C-310/98

OPINION OF MR MISCHO — JOINED CASES C-310/98 AND C-406/98

O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 9 December 1999 *

1. Joined Cases C-310/98 and C-406/98 under cover of TIR carnets, provide as concern references made to the Court by follows: the Bundesfinanzhof (Federal Finance Court), Germany under Article 177 of the EC Treaty (now Article 234 EC) for a preliminary ruling on the interpretation of Articles 454 and 455 of Commission Reg- Article 454(3): ulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implemen- tation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code 1 (hereinafter the 'imple- 'Where it is not possible to determine in menting regulation'). which territory the offence or irregularity was committed, such offence or irregularity shall be deemed to have been committed in the Member State where it was detected unless, within the period laid down in Article 455(1), proof of the regularity of the operation or of the place where the offence or irregularity was actually com- mitted is furnished to the satisfaction of the customs authorities.

I — Legal framework

Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State in which it was detected, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or 2. Articles 454(3) and 455, which relate national provisions. to the international transport of goods

* — Original language: French. 1 — O J 1993 L 253, p. 1. Regulation (EEC) No 2913/92 If the Member State where the said offence establishing the Community Customs Code is dated 12 October 1992. It was published in OJ 1992 L 302, p. 1. or irregularity was actually committed is

' 1 . Where an offence or irregularity is (b) by the production of a customs docu- found to have been committed in the course ment issued in a third country showing of or in connection with a transport release for home use, or a copy or operation carried out under cover of a photocopy thereof; such copy or pho- TIR carnet or a transit operation carried tocopy must be certified as a true copy out under cover of an ATA carnet, the either by the body which endorsed the customs authorities shall notify the holder original document, or by the authori- of the TIR carnet or ATA carnet and the ties of the third country concerned, or guaranteeing association within the period by the authorities of one of the Mem- prescribed in Article 11(1) of the TIR ber States. This document must include Convention or Article 6(4) of the ATA information enabling the goods in Convention, as the case may be. question to be identified; or

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(c) for the purposes of the ATA Conven- fraudulent manner, save that the period tion ...'. shall be two years.

3. The guaranteeing association shall have a period of three months, from the date when a claim for payment is made upon it, in which to pay the amounts claimed. The ' 1 . Where a TIR carnet has not been sums paid shall be reimbursed to the discharged or has been discharged condi- association if, within the two years follow- tionally, the competent authorities shall not ing the date on which the claim for have the right to claim payment of the sums payment was made, it has been established mentioned in Article 8(1) and (2) from the to the satisfaction of the customs autho- guaranteeing association unless, within a rities that no irregularity was committed in period of one year from the date of connection with the transport operation in acceptance of the TIR carnet by those question.' authorities, they have notified the associa- tion in writing of the non-discharge or conditional discharge. The same provision shall apply where the certificate of dis- charge was obtained in an improper or

6. The aforementioned Articles 454(3) 2 — OJ 1978 L 252, p. 1. and 455 also refer to the ATA Conven-

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tion 3 which, however, has no bearing on 10. The checks and enquiries made by the the cases under consideration here. Hauptzollamt (Principal Customs Office) Neubrandenburg, Germany (hereinafter the 'Hauptzollamt') established that in neither case had the goods in transit ever been produced to the office of destination. Thus, in each case, the counterfoil of Voucher No 2 of the TIR carnet in ques- tion, which should have been returned by the office of destination to the office of I I— Facts and proceedings departure to enable it to conclude the transit operation, had not in fact been returned.

statement by the driver who had effected because Sagpol had, within the time-limit, the transport operation. furnished satisfactory evidence that the actual place of the offence was Madrid.

15. The Hauptzollamt, however, rejected this evidence as unsatisfactory and issued a 19. In each case, the Hauptzollamt recovery notice against Met-Trans. Having appealed on a point of law ('Revision') to challenged the notice unsuccessfully, Met- the Bundesfinanzhof, which has referred Trans appealed to the Finanzgericht five questions for a preliminary ruling. (Finance Court), Germany, which found that the Hauptzollamt did not have juris- diction to issue the notice because Met- Trans had satisfactorily proved, within the time-limit prescribed, that the place where the offence was actually committed was Porto. III — The questions referred for a preli- minary ruling

20. The questions raised in connection with 16. A recovery notice was also issued the Sagpol case are as follows: against Sagpol, which had failed to respond within the time-limit allowed it.

