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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> British American Tobacco Manufacturing (Customs union) [2004] EUECJ C-222/01 (29 April 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C22201.html Cite as: [2004] EUECJ C-222/1, [2004] EUECJ C-222/01 |
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JUDGMENT OF THE COURT (Fifth Chamber)
29 April 2004
(1)
(Free movement of goods - External Community transit - Temporary removal of transit and transport documents - Breaking of seals and partial unloading of the goods - Removal of goods from customs supervision - Incurring of a customs debt on importation - Unsuspected presence of undercover customs agents - Special circumstances justifying the remission or repayment of import duties - Responsibility of the principal in the case of deception or obvious negligence on the part of persons engaged by him)
In Case C-222/01, REFERENCE to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between British American Tobacco Manufacturing BVand
Hauptzollamt Krefeld, on the interpretation of the Community rules concerning the incurring, remission and repayment of a customs debt,THE COURT (Fifth Chamber),
after considering the written observations submitted on behalf of:
- British American Tobacco Manufacturing BV, by H. Glashoff, Steuerberater, - the Commission of the European Communities, J.-C. Schieferer, acting as Agent,having regard to the Report for the Hearing,
after hearing the oral observations of British American Tobacco Manufacturing BV and the Commission at the hearing on 6 February 2003,
after hearing the Opinion of the Advocate General at the sitting on 26 June 2003,
gives the following
'For the purposes of this Regulation: (a) "principal" means the person who, in person or through an authorised representative, requests permission, in a declaration in accordance with the required customs formalities, to carry out a Community transit operation and thereby makes himself responsible to the competent authorities for the execution of the operation in accordance with the rules; ... (c) "office of departure" means the customs office where the Community transit operation begins; ... (e) "office of destination" means the customs office where the goods must be produced to complete the Community transit operation; ...'
'1. Any goods that are to be carried under the procedure for external Community transit shall be covered, in accordance with the conditions laid down in this Regulation, by a T 1 declaration. ... ... 4. The T 1 declaration shall be signed by the person who requests permission to effect an external Community transit operation or by his authorised representative, and at least three copies of it shall be produced at the office of departure. ... 6. The T 1 declaration shall be accompanied by the transport document. The office of departure may dispense with production of this document during the customs formalities. However, the transport document must be produced whenever required by the customs authorities in the course of carriage.'
(a) the production of the goods intact at the office of destination within the prescribed time-limit and with due observance of the measures adopted by the competent authorities to ensure identification; (b) the observance of the provisions relating to the Community transit procedure and to transit in each of the Member States in the territory of which carriage of the goods is effected.'
'The office of departure shall register the T 1 declaration, prescribe the period within which the goods must be produced at the office of destination, and take such measures for identification as it considers necessary.'
'1. As a general rule, identification of the goods shall be ensured by sealing. ... 4. The office of departure may dispense with sealing if, having regard to other possible measures of identification, the description of the goods in the T 1 declaration or in the supplementary documents makes them readily identifiable.'
'The copies of the T 1 document delivered to the principal or to his representative by the office of departure must accompany the goods.'
'Copies of the T 1 document shall be produced in each Member State as required by the customs authorities, who may satisfy themselves that the seals are unbroken. The goods shall not be inspected unless some irregularity is suspected which could result in abuse.'
'If seals are broken in the course of carriage without the carrier so intending, he shall, as soon as possible, request that a certified report be drawn up in the Member State in which the means of transport is located, by the customs authority if there is one nearby or, if not, by any other competent authority. The authority concerned shall, if possible, affix new seals.'
'When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings.'
The rules on the incurring and extinction of customs debt
... (c) the removal of goods liable to import duties from the customs supervision involved in the temporary storage of the goods or their being placed under a customs procedure which involves customs supervision; (d) the non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or non-compliance with a condition to which the placing of the goods under that procedure is subject, unless it is established that these failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.'
'The moment when a customs debt on importation is incurred shall be deemed to be: ... (c) in the cases referred to in Article 2(1)(c), the moment when the goods are removed from customs supervision; (d) in the cases referred to in Article 2(1)(d), either the moment when the obligation, non-fulfilment of which causes the customs debt to be incurred, ceases to be met, or the moment when the goods were placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure was not in fact fulfilled; ...'
