C-337/01

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OPINION OF MR TIZZANO — CASE C-337/01

(13) "Supervision by the customs auth- 2. They shall remain under such super- orities" means action taken in general by vision for as long as necessary to determine those authorities with a view to ensuring their customs status, if appropriate, and in that customs rules and, where appropriate, the case of non-Community goods and other provision applicable to goods subject without prejudice to Article 82(1), until to customs supervision are observed. their customs status is changed, they enter a free zone or free warehouse or they are re-exported or destroyed in accordance with Article 182.'

(14) "Control by the customs authorities" means the performance of specific acts such as examining goods, verifying the existence and authenticity of documents, examining The relevant customs regimes the accounts of undertakings and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official inquiries and other similar acts with a view 4. It is well-known that the Customs Code to ensuring that customs rules and, where provides for various customs procedures, appropriate, other provisions applicable to including the external transit procedure, a goods subject to customs supervision are 'suspensive' regime, and customs ware- observed.' housing, a customs procedure which is both 'suspensive' and 'with economic impact' (Article 84(a) and (b)).

3. For the purposes of Article 37: External transit procedure

5. According to Article 91(1), the external transit procedure allows, for present pur- ' 1 . Goods brought into the customs terri- poses, for the movement of non-Commu- tory of the Community shall, from the time nity goods from one point to another of their entry, be subject to customs super- within the customs territory of the Com- vision. They may be subject to control by munity, 'without such goods being subject the customs authority in accordance with to import duties and other charges or to the provisions in force. commercial policy measures'.

10. Under Article 204(1), a customs debt The incurrence of a customs debt on importation is also incurred through:

8. Article 201 et seq. identify the cases in '(a) non-fulfilment of one of the obligations which a customs debt on importation is arising, in respect of goods liable to incurred. import duties, from their temporary

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OPINION OF MR TIZZANO — CASE C-337/01

storage or from the use of the customs 12. For the purposes of the present case, procedure under which they are placed, Article 236(1) in particular, should be or noted, according to which

'import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed'. Nevertheless, (b) non-compliance with a condition gov- repayment will not be granted 'when the erning the placing of the goods under facts which led to the payment... of an that procedure or the granting of a amount which was not legally owed are the reduced or zero rate of import duty by result of deliberate action by the person virtue of the end-use of the goods, concerned'.

toms Code (hereinafter 'the implementing — all the formalities necessary to regula- regulation' or simply 'the Regulation'), 3is rise the situation of the goods are also relevant to the present action. subsequently carried out:

15. Of particular relevance in this respect is Article 859 et seq., laying down provisions for the implementation of Article 204 of the Code, mentioned above.

16. Article 859 provides, in particular, 6. in the case of goods in temporary that: storage or placed under a customs procedure, removal of the goods from the customs territory of the Commu- nity or their entry into a free zone or free warehouse without completion of the necessary formalities; 'The following failures shall be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question within the meaning of Article 204(1) of the Code, provided: …'.

— they do not constitute an attempt to remove the goods unlawfully from customs supervision, 17. Article 860 specifies that:

— they do not imply obvious negligence on the part of the person concerned, and 'The customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the Code unless the 3 — Commission Regulation (EEC) N o 2454/93 of 2 July 1993 person who would be the debtor establishes laying down provisions for the implementation of Council that the conditions set out in Article 859 Regulation (EEC) N o 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1). are fulfilled.'

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'Where the decision-making customs auth- ority to which an application for repayment or remission under Article 239(2) of the 19. Article 899 et seq. laying down the Code has been submitted cannot take a implementing provisions of Article 239 of decision on the basis of Article 899, but the the Customs Code should also be recalled. application is supported by evidence which might constitute a special situation result- ing from circumstances in which no decep- t i o n or o b v i o u s negligence m a y be attributed to the person concerned, the Member State to which this authority belongs shall transmit the case to the 20. Article 899 in particular provides that Commission to be settled under the pro- '... where the decision-making customs cedure laid down in Articles 906 to 909. authority establishes that an application for repayment or remission submitted to it under Article 239(2) of the Code is based on grounds corresponding to one of the circumstances referred to in Articles 900 to 903, and that these do not result from deception or obvious negligence on the part of the person concerned, it shall repay or remit the amount of import duties con- cerned.' Where, on the other hand, it is established 'that an application for repay- ment or remission... is based on grounds corresponding to one of the circumstance referred to in Article 904, it shall not repay In all other cases, the decision-making or remit the amount of import duties customs authority shall refuse the appli- concerned.' cation.'

