Network One Distribution (Customs union - Incurrence and recovery of a customs debt - Recovery of anti-dumping duties relating to imports from China - Judgment) [2024] EUECJ C-506/23 (05 December 2024)

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( Reference for a preliminary ruling - Customs union - Incurrence and recovery of a customs debt - Regulation (EU) No 952/2013 - Recovery of anti-dumping duties relating to imports from China - Charging of interest on arrears under Regulation No 952/2013 - National legislation providing for the imposition of a late payment penalty in addition to interest on arrears )

REQUEST for a preliminary ruling under Article 267 TFEU from the Curtea de Apel Bucureşti (Court of Appeal, Bucharest, Romania), made by decision of 16 December 2022, received at the Court on 8 August 2023, in the proceedings

Agenția Națională de Administrare Fiscală – Direcţia Generală Regională a Finanţelor Publice Bucureşti,

Agenția Națională de Administrare Fiscală – Direcția Generală de Administrare a Marilor Contribuabili,

Ministerul Finanţelor – Direcţia Generală de Soluţionare a Contestaţiilor,

composed of N. Jääskinen (Rapporteur), President of the Ninth Chamber, acting as President of the Eighth Chamber, D. Gratsias and M. Gavalec, Judges,

– the Romanian Government, by E. Gane, R.I. Haţieganu and A. Wellman, acting as Agents,

– the European Commission, by F. Moro, M. Salyková and E.A. Stamate, acting as Agents,

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

1 This request for a preliminary ruling concerns the interpretation of Article 114 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 Customs Code’).

2 The request has been made in proceedings between Network One Distribution SRL (‘Network One’), a commercial company subject to value added tax (VAT) in Romania, on the one hand, and the Agenția Națională de Administrare Fiscală – Direcția Generală Regională a Finanțelor Publice București (National Agency for Fiscal Administration – Regional Directorate-General for Public Finances, Bucharest, Romania), the Agenția Națională de Administrare Fiscală – Direcția Generală de Administrare a Marilor Contribuabili (National Agency for Fiscal Administration – Directorate-General for the Administration of Large-scale Taxpayers, Romania), the Autoritatea Vamală Română – Direcția Regională Vamală București (Romanian Customs Authority – Regional Customs Directorate, Bucharest, Romania) and the Ministerul Finanțelor – Direcția Generală de Soluționare a Contestațiilor (Ministry of Finance – Directorate-General for the Settlement of Complaints, Romania), on the other, concerning the imposition on Network One, on the ground that it did not pay an anti-dumping duty within the prescribed period, of the payment of interest on arrears as well as late payment penalties.

3 Title II of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1), entitled ‘Administrative measures and penalties’, includes Article 4 thereof, which provides:

‘1. As a general rule, any irregularity shall involve withdrawal of the wrongly obtained advantage:

2. Application of the measures referred to in paragraph 1 shall be limited to the withdrawal of the advantage obtained plus, where so provided for, interest which may be determined on a flat-rate basis.

4. The measures provided for in this Article shall not be regarded as penalties.’

‘1. Intentional irregularities or those caused by negligence may lead to the following administrative penalties:

(b) payment of an amount greater than the amounts wrongly received or evaded, plus interest where appropriate; this additional sum shall be determined in accordance with a percentage to be set in the specific rules, and may not exceed the level strictly necessary to constitute a deterrent;

(g) other penalties of a purely economic type, equivalent in nature and scope, provided for in the sectoral rules adopted by the Council [of the European Union] in the light of the specific requirements of the sectors concerned and in compliance with the implementing powers conferred on the [European] Commission by the Council.

2. Without prejudice to the provisions laid down in the sectoral rules existing at the time of entry into force of this Regulation, other irregularities may give rise only to those penalties not equivalent to a criminal penalty that are provided for in paragraph 1, provided that such penalties are essential to ensure correct application of the rules.’

5 Article 1 of Council Regulation (EU) No 502/2013 of 29 May 2013 amending Implementing Regulation (EU) No 990/2011 imposing a definitive anti-dumping duty on imports of bicycles originating in the People’s Republic of China following an interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2013 L 153, p. 17) provided, in paragraphs 1 and 4 thereof:

‘1. A definitive anti-dumping duty is hereby imposed on imports of bicycles and other cycles (including delivery tricycles, but excluding unicycles), not motorised, falling within CN codes 8712 00 30 and ex 8712 00 70 (TARIC codes 8712 00 70 91 and 8712 00 70 99), originating in the [People’s] Republic of China.

