C-66/99

I — Introduction the time at which a customs debt is incurred on importation, the measures which the customs authorities can take to deal with the situation of goods which have not been released and the ability of those 1. By this reference for a preliminary ruling authorities to invalidate or treat of their pursuant to Article 177 of the EC Treaty own motion as invalid a declaration that (now Article 234 EC), the Finanzgericht has been accepted. It is also asked for a Bremen (Finance Court, Bremen, Germany) ruling in connection with the 'unlawful has referred to the Court of Justice ques- removal from customs supervision of goods tions concerning the interpretation of Arti- liable to import duties' and the failures that cles 75, 201(1)(a), 201(2), 203(1) and 'have no significant effect on the correct 204(1) of Council Regulation (EEC) operation of the temporary storage or No 2913/92 of 12 October 1992 establish- customs procedure in question', and on ing the Community Customs Code (here- the effects which submission of certificates inafter 'the Customs Code'). 2 The Court is of origin establishing the right to preferen- asked, principally, for a ruling concerning tial treatment have on the incurrence of a customs debt. 1 — Original language: Greek. 2 — OJ 1992 L. 302, p. 1.

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I I — The legal background appropriate, by the person who assumes responsibility for carriage of the goods following such entry.'

2. Article 37 of the Customs Code pro- vides:

4. Article 50 of the Customs Code states that, until such time as they are assigned a '1. Goods brought into the customs terri- customs-approved treatment or use, goods tory of the Community shall, from the time presented to customs are, following such of their entry, be subject to customs super- presentation, to have the status of goods in vision. They may be subject to control by temporary storage and that such goods are the customs authority in accordance with thereinafter to be described as 'goods in the provisions in force. temporary storage'.

'Without prejudice to the provisions o: 'Declarations which comply with the con- Article 42, goods in temporary storagí ditions laid down in Article 62 shall be shall be subject only to such forms oí accepted by the customs authorities imme- handling as are designed to ensure then diately, provided that the goods to which preservation in an unaltered state withoui they refer are presented to customs.' modifying their appearance or technical characteristics.'

9. Article 66(1) provides:

7. Article 62 states:

'The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the '1. Declarations in writing shall be made declarant furnishes proof that goods were on a form corresponding to the official declared in error for the customs procedure specimen prescribed for that purpose. They covered by that declaration or that, as a shall be signed and contain all the particu- result of special circumstances, the placing lars necessary for implementation of the of the goods under the customs procedure provisions governing the customs proce- for which they were declared is no longer dure for which the goods are declared. justified.

Nevertheless, where the customs authori- 2. The declaration shall be accompanied by ties have informed the declarant of their all the documents required for implementa- intention to examine the goods, a request tion of the provisions governing the cus- for invalidation of the declaration shall not toms procedure for which the goods are be accepted until after the examination has declared.' taken place.'

(b) examine the goods and take samples for analysis or for detailed examina- '1. Where acceptance of a customs declara- tion.' tion gives rise to a customs debt, the goods

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covered by the declaration shall not be —· the documents which must be pro- released unless the customs debt has been duced before the goods can be paid or secured. However, without preju- placed under the customs proce- dice to paragraph 2, this provision shall not dure requested have not been pro- apply to the temporary importation proce- duced; or, dure with partial relief from import ditties.

— payments or security which should have been made or provided in 2. Where, pursuant to the provisions gov- respect of import duties or export erning the customs procedure for which the duties, as the case may be, have not goods are declared, the customs authorities been made or provided within the require the provision of a security, the said period prescribed; or goods shall not be released for the customs procedure in question until such security is provided.'

— they are subject to bans or restric- tions;

OPINION OF MR COSMAS — CASE C-66/99

17. Article 201 of the Customs Code pro- 18. Article 203 states: vides:

'1. A customs debt on importation shall be incurred through:

'1. A customs debt on importation shall be incurred through:

— the unlawful removal from customs supervision of goods liable to import duties.

(a) the release for free circulation of goods liable to import duties, or 2. The customs debt shall be incurred at the moment when the goods are removed from customs supervision.'

'Without prejudice to the provisions in force relating to the time-barring of a customs debt and non-recovery of such a debt in the event of the legally established insolvency of the debtor, a customs debt shall be extinguished:

in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question. (a) ...

(b) ...

