C-222/01

OPINION OF MR TIZZANO — CASE C-222/01

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 26 June 2003 1

1. By order of 24 April 2001, the Bundes- incurring of a customs debt, the persons finanzhof (Federal Finance Court) referred liable and the repayment of import duties in to the Court of Justice for a preliminary special situations. ruling under Article 234 EC three questions concerning the interpretation of the Com- munity rules on external transit. These questions specifically concern the incurring of a customs debt following the removal of certain goods from customs supervision, and the repayment of import duties in 3. With regard to Community transit, special situations. account must be taken of Council Regula- tion (EEC) No 222/77 of 13 December 1976 on Community transit, 2which was applicable at the material time. 3As far as concerns us here, Article 12 of that regula- tion provides that '[a]ny goods that are to be carried under the procedure for external community transit shall be covered, in accordance with the conditions laid down Legislative background in this regulation, by a T 1 declaration. ... The T 1 declaration shall be signed by the person who requests permission to effect an external Community transit operation or by his authorised representative; and at least three copies of it shall be produced at the office of departure'. 4 Community legislation

4. For present purposes, it should also be 7. Under Article 1(2) of that regulation, noted that under Article 18 of that regula- 'customs debt' means 'the obligation on a tion, '[a]s a general rule, identification of person to pay the amount of the import the goods shall be ensured by sealing. ... duties (customs debt on importation) or The office of departure may dispense with export duties (customs debt on exportation) sealing if, having regard to other possible which apply under the provisions in force measures for identification, the description to goods liable to such duties'. As far as of the goods in the T 1 declaration or in the concerns us here, Article 2(1 )(c) specifies supplementary documents makes them that a customs debt is incurred inter alia in readily identifiable'. 5 the case of 'the removal of goods liable to import duties from the customs supervision involved in the temporary storage of the goods or their being placed under a customs procedure which involves customs super- vision'.

5. Article 19 provides that '[t]he copies of the T 1 document delivered to the principal or to his representative by the office of departure must accompany the goods'. 6 Under Article 20, '[c]opies of the T 1 document shall be produced in each Mem- ber State as required by the customs 8. With regard to the persons liable, authorities, who may satisfy themselves reference must also be made to Council that the seals are unbroken. The goods Regulation (EEC) No 1031/88 of 18 April shall not be inspected unless some irregu- 1988 determining the persons liable for larity is suspected which could result in payment of a customs debt. 8 Of particular abuse.' relevance for present purposes is Article 4, which provides:

10. As far as national legislation is con- cerned, reference must be made to Para- 2. The person required to fulfil, in respect of graph 10(1) of the Tabaksteuergesetz (Law goods liable to import duties, the obliga- on Tobacco Tax) of 1980, 12 which pro- tions arising from their temporary storage, vides that 'where tobacco products or or from the use of the customs procedure cigarette papers are imported into the under which they have been placed, shall territory in which the tax is levied, the also be jointly and severally liable for provisions for customs duties shall apply payment of the customs debt.' mutatis mutandis, to the incurring of tax and the date which is relevant for its assessment, to the identity of the person liable to pay the tax, personal liability, additional tax in the event of failure to comply with tax rules, the taxation proce- dure, and, where the tax is not paid through 9. Finally, with regard to the repayment of import duties in special situations, regard must be had to Council Regulation (EEC) No 1430/79 of 2 July 1979 on the 10 — OJ 1986 L 286, p. 1. 11 — Those sections are entitled as follows: section A, cases repayment or remission of import or export where there is no customs debt, or where the amount is duties, 9as amended by Council Regulation fixed at a level higher than that lawfully due; section B, goods entered in error for free circulation; section C, goods refused by the importer because they are defective or do not comply with the terms of the contract; section D, goods in a special situation. 12 — Law enacted on 13 December 1979, published in BGBl I, 9 — OJ 1979 L 175, p. 1. 2118.

12. On 9 July 1992, Rothmans Manufac- turing, of which British American Tobacco Manufacturing ('BAT') is the successor in title, arranged on behalf of a Swiss com- pany in the same group for a consignment 15. Examination of a random sample of of 11 000 000 'Golden American' cigarettes the goods on the lorry revealed that all the to be cleared under the external Commu- boxes contained cigarettes without revenue nity transit procedure at the Zevenaar stamps. On the strength of this, the driver customs office in the Netherlands. The final and his mate were arrested. A torn-off date for presentation of the goods was set at Netherlands lead customs seal was found in 16 July 1992. The transit document named the driver's trouser pocket. The lorry and its a St Petersburg company as the consignee, load were seized and the cigarettes later but this was at variance with what was destroyed.