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H A M A N N INTERNATIONAL

2 3 . The implementing regulation was arrangements shall not be discharged until amended most recently by Commission the goods or products declared for re-ex- Regulation N o 993/2001 of 4 May 2001. 4 portation have actually left the customs The new provisions do not apply ratione territory of the Community.' temporis to the present situation but may nevertheless provide a useful aid to inter- pretation.

2. Transfer from the office of entry to the holder's or operator's facilities or place of use may be carried out under cover of the declaration for entry for the arrangements. 26. It may be seen from the order for reference that from 1993 onwards Rojo held an authorisation relating to the man- agement of a type D customs warehouse, that is, a private warehouse subject to 3. Transfer to the office of exit with a view simplified customs formalities, 5according to re-exportation may take place under to which 'the warehousekeeper is the same cover of the arrangements. In this case, the person as the depositor but is not necess- arily the owner of the goods', (Article 504 of the implementing regulation). 4 — Commission Regulation (EC) N o 993/2001 of 4 May 2001 amending Regulation (EEC) N o 2454/93 laying down provisions for the implementation of Council Regulation (EEC) N o 2913/92 establishing the Community Customs 5 — See, in particular, Articles 253 and 278(3)(c) of the Code (Text with EEA relevance) (OJ 2001 L 141, p. 1). implementing regulation.

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29. By a decision of 30 April 1997, the 'Is there a removal from customs super- Hauptzollamt refused the request, holding vision of re-exported n o n - C o m m u n i t y that the goods in question had been goods resulting in the incurring of a removed, albeit temporarily, from customs customs debt under Article 203(1) of supervision. The H Z A observed that non- Council Regulation (EEC) N o 2913/92 Community goods subject to the customs solely by virtue of the fact that the goods warehousing procedure and destined for intended for re-export from the customs re-export cannot be transferred from the territory of the Community were not placed customs warehouse to the customs office at under the external transit p r o c e d u r e the point of exit without first having been immediately on removal from the customs placed under the external transit procedure. warehouse?'

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HAMANN INTERNATIONAL

32. In the proceedings thus initiated before does not, for the purposes of Article 203(1) the Court, written observations were sub- of the Code, amount to a removal of the mitted by the appellant in the main action goods from the supervision of the customs and by the Commission. Both parties also authorities, but rather constitutes a breach p a r t i c i p a t e d in the o r a l h e a r i n g of 'which, in practice, had no effect on the 5 February 2003, at which the Hauptzol- correct operation of the procedure' within lamt was also present. the meaning of Article 204 of the Code and Article 859 of the implementing regulation, read together.

38. As a secondary point, the Commission moval of goods from customs supervision' 6 adds that the present case may also be and thus gives rise to a customs debt for the examined with reference to Article 239 of purposes of Article 203 of the Code. the Code, even though the national court did not make specific reference to this provision.

42. Should the behaviour not fall to be thus categorised, it will be necessary to evaluate it with reference to Article 204 of the Code 39. The Commission considers that the in order to establish whether there has been conditions for a proper application of that a breach of the terms and conditions of the provision are present in this case, although applicable customs procedure, to which the it falls in any event to the referring court to abovementioned provision links the incur- determine whether they are in fact satisfied. ring of a customs debt, or whether there has been a 'non-performance lacking any effect on the correct functioning of the [customs] procedure' in question, in which case Article 204 precludes the incurring of such a debt.

Assessment

43. In the latter case, it will have to be concluded that the duties in question were not legally owed and the interested party will thus have a right to repayment under Introduction Article 236 of the Code.

