C-112/01

SPKR

OPINION OF ADVOCATE GENERAL MISCHO delivered on 30 May 2002 1

1. The Vestre Landsret (Denmark) is seek- I — Law ing an interpretation from the Court of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Commu- nity Customs Code 2('the Customs Code') and Commission Regulation (EEC) 3. Article 96(1)(a) of the Customs Code No 2454/93 of 2 July 1993 laying down provides: provisions for the implementation of Regu- lation (EEC) No 2913/92 3 ('the imple- menting regulation').

'The principal shall be the [holder] under the external Community transit procedure. He shall be responsible for:

(b) the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably (a) by payment of the amount of duty; have been detected by the person liable for payment, the latter for his part having acted in good faith and com- plied with all the provisions laid down by the legislation in force as regards the customs declaration'. (b) by remission of the amount of duty;

(c) where, in respect of goods declared for a customs procedure entailing the obli- 5. Article 221(3) of the Customs Code gation to pay duties: provides:

— the customs declaration is invali- d a t e d in a c c o r d a n c e w i t h 'Communication to the debtor shall not Article 66, take place after the expiry of a period of three years from the date on which the customs debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to — the goods, before their release, are determine the exact amount legally due, either seized and simultaneously or such communication may, in so far as the subsequently confiscated, provisions in force so allow, be made after destroyed on the instructions of the expiry of such three-year period.' the customs authorities, destroyed

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or abandoned in accordance with the place of the offence or irregularity Article 182, or destroyed or irre- cannot be established, such offence or trievably lost as a result of their irregularity shall be deemed to have been actual nature or of unforeseeable committed: circumstances or force majeure;

of departure shall notify the principal of transit within the Community of consign- this fact as soon as possible and in any case ments of butter originating in the Czech before the end of the 11th month following Republic. It was stated in particular that the date of registration of the Community attempts had been made to complete the transit declaration. consignments by falsifying the T1 declar- ations used. The Commission requested all Member States 'to pay particular attention to consignments of butter originating in third countries which pass in transit through the Community' and 'to extend the early warning system ("EWS") for 2. The notification referred to in paragraph sensitive goods to shipments of butter'. 1 shall indicate, in particular, the time-limit by which proof of the regularity of the transit operation or the place where the offence or irregularity was actually com- mitted must be furnished to the office of departure to the satisfaction of the customs authorities. That time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of that 10. Between 28 June and 19 October 1994 period, the competent Member State shall the customs agents SPKR 4 No. 3482 ApS take steps to recover the duties and other ('SPKR') placed 32 consignments of butter charges involved. In cases where that originating in the Czech Republic under the Member State is not the one in which the external Community transit procedure. It is office of departure is located, the latter common ground between the parties that shall immediately inform the said Member SPKR acted in good faith, was unaware of State.' the offences or irregularities which occurred, and knew nothing about the content of the notifications from the Com- mission. The offices of destination were given in the T1 declarations as 'Ravenna, Italy' and 'Naples, Italy'.

17. By letter of 23 June 1995 the Regional Office notified the guarantor that 31 con- 13. By letter of 6 December 1994 the signments had not been discharged at the Regional Office was requested, as a matter office of departure. SPKR received a copy of urgency, to check consignments of butter of that notification at the same time. In July of Czech origin in the light of the four 1996 the Regional Office obtained identi- abovementioned notifications of 10 and fication of the final consignment covered 13 January, 4 February and 9 June 1994. by the present case. The reason for this delay was that the No 2 copy of the T1 declaration in question, pursuant to which the Regional Office had registered the consignment, bore a different number to the No 1 copy.

14. By letter of 30 December 1994, the Regional Office informed SPKR that return No 5 copies of the T1 declarations had been received for six of the 32 consign- 18. On subsequent verification of the ments in question. The Regional Office return copies, the Italian authorities stated, stated that it considered the cases could by letters of 29 and 31 December 1995 (in accordingly be regarded as closed. respect of 31 consignments) and by letter of

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10 August 1996 (in respect of the final entitlement to seek recovery of the customs consignment) that the return No 5 copies of debt of the fact that the Danish customs the T1 declarations had been tampered authorities gave the three months' notifi- with. cation after the expiry of the 11-month time-limit referred to in Article 379(1) of the implementing regulation.

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2. Does the fact that the office of depar- 26. On the one hand, SPKR considers that ture did not follow an administrative the 11-month time-limit is absolute. In its instruction for the transmission of view, therefore, the office of departure is no information laid down in the Customs longer entitled to apply the rules relating to Code Committee (early warning sys- the burden of proof laid down by tem) or that the customs authorities in Article 378 in conjunction with Article 379 the office of departure wrongly failed of the implementing regulation. Nor can to notify in good time have any bearing the office of departure recover the duties in on the answer to Question 1?' question, unless it can establish that the consignment was released for consumption in Denmark without the customs duties or other charges having been paid.

