C-233/98

HAUPTZOLLAMT NEUBRANDENBURG V LENSING & BROCKHAUSEN

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 1 July 1999 *

1. In proceedings between the Hauptzol- sections from Poland for the external lamt Neubrandenburg and the company Community transit procedure. The Τ 1 Lensing & Brockhausen GmbH (herein­ declaration gave as consignee Ateliers after 'Lensing & Brockhausen'), the Bun­ Metalgroup de Marcinelle, Belgium, and desfinanzhof has submitted to the Court as office of destination Charleroi, Belgium. two preliminary questions concerning the interpretation of Article 36 of Council Regulation (EEC) No 222/77 of 13 Decem­ ber 1976 on Community transit, 1 as amended by Council Regulation (EEC) No 474/90 of 22 February 1990, 2and of 3. The consignment was to be produced by Article 11a of Commission Regulation 16 July 1992 at the latest. By letter of (EEC) No 1062/87 of 27 March 1987, on 22 January 1993 the Hauptzollamt provisions for the implementation and for informed Lensing & Brockhausen that the certain simplifications of the Community transit procedure had not been completed transit procedure, 3as amended by Com­ and asked for help in clarifying the situa­ mission Regulation (EEC) No 1429/90 of tion. An inquiry notice sent to the office of 29 May 1990 4 . destination on 3 May 1993 was not answered, and the office also failed to react to a formal reminder of 12 October 1994. The Hauptzollamt therefore, on 19 Janu­ ary 1995, issued a tax assessment for customs duty and VAT on import.

The main proceedings

4. On 5 February 1995, Lensing & Broc- khausen objected, relying on a CMR way­ bill as proof that Ateliers Metalgroup had 2. On 8 July 1992, Lensing & Brockhau- received and paid for the steel sections. sen, customs agents, asked the Hauptzol- lamt (Principal Customs Office) at Neu­ brandenburg to clear a consignment of steel

Ateliers Metalgroup had stated that the cle 36(3) of Regulation No 222/77 were goods in question had been delivered to not satisfied. DVL Industries (hereinafter 'DVL'). According to the Belgian authorities' infor- mation, it was not possible to establish whether the goods declared on the transit document had in fact been the subject of customs formalities. DVL was said to have been declared bankrupt in the meantime. 9. The purpose of Article 36 of Regulation No 222/77, on which the Hauptzollamt relied, is to determine the competent State for recovery of duty on entry where an offence or irregularity has been committed in the course of a Community transit 6. By decision of 2 January 1996, the operation. Article 36(1) states that, where customs duty and VAT on import were the offence or irregularity 'has been com- reduced by the German authorities to DEM mitted in a particular Member State, the 6 544.90, the remainder of the objection recovery of duties or other charges which being rejected. may be chargeable shall be effected by that Member State in accordance with its provi- sions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings'. 7. In the course of proceedings before the Finanzgericht (Finance Court), Lensing & Brockhausen argued that a receipt for the goods had been given by Ateliers Metalgroup on 9 July 1992, within the time-limit prescribed for their production, 10. For cases in which the place of the as was shown by the CMR waybill. In their offence or irregularity cannot be estab- submission, the right to recover duty lished, Article 36(2) and (3) sets out a series belonged exclusively to the Member State of presumptions which enable conflicts of on whose territory the offence had been jurisdiction to be avoided. detected; it was thus irrelevant that the Belgian customs authorities had not been able to recover the duty from the consignee. This argument was accepted, the Finanz- gericht holding that it was for the Belgian customs authorities, not the German autho- rities, to require payment of the duty. 11. Thus, under Article 36(3),

If, in the absence of such proof, the said offence or irregularity remains deemed to ' 1 . Where a consignment has not been have been committed in the Member State produced at the office of destination and of departure or in the Member State of the place where the offence or irregularity point of entry as referred to in the second occurred cannot be established, the office indent, the duties and other taxes relating of departure shall notify the principal of to the goods concerned shall be levied by this fact as soon as possible and in any case that Member State in accordance with its before the end of the 11th month following laws, regulations and administrative provi­ the date of registration of the Community sions. transit declaration.