2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the (c) where, in respect of goods declared for customs procedure concerned where it is a customs procedure entailing the obli- established subsequently that a condition gation to pay duties: governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled. — the customs declaration is invali- dated in accordance with Arti- cle 66,

3. ...'

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4. Instead of the measures laid down in 3 — OJ 1993 L 253, p. 1. paragraphs 2 and 3, the customs authorities

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shall have the option of deeming a declara- 2. Where, in the circumstances referred to tion invalid where it is clear that the in the second indent of Article 75(a) of the declarant's refusal to be present at the Code, the declarant has not produced the examination of the goods or to designate requisite documents within the time-limit a person able to give the necessary assis- referred to in paragraph 1, the declaration tance neither prevents, nor seeks to prevent, in question shall be deemed invalid and the those authorities from finding that the rules customs office shall cancel it. The provi- governing the entry of the goods for the sions of Article 66(3) of the Code shall customs procedure concerned have been apply.' breached, and neither evades, nor seeks to evade, the provisions of Article 66(1) or Article 80(2) of the Code.'

25. Article 859 of the implementing regu- lation states: 23. Article 243(2) of the implementing reg- ulation provides:

'Where the declarant refuses to be present 'The following failures shall be considered at the taking of samples or to designate a to have no significant effect on the correct person to attend, or where he fails to render operation of the temporary storage or the customs authorities all the assistance customs procedure in question within the needed to facilitate the operation, the meaning of Article 204(1) of the Code, provisions of Article 241(1), (2) and (3) provided: shall apply.'

...' 'Where a certificate of origin, movement certificate, internal Community transit document or other appropriate document is produced in support of an application for repayment or remission, indicating that the imported goods were eligible, at the time of acceptance of the declaration for free 26. Article 860 of the implementing regu- circulation, for Community treatment or lation provides: preferential tariff treatment, the decision- making customs authority shall grant such application only where it is duly estab- lished:

'The customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the Code unless the person who would be the debtor establishes that the conditions set out in Article 859 •—• that the document thus produced refers are fulfilled.' specifically to the goods in question

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and that all the conditions relating to movement certificate, an internal Com- acceptance of the said document are munity transit document or other fulfilled, appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provi- ded the other conditions referred to in — that all the other conditions for the Article 890 were satisfied.' granting of the preferential tariff treat- ment are fulfilled.

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declaration registered under reference F intended examination constituted removal 459. At the same time, the processing from customs supervision of temporarily official of the customs office who was stored non-Community goods. By an responsible for accepting and examining assessment notice of 2 August 1994, it the customs declaration informed Wandel's requested that Wandel, as the person employee present for the submission of the responsible under Article 51 of the Cus- customs declaration that the declared toms Code for the temporarily stored goods were to be subjected, on 14 July goods, pay import duties which had arisen 1994, to a customs examination at Wan- under Article 203 of the Customs Code del's commercial premises, which served as amounting to DEM 34 534.13 in duty and the place of storage under Article 51(1) of DEM 44 344.33 in import turnover tax, the Customs Code. making a total of DEM 78 878.46. In this it applied to the television kits the rates of duty applicable to non-member countries on the ground that preference could be granted only in the case where goods 32. The customs examination could not be entitled to preference had been properly carried out because, when the official released for free circulation. responsible for that examination arrived, the declared goods were no longer in Wandel's custody but had already been handed over to the company in whose name the declaration had been lodged, established in southern Germany.

of the Customs Code; at most, a customs case where a customs debt is incurred other debt might have been incurred under Arti- than under Article 201 of the Customs cle 204(1 )(a) of the Customs Code. Wandel Code. Tariff preferences for products from submitted that it was nevertheless doubtful developing countries, which are at issue in whether the 'premature' removal of the the present case, are governed in addition goods from the storage procedure had by Article 87 of the implementing regula- affected the correct operation of the tem- tion. The tariff rate of 14 % of the value porary storage, since the goods had been normally applicable to such goods was declared through the above customs therefore correctly used as the basis for declaration for release into free circulation, calculating the duty on the television and no serious doubt could have arisen as equipment. In the case of the other goods to the identity of the goods in question in (modules and circuit boards under Code view of the existing commercial documen- Nos 8529 9070 and 0990) — which it is tation, since this had already been checked common ground were not entitled to pre- in the course of the storage procedure. ferential treatment — the import duties were calculated and charged in accordance with the applicable rate of 7.2 % of the value.

