C-226/99

SIPLES

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 26 September 2000 1

1. Introduction Collection Service in the Province of Genoa).

3. The Genoa Customs Authority served an 1. By the question which it referred to the order on Siples for payment of the sum of Court of Justice for a preliminary ruling ITL 2 300 million in respect of customs under Article 234 EC, the Tribunale di duties and VAT levied on importation Genova (District Court, Genoa), Italy, concerning imports of mushrooms from seeks interpretation of Article 244 of Korea in 1993. Siples challenged that order Council Regulation (EEC) No 2913/92 before the Tribunale di Genova. establishing the Community Customs Code. 2 4. The agent of the Tax Collection Service in the Province of Genoa issued a notice seeking recovery from Siples of the above- mentioned amount. Siples challenged that notice and sought suspension of implemen- tation pending a determination by the courts in regard to the customs debt. I I .Facts of the main proceedings

5. In connection with this second case, and more specifically with the application for suspension of implementation, the Tribu- nale di Genova, considering that, under the 2. The question submitted for a prelimin- application national legislation and case- ary ruling has arisen in proceedings law on the matter, it did not have jurisdic- brought by Siples Sri in liquidation (here- tion, ruled that under Article 244 of the inafter 'Siples') against the Ministero delle abovementioned Code customs authorities Finanze (Ministry of Finance) and the may, in certain circumstances, suspend Servizio Riscossione Tributi, Concessione implementation of a decision challenged Provincia di Genova (agent of the Tax before them.

8. The Tribunale di Genova has forwarded The appeal must be lodged in the Member the case-file to the Court of Justice so that it State where the decision has been taken or may give a preliminary ruling on the applied for. following question of interpretation:

2. The right of appeal may be exercised:

'Is the power to suspend the contested decision provided for in Article 244 of Regulation (EEC) No 2913/92 conferred exclusively on the customs authority or also (a) initially, before the customs authorities on the judicial authority before which an designated for that purpose by the appeal has been brought?' Member States;

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(b) subsequently, before an independent 11. Finally, Article 245 provides that: body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.'

13. Siples maintains that Italian law con- fers on the courts power to order suspen- sion of implementation. 3In its view, the existence of that power is acknowledged in Article 244 of the Code. It states, in that Where the disputed decision has the effect regard, that the reference in that provision of causing import duties or export duties to to the customs authorities should not be be charged, suspension of implementation understood to mean that they alone may of that decision shall be subject to the suspend implementation, but that under it existence or lodging of a security. However, such security need not be required where such a requirement would be likely, owing 3 — In that regard, it cites Articles 24 and 113 of the Italian to the debtor's circumstances, to cause Constitution, and Anicie 29 of Legislative Decree No 46 of 26 February 1999 (Gazzetta Ufficiale of 5 March 1999, serious economic or social difficulties.' suppl. ord. no 53).

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OPINION OF MR RUIZ JARABO — CASE C-226/99

the same power as that enjoyed by the that this rule refers only to the power of the courts is extended to them. customs authorities to suspend implemen- tation of a decision concerning customs matters.

14. The Italian Government, taking the view that the dispute relates only to VAT on imports, refers to its observations in The Swedish Government concludes that Case C-1/99 (Kofisa). In those observa- Article 244 of the Code does not preclude tions, it maintained that there was no the national legal systems from granting the provision in the Italian legal system under courts with jurisdiction to determine dis- which the Community Customs Code, in putes concerning customs matters the particular Articles 243 and 244 thereof, power to order total or partial suspension was rendered applicable to VAT on imports of implementation of the contested deci- and that, therefore, the Court of Justice has sion. no jurisdiction to give a ruling in this case.

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complete and effective judicial protection, inconsistent with customs legislation or which means, in particular, that interim that irreparable damage is to be feared for relief may be granted to ensure the full the person concerned. effectiveness of the definitive judgment.

VI. The question referred for a preliminary 20. The wording itself of the article sup- ruling ports the interpretation that the power to order suspension of implementation is conferred only on the customs authorities. 17. By the question referred for a prelimin- Whereas Article 243 expressly lays down ary ruling the Tribunale di Genova seeks to the procedure for bringing appeals before ascertain whether Article 244 of the Code both the customs authorities and before an confers the power to order provisional independent authority (a judicial authority suspension of implementation of the con- or equivalent specialised body), Article 244 tested decision solely on the customs provides only for suspension of implemen- authority or also on the court before which tation of the contested decision to be the appeal has been brought. ordered by the customs authorities.

18. At the outset the Italian Government's claim that the Court of Justice has no jurisdiction to give a ruling on this matter 21. On the other hand, it should be noted, must be rejected. Unlike the circumstances as the Commission points out in its obser- in Case C-1/99 (Kofisa), 4it is evident from vations, that the provision in question the information provided by the national constitutes an exception to the general rule court that the present case refers not only (Article 7 of the Code) which establishes to VAT on imports but also to customs that, other than in the circumstances spe- duties. Therefore, although the dispute is in cified in the second paragraph of Arti- part of a fiscal nature, Article 244 must be cle 244, the decisions taken by the customs deemed to be applicable in the main authorities have immediate effect. proceedings.

22. The preconditions laid down by Arti- authorities seised of the case, pursuant to cle 244 of the Code for suspension by the Article 243 of the Code, from ordering customs authority confirm this interpreta- suspension of implementation of the con- tion. The rule allows suspension of imple- tested decision in accordance with the rules mentation only in cases in which the of procedure applicable under national law. customs authorities have good reason to believe that the contested decision is incon- sistent with customs legislation or that irreparable damage is to be feared for the person concerned. As the Court of Justice pointed out in Giloy, 5the customs autho- rities are to suspend implementation of a contested customs decision where only one of the two conditions mentioned is fulfilled. Therefore, the administrative authority 24. At the same time, the Court has held 7 may order suspension merely where there that Community law grants individuals full is a risk of irreparable damage for the and effective legal protection, which person concerned. means, in particular, that their right to interim relief is recognised in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law.

On the other hand, under the Court's case- law concerning the suspension by judicial bodies of a national administrative act adopted pursuant to a rule of Community law 6 the judicial authorities may order suspension only if, amongst other condi- tions, they entertain serious doubts as to the validity of the Community act and, at the same time, there is urgency, owing to 25. In sum, Article 244 of the Code does the risk to the applicant of serious and not preclude the judicial authorities deter- irreparable damage. mining a case on appeal under Article 243 from ordering the suspension of implemen- tation of the contested decision, either pursuant to rules of procedure in force under national law or in order to comply with the obligation to secure the full and effective legal protection afforded to indi- 23. However, this interpretation of Arti- viduals under Community law. cle 244 does not preclude the judicial

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