If the above question is answered in the negative: Within what period may the carnet holder prove the actual place where the offence or irregularity has Are the third and fourth subparagraphs been committed? of Article 454(3) of Regulation (EEC) No 2454/93 to be interpreted as mean- ing that they also apply in cases where the duties were recovered in the Mem- ber State where the offence or irregu- larity was detected, even though it has (2) If the answer to the questions at (1) been proved within the period pre- above leads to the conclusion that the scribed by the first subparagraph of carnet holder has not failed to comply Article 454(3) and by Article 455(1) of with the time-limit for proving the Regulation No 2454/93 that the actual place where the offence or offence or irregularity was actually irregularity was committed: committed in another Member State?'

— the type of evidence admissible; (2) If the Court of Justice takes the view that the actual place where the irregu- larity or offence was committed can be proved on the basis of statements of the carnet holder and the testimony of the — the consequences of adjudging the lorry driver who effected the transport evidence adduced to be satisfactory operation, are the third and fourth after the prescribed time-limit has subparagraphs of Article 454(3) of expired. Regulation (EEC) No 2454/93 to be interpreted as meaning that they also apply in cases where the charges were recovered in the Member State where the irregularity or offence was detected, even though it has been proved that the irregularity or offence was actually committed in another A — Time-limit for furnishing evidence Member State?'

(First question in the Sagpol case)

22. It is readily apparent from a perusal of the questions formulated by the Bundesfi- nanzhof that the second question in the 24. The first question referred by the Sagpol case corresponds to the first in the Bundesfinanzhof is essentially asking whe- Met-Trans case. Similarly, the subject of the ther the first subparagraph of Arti- third question in the Sagpol case is the same cle 454(3) and Article 455(1) of the imple- as that of the second question in the Met- menting regulation should be interpreted as Trans case. meaning that where a consignment which

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has been cleared for the external transit carnet, whereas it is only reasonable for the procedure under cover of a TIR carnet has period prescribed in the first subparagraph not been produced to the office of destina- of Article 454(3) of the implementing reg- tion, the customs authorities of the Mem- ulation to begin to run at the time of ber State of departure are entitled to set the notification by the customs authority. carnet holder a preclusive period of three months in which to provide satisfactory evidence of the actual place where the offence was committed.

28. The Commission and the governments which have submitted observations, on the other hand, invoke an administrative agree- ment concluded by the Member States, 26. The Bundesfinanzhof considers that, according to which the period for produ- although the first subparagraph of Arti- cing proof is three months. This would cle 454(3), in conjunction with Arti- correspond to the period laid down for the cle 455(1), of the implementing regulation Community's external transit procedure by does refer to Article 11(1) of the TIR Article 379 of the regulation, as well as to Convention, it nevertheless entertains the principle of the effectiveness ('effet doubts as to whether the time-limit in utile') of Community rules, since a longer Article 11(1) may be applied to proof of period might preclude the collection of the actual place of an offence. Its doubts duty because of limitation periods. are based on several considerations drawn from the wording of the articles themselves. It points out that the time-limit laid down in Article 11(1) of the TIR Convention is for the customs authorities to observe, whereas the time-limit stipulated in the Opinion first subparagraph of Article 454(3) of the implementing regulation is intended to be observed by the customs debtor. Moreover, the period prescribed by Article 11(1) of the TIR Convention does not begin to run at the time of notification of the guarantee- 29. The texts are unquestionably confused ing association by the customs authorities and the Commission is right to refer to but at the time of acceptance of the TIR 'legal carelessness'.