4. Unless otherwise specified, the provisions in force concerning customs duties shall apply.’

6 Article 42 of the Customs Code, entitled ‘Application of penalties’, provides, in paragraphs 1 and 2 thereof:

‘1. Each Member State shall provide for penalties for failure to comply with the customs legislation. Such penalties shall be effective, proportionate and dissuasive.

2. Where administrative penalties are applied, they may take, inter alia, one or both of the following forms:

(a) a pecuniary charge by the customs authorities, including, where appropriate, a settlement applied in place of and in lieu of a criminal penalty;

(b) the revocation, suspension or amendment of any authorisation held by the person concerned.’

7 Article 114 of that code, entitled ‘Interest on arrears’, provides, in paragraphs 1 and 2 thereof:

‘1. Interest on arrears shall be charged on the amount of import or export duty from the date of expiry of the prescribed period until the date of payment.

For a Member State whose currency is the euro, the rate of interest on arrears shall be equal to the interest rate as published in the Official Journal of the European Union, C series, which the European Central Bank applied to its main refinancing operations, on the first day of the month in which the due date fell, increased by two percentage points.

For a Member State whose currency is not the euro, the rate of interest on arrears shall be equal to the rate applied on the first day of the month in question by the National Central Bank for its main refinancing operations, increased by two percentage points, or, for a Member State for which the National Central Bank rate is not available, the most equivalent rate applied on the first day of the month in question on the Member State’s money market, increased by two percentage points.

2. Where the customs debt is incurred on the basis of Article 79 or 82, or where the notification of the customs debt results from a post-release control, interest on arrears shall be charged over and above the amount of import or export duty, from the date on which the customs debt was incurred until the date of its notification.

8 Article 1 of legea nr. 207/2015 privind Codul de procedură fiscală (Law No 207/2015 establishing the Tax Procedure Code) of 20 July 2015 (Monitorul Oficial al României, Part I, No 547 of 23 July 2015) (‘the Tax Procedure Code’) provides, in paragraphs 20 and 33 thereof:

‘20. Interest – ancillary tax liability which represents the equivalent of the damage caused to the holder of the principal tax claim as a result of the debtor’s failure to pay the principal tax liabilities by the due date;

33. Late payment penalty – ancillary tax liability which represents the penalty for the debtor’s failure to pay the principal tax liabilities by the due date.’

‘In the event of the debtor’s failure to pay the principal tax liabilities by the due date, after that date, interest and late payment penalties shall be due.’

‘1. Interest shall be calculated for each day of arrears, starting from the day immediately following the due date and up to – and including – the date on which the amount due is paid.

‘1. Late payment penalties shall be calculated for each day of arrears, starting from the day immediately following the due date and up to – and including – the date on which the amount due is paid. Article 174(2) to (4) and Article 175 shall apply mutatis mutandis.

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

12 Between 18 March 2016 and 28 September 2017, Network One imported into Romania traditional bicycles, electric bicycles and spare parts, in respect of which it made various declarations for release for free circulation to the Romanian customs authorities during the period from 30 March 2016 to 28 September 2017. Those declarations stated that Thailand was the country of origin of the imported goods.

13 Following a customs inspection concerning the true origin of those goods, carried out on 30 July 2018, the Direcția Generală Regională a Finanțelor Publice București – Direcția Regională Vamală București (Regional Directorate-General for Public Finances, Bucharest – Regional Customs Directorate, Bucharest) concluded that those goods originated in China and not Thailand.

14 On 25 September 2019, that authority adopted an inspection report and a decision to regularise the situation (‘the regularisation decision’), from which it is apparent that an anti-dumping duty in the amount of 1 739 090 Romanian lei (RON) (approximately EUR 366 896) was imposed on Network One pursuant to Regulation No 502/2013. In addition, that authority found that Network One was liable to pay an ancillary tax debt consisting of (i) interest on arrears relating to the anti-dumping duty totalling RON 183 209 (approximately EUR 38 652), under Article 114 of the Customs Code, and (ii) late payment penalties totalling RON 158 312 (approximately EUR 33 399), under Article 176 of the Tax Procedure Code.

15 On 7 October 2019, Network One paid the amounts corresponding to the anti-dumping duty provided for in Regulation No 502/2013 and the penalties.

16 That company subsequently lodged a complaint against the inspection report and the regularisation decision, which was rejected by administrative decision of 25 June 2020 of the Direcția Generală de Administrare a Marilor Contribuabili – Serviciul soluționare contestații (Directorate-General for the Administration of Large-scale Taxpayers – Department for the Settlement of Complaints, Romania).