IV — Analysis 27. On the other hand, the French, Danish and German Governments and the Com- mission contend that the purpose of the 11-month time-limit is solely to ensure rapid and uniform application by the auth- orities of the provisions governing the First question recovery of a customs debt. Failure to abide by it is therefore not sufficient to preclude post-clearance recovery of the customs debt.

24. In the first question the national court asks in essence what the effects are of failure by the customs authorities to observe the 11-month time-limit laid down in Article 379(1) of the implementing regu- 28. Let me begin by analysing the provision lation by which the office of departure is which lays down the contested time-limit, supposed to give notification to the princi- namely Article 379(1) of the implementing pal of the fact that a consignment has not regulation, which reads as follows: been presented at the office of destination and that it has not been possible to deter- mine where the offence or irregularity occurred.

32. It is stretching the point to interpret the words 'in any case before' [French: 'au plus tard'] as meaning 'if possible' or 'prefer- 37. Article 221(3) and Article 233 of the ably'. Customs Code, cited above, which contain specific rules relating to the extinction of a customs debt, do not mention the fact of 4 — '... og inden udløbet af den elvte måned...' 5 — '... spätestens jedoch vor Ablauf des elften Monats...' exceeding the 11-month time-limit as a 6 — '... et au plus tard avant l'expiration du onzième mois...' ground for extinguishing that debt.

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40. One cannot, therefore, find in Article 379(1) of the implementing regu- 44. Notification for the purposes of lation a ground for extinguishing the cus- Article 379(1) of the implementing regu- toms debt which is not contained in the lation is made precisely because the place relevant provisions of the Customs Code. where the offence or the irregularity occurred cannot be established. 8To make recovery of duties subject in such circum- stances to the customs authorities of the country of departure proving where the irregularity occurred, as SPKR proposes, would make it impossible in practice to recover the duties concerned and hence, in 41. SPKR, however, denies that its view reality, add a further ground for extinction amounts to adding another ground for extinguishing the customs debt to those contained in the abovementioned provi- 8 — See also the Opinion of Advocate General Jacobs in Case sions of the Customs Code. C-61/98 De Haan [1999] ECR 1-5003: '[The obligation to provide notification "as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration") is clearly designed for cases where goods have "gone missing" 7 —Sec also Case C-90/92 Dr Tretter [1993] ECR 1-3569, and the customs authorities have no evidence of what has paragraph 11. happened to them' (point 61).

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of the customs debt to those already con- 48. In that regard, suffice it to say, as I did tained in the Customs Code. above, that under the principle of the hierarchy of norms the implementing regu- lation must be interpreted in a manner that is consistent with the Customs Code. That principle precludes therefore reading into the implementing regulation specific rules derogating from the rules contained in the 45. Moreover, the condition proposed by Customs Code. SPKR would mean adding to Article 378(1) of the implementing regulation an onus of proof on the customs authorities which it does not contain.

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52. I support the explanation given by the 55. As the Danish Government explains to Commission on this point, that 'overstep- the Court, 'where an attempt is made, for ping the 11-month time-limit has only example, to conclude a transit operation by limited consequences for the principal. He returning to the customs office of departure may, for example, establish within the copies of the customs documents intended three-year period of limitation that the to be returned but bearing false stamps, the Community transit operation took place office of departure will consider a priori lawfully by presenting the consignment to that the transit operation has been properly the office of destination. In normal circum- concluded so far as the office of destination stances he should have no difficulty in is concerned. ascertaining that the consignment has been lawfully submitted to the office of desti- nation. If he has entrusted the Community transit operation to another person, that person can furnish him with evidence that the operation was completed lawfully. The principal may request the other parties to For example, the consignments at issue in his contract to provide him with a copy of the main proceedings started between Janu- the evidence that the transit operation was ary and June 1994, but the customs auth- lawful in order to establish within the orities at the office of departure were not period of limitation that the transit oper- able finally to check the authenticity of all ation has been concluded'. the return copies until December 1995 and August 1996, when it became clear that the return copies had been tampered with...