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stay the proceedings before it and refer the goods cannot be released to the declar- following questions to the Court of Justice ant because they were removed, before for a preliminary ruling: the customs examination ordered was carried out, from their prescribed place of storage and from the area for which the customs office is responsible?

'1. Is Article 201(1)(a), in conjunction with Article 201(2), of Council Regu- lation (EEC) No 2913/92 of 12 Octo- 3. If Question 1 is answered in the ber 1992 establishing the Community negative or Question 2 in the affirma- Customs Code (OJ 1992 L 302, p. 1) tive: to be construed as meaning that a customs debt on importation is incur- red once a customs declaration for the release of non-Community goods into free circulation satisfying the require- ments of Article 62 of the Customs Is Article 203(1) of the Customs Code Code has been received by the compe- to be construed as meaning that there is tent customs office and its acceptance a removal from customs supervision evidenced by the attachment of a where the non-Community goods customs registration stamp? declared for release for free circulation are removed from the prescribed place of storage/examination and conse- quently from the local area for which the customs office in question is responsible, even though the customs office had ordered a customs examina- 2. If Question 1 is answered in the tion? affirmative:

4. If Question 3 is answered in the negative: Is Article 75 of the Customs Code to be construed as meaning that the customs office which has accepted such a cus- toms declaration is entitled to treat the declaration as invalid or to invalidate it without a request by the declarant to Is Article 204(1) of the Customs Code that end, with the result that a customs to be construed as meaning that the debt incurred under Article 201(1)(a) unauthorised removal of the goods of the Customs Code is deemed not to from their place of storage has had have been incurred or is extinguished "no significant effect" on the correct under the first indent of Article 233(c) operation of the temporary storage if, of the Customs Code, if the declared after their removal, the goods could, on

40. It should be noted at the outset that, in accordance with the wording of Arti- cle 201 (1)(a) of the Customs Code, in order for a customs debt on importation to be incurred the goods must have been released (c) under Article 204 of the Customs for free circulation. Provided that is the Code, case, the time of acceptance of the customs declaration in question is considered to be the time when the relevant customs debt is incurred (Article 201(2)).

if technically correct certificates of origin corresponding to Form A were attached to the customs declaration received by the customs office and a 41. On an initial reading of the above zero preferential tariff applied to the provision, the conclusion arrived at by goods covered by the declaration?' Wandel in its written observations might

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43. Both the release of goods for free 46. It is clear from the wording of the circulation and the determination of a above provisions and the need to ensure customs debt on importation constitute their effectiveness that, where a declaration legal procedures which start with the is accepted without any verification of the submission (which also constitutes a particulars contained in it, not only is a request for release of the goods for free customs debt incurred at that point, but the circulation) and formal acceptance of the amount of that debt is also definitively relevant declaration, but are not always determined. On the other hand, where a completed thereby. declaration is accepted with an order for verification of the particulars contained in it, the customs debt formally arises, but is 4 — The wording of that provision confirms that acceptance of a not definitive, because, until such time as declaration does not require the particulars declared to be examined for accuracy or correctness. The principal matter the goods have been examined and the checked is whether the codes are correctly entered vis-à-vis the declared particulars. particulars in the declaration verified, the

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amount of the particular debt has not been debt, and, therefore, release of the goods definitively determined and confirmed. for free circulation are always achieved at Consequently, it must be accepted that, in the same time. On the contrary, having this second case, until the above particulars regard also to Article 67 of the Customs have been verified, the duties lawfully due Code, it means that, for reasons of legal have not been definitively imposed, 5and certainty, whenever the amount of the debt the goods have not yet been definitively is definitively determined, it will be calcu- released for free circulation. lated on the basis of the rules in force at the time when the declaration was formally accepted. 6