32. The first subparagraph of Arti- cle 454(3) refers in that connection to Article 455(1), which in turn refers to the — or they wrongly stipulated in Arti- abovementioned Article 11(1) of the TIR cle 455(2) that the period for proving Convention. the regularity of the operation should

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be that laid down in Article 11(2) of 40. If the first subparagraph of Arti- the TIR Convention. cle 454(3) did not refer to Article 455(1), it would be inconceivable to refer to it to determine the time-limit for proving the regularity of the operation or the place of the offence.

36. There are several indications that it was the first of these two mistakes that was made. 41. On the other hand, the connection between Article 455(2) and the first sub- paragraph of Article 454(3) is immediately apparent.

37. First of all, it seems clear that there is no direct link between the substantive content of Article 455(1) of the implement- ing regulation and the first subparagraph of 42. Article 455(2) is wholly concerned Article 454(3). with the problem of determining the time- limit for proving the regularity of the operation within the meaning of the first subparagraph of Article 454(3).

'... nor does Article 11(2) of the TIR Convention, to which the said paragraph refers, make it possible to deduce any 50. Nevertheless, Article 454 of the imple- period of use for determining which is the menting regulation does offer the TIR competent authority — as the Bundesfi- carnet holder (and logically the guarantee- nanzhof has already explained in its order ing association as well) an opportunity to for reference — since it presupposes the challenge the jurisdiction of the office of issue of a tax assessment by a competent departure 5 by proving that the taxes on the authority'. operation have in fact been discharged or that an offence was committed at a parti- cular place.

54. Thus, the association automatically has three months in which to furnish proof of the regularity of the operation or of the place where the offence was committed since, until that period has expired, no 57. Moreover, if the goods, which were claim for payment may be made from it. intended for delivery to a specific point in the customs territory of the Community under a transit procedure, had not already been placed under a TIR carnet in a third country, namely Poland, they would have been subject to the Community's external transit procedure. 55. Admittedly, Article 11(2) does not say that the office of departure must give the guaranteeing association or the TIR carnet holder a period of three months, but it certainly allows it to do so, since this period follows indirectly from the prohibition on 58. If a longer period for furnishing proof making a claim for payment before three were to be allowed under the TIR proce- months have elapsed. dure, that might have the effect of encoura- ging recourse to that procedure solely for the purpose of avoiding the more stringent provisions of Article 379(2).

56. The same conclusion can also be 6 — With regard to the argument by analogy, see, in particular, the judgments in Case 180/78 Brouwer-Kaune [1979] ECR reached by applying a process of reasoning 2111, and Case 165/84 Krohn [1985] ECR 3997.

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OPINION OF MR MISCHO — JOINED CASES C-310/98 AND C-406/98

66. An international transport company 62. However, as they represent the unan- which uses the TIR procedure should be imous opinion of the members of the aware that its first duty is duly to complete Council (the author of the Customs Code) the procedure by producing the goods to a and of the Commission (the author of its customs office in the country of destina- implementing regulation), the guidelines tion. As a list of these offices is available, at confirm that my proposed interpretation the very least, in the office of departure, the

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68. Finally, the principle of equal treatment has not been infringed, since the same rules apply to all carriers who find themselves in 72. If it is found, even after the three- a comparable situation. month time-limit has expired, that the duties and taxes have in fact been paid in the country of destination, the operator's interests are still safeguarded.

69. In relation to the same question, the Bundesfinanzhof also enquires whether the 73. In these circumstances, the second right of a Member State to set a preclusive sentence of Article 11(3) of the TIR Con- period of three months means that proof vention applies. This reads: 'The sums paid

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shall be reimbursed to the association if, affect the competence of the Member State within the two years following the date on of dispatch to recover the duties.' which the claim for payment was made, it has been established to the satisfaction of the customs authorities that no irregularity was committed in connection with the transport operation in question'.