the customs authorities. To accept that the in my view, to Covita, 9and De Haan, cited principal is released from his obligation by above. In the more recent of those judg- failure to observe the 11-month time-limit ments the Court held that: would be a significant alteration of his obligations. That view of the law would mean that in numerous cases involving transit documents that have been tampered with the principal could not be required to pay the customs debt which had arisen. '... failure on the part of the customs Such an approach would be damaging so authorities to observe the time-limits laid far as the campaign against fraud and the down in Articles 3 and 5 of Regulation protection of the Community's own No 1854/89 when taking action for the resources were concerned.' post-clearance recovery of customs duty does not nullify the right of those auth- orities to proceed with such post-clearance recovery, provided that it is carried out within the three-year period prescribed for the purpose in Article 2(1) of Regulation No 1697/79. The sole purpose of those 57. As failure to observe the 11-month time-limits is to ensure rapid and uniform time-limit does not therefore preclude application by the competent adminis- recovery of the customs debt, the question trative authorities of the technical pro- arises as to what the effects of such a failure cedures for the entry in the accounts of are. The time-limit must have some mean- the amounts payable by way of import and ing, since otherwise it would not appear in export duties. Whilst failure by the customs the implementing regulation. authorities to observe the time-limits may result in the Member State concerned paying interest in respect of delay to the Communities, in the context of making available own resources, such failure does not affect the fact that the customs debt is payable or the authorities' right to proceed with post-clearance recovery. 58. The French, Danish and German Gov- ernments and the Commission consider that the purpose of the time-limit is to ensure rapid and uniform application by the competent administrative authorities of the provisions relating to the recovery of the customs debt. The same applies to the time-limit laid down in Article 6(1) of Regulation No 1854/89. Even supposing the customs authorities failed in this case to inform the principal of the amount of duty as soon as it was effectively entered in the accounts, a point which is not clear from the file, that

64. Failure to observe the time-limit thus has no consequences as regards the prin- cipal's liability for payment of the customs debt but may, in some cases, constitute failure on the part of the Member State 61. The purpose of Articles 378 and 379 of concerned to comply with its Community the implementing regulation is to give the obligations. principal a last chance to establish that there has not been any irregularity or to demonstrate that if there has been any irregularity it occurred somewhere other than in the Member State of departure. 65. Having reached this stage in the reason- ing, it is appropriate to refer to Lensing Sc Brockhausen, 11 in which the Court ruled on the three-month time-limit as currently provided for in Article 379(2) of the imple- menting regulation. 62. In the interest of effectively making available the Communities' own resources, it is necessary for that demonstration to be made as soon as possible. The later the principal receives notification of the irregu- 66. In respect of that time-limit the Court larity the later the three-month time-limit held that '...the Member State to which the provided for in Article 379(2) of the imple- office of departure belongs may recover

10 — De Haan, cited above, paragraphs 34 and 35. 11 — Case C-233/98 [1999] ECR I-7349.

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duty on import only if it has indicated to 70. The Commission rightly observes that the principal that he has three months in 'the mere fact that the opportunity [to which to prove where the offence or adduce evidence under Article 379(2) of irregularity was actually committed and the implementing regulation] has not been such proof has not been provided within granted to the principal does not lead to that period'. 12 extinction of the customs debt. The cus- toms authorities may, in the light of circumstances, grant the principal at any time a period of three months in which the person liable to pay the customs debt may produce the necessary evidence'.

68. As the Commission explains, 'the entitlement to adduce evidence, referred to in paragraph 2, is provided for in the interest of the principal, whereas the essen- tial purpose of the 11-month time-limit is to expedite the recovery of any customs debt'. 72. For all those reasons, I propose that the answer to the national court should be that the provisions of the Customs Code and of the implementing regulation, in particular Article 379(1) of that regulation, should be interpreted as meaning that a customs debt 69. That being said, failure to comply with arising by reason of an offence or irregu- the three-month time-limit provided for in larity in connection with external Commu- Article 379(2) of the implementing regu- nity transit can be recovered by the office of lation does not lead to extinction of the departure from the principal even if the customs debt either. principal did not, before the end of the 11th month following the date of registration of the Community transit declaration, receive 12 — Leasing & Brockhausen, cited above, paragraph 31. the notification referred to in that article.

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Second question failed to comply with its Community obligations. That question does not, how- ever, affect the fate of the customs debt and the principal's obligations in relation to it.

76. At most, they may have a part to play 13 — Joined Cases C-310/98 and C-406/98 [2000] ECR1-1797, in determining whether a Member State has paragraph 48.

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V — Conclusion

79. In view of the foregoing, I propose that the answers to the questions from the Vestre Landsret should be as follows:

— The provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implemen- tation of Council Regulation (EEC) No 2913/92, in particular Article 379(1) of Regulation No 2454/93, should be interpreted as meaning that a customs debt arising by reason of an offence or irregularity in connection with external Community transit can be recovered by the office of departure from the principal even if the principal did not, before the end of the 11th month following the date of registration of the Community transit declaration, receive the notification referred to in Article 379 of the implementing regulation.