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OPINION OF MR TIZZANO — CASE C-222/01

16. Deeming BAT responsible for removal '(1) Are goods which have been cleared for of the goods from customs supervision, the Community transit removed from cus- Hauptzollamt Krefeld (Krefeld Customs toms supervision if the T 1 transit Office, 'the Hauptzollamt') issued a notice document is temporarily removed from of assessment to the company on 7 August the consignment? 1992 claiming DEM 1 436 776 in tobacco excise duty. On 24 November 1992, BAT applied to the Hauptzollamt for the remis- sion of the assessed amount, arguing in particular that the circumstances consti- tuted a 'special situation' within the mean- (2) If the Court answers Question 1 in the ing of Article 13 of Regulation 1430/79. negative:

19. In the ensuing proceedings before the 21. According to the referring court, how- Court, written observations were submitted ever, the Community rules fall to be applied by BAT and the Commission, which subse- to the case by virtue of the reference thereto quently took part in the hearing on 6 in Paragraph 10(1) of the TabStG. That February 2003. being the case, I must point out that, according to a well-known decision, '[i]t does not appear either from the wording of Article 177 or from the aim of the procedure introduced by that article that the authors of the Treaty intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the national law of a Member State Legal analysis refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State. On the contrary, it is manifestly in the interest of the Community legal order that, in order to forestall future differences of interpretation, every Community provision The jurisdiction of the Court should be given a uniform interpretation irrespective of the circumstances in which it is to be applied'. 13

25. The Commission takes the opposite The first question view, arguing that customs supervision is effective only if at all times during the transit procedure the competent officers can simultaneously check the seals and the transit and transport documents. In this 23. By its first question, the national court regard, the Commission does not share the asks whether the temporary removal of the opinion of the referring court that there can T 1 document from goods placed under the be no 'removal of goods from customs external transit procedure constitutes a supervision' if no supervision actually takes 'removal from customs supervision' within place during the temporary absence of the the meaning of Article 2(1)(c) of Regulation T 1 document. According to the Commis- No 2144/87. sion, a customs debt is incurred by virtue of the mere fact that the goods are removed from potential supervision and it is not necessary for the supervision to be actually carried out.

24. BAT proposes that this question should be answered in the negative, arguing that the temporary removal of the T 1 document does not prevent the customs authorities from carrying out the necessary controls. In its view, not only does such removal not

26. For my part, I would first note that in 14 — See, in particular, the Joined Opinion of Advocate General Liberexim the Court recently explained, Jacobs in Cases C-28/95 Leur-Bloem and C-130/95 Giloy referring to a previous ruling concerning the [1997] ECR I-4161, the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-1/99 Kofisa Italia [2001] Community Customs Code, that the ECR I-207, and the Opinion of Advocate General Jacobs in expression 'removal from customs super- Case C-306/99 BIAO [2003] ECR I-1. 15 — See, in particular, Case C-28/95 Leur-Bloem [1997] ECR vision' in Article 2(1)(c) of Regulation I-4161, paragraph 26, C-130/95 Giloy [1997] ECR I-4291, Case C-1/99 Kofisa Italia [2001] ECR I-207, and Case No 2144/87 'must be understood as C-306/99 BIAO [2003] ECR I-1. encompassing any act or omission the result

29. I agree with the Commission that during the external transit procedure cus- toms supervision requires the simultaneous checking of the seals (and the goods, where 27. In that specific case, the Court found appropriate) and of the transit documents, that the irregularities that had been com- in order to establish that the goods being mitted, consisting 'of breaking the seals, transported are the same as those declared unloading the goods and placing them on to customs and placed under the transit the market, constitute[d] a removal of the procedure. That is, it seems to me, the clear goods from customs supervision and there- sense of Article 2 0 of R e g u l a t i o n fore cause[d] the goods to cease to be No 222/77, according to which '[c]opies covered by the external Community transit of the T 1 document shall be produced in arrangements'. On the other hand, 'the fact each Member State as required by the that the original tractor was previously customs authorities, who may satisfy them- replaced by a new tractor ... without the selves that the seals are unbroken. The seals being broken and without unloading goods shall not be inspected unless some or transhipment of the goods, would not irregularity is suspected which could result have prevented the competent customs in abuse'. authority from carrying out, where appro- priate, its supervisory function'. 18

31. In the light of the foregoing considera- tions, I therefore propose that the answer to be given to the first question referred is that the temporary removal of the T 1 document from goods placed under the external transit procedure constitutes a 'removal from customs supervision' within the mean- ing of Article 2(1 )(c) of Regulation No 2144/87 if that document cannot be pro- duced promptly in the event of a check by 34. In this regard, BAT submits that a the competent authorities. 'removal from customs supervision' does not arise where — as in this case — the customs authorities oversee the breaking of the seals and the unloading of the goods and have control of the situation at all times with officers standing by to intervene.