50. In the main proceedings, the competent 5 — At this point it should be noted that, pursuant to Arti- cle 71(1) of the Customs Code, the results of verifying the customs authorities formally accepted the declaration are in principle to be used for the purposes of declaration by attaching a registration applying the provisions governing the customs procedure under which the goods are placed. stamp to it, reserving the right to examine It is true that Article 71(2) provides that, where the the relevant goods on 14 July 1994 at declaration is not verified, the provisions referred to in Article 71(1) are to be applied on the basis of the particulars Wandel's commercial premises which leg- contained in the declaration. However, it is clear that that provision applies only in cases where failure to examine ally served as the place of storage. The fact goods and verify the declaration is attributable to the customs authorities. If it were accepted that it also applies in that the examination could not be carried cases where the failure to carry out the examination is attributable to the declarant, the declarant could, by removing the goods, render nugatory the provision which provides for the possibility of examining the goods as a 6 — Sec, for example. Case C-413/96 Sportgoods [1998] ECR condition for their customs clearance. I-5285, paragraphs 23, 24 and 25.

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51. The fact that the suspensory condition relating to examination of the goods and verification of the particulars contained in the declaration is not fulfilled, having been rendered purposeless, must therefore, in 52. In light of the above, the answer to the particular where that is attributable to the first question referred for a preliminary declarant, lead to the conclusion that a ruling must be that Article 201(1)(a), in customs debt pursuant to Article 201(1) of conjunction with Article 201(2), of the the Customs Code, whose recognition is Customs Code, must be construed as subject to the above suspensory condition, meaning that a customs debt on importa- tion is not to be regarded as having been incurred if, for reasons attributable to the 7 — The national court, which is responsible for ruling on the declarant — the goods which had the facts of the main proceedings and on the expediency of status of goods in temporary storage having referring questions for a preliminary ruling, notes in the order for reference: 'The goods here in dispute still had the been removed without the permission of status of goods in temporary storage when, without the the customs office — the suspensory con- permission of the customs office, they were removed by the plaintiff, prior to the customs examination, from the dition concerning examination of those commercial premises approved as the place of storage under Article 51 of the Customs Code, which were also designated goods has not been fulfilled, having been as the place of the customs examination under Article 239 rendered purposeless, where that condition of the implementing regulation.' 8 — At this point it is worth noting that, in the present case, accompanied the acceptance by the compe- there is no question of applying Article 82 of the Customs Code. Although the examination of the goods is related in tent customs office of a declaration for the the present case to the fact that they are subject to release of non-Community goods into free preferential tariff arrangements, it is an examination carried out for the purpose of establishing the duties payable and circulation that satisfied the requirements has nothing to do with examinations that may be carried of Article 62 of the Customs Code and its out with a view to continued customs supervision, as provided for under Article 82 of the Customs Code, where acceptance was evidenced by the attach- goods are released for free circulation at a reduced or zero rate of duty on account of their end-use. ment of a customs registration stamp.

First, the second question referred for a preliminary ruling, which essentially con- cerns the general issue of the power of the customs authorities to invalidate of their 56. As the Finnish Government correctly own motion a declaration that has already notes, this article does not apply therefore been accepted, must in any event be answered after having regard to the pro- posed answer to the first question, which 9 — Set-, tor instance, Case C-86/97 Trans-Ex-lmport [1999| cannot be regarded as affirmative or nega- KCR I-1041, paragraph 15.

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to 'abnormal' situations such as the had already been removed; matter passed removal of goods from their prescribed on to Specialist Department D for the place of storage before the customs exam- purpose of preparing a notice of assess- ination ordered has been carried out. Nor ment, Wacker'. does it appear to apply to measures not directly connected with the goods, but rather to the validation of the declaration and the fate of the customs debt in general.

58. As noted in the order for reference, after it was established that the customs examination could not be carried out because, when the official responsible for that examination arrived, the declared goods were no longer in the plaintiff's custody, the competent customs office 61. It should be noted that there appear to wrote on the relevant document: [declara- be no grounds for applying either the first tion] 'invalidated (Article 66(1) of the Cus- indent of Article 233(c) of the Customs toms Code). When steps were taken to Code or Articles 241(4), 243(2) or 250(2) carry out an examination, the consignment of the implementing regulation.