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13. In this case the national court states that the office of departure omitted to fix, with regard to the principal, the time-limit referred to in Article 11 a within which 2. If Question 1 is to be answered in the proof could be furnished of the regularity of the transit operation or the place where affirmative: Is the third subparagraph the offence was actually committed. of Article 36(3) of Regulation (EEC) No 222/77 to be interpreted as being applicable also in a case in which a customs office of the Member State of departure has recovered duty due in respect of goods cleared for the transit 14. In those circumstances, since it was procedure without having set a time- uncertain as to the inferences to be drawn limit in accordance with the second from failure to comply with the procedure subparagraph of Regulation (EEC) under Article 11a, in particular where, No 1062/87, with the result that the because of the expiry of the limitation Member State of departure may refund period, the duty on import can no longer be the duty which it has assessed and levied in the Member State where the levied without jurisdiction only if it is offence is eventually proved to have been proved that the Member State in which committed, the Bundesfinanzhof stayed the the offence or irregularity was actually proceedings and referred the following committed has recovered the duty ? Is a

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HAUPTZOLLAMT NEUBRANDENBURG V LENSING & BROCKHAUSEN

distinction to be drawn between duty which an offence or irregularity was com- levied as own resources of the Com- mitted once that Member State has been munity and other (national) taxes?' identified. This is borne out by the fact that Article 36(3) also assigns jurisdiction to that Member State in cases where, follow- ing a period of investigation and uncer- tainty as to the place where the offence occurred, it is found to have been commit- ted in a Member State other than the one in which the office of departure is situated. Preliminary observations

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The first question occurred will have jurisdiction to recover the duty.

21. By its first question, the national court asks essentially whether Article 36(3) of 24. According to Lensing & Brockhausen, Regulation No 222/77 in conjunction with this procedure will be compulsory in a case Article lla(2) of Regulation No 1062/87 covered by Article 36(3), first subpara- must be interpreted as meaning that the graph, of Regulation No 222/77. If it were Member State to which the office of decided that Member States are not obliged departure belongs may recover duty on to comply with the procedure this would import only if it has indicated to the confer on Article 36(3), first subparagraph, principal that he has three months in which of Regulation No 222/77, and especially on to prove where the offence or irregularity Article 11a of Regulation No 1062/87 an was actually committed and such proof has effect exactly contrary to their true mean- not been provided within that period. ing and to the intended purpose, which is to ensure a clear allocation of responsibility among the Member States and thus avoid conflicts of jurisdiction.

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that the offence was committed in the the rules for determining which Member Member State to which the office of State has jurisdiction to recover duty, this departure belongs. By this means, it is leaves the rights of the principal unaffected, possible to ensure that non-recovery does since he remains responsible for paying the not take place simply because the place of charges by virtue of his obligation to the offence could not be determined. discharge customs debt.

28. Thus, in the view of the German Government, the presumption that the 30. The Commission therefore considers offence was committed in the Member that, in the circumstances of the present State of departure is correct, even if the case, the presumption could not operate in actual place of the offence has not been favour of the Member State of departure, established and no time-limit has been so that the German customs authorities fixed in accordance with Article 11a(2) of were not entitled to recover the duties and Regulation No 1062/87. Independently of other taxes.

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31. The Danish Government has some 36. By successfully showing that the pro- sympathy for the doubts expressed by the cedure has been regularly completed the Bundesfinanzhof and the arguments of the principal can be sure of avoiding the German Government, but it too holds the customs debt, which will become the view that the office of departure may not responsibility of the consignee of the goods. recover duty if it has not set the three- month time-limit for the principal.

37. Likewise, by showing that an irregular- ity has been committed in another Member 32. As for myself, I have to agree with the State it will be possible for the principal to viewpoint of the Commission, the Danish avoid the customs debt, as the Member Government and Lensing & Brockhausen. State concerned can seek out the persons involved (who are jointly and severally liable) and claim the duty from them.

33. The wording of Article 11 a(2)of Reg- ulation No 1602/87 undeniably makes plain that the requirement to state the 38. If the VAT rate is lower in that Member three-month time-limit is compulsory. The State, a principal who is unable to avoid text stipulates that the notification 'must indicate, in particular, the time-limit ...' payment of customs duty will at least be and that 'this time-limit shall be three able to benefit from the lower rate. months ...'.

