard to those elements and to the obligation on the Member States, recalled by the Court of Justice in the judgment of 11 July 2019, Commission v Italy (Own resources – Recovery of a customs debt) (C‑304/18, EU:C:2019:601), to act in good time in order to safeguard the European Union’s own resources, where a measure adopted by an administrative authority has not been suspended under the customs codes, the Corte suprema di cassazione (Supreme Court of Cassation) concluded that ‘as regards duties collected at borders, which constitute own resources [of the European Union], a non-definitive judgment ordering repayment in favour of the taxpayer of customs duties which have been held to be non-payable cannot be regarded as immediately implementable under Article 69(1) of Legislative Decree No 546/1992 … [because that] provision [is] incompatible … with the [Union] Customs Code’.

28

In that context, the referring court is uncertain only whether, in essence, it can in fact be inferred from Article 45 of that code and, potentially, also from Articles 43 and 44 of that code, that Member States must not regard judgments at first instance which have annulled tax notices relating to traditional own resources of the European Union as immediately implementable. More specifically, the referring court is uncertain whether such a solution runs counter to the right to appeal, recalled in Article 44 of the Union Customs Code, read in the light of the principle of effective judicial protection enshrined in Article 19 TEU and by Article 47 of the Charter of Fundamental Rights of the European Union, which requires Member States to provide for suspension of implementation of any administrative decision annulled by a court of first instance, in order to ensure that the remedies provided for by national law remain useful for individuals.

29

In that connection, the referring court specifies that, even though OSTP has ultimately paid the amounts requested, it is necessary that it dispel such uncertainty because, first, it cannot be ruled out that that company acted in that way under threat of a mortgage being registered – that mortgage being equal to twice that of the amounts claimed – and, second, the question of whether the claims made by the Customs and Monopolies Agency are well founded affects the award of the costs of the proceedings, on which that court must still rule.

30

In those circumstances, the Corte di giustizia tributaria di primo grado di Genova (formerly Commissione tributaria provinciale di Genova) (Tax Court of First Instance, Genoa, formerly Provincial Tax Court, Genoa, Italy), decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘May Articles 43 [to] 45 of [the Union Customs Code] be interpreted as precluding the compatibility with EU law of national legislation which provides for the immediate enforceability of judgments delivered at first instance by national courts, which have the effect of annulling, in whole or in part, tax payment orders relating to the European Union’s own resources?’

31

The Italian Government submits that the request for a preliminary ruling is inadmissible on the ground that the main proceedings have become devoid of purpose after the applicant paid the amounts claimed and that, in its request, the referring court stated that it is asking its question taking into account the situation where a taxpayer has not yet paid the amounts claimed.

32

In that regard, it should be borne in mind that, in accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. Similarly, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the judicial decision to be made, to determine, in the light of the particular circumstances of the case, both the need for and the relevance of the questions that it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgments of 7 August 2018, Banco Santander and Escobedo Cortés, C‑96/16 and C‑94/17, EU:C:2018:643, paragraph 50, and of 24 November 2022, Varhoven administrativen sad (Repeal of the disputed provision), C‑289/21, EU:C:2022:920, paragraph 24).

33

It follows that the presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases (see, to that effect, judgment of 16 June 2005, Pupino, C‑105/03, EU:C:2005:386, paragraph 30). Accordingly, the Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 24 July 2023, Lin, C‑107/23 PPU, EU:C:2023:606, paragraph 62).

34

In the present case, it can, admittedly, be inferred from the information in the request for a preliminary ruling that the payment by the applicant in the main proceedings of the amounts claimed put an end to the threat of a mortgage on its properties. However, the question asked remains relevant in so far as, subject to verification by the referring court, the applicant could, depending on the Court’s answer, object – as it does in the main proceedings – to the measures for the collection of amounts that are not payable and argue its right to reimbursement of the amounts already paid. In addition, that court states that it is necessary for it to know the answer to the question it has referred in order to rule in accordance with national law on the award of costs, as it is dependent on whether the action is well founded.

35

Since, in particular, that court has not already ruled on whether the action in the main proceedings is well founded, it is not obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or that the problem has become hypothetical (see, by analogy, judgment of 28 November 2018, Amt Azienda Trasporti e Mobilità and Others, C‑328/17, EU:C:2018:958, paragraphs 35 to 38).

36

That assessment is not called into question by the Italian Government’s assertion that the referring court stated, in its request, that it was asking its question taking into account the situation where a taxpayer has not yet paid the amounts claimed. That information is not apparent from the request for a preliminary ruling. Admittedly, the referring court referred to the ‘situation where the taxpayer has not yet paid’, but did so only by reference to the position of the Customs and Monopolies Agency regarding an order made by the Corte suprema di cassazione (Supreme Court of Cassation); that court considers that that position consists in ‘extend[ing] the legal principle set out by [that court] also to the situation where the taxpayer has not yet paid’.

37

As the Court has, in addition, before it all the factual and legal material necessary to give a useful answer to the question submitted to it, it is therefore appropriate to declare that the request for a preliminary ruling is admissible.

