C-252/87
ECLI:EU:C:1988:374
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OPINION OF MR DARMON — CASE 252/87
O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 6 July 1988 *
Mr President, transit operation, an offence or irregularity Members of the Court, 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 1. Along with Wilhelm Kiwali KG and the accordance with its provisions laid down by Commission I think that the question put by law, regulation or administrative action, the Bundesfinanzhof should be reworded in without prejudice to the institution of order for it to be answered. criminal proceedings.' In the judgment in the Fioravanti case the Court rejected the argument that it is the release for circulation in a Member State of goods from a non-member country and not previously 2. In view of the facts as they appear from admitted to free circulation which makes the documents the national court is asking customs duties and other charges payable. in essence whether in May 1980 Community Thus the Court declared that: law prevented a customs debt from arising in a Member State into which goods orig- inating in a non-member country had been imported where the goods were forwarded from another Member State under a T2 certificate improperly obtained in that State, into which they had previously been 'The internal Community transit system smuggled. requires a provision governing the case where, as a result of an irregularity in the application of the system, the duties and other charges payable are not collected.' 3 3. It seems to me that the answer to that question can be inferred from Article 36 of Council Regulation No 222/77 on Community transit, 1 in the light of and in the direction indicated in particular by the judgment in the Fioravanti case. 2 5. The facts in the main proceedings reveal two offences which were committed orig- inally in the first country of importation: the smuggling of the goods from a non-member State without payment of the duties 4. Article 36 (1) provides that 'when it is normally payable and then the improper found that, in the course of a Community obtaining of a T2 certificate. It cannot be denied that the second offence was * Translated from the French. committed 'in the course of a Community 1 — OJ L 38, 9.2.1977, p. 1. 2 — Judgment of 27 September 1984 in Case 99/83 Fioravanti v transit operation' and in any event at the Amministrazione delle Finanze dello Stato [1984] ECR 3939. beginning of that operation, which makes In that judgment the Court interpreted Article 36 of Regu- lation N o 542/69 of the Council of 18 March 1969 on Article 36 of Regulation No 222/77 Community transit (Official Journal, English Special Edition 1969 (I), p. 125), the wording of which is identical to that of Article 36 of Regulation N o 222/77. 3 — Paragraph 22.
HAUPTZOLLAMT HAMBURG-ST. ANNEN v KIWALL
applicable. However, did not the smuggling imported before being forwarded to the itself occur prior to the Community transit? second State. It is when goods enter the Community that duties are payable. The 6. That is, strictly speaking, the case. entry took place in the first State. However, in view of the consequences in relation to the powers of the Member States in this field it seems to me reasonable to 7. The first offence, the smuggling into the regard the first importation as inseparable customs territory of the Community of from the whole transit operation which goods from non-member countries, is the followed it. That view seems to me justified origin of the subsequent offences. It would especially in the case where the goods in be artificial to regard the first importation question are not released for circulation in as separate from the operations which the first Member State into which they are followed it.
8. Accordingly my o p i n i o n is that the C o u r t should hold t h a t C o m m u n i t y law as it stood in M a y 1980 p r e c l u d e d the incurring of a customs d e b t in a M e m b e r State into which g o o d s from n o n - m e m b e r countries w e r e i m p o r t e d from a n o t h e r M e m b e r State into which they had previously been smuggled.