40. I believe, as was also suggested by the Commission, that the legislative provisions 44. If, on the other hand, it is concluded governing this case must first be clarified. that, by virtue of Article 203 or Article 204, a customs debt has arisen and that the duties under dispute were therefore legally owed, it will then have to be considered

The notion of removal 47. In Wandel, goods introduced into the Community customs territory and declared for release into free circulation were put on the market in Germany before the customs inspector had carried out the necessary customs examination and release formal- 45. As has been noted, the Commission is ities. Similarly, in Liberexim consignments of the opinion that the notion of removal, of milk powder from a third country were while not defined by any Community irregularly imported into the customs ter- norm, can easily be inferred from the ritory of the Community and then sold on case-law of the Court. In Wandel and in the Netherlands. 8 Liberexim, the Court stated that 'any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code' 7 constitutes removal for the purposes of Article 203. The definition of the notion is 48. On the other hand, in the present case, thus certainly broad enough to include the the goods were introduced only tempor- circumstances of the case before the refer- arily into the Community customs territory ring court. since they were not intended to be put into circulation on the internal common market and were in fact, after having been declared for export to customs, re-exported to a third country without ever having entered into competition with goods produced in the Community. It must be asked therefore whether, in view of those distinguishing 46. It should be noted, however, that this elements, the abovementioned case law can interpretation was developed by the Court be extended to cover such cases as the one in relation to cases in which the goods at hand.

49. It seems to me, for the following house to the customs office of exit did not reasons, that the answer to that must be lead, and could not have led, to unauth- in the negative. orised entry of the goods onto the Com- munity market. This must therefore be considered to be a less serious offence from the point of view of its consequences and, as such, permits of a more 'flexible' inter- pretation of the notion of removal. 50. It is well known, and was pointed out by the Bundesfinanzhof (and, in essence, by all the intervening parties), that within the framework of the common commercial policy the imposition of customs duties on import is designed to protect goods pro- duced in the Community; it is thus goods imported from third countries which are hit 53. Only in the other cases mentioned is by these duties, on the basis that they are there strictly speaking a violation of the released into the Community system and applicable customs regime, such as to therefore enter into competition with goods constitute removal of the goods from having a Community origin. customs supervision within the meaning of Article 203 of the Code, because there is a risk of unlawful circumvention of the Community customs tariff only in those cases where it is impossible for the com- petent customs authority to gain access to 51. In the light of the above, the differences the goods under customs supervision and to between the various situations under con- m o n i t o r t h e m as p r o v i d e d for in sideration seem clear. In Wandel and Article 37(1) of the Customs Code. Con- Liberexim, the violations of customs pro- versely, in cases such as this one, one can cedure of which the parties were accused only speak, at most, of procedural irregu- carried the risk of an unauthorised circum- larities within the meaning of Article 204 of venting of the Community customs tariff in the Code. so far as they prevented the customs auth- orities from inspecting the goods in order to determine the applicable customs duty before they were put into free circulation. Understandably, therefore, the existence of such a risk required a strict interpretation of the scope of the notion of removal. 54. Likewise, it does not appear to me that such an interpretation of the notion of removal would be in contradiction with that already accepted by the Court in the cases mentioned above; rather, it appears to 52. In the present case, however, the me that such an interpretation merely breach of the provisions relating to the clarifies that of the Court by emphasising transfer of goods from the customs ware- the ratio legis of Article 203.

55. Still other arguments support this the- Article 204 applies, inter alia, precisely in sis. Above all, it appears to be in line with a the situation here, namely that in which systematic interpretation of the Customs goods placed under a particular customs Code and, in particular, a combined read- procedure leave the customs territory of the ing of Articles 203 and 204. Community without the necessary formal- ities having been properly completed (Article 859(6)). Thus it seems that Ham- ann is correct in observing that, were such a violation to be categorised as 'removal from customs supervision' within the meaning of Article 203, Article 204, in 56. As mentioned above, Article 204 gov- combination with Article 859(6), would be erns the non-performance of obligations essentially deprived of normative effect. linked to the placing of goods under a particular customs procedure, or of the conditions to which that is subject, and provides that such non-performance will not result in the incurring of a customs debt if 'they have not had, in practice, any effect on the proper functioning... of the customs 59. Finally, I would add that the recent procedure in question'. simplification and rationalisation of the rules governing customs procedures having an economic impact, and in particular the introduction in the implementing regu- lation of the new Article 512, provides indirect support for that approach. As also n o t e d by H a m a n n , t h a t a m e n d m e n t 57. As the Commission pointed out, it is abrogates the very formality the non-ob- true that the rule laid down in Article 204 servance of which is at the root of the appears to be a provision of residual dispute between Rojo and the Hauptzoll- application, given that it applies 'in cases amt, and now enables the transfer of goods other than those under Article 203'. Never- to the customs office of exit with a view to theless, it seems to me, as it does to their re-exportation out of the Community Hamann, that an overly narrow interpre- to be brought within the scope of the tation of the notion of removal under customs warehousing procedure without Article 203 would unduly restrict the scope the need for the goods to be placed under of Article 204, depriving it essentially of the external transit procedure. any useful effect.