41. One is therefore entitled to conclude 45. The result of this proof was that the that the three-month period is not merely a Member State where the offence occurred, procedural time-limit, but a mandatory in this case the Kingdom of Belgium, condition which must be fulfilled to enable definitively acquired sole jurisdiction to the office of departure to levy the duties levy the relevant duties. and other taxes (if at the end of this period the principal has not proved that the operation has been regularly completed or that the offence was committed in another Member State). 46. The fact that this Member State is apparently no longer able to exercise its jurisdiction because of the time bar does not in any way impair its sole jurisdiction. 42. Finally, in response to the contention of the German Government, I feel bound to point out that if no three-month time-limit has been fixed, this will not necessarily mean that no Member State has jurisdic- 47. During the oral proceedings, the Agent tion. for the Danish Government provided some clarification about the 11-month time-limit mentioned in Article 11a(1). This is the period 'before the end of which' the office of departure must notify the principal that 43. If it can be established by some means, the consignment has not been produced at before a period of three years has elapsed, the office of destination and that the place that the offence was committed either in where the offence or irregularity occurred the Member State of the office of depar- cannot be established. ture, or in the Member State to which the goods were sent, or in another Member State through which the goods have trans- ited, that Member State will collect the duties and other taxes. 48. According to the Danish Government, this time-limit (unlike the three-month time-limit) is a procedural requirement and the office of departure should be able to require recovery of the customs duty 44. In fact, the Bundesfinanzhof has con- even if the principal has been notified of the firmed that Lensing & Brockhausen, within three-month time-limit after the end of the this three-year time-limit, successfully eleven-month period.

The second question 55. Lensing & Brockhausen observe that the purpose of Article 36(3), first subpara- graph, of Regulation No 222/77, which is 52. As the first question put by the Bun- to resolve conflicts of jurisdiction among desfinanzhof is to be answered in the Member States, would be put at risk if a affirmative, we must also consider the given Member State could take action second question, in which the appeal court under it to recover duty and then require requests an interpretation of Article 36(3), payment of the duty while awaiting proof

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HAUPTZOLLAMT NEUBRANDENBURG V LENSING & BROCKHAUSEN

that the Member State which actually has 59. This will be true regardless of whether jurisdiction has received the duty. it is a matter of the Community's own resources or other (national) duties.

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any time to rebut the presumption that the 66. As we have seen from our analysis of Member State of departure has jurisdiction. the first question, in the circumstances of Once this period has elapsed, it is desirable, the main proceedings, the authorities of the for the sake of legal certainty, to apply the Member State to which the office of principle that it is the Member State of departure belongs were not entitled to departure which recovers the duties and recover the duties and other taxes. other taxes. It follows from the wording of the provision in question, which refers to the recovery prescribed in the second subparagraph, and from the context of the first and second subparagraphs, that application of the third subparagraph pre- 67. It is also clear that Article 36(3), third supposes that a competent authority within subparagraph, of Regulation No 222/77 the meaning of the second subparagraph lays down the conditions for the refund of (that is, on the basis of the presumption duties by a Member State which was laid down in the first subparagraph) has initially entitled to collect them in the light recovered the duties. of presumptions established in the first and second subparagraphs of that article.

63. The Commission states that, in princi- ple, non-recovery or reimbursement of the duties and other taxes levied by a Member 68. If, on the other hand, the Member State State of departure which lacks jurisdiction of the office of departure had not acquired will not affect the customs debt of the jurisdiction to levy the duties (because it principal. Unless the customs debt is extin- had not fixed the three-month time-limit), guished, the Member State in which the it cannot object to a refund on the grounds offence was committed would be bound to that the duties were not levied in the recover the duties and taxes in accordance country where the offence was committed. w i t h Article 36(1) of R e g u l a t i o n No 222/77.

73. I therefore propose that the Court should answer the questions referred to it as follows:

(1) Article 36(3), first subparagraph, of Council Regulation N o 222/77 of 13 December 1976 on Community transit, as amended by Council Regula- tion N o 474/90 of 22 February 1990, in conjunction with Article 11a{2) of Commission Regulation (EEC) N o 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, as amended by Commission Regulation (EEC) N o 1429/90, should be interpreted as meaning that the Member State to which the office of departure belongs cannot recover duties on import, where a consignment has not been produced at the office of destination, unless the principal has first been given the three-month time-limit prescribed in Article l l a ( 2 ) , second subparagraph, of Regulation N o 1062/87, as amended by Regulation N o 1429/90, and has not provided the proof required by that article.

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(2) Article 36(3), third subparagraph, of Regulation No 222/77, as amended by Regulation No 474/90, is to be interpreted as meaning that it does not apply to a case in which a customs office of the Member State of departure has taken steps to recover duty on goods subject to the Community transit regime without having given the principal a time-limit for providing proof of the place where the offence or irregularity was committed, in accordance with Article lla(2), second subparagraph, of Regulation No 1062/87, as amended by Regulation No 1429/90.