B — The types of admissible evidence

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case, 'that the types of evidence which are 81. The Bundesfinanzhof points out that admissible to prove the actual place where the German version of Article 378(1) of the the offence or irregularity took place are implementing regulation concerning the not regulated in the way that evidence that Community's external transit procedure transportation under cover of a TIR carnet does not use the term 'glaubhaft'. It con- has been properly carried out is regulated cludes that in such cases the operator must by A r t i c l e 4 5 5 ( 3 ) of R e g u l a t i o n furnish absolute proof of his assertions (it No 2454/93. Thus, according to the word- appears that 'Nachweis' standing alone is ing of the provision, all types of evidence more stringent than 'glaubhafter Nach- which divulge a probability verging on weis'). It is inconceivable that laxer require- certainty that the irregularity or offence ments with regard to proof of the place of was committed in a particular place are the offence should be imposed under the admissible.' However, the Bundesfinanzhof TIR regime. The Bundesfinanzhof con- subsequently explains why it considers that cludes that, in both cases, the operator all types of evidence should not be admit- must convey to the authorities 'a probabil- ted, and it is on this point that my attention ity verging on certainty' ('die an Sicherheit will principally be focused. grenzende Wahrscheinlichkeit') with regard to the alleged fact and not merely 'the impression of [its] preponderant probabil- ity' ('den Eindruck der überwiegenden Wahrscheinlichkeit'), within the meaning of German law on civil procedure.

84. It should also be noted that, in connec- accepted if it is not convincing. Proof that tion with this same formula 'to the satis- fails to convince the customs authorities faction of the competent authorities', and the courts that supervise them is no which was similarly employed in Arti- proof at all. If the criterion developed by cle 2(d) of Council Directive 79/623/EEC German case-law is that of an 'impres- of 25 June 1979 on the harmonisation of sion ... of probability verging on certainty', provisions laid down by law, regulation or I see no reason why it should not be applied administrative action relating to customs in the context of Article 454. debt, 7since repealed, at paragraph 24 of its judgment in Joined Cases C-246/94 to C-249/94 8 the Court declared that 'the phrase "... the competent authorities are satisfied" in Article 2(d) of Directive 79/623, which is in itself superfluous, 87. It remains to be seen whether one can merely stresses the task of verification infer from Articles 454 and 455 that only which the competent national authorities certain types of evidence are admissible to must carry out in any event, subject to prove 'to the satisfaction' of the customs review by the national courts'. authorities that the offence was committed in a particular place.

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order for evidence as to the place where the 92. In the absence of any indication in the offence was actually committed to be Community regulation as to what is meant objective, 'only specific sorts of evidence by 'proof ... to the satisfaction of the should be regarded as appropriate to prove authorities', it must be left to the national where an irregularity or offence was actu- court making the reference to assess, on the ally committed'. Such evidence might 'com- basis of national procedural law, what prise documents which show unambigu- should be considered to be proof furnished ously that the competent authorities in to the satisfaction of the authorities and, in another Member State have concluded that a case such as that before the Court, the the irregularity or offence in connection means of proof should not be restricted with the transportation under cover of the solely to the official document suggested by relevant TIR carnet was actually commit- the Bundesfinanzhof, when no such restric- ted on their territory'. tion can be found in the legislation itself. If the right to adduce evidence needs to be limited in some way, it is for the legislature to take action.

89. The French, Netherlands and Finnish Governments and the Commission all share the Bundesfinanzhofs view.

93. In its observations at the hearing, the Danish Government said that, for the most part, it shared the opinion expressed by the Swedish Government and by the defendant companies. The Danish Government could 90. The Swedish Government, on the other not accept that the expression 'to the hand, points out that 'the fact that the satisfaction of the customs authorities' customs authorities must be furnished ... could be taken to imply a heavier burden with satisfactory evidence as to the place of proof. where the offence or irregularity was committed in itself implies that there must be room for different kinds of evidence and different assessments of that evidence'.