17 On 7 December 2020, Network One brought an action against that decision and the regularisation decision before the Tribunalul București (Regional Court, Bucharest, Romania). In that regard, that company maintained, inter alia, that Article 114 of the Customs Code had unified the interest and penalties into a single quantum; it also challenged the additional application of the penalties provided for by the Tax Procedure Code, since, according to Network One, those penalties were linked to the same principal tax debt. In that regard, Network One claimed that that practice was in breach of Article 114 of the Customs Code, inasmuch as it led to an unjustified increase in the penalties imposed. That action was dismissed by a judgment of 6 April 2021.

18 Network One has brought an appeal against that judgment before the Curtea de Apel București (Court of Appeal, Bucharest, Romania), which is the referring court.

19 That court questions whether Article 114 of the Customs Code allows a national customs authority to require a debtor who has not paid a customs debt within the prescribed period to pay, in addition to interest on arrears, late payment penalties under national law.

20 In that regard, the referring court notes, in the first place, that the Tax Procedure Code, which applies in addition to the Customs Code, allows interest on arrears and late payment penalties, the respective objectives of which are different, to be imposed on a taxpayer who has not paid a tax debt within the prescribed period. While that interest provides compensation for the damage caused to the State budget by a debtor who has not paid the tax debt by the due date, those penalties constitute, on the other hand, a sanction imposed on that debtor. Such distinct objectives may make it possible, as in the present case, cumulatively to impose interest on arrears and a late payment penalty.

21 In the second place, the referring court recalls that, according to the case-law of the Court of Justice, where EU legislation does not specifically provide any penalty for an infringement or refers for that purpose to national legislation, the Member States are required to take all the measures necessary to guarantee the application and effectiveness of EU law.

22 Although Regulation No 502/2013 does not provide any penalty for an infringement, it provides, in Article 1(4) thereof, that, in principle, the provisions concerning customs duties are to apply, which would have allowed, in the present case, the application of Article 114 of the Customs Code. It is, moreover, precisely under that article that the customs authorities would have imposed ‘late payment penalties’ in addition to the anti-dumping duty from the date of the incurrence of the customs debt until the date of its notification.

23 In the third place, the referring court considers that its doubts as to the possibility of imposing cumulatively, under Article 114 of the Customs Code, interest on arrears and late payment penalties, where a customs debt is not paid within the prescribed period, have not been dispelled by the case-law of the Court of Justice concerning Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), which was repealed and replaced by the Customs Code.

24 In those circumstances, the Curtea de Apel București (Court of Appeal, Bucharest) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must EU law and, in particular, Article 114 of [the Customs Code] be interpreted as precluding an administrative practice which, in circumstances such as those in the main proceedings, in respect of the amount of anti-dumping duty, imposes on a taxpayer, in addition to the [late payment penalty] provided for in Article 114 of [that code], a [late payment penalty] provided for separately in national legislation ([the] Codul de procedură fiscal (Romanian Tax Procedure Code))?’

25 By its question, the referring court asks, in essence, whether Article 114 of the Customs Code is to be interpreted as precluding a national administrative practice under which a late payment penalty, provided for by national legislation, may be imposed in addition to the interest on arrears provided for in that article.

26 In the first place, it should be noted that the referring court refers, in the wording of its question, to a ‘late payment penalty’ as being provided for in Article 114 of the Customs Code and not to ‘interest on arrears’. However, even though the Romanian language version of that article refers on several occasions to the expression ‘late payment penalty’ (‘penalitățile de întârziere’) it is expressly stated in the title of that article (‘Dobânda la arierate’) that the measure provided for therein is the charging of ‘interest on arrears’ and not the application of a penalty.

27 In that regard, in accordance with settled case-law, the wording used in certain language versions of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions. The need for uniform application and, therefore, for uniform interpretation of an EU act precludes one version of the text being considered in isolation, but requires that the provision at issue be interpreted by reference to the general scheme and purpose of the rules of which it forms part, in the light, in particular, of the versions in all languages (judgment of 21 March 2024, CBR (Hemianopsia), C‑703/22, EU:C:2024:261, paragraph 34 and the case-law cited).

28 First, as regards the general scheme and purpose of the Customs Code, it must be observed that that code is not intended to provide for any sanctions or penalties for failure to comply with the customs legislation. It is clear from Article 42(1) thereof that it is for the Member States to provide for such penalties.