38

As a preliminary point, it is common ground that the doubts expressed by the referring court are related to the interpretation of the Corte suprema di cassazione (Supreme Court of Cassation) in Order No 22012 of 13 October 2020. In that order, that court ruled out the application of Article 69(1) of Legislative Decree No 546/1992 providing that judgments ordering payment of amounts to the taxpayer are immediately implementable on the ground, in essence, that Article 45 of the Union Customs Code requires suspension of implementation of any judgment at first instance annulling tax notices relating to traditional own resources of the European Union until that judgment becomes final. However, the referring court is uncertain whether the interpretation of the Corte suprema di cassazione (Supreme Court of Cassation) complies with Article 45 of the Union Customs Code, read in conjunction with Article 43 of that code.

39

Accordingly, by its question, the referring court asks, in essence, whether Articles 43 to 45 of the Union Customs Code must be interpreted as precluding national legislation which provides for the immediate implementation of judgments at first instance which have not yet become final where those judgments concern traditional own resources of the European Union.

40

It can be stated from the outset that neither Article 44 nor Article 45 of the Union Customs Code are relevant for the purposes of assessing whether national legislation which provides for the immediate implementation of judgments at first instance is compatible with EU law, including where the effect of those judgments was to annul, wholly or in part, tax notices relating to traditional own resources of the European Union.

41

Article 43 of that code states expressly that Articles 44 and 45 of that code do not apply to appeals lodged with a view to the annulment, revocation or amendment of a decision relating to the application of the customs legislation taken by a judicial authority, Therefore, even though Article 44(2) of that code foresees the situation in which the right of appeal, which that provision lays down must be able to be exercised in two steps, is exercised successively before two judicial authorities, the fact remains that the rule laid down in Article 45(1) of the Union Customs Code that the bringing of an appeal does not suspend implementation of the contested decision is applicable only in respect of appeals brought against decisions relating to the application of customs legislation taken by customs authorities, not against judicial decisions having ruled on such appeals.

42

As the issue of whether judgments at first instance may be implemented immediately, and the legal regime governing the appeal do not come within the scope of Articles 44 and 45 of the Union Customs Code, those provisions cannot preclude national legislation providing for immediate implementation of judgments at first instance that have not yet become final any more than they require national legislation to provide that such judgments have that feature.

43

That interpretation is not called into question by the obligation imposed on the Member States under Article 13 of Regulation No 609/2014, read in the light of Decision 2014/335, to make amounts corresponding to the European Union’s entitlement to traditional own resources available to the Commission, referred to by the Italian Government in its written submissions.

44

Admittedly, under Article 45(1) of the Union Customs Code, the bringing of an appeal is not suspensive, with the result that, in principle, where a taxable person challenges an amending tax notice, that taxable person will have, in principle, already paid the amounts claimed when a ruling will be handed down at first instance or, at the very least, if the customs authorities have granted that person suspension of implementation under Article 45(2) of that code, will have provided a customs guarantee under Article 45(3) of the code. Accordingly, where, following an appeal brought by the customs authorities, a judgment at first instance having annulled amending tax notices is, in turn, set aside, the Member State is presumed already to have available to it the amount corresponding to the European Union’s entitlement to traditional own resources, which it will have to make available to the Commission under Article 13 of Regulation No 609/2014, read in the light of Decision 2014/335.

45

For that reason, contrary to what the Corte suprema di cassazione (Supreme Court of Cassation) appears to have held in Order No 22012 of 13 October 2020, it cannot be inferred that, in order to ensure collection by the European Union of the entitlements established under Article 2 of Regulation No 609/2014, Article 45(1) of the Union Customs Code must be interpreted as requiring Member States to allow customs authorities – where those authorities have delayed recovery of the amending tax notice they have issued – to continue to do so after a judgment at first instance annulling that tax notice has been handed down, as long as that judgment has not become final.

46

First, contrary to the premiss on which that assessment appears to be based, such an interpretation does not appear necessary in order to ensure collection by the European Union of the entitlements established under Article 2 of Regulation No 609/2014. The Court has previously had occasion to emphasise that errors committed by the customs authorities of a Member State do not release that Member State from its obligation to make available to the European Union the entitlements it should have established, together with, as the case may be, default interest (see, to that effect, judgment of 11 July 2019, Commission v Italy (Own resources – Recovery of a customs debt), C‑304/18, EU:C:2019:601, paragraph 61). Similarly, a lack of diligence on the part of customs authorities cannot release the Member State from that obligation.

47

Above all, as the wording of Article 43 of the Union Customs Code is perfectly clear and unequivocal regarding the inapplicability of Articles 44 and 45 of that code to appeals brought against a decision taken by a judicial authority, there is no need to seek any other interpretation of those provisions (see, to that effect, judgment of 26 September 2019, Commission v Spain (Waters – Updating of the river basin management plans of the Canary Islands), C‑556/18, EU:C:2019:785, paragraph 34).

48

Therefore, without there being any need to examine the relevance in the present case of the principles enshrined in Article 19 TEU and Article 47 of the Charter of Fundamental Rights, the answer to the question referred is that Articles 43 to 45 of the Union Customs Code must be interpreted as not precluding national legislation which provides for the immediate implementation of judgments at first instance which have not yet become final, where those judgments concern traditional own resources of the European Union.

49

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.

On those grounds, the Court (Tenth Chamber) hereby rules:

Articles 43 to 45 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code

must be interpreted as not precluding national legislation which provides for the immediate implementation of judgments at first instance which have not yet become final, where those judgments concern traditional own resources of the European Union.