'Without prejudice to the provisions in force concerning the withdrawal of action to recover the amount of a customs debt in the event of the time bar for that debt having lapsed, and also concerning the non-recovery of such amounts due to the establishment by judicial process of the insolvency of the debtor, a customs debt shall be extinguished: (a) by payment of the amount of the import or export duties payable on the goods in question or, where appropriate, by remission of that amount pursuant to the Community provisions in force; (b) by confiscation of the goods. ...' The rules on the determination of the persons liable for payment of a customs debt
'1. Where a customs debt has been incurred pursuant to Article 2(1)(c) of Regulation (EEC) No 2144/87, the person who removed the goods from customs supervision shall be liable for payment of such debt. Under the provisions in force in the Member States, the following shall also be jointly and severally liable for payment of such debt: (a) any persons who participated in the removal of the goods from customs supervision and any persons who acquired or held them; (b) any other persons who are liable by reason of such removal. 2. The person required to fulfil, in respect of goods liable to import duties, the obligations arising from their temporary storage, or from the use of the customs procedure under which they have been placed, shall also be jointly and severally liable for payment of the customs debt.'
'Where a customs debt has been incurred pursuant to Article 2(1)(d) of Regulation (EEC) No 2144/87, the person who is required, according to the circumstances, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they have been placed or to comply with the conditions to which the placing of the goods under that procedure is subject, shall be liable for payment of such debt.' The rules on repayment or remission of import or export duties
'For the purposes of this regulation: ... (c) "repayment" means the total or partial refund of import or export duties which have been paid; (d) "remission" means the complete or partial waiving of import or export duties which have been entered in the accounts of the authority responsible for their collection but which have not yet been paid'.
'Import duties shall be repaid or remitted in so far as the competent authorities are satisfied that the amount of such duties entered in the accounts: - relates to goods in respect of which a customs debt has either not arisen or has been settled other than by payment or prescription, - exceeds for any reason the amount lawfully payable.'
'Import duties may be repaid or remitted in special situations other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which the first subparagraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined in accordance with the procedure laid down in Article 25. Repayment or remission may be made subject to special conditions.'
'Where tobacco products or cigarette paper are imported into the territory in which the tax is levied, the provisions for customs duties shall apply mutatis mutandis to the incurrence of tax and the date which is relevant for its assessment, to the identity of the person liable to pay the tax, personal liability, additional tax in the event of failure to comply with tax rules, the taxation procedure, and, where the tax is not paid through the use of revenue stamps, to the time of payment, deferment of payment, remission and repayment. This shall apply even where customs duties are not to be levied.'
'(1) Are goods which have been cleared for Community transit removed from customs supervision if the transit document T 1 is temporarily removed from the consignment? (2) If the Court answers Question 1 in the negative: Have goods cleared for Community transit been removed from customs supervision if the customs seal affixed to ensure their identification was opened and the goods were partially unloaded, without the consignment first being duly produced for customs, even though the operation was arranged with the persons in question by customs investigation officers operating incognito and observed in every detail by those officers? (3) If the Court answers one of Questions 1 and 2 in the affirmative: Do special circumstances exist within the meaning of Article 13 of Regulation No 1430/79 if a customs investigation officer acting undercover has provoked infringements of the Community transit procedure? Does the deception or obviously negligent conduct of persons used by the principal in fulfilling the obligations assumed by him under the Community transit procedure preclude repayment to him of the duties incurred by the removal from customs supervision of goods cleared for Community transit?'
On those grounds,
THE COURT (Fifth Chamber)
in answer to the questions referred to it by the Bundesfinanzhof by order of 24 April 2001, hereby rules: 1) In so far as the temporary removal of the T 1 transit document from the goods to which it relates prevents the presentation of that document at any possible requisition by the customs service, such a removal constitutes a removal of those goods from customs supervision within the meaning of Article 2(1)(c) of Council Regulation (EEC) No 2144/87 of 13 July 1987 on customs debt even if the customs authorities have not demanded presentation of the document or established that it could not have been presented to them without considerable delay 2) The fact that infringements of the Community transit system originate in the conduct of an undercover agent belonging to the customs services constitutes a special situation within the meaning of Article 13(1) of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, as amended by Council Regulation (EEC) No 3069/86 of 7 October 1986, which may, in appropriate cases, justify the remission or repayment of duties paid by the principal, provided no deception or obvious negligence may be attributed to him. Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations contracted under the Community external transit system does not, in itself, exclude repayment to the principal of duties incurred as a result of the removal of goods placed under that system from customs supervision, provided no deception or obvious negligence is attributable to the principal.
Timmermans |
La Pergola |
von Bahr |
R. Grass |
V. Skouris |
Registrar |
President |
1 - Language of the case: German.