29 Second and in any event, in many language versions, Article 114 of the Customs Code refers to the concept of ‘interest on arrears’ rather than to that of ‘late payment penalty’, such as, inter alia, in the Spanish (‘Intereses de demora’), German (‘Verzugszinsen’), English (‘Interest on arrears’), French (‘Intérêts de retard’), Italian (‘Interesse di mora’), Dutch (‘Vertragingsrente’), Polish (‘Odsetki za zwłokę’), Portuguese (‘Juros de mora’), Finnish (‘Viivästyskorko’) or Swedish (‘Dröjsmålsränta’) language versions of that article.

30 In the light of the foregoing, it cannot be inferred from the reference to the expression ‘late payment penalty’ in the Romanian language version of Article 114 of the Customs Code that the measure provided for in that article is the application of a late payment penalty, rather than the charging of interest on arrears.

31 In the second place, it should be recalled that the Court has held, with regard to Article 232(1) of Regulation No 2913/92 establishing the Community Customs Code which was repealed and replaced by the Customs Code, that ‘interest on arrears is …intended to offset the consequences arising as a result of the payment not having been made by the deadline set and, in particular, to prevent the person who owes the customs debt from taking unfair advantage of the fact that the amounts owing by way of customs debt remain available to him beyond the deadline set for its settlement’ (judgment of 31 March 2011, Aurubis Balgaria, C‑546/09, EU:C:2011:199, paragraph 29).

32 Thus, interest on arrears is intended to offset the consequences arising as a result of payment not having been made by a set deadline and to compensate for the advantages which the trader unduly derives from the delay in paying a tax debt, and not to penalise such a delay.

33 Furthermore, as has been pointed out in paragraph 28 above, paragraph 1 of Article 42 of the Customs Code provides, in essence, that it is for the Member States to penalise instances of failure to comply with the customs legislation and that the penalties imposed must be effective, proportionate and dissuasive. Paragraph 2 of that article states, moreover, that those penalties may, inter alia, as in the present case, take the form of a pecuniary charge by the customs authorities.

34 In that regard, the Court has also noted that, in the absence of harmonisation of EU legislation in the field of penalties applicable where conditions laid down by the rules imposed by the customs legislation are not complied with, Member States are empowered to choose the penalties which seem to them to be appropriate. They must, however, exercise that power in accordance with EU law and its general principles, and consequently in accordance with the principle of proportionality (judgment of 4 March 2020, Schenker, C‑655/18, EU:C:2020:157, paragraph 42 and the case-law cited).

35 In particular, the Court has stated that the administrative measures or the measures imposing penalties permitted under the national legislation must not go beyond what is necessary in order to attain the objectives legitimately pursued by that legislation, and furthermore, they must not be disproportionate to those objectives (judgment of 4 March 2020, Schenker, C‑655/18, EU:C:2020:157, paragraph 43 and the case-law cited).

36 Furthermore, Article 4 of Regulation No 2988/95 states, in essence, that, as a general rule, an irregularity is to involve withdrawal of the wrongly obtained advantage and that such withdrawal may be increased by interest which may be determined on a flat-rate basis. It states that the measures for which it provides are not to be regarded as penalties. On the other hand, Article 5 of that regulation provides that intentional irregularities or those caused by negligence may lead to administrative penalties, that is to say, inter alia, payment of an amount greater than the amounts wrongly received or evaded, plus interest where appropriate.

37 In the present case, it is apparent from the order for reference that the late payment penalties provided for in Article 176 of the Tax Procedure Code represent a financial penalty imposed on a debtor who has not paid a tax debt on the due date provided for.

38 Thus, in the light of all of the foregoing, it must be held that such a penalty provided for by national law is not, in principle, incompatible with EU law, subject to the checks which it is for the referring court to carry out as to the proportionality of that penalty.

39 In the light of all the foregoing reasons, the answer to the question referred is that Article 114 of the Customs Code must be interpreted as not precluding a national administrative practice under which a late payment penalty, provided for by national legislation, may be imposed in addition to the interest on arrears provided for in that article.

40 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.

Article 114 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 a national administrative practice under which a late payment penalty, provided for by national legislation, may be imposed in addition to the interest on arrears provided for in that article.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Network One Distribution (Customs union - Incurrence and recovery of a customs debt - Recovery of anti-dumping duties relating to imports from China - Judgment) [2024] EUECJ C-506/23 (05 December 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C50623.html Cite as: ECLI:EU:C:2024:1003, EU:C:2024:1003, [2024] EUECJ C-506/23

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