99. In the light of these texts, is it more Opinion logical to conclude that proof of the place where the offence or irregularity was committed should also be furnished by producing documents (extrapolation) or 96. The analogous reasoning suggested by that proof of the irregularity does not need several governments and the Commission to be furnished by producing documents leaves me unconvinced. Analysis of the because the text contains no such require- logical structure of Articles 454 and 455 ment and even proof of regularity could, at points to an interpretation based on differ- the material time, also have been furnished entiation rather than analogy. by other means (differentiation-based inter- pretation)? In my view, it is clearly the second of these conclusions to which pre- cedence should be given. 97. According to the first subparagraph of Article 454(3), an offence is deemed to have been committed in the Member State where it was detected, unless proof 100. In 1997, 9by deleting the words ''inter alia', the Commission limited the types of proof of the regularity of the operation to — of the regularity of the operation or the documents listed. It could also have taken this opportunity to introduce the principle that the place of the offence must be proved by means of an official docu- — of the place where the offence or ment. irregularity was committed

is furnished to the satisfaction of the customs authorities. 101. The arguments in favour of such a solution in the context of these proceed- ings — which are far from being devoid of

105. On the other hand, even though the statements of the carnet holder and the 104. Indeed, it is only very rarely that the testimony of the lorry driver must necessa- customs authorities or police of the rily be treated with caution, it should still be possible for the competent authority to conclude that it has been shown, convin- 10 — Article 213 of the Customs Code: 'Where several persons are liable for payment of one customs debt, they shall be cingly in its view, that the offence or jointly and severally liable for such debt'. irregularity was committed in a certain

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place, when provided with a range of Met-Trans case and to the second question circumstantial evidence such as: in the Sagpol case as follows:

— a TIR carnet identifying the destina- 'In order to satisfy the customs authorities tion; of a Member State, within the meaning of the first subparagraph of Article 454(3) of Regulation No 2454/93, proof of the place where an offence was actually committed in the course of a transport operation carried out under cover of a TIR carnet — shipping orders and invoices; need not necessarily consist of documents which clearly show that the competent authorities in the other Member State reached the conclusion that the offence was committed in their territory.'

— highly credible statements by the carnet holder and lorry driver;

108. These two subparagraphs are worded 110. First of all, it is important to clarify as follows: the meaning of the expression 'in due time', which appears only in the third question in the Sagpol case. Obviously, if satisfactory proof of the place of the offence is furn- ished and accepted by the customs autho- rity within the three-month time-limit, that authority will not recover the duties and 'If the Member State where the said offence the question of the application of the third or irregularity was actually committed is subparagraph of Article 454(3) does not subsequently determined, the duties and arise. other charges (apart from those levied, pursuant to the second subparagraph, as own resources of the Community) to which the goods are liable in that Member State shall be returned to it by the Member State which had originally recovered them. In that case, any overpayment shall be repaid to the person who had originally paid the charges. 111. Thus, the question only concerns cases where the customs authorities recover the duties and other charges because they consider the evidence furnished in due time to be unsatisfactory but it is subsequently established by the courts that that evidence should in fact have been accepted. Where the amount of the duties and other charges originally levied and returned by the Member State which had recovered them is smaller than that of the duties and other charges due in the Member State where the offence or irregularity was actually committed, that Member State shall levy the difference in accordance with Community or national provisions.' 112. In such cases, should the recovery of the duties and other charges be considered null and void and the sum recovered duly repaid to the economic agent? Or should the recovery be considered valid and the duties and charges (apart from those levied as own resources of the Community) sim- 109. The Bundesfinanzhof wishes to know ply transferred by the Member State which whether these provisions also apply in cases recovered them to the Member State where in which the duties and other charges were the offence was ultimately found to have recovered in the Member State where the been committed (the economic agent being offence was detected, even though it has entitled only to a refund of any overpay- been satisfactorily proved, in due time, that ment resulting from a higher rate of the offence was actually committed in taxation in the country of the office of another Member State. departure)?