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64. For the same reasons, Article 243(2) of 67. Indeed, as the national court correctly the implementing regulation could not in points out, it is questionable whether the any event apply. That article lays down customs office is obliged, pursuant to provisions similar to those of Article 241 of Article 71(2) of the Customs Code, to levy the implementing regulation for cases duties on the basis of the particulars where the declarant refuses to give the contained in the declaration even though

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71. I consider that the above objection customs supervision of goods liable to cannot be accepted for the following two import duties' or 'non-fulfilment of one of reasons. the obligations arising in respect of goods liable to import duties, from their tempor- ary storage', 13 the competent customs authorities cannot take measures that could help to preclude or delay the application of Article 203 or 204 of the Customs Code or any other legal provision which has legal 72. First, no specific provision or general effects deriving from that removal. principle provides that the competent cus- toms authorities are under a general obli- gation to prevent the declarant from failing to fulfil — rendering purposeless ·— a sus- pensory condition to which definitive recognition of a customs debt under Arti- 74. In light of the above considerations, the cle 201 of the Customs Code is subject. To answer to the national court's second have regard to the spirit and the possible question must therefore be that Article 75 analogous application of the abovemen- of the Customs Code must be construed as tioned Articles 241(4) 1 1and 250(1) and meaning that the customs office which has (2) 12 of the implementing regulation would accepted a customs declaration is not not be of any particular assistance because, entitled to treat that declaration as invalid although Article 250(1) and (2) expressly or to invalidate it if, as is the case in the provides that, before invalidating the main proceedings, the declared goods can- declaration, the customs authorities are to not be released to the declarant because set a time-limit for the declarant to rectify they were removed, before the customs his omissions, under Article 241(4) the examination ordered was carried out, from declaration may be invalidated even with- their prescribed place of storage and from out his attempting to rectify his omissions. the area for which the customs office is responsible.

no customs debt under Article 201(1)(a) of storage are to be subject only to such forms the Customs Code has been incurred (or of handling as are designed to ensure their after being incurred has been extinguished), preservation in an unaltered state without Article 203(1) of that code is to be con- modifying their appearance or technical strued as meaning that there is an unlawful characteristics; this is expressed to be with- removal from customs supervision where out prejudice to Article 42 under which the non-Community goods declared for goods may, with the permission of the release into free circulation are removed customs authorities, be examined or sam- from the prescribed place of storage/exam- ples may be taken, in order that they may ination and consequently from the local be assigned a customs-approved treatment area for which the customs office in or use. question is responsible, even though the customs office had ordered a customs examination. The national court also asks, in particular, whether the question whether goods are removed from customs super- vision is judged on the basis of objective 78. In the main proceedings, as noted in criteria or whether specific intent to com- relation to the first question referred for a mit that act is also required. preliminary ruling, when the examination of the goods which had been ordered was not carried out, the goods were not defini- tively released for free circulation, but continued to have the status of goods in temporary storage. Moreover, they contin- ued to be under customs supervision as 76. Pursuant to Article 37 of the Customs their customs status had not definitively Code, non-Community goods brought into altered. Community territory are to be subject to customs supervision from the time of their entry until their customs status is changed, they enter a free zone or free warehouse, or they are re-exported or destroyed in accor- dance with Article 182. 79. That means that it is in principle conceivable in the present case that Arti- cle 203(1) of the Customs Code be applied, which provides that a customs debt is to be incurred through the unlawful removal from customs supervision of goods liable 77. Also, pursuant to Article 50 of the to import duties if it is considered that they Customs Code, until such time as they are have been unlawfully removed from cus- assigned a customs-approved treatment or toms supervision. use, goods presented to customs are, fol- lowing such presentation, to have the status of goods in temporary storage. Under Article 51 of the Customs Code, they are to be stored only in places approved by the customs authorities under the conditions 80. The possibility of such application is laid down by those authorities. Finally, moreover envisaged by Article 51(2) of the pursuant to Article 52 goods in temporary Customs Code which provides that the

86. That provision appears to restrict removal from customs supervision, within the meaning of Article 203(1) of the Cus- 83. When does such 'unlawful removal' toms Code, to situations where it is sought from customs supervision within the mean- by the use of documents (the presentation ing of Article 203 of the Customs Code occur however? 15 — See the order for reference, p. 21. 16 — See paragraph 25 of the Commission's written observa- tions. 14 — See point 69 above. 17 — See Wandels written observations, p. 13.