The second question

32. As we have seen, the second question 35. I agree with the Commission, however, referred is asked by the national court only that the fact that the breaking of the seals in the case of a negative answer to the first and the unloading of the goods were question. Having regard to the conclusion arranged with undercover customs investi- which I have reached in relation to the first gation officers and took place in their question, I will briefly analyse the second presence does not negate the 'removal from question in the alternative only, in case the customs supervision'. There would be no Court should not agree with what I have such removal if the breaking of the seals said above. and the unloading of the goods took place,

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BRITISH AMERICAN TOBACCO

in compliance with the rules governing the whether deception or obviously negligent system of external transit, with the consent conduct on the part of agents employed by and under the supervision or the competent the principal in fulfilling its obligations customs authorities rather than of officers under the Community transit procedure infiltrated among the suspected smugglers. preclude repayment to the principal of the duties paid by it in discharge of a debt incurred as a result of the removal of goods from customs supervision.

39. As far as sub-question (b) is concerned, they also share the view that, if there is a 'special situation' within the meaning of that provision, only deception or obvious 37. In the event of either of the first two negligence on the part of the principal questions being answered in the affirmative, should prevent its being repaid the customs by its third question the national court asks: duties. The Commission adds, however, (a) whether a 'special situation' which, that in that regard the national court should under Article 13 of Regulation No also take into account any obvious negli­ 1430/79, can constitute grounds for the gence on the part of the principal in the repayment of import duties, arises in a case where an undercover customs investigation officer has provoked infringements of the 19 — Both parties refer in particular to Case C-61/98 De Hann Community transit procedure; and (b) [1999] ĽCR I-5003, paragraph 53.

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42. In the light of that authority, I have no difficulty answering sub-question (a) to the effect that a 'special situation' which, under 41. In line with those principles, so far as Article 13(1) of Regulation No 1430/79, directly concerns us here, in the De Hann can constitute grounds for the repayment of judgment which is cited by both parties, the import duties, does arise in a case where an undercover customs investigation officer

20 — Of the many judgments in point, see Joined Cases 244/85 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303, paragraph 10, and Case C-446/93 22 — This is a provision giving effect to Article 239 of the SEIM [1996] ECR I-73, paragraph 41. abovementioned Community customs code (Regulation 21 — Case 58/86 Coopérative agricole d'approvisionnement des 2913/92), which corresponds in substance to Article 13(1) Avirons [1987] ECR 1525, paragraph 22. of Regulation 1430/79.

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provokes infringements of the Community on the part of the principal, and specifically transit procedure. whether there was obvious negligence in the selection of the transport firm employed to carry out the transit procedure.

43. As regards sub-question (b), I have to 44. I therefore take the view that the agree with the parties that from the word- answer to be given to sub-question (b) is ing and the rationale of the provision in that deception or obviously negligent con- question, as interpreted by the case-law, it is duct on the part of agents employed by the clear that only deception or obvious negli- principal in fulfilling its obligations under gence on the part of the principal can the Community transit procedure do not prevent its being repaid the customs duties. preclude repayment to the principal of It is of course for the national court to duties paid by it in discharge of a debt determine whether, in the light of the incurred as a result of the removal of goods relevant facts, there was obvious negligence from customs supervision.

(2) In the context of the external transit rules, the breaking of the seals and the partial unloading of the goods do constitute a 'removal from customs supervision' within the meaning of Regulation No 2144/87, even where those operations were arranged with undercover customs investigation officers and were observed by them throughout.

(3) A 'special situation' which, under Article 13(1) of Regulation No 1430/79, can constitute grounds for the repayment of import duties, does arise in a case where an undercover customs investigation officer provokes infringements of the Community transit procedure. Deception or obviously negligent conduct on the part of agents employed by the principal in fulfilling its obligations under the Community transit procedure do not preclude repayment to the principal of duties paid by it in discharge of a debt incurred as a result of the removal of goods from customs supervision.

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