115. The French Government (Sagpol case) 118. The Commission follows the same is of the opinion that the inter-State com- line of argument. It considers that the spirit pensation mechanism under the third and and purpose of the provisions of Arti- fourth subparagraphs of Article 454(3) of cle 454(3) appear to require that the third the implementing regulation applies in any subparagraph be interpreted as meaning event, basing its view on Article 217(1) of that there has been a 'subsequent determi- the Customs Code ('Each and every nation' of the actual place of the offence. amount of import duty or export duty resulting from a customs debt ... shall be calculated by the customs authorities as soon as they have the necessary particu- lars ...') and on the need to ensure 'legal certainty for the operators who could find themselves facing claims, within the limita- 119. Met-Trans and Sagpol maintain that tion period, for duties and taxes in one once proof is accepted as satisfactory, even Member State when they had already paid if that is long after the time-limit has them in another'. expired, the tax assessment should be

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annulled and any sums paid should be receives only any overpayment resulting refunded. from the difference between the duties and other charges payable in the Member State of departure and the State in which the offence was committed. If the duties in the latter State are higher, he must pay it the difference. Opinion

121. Nor are we concerned with the situa- tion in which the debtor only produces proof of the place where the offence was 124. I think not. First of all, by virtue of a committed after the three-month period has general principle of law, when a decision of expired. In these circumstances, the third an authority or an opinion that has had subparagraph of Article 454(3) of the legal consequences is set aside, the parties implementing regulation provides for the revert to their former situation. (This, duties and other charges (apart from those incidentally, is why limitation periods are levied as own resources of the Community) interrupted when legal proceedings are to which the goods are liable in the State in instituted.) Proof furnished in due time which the offence was committed to be but only later adjudged to be satisfactory 'returned' to that State by the Member should therefore be deemed to have been State which originally recovered them. The furnished satisfactorily within the time- carrier who originally paid the charges then limit, with all that that implies.

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125. Secondly, it should not be overlooked 128. If the Bundesfinanzhof, the Member that Article 215 of the Customs Code and States which have submitted observations Article 454(3) of the implementing regula- and the Commission are reluctant to accept tion establish only a presumption of com- this conclusion, it is because they fear that, petence in favour of the customs office of in such cases, the authorities of the Mem- the State in which the offence is detected. ber State in which the offence was com- This presumption is rebuttable. If, within mitted will no longer be in a position to the period laid down, proof is furnished to recover the charges because the limitation the satisfaction of the customs authorities, period has expired. the presumption no longer applies and the State competent to recover the duties and other taxes on the goods is then the State in which the offence was committed.

131. Finally, in its judgment in Case tion No 222/77 that application of that C-233/98, 11 the Court was likewise faced provision presupposes that the authorities with the question whether the risk of duties of the Member State to which the office of and taxes not being recovered constituted departure belongs are authorised to recover sufficient grounds for dismissing the objec- the duty and other taxes. From the answer tion that the authority which recovered to Question 1 it follows that as the them lacked jurisdiction. principal had not been notified of the three-month period referred to in Arti- cle 11a(2) of Regulation No 1062/87 those authorities could not validly have acquired jurisdiction to levy the duty on the entry of the goods. They cannot therefore oppose the refund of sums which they were not authorised to recover and, as the Advocate General observes in points 70 and 71 of his Opinion, no distinction should be drawn 132. On that occasion, the measure con- between duty levied as own resources of the cerned was the old Council regulation on Community and other duties and taxes.' external Community transit which, like Article 379 of the implementing regulation at issue here, required the office of depar- ture to set the principal a time-limit of three months to furnish proof of the place where the offence was actually committed.

133. In paragraph 36 of that judgment the Court ruled as follows: 134. For all these reasons, I propose that the Court should reply to this question that the third and fourth subparagraphs of Article 454 of the implementing regulation should be interpreted as meaning that they do not apply in cases where the duties and other charges were recovered in the Mem- ber State in which the offence was detected and where evidence furnished within the 'It is implicit from the wording of the third period prescribed is only accepted as prov- subparagraph of Article 36(3) of Regula- ing the place of the offence to the satisfac- tion of the competent authorities after the time-limit for adducing evidence imposed 11 — Lensing and Brockhausen [1999] ECR I-7349. on the carrier has expired.

(3) The third and fourth subparagraphs of Article 454 of the abovementioned Regulation No 2454/93 should be interpreted as meaning that they do not apply in cases where the duties and other charges were recovered in the Member State in which the offence was detected and where evidence furnished within the period prescribed is only accepted as proving the place of the offence to the satisfaction of the competent authorities after the time-limit for adducing evidence imposed on the carrier has expired.

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