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90. As stated in the order for reference, in the present case the customs authorities had 88. To accept those instances as exhaustive ordered an examination of the goods to be would be contrary to the clear meaning of carried out on a given date (14 July 1994) Article 203(1) of the Customs Code. 18 at the applicant's premises where the goods Indeed, there appears to be no doubt that remained under customs supervision in the scope of that provision encompasses temporary storage. not only the acts of removal from customs supervision as referred to in Article 865 of the implementing regulation, but in princi- ple all acts or omissions which have the effect of preventing the customs authorities from gaining access to the goods and, in particular, the customs supervision already 91. The customs examination could not be carried out because, when the official responsible for the examination arrived, 18 — It should be noted that the Commission is authorised to the declared goods were no longer in the adopt all the measures which are necessary or appropriate plaintiff's custody but had already been for the implementation of the basic legislation of the Customs Code, provided that they are not contrary to such handed over to the company in whose legislation. See, in that regard, Case C-48/98 Söhl & Sählke [1999] ECR I-7877, paragraphs 36 and 37. name the declaration had been lodged.

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93. Of course, it could be argued, follow- ing the reasoning adopted by Wandel, that even though the goods were removed from the place prescribed for customs purposes, 95. In light of the above, the answer to the there cannot be a removal from customs third question referred for a preliminary supervision since the goods had been ruling must be that Article 203(1) of the declared in due form and the customs Customs Code is to be construed as mean- authorities had all the relevant documenta- ing that there is an unlawful removal from tion at their disposal. According to Wandel, customs supervision where the non-Com- the premature removal therefore amounts munity goods declared for release into free to no more than a mere failure to imple- circulation are removed by the declarant, ment a customs measure. without the authorisation of the competent customs authorities, from the prescribed place of storage/examination and conse- quently from the local area for which the customs office in question is responsible and are handed over to the company in whose name the declaration was lodged, 94. However, I consider that the above even though the customs office has ordered interpretation of the facts of the main a customs examination.

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99. In the present case, if it is held that Article 203(1) of the Customs Code does not apply, I consider that the general condition for the application of Arti- 97. In view of the proposed answer to the cle 204(1)(a) of the code is undoubtedly third question referred for a preliminary met. The removal of the goods by Wandel ruling and given that Article 203 is a constitutes in any event non-fulfilment of special provision which precludes the appli- one of the obligations arising, in respect of cation of Article 204, it is superfluous to goods liable to import duties, from their answer the fourth question. 19 However, in temporary storage and, specifically, of the case the Court rules that Article 203(1) of obligation to keep goods, in an unaltered the Customs Code is not applicable, the state, available to the supervising customs following comments interpreting Arti- office until they are assigned a customs- cle 204(1) of the Code should be made. approved treatment or use. 20

104. First, Article 859(5) of the implement- ing regulation does not explicitly state that the goods may be presented, if requested by the customs authorities, only at the customs office for the place of temporary storage. I consider that they could in principle be presented at another customs office, pro- 102. According to Article 859(5) of the vided of course that such action could implementing regulation, there shall be make good the relevant breach of proce- considered to be no significant effect on dure without the correct operation of the the correct operation of the temporary temporary storage or the customs proce- storage or customs procedure in question, dure in question being affected. It is for the within the meaning of Article 204(1) of the national court to assess that condition in Customs Code, in the case of unauthorised each particular case, when asked to rule movement of goods which are in temporary whether, having regard to the facts of the storage or placed under a customs proce- main proceedings, their correct operation is dure, provided the goods can be presented actually affected. to the customs authorities at their request and, as laid down by the first paragraph of Article 859, provided their unauthorised movement does not constitute an attempt to remove them unlawfully from customs supervision or imply obvious negligence on the part of the person concerned and all the formalities necessary to regularise the situa- tion of the goods are subsequently observed. It should also be noted that, pursuant to Article 860 of the implement- 105. Second, as regards the condition, laid ing regulation, Wandel has the burden of down in Article 859, that the failure is not proving to the customs authorities in the to entail obvious negligence on the part of present case that the conditions set out in the person liable for the customs debt, it is Article 859 of the implementing regulation worth noting that the Court has held that, are fulfilled. in order to determine whether there is obvious negligence, account must be taken in particular of the precise nature of any 21 — Cited above, footnote 18. error and the professional experience of, 22 — Paragraph 43. and care taken by, the trader in the