61. The observations set out above lead me to conclude that a violation of the customs 63. Nor does such a situation lead to the rules such as the one in the present case i n c u r r i n g of a c u s t o m s d e b t u n d e r does not amount to 'removal from customs Article 204 of the Code, provided always s u p e r v i s i o n ' w i t h i n the m e a n i n g of that it is demonstrated, in accordance with Article 203, but rather to a failure to Article 859 of the implementing regulation, comply with Article 204. More specifically, that there has not been obvious negligence it seems to me that this is a case of on the part of the person concerned and 'non-performance devoid of any con- that all the formalities necessary to regula- sequences for the proper functioning of rise the situation of the goods are sub- the procedure' of customs warehousing, sequently carried out. within the meaning of Article 204 of the Code and Article 859 of the implementing regulation, provided that there has not been obvious negligence and that the necessary formalities were subsequently completed in order to regularise the situation of the 64. It falls to the national court to verify goods. Under Article 860 of the imple- whether, in the given case, it has been menting regulation it will fall to the inter- proven that the conditions of Article 859 ested party to prove that in the case at hand have been fulfilled. these two conditions are satisfied.

Repayment within the meaning of Article 239 of the Customs Code 62. I am therefore of the opinion that the fact that non-Community goods — tem- porarily brought into the customs territory of the Community, placed under the cus- 65. As already noted above, should it be toms warehousing procedure with a view to held that the conditions in Article 859 of their re-export, declared to the customs the implementing regulation have not been authorities for re-export and subsequently fulfilled, it will also be necessary to deter-

66. In particular, according to Community 68. As regards the present case, I agree case-law, it will first be necessary to deter- with the Commission that the complexity mine 'whether "an application for repay- of the provisions applicable to the facts in ment... is based on grounds corresponding question and the fact that the experience of to one of the circumstances" referred to in the interested parties is limited to the Articles 900 to 904 of the implementing management of a customs warehouse of regulation'. 9 Where none of the situations type D, subject to relatively simplified listed in that provision exist, it will be rules, tend to justify the conclusion that necessary, again according to the case-law we are in the presence of one of those of the Court, to determine 'whether there is 'special situations', 'which does not entail any evidence of the existence of a special any deception or manifest negligence on the s i t u a t i o n w i t h i n t h e m e a n i n g of part of the person concerned' and in Article 905(1) of the regulation, which relation to which one may therefore legit- does not entail any deception or manifest imately apply Article 239 and thus permit, negligence on the part of the person con- according to equitable principles, a repay- cerned'. 1 0 ment of the duty which was none the less legally owed.

67. The Court has also stated that such a 69. It falls to the national court to deter- 'special situation' will arise when 'having mine whether these conditions have been fulfilled in the present case. 9 — Case C-48/98 SöhlScSöhlke [1999] ECR I-7877, paragraph 88. 10 — Case C-86/97 Trans-Ex-Imüort [1999] ECR I-1041, para- 11 — Case C-253/99 Bacardi [2001] ECR I-6493, paragraphs 56 graph 19, and Sohl Sc Söbtke, paragraph 9 1 . and 59. See also Trans-Ex-Import, paragraph 22.

It falls to the national court to verify whether, in the given case, it has been proven that the conditions of Article 859 have been fulfilled.

Should the national court hold that those conditions have not been fulfilled, it will also be required to determine whether, in the light of the circumstances of the particular case, any of the exceptions laid down in Article 239 of the Customs Code and in the related provisions in the implementing regulation may apply so as to permit repayment of a legally owed duty.'

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