106. Although it is for the national court, which is more conversant with the facts of the main proceedings, to determine whe- ther all the conditions are met for the application of Article 859(5) of the imple- menting regulation, it is worth noting, in my view, that in the present case the removal of the goods from the prescribed place of storage/examination and conse- E — The fifth question quently from the local area for which the customs office in question is responsible and the handing over of the goods to the company in whose name the declaration was lodged, even though the customs office had ordered a customs examination, clearly seem to have affected the correct operation of the temporary storage. First of all, as already noted, the removal of the goods not 107. By the fifth question referred for a only interfered with the purpose of storing preliminary ruling, the Finanzgericht Bre- them, which is precisely so that they can be men essentially asks the Court to determine maintained in an unaltered state in the what is the significance and effect, with place of storage and be available to the regard to incurrence of a customs debt supervising customs office until such time under Article 201(1)(a) and (2), Arti- as they are assigned a customs-approved cle 203(1) or Article 204 of the Customs treatment or use, but also prevented their Code, of technically correct certificates of expressly ordered examination from being origin being attached to the customs carried out. Also, in my view, it is clear that declaration accepted by the customs Wandel did not exhibit, having regard to its office 24 and it being established that a zero professional experience, the care required preferential tariff in fact applies to the of it so as to ensure that the goods were not goods covered by that declaration. removed and the examination frustrated. Finally, I consider that even if the goods 24 — I consider that the phrase 'customs declaration received by the customs office' contained in the fifth question must be taken to mean 'customs declaration accepted by the customs office', since only the formal acceptance of the 23 — See Söhl & Söhlke, cited in footnote 18 above, paragraphs declaration, as provided for in Article 63 of the Customs 56 to 60 and paragraphs 2(a) and (c) of the operative part Code, can be linked to the incurrence of a customs debt of that judgment. under Article 201 of that code.

110. Submission of the above supporting documents together with the declaration is thus of assistance in applying the preferen- 113. As regards such reliance on Arti- tial tariff arrangements and determining the cle 900(1)(o) of the implementing regula- duties to be levied. Thus, their submission, tion, that provision is concerned with far from precluding recognition and con- requests for the repayment or remission of firmation of the customs debt, ultimately import duties which are to be granted serves to establish it. 25 where the customs debt has been incurred otherwise than under Article 201 of the Customs Code (in the present case, under 25 — It should be remembered that the incurrence and ultimate Article 203) and the person concerned is determination or a customs debt depends, in any event, on able to produce a certificate of origin, a carrying out the formalities referred to m the analysis of the first question submitted for a preliminary ruling. movement certificate, an internal Commu-

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116. It is accordingly clear that submission with the declaration of supporting docu- ments attesting that preferential tariff 115. Moreover, Wandel's argument that the arrangements apply does not preclude a article in question could apply in the customs debt on importation from being present case, despite the fact that it is incurred under any of the legal bases concerned with the procedure for the referred to in the fifth question submitted repayment and remission of debts, is for a preliminary ruling (Articles 201(1)(a) obviously without foundation. In the pre- and (2), 203(1) and 204 of the Customs sent case, the errors or breaches involved Code). relate to the very impossibility of carrying out the customs examination of the goods in order to assess their eligibility for preferential arrangements. As the national court points out, goods cannot be entered 117. Consequently, in light of the proposed under preferential tariff arrangements as a answers to the preceding questions, the result of the mere submission of the answer to the fifth question must be that a declaration forms if, for reasons attributa- customs debt on importation may be ble to the declarant, the customs examina- incurred under Article 203(1) of the Cus- tion of the goods under Article 68(b) of the toms Code where technically correct certi- Customs Code could not be carried out. ficates of origin corresponding to Form A Moreover, it would be strange if such entry, were attached to the customs declaration which for good reason, as a result of the received by the customs office and a zero impossibility of examining the goods, was preferential tariff applied to the goods not achieved pursuant to Article 201 of the covered by the declaration.

(3) Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code is to be construed as meaning that I-909

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there is an unlawful removal from customs supervision where the non- Community goods declared for release into free circulation are removed by the declarant, without the authorisation of the competent customs autho- rities, from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible and are handed over to the company in whose name the declaration was lodged, even though the customs office has ordered a customs examination.

(4) A customs debt on importation may be incurred under Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Customs Code where technically correct certificates of origin corresponding to Form A were attached to the customs declaration received by the customs office and a zero preferential tariff applied to the goods covered by the declaration.

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