C-91/02

4. Article 201 of the Code provides that a customs debt on importation is incurred on the release for free circulation of goods liable to import duties or the placing of such goods under the temporary import- 2. The Verwaltungsgerichtshof (Adminis- ation procedure with partial relief from trative Court), Austria, asks whether this import duties. The same provision states regulation precludes national legislation that a customs debt is incurred at the time which requires an increase in customs duty of acceptance of the customs declaration in when a customs debt arises as a result of a question. breach of Community legislation or when a debt is the subject of subsequent recovery under Article 220 of the Code. In this case, the increase at issue corresponds to the interest on arrears for the period between the incurrence of the customs debt and the 5. Article 209 of the Code provides that a (subsequent) entry in the accounts. customs debt on exportation is incurred on the exportation from the customs territory of the Community, under cover of a 1 — Original language: French. customs declaration, of goods liable to 2 — OJ 1992 L 302, p. 1 (the 'Customs Code' or the 'Code'). export duties. It further states that the debt

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is incurred at the time when such customs entered in the accounts in accordance with declaration is accepted. Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the 6. Articles 217 to 232 of the Code lay customs authorities become aware of the down the procedure for recovering a cus- situation and are in a position to calculate toms debt. the amount legally owed and to determine the debtor (subsequent entry in the accounts)'.

9. Article 220(1) of the Code deals with the subsequent recovery of customs debts. It provides that 'where the amount of duty 12. Pursuant to Article 229 of the Code, resulting from a customs debt has not been the customs authorities may grant the I - 12080

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debtor payment facilities, provided that the 16. Paragraph 108(1) of the ZollR-DG debtor pays credit interest. deals with the increase in duty. It reads as follows:

13. Finally, Article 232 of the Code pre- 'Except in the cases referred to in sub- scribes that if the debtor does not pay the paragraph (2), where a customs debt is duty within the prescribed period, the incurred under Articles 202 to 205, or 210, customs authorities shall charge interest or 211 of the Customs Code, or in the event on arrears, which rate of interest may not of subsequent recovery under Article 220 of be lower than the rate of credit interest. the Customs Code, an increase in duty is to be paid, the amount of which shall cor- respond to the amount which would have been incurred as interest on arrears for the period between the incurrence of the cus- toms debt and the entry in the accounts, or, in the event of subsequent recovery under Article 220 of the Customs Code, which B — National legislation corresponds to the amount which would have been incurred as interest on arrears for the period between the date on which the customs debt originally entered in the accounts was due and the subsequent entry 14. The provisions of the Customs Code in the accounts...'. were incorporated into Austrian law by the Bundesgesetz betreffend ergänzende Rege- lungen zur Durchführung des Zollrechts der Europäischen Gemeinschaften (Federal Law relating to Additional Provisions for the Implementation of European Commu- nity Customs Law) of 23 August 1994. 3 I I — The main proceedings and the ques- tion referred for a preliminary ruling

20. Hannl challenged this decision before the Hauptzollamt, and then before the Finanzlandesdirektion für Wien, Niederös- terreich und Burgenland (Tax Office for the 'Is the increase in duty under Paragraph Länder of Vienna, Lower Austria and 108(1) of the Austrian Zollrechts-Durch- Burgenland), Austria. fiihrungsgesetz, which is payable in the event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the Customs Code or in the event of subsequent recovery under Article 220 of the Customs Code and which corresponds to the amount which would have been 21. The latter confirmed the decision, incurred as interest on arrears for the whilst also specifying the basis upon which period between the incurrence of the cus- the increase was calculated (namely toms debt and the entry in the accounts, ATS 228 668, of which ATS 30 694 was and in the case of subsequent recovery customs duty and ATS 197 974 turnover under Article 220 of the Customs Code tax on import) as well as the applicable between the date on which the customs interest rate (5.66% per annum) and the debt originally entered in the accounts was related periods of arrears (one period from due and the entry in the accounts of the 15 November 1998 to 14 December 1998 customs debt to be subsequently recovered, and another from 15 December 1998 to contrary to Community customs provi- 14 January 1999). sions?'

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III— Consideration of the question sub- the debtor is to pay interest on arrears if he mitted for a preliminary ruling does not pay the duty owed within a period not exceeding 10 days following communi- cation of the amount of customs duty.

25. At the outset, it should be recalled that Article 232 of the Customs Code requires the payment of interest on arrears solely for 28. With a view to answering this question, the period subsequent to the entry in the the principles relating to the power of accounts of a customs debt. It provides that Member States to adopt measures to secure

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the application of Community law should appear to them to be appropriate. They be noted. must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality.

6— See, inter alia, Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 23 and 24; Case C-326/88 Hansen [1990] ECR I-2911, paragraph 17; Case C-7/90 Vande- venne and Others [1991] ECR I-4371, paragraph 11; Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 55; Case C-383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 40; Case C-36/94 — the unlawful introduction into the Siesse [1995] ECR I-3573, paragraph 20, and Case customs territory of the Community C-213/99 De Andrade [2000] ECR I-11083, paragraph 20. 7 — See, inter alia, Case C-210/91 Commission v Greece [1992] of goods liable to import duties, or the ECR I-6735, paragraph 19, as well as Siesse, paragraph 21, unlawful introduction into another and De Andrade, paragraph 20, both cited in footnote 6 above. part of that territory of such goods

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located in a free zone or free ware- 33. Similarly, Articles 210 and 211 of the house; 8 Code provide that a customs debt on exportation is incurred as a result of:

— the unlawful removal from customs — the removal from the customs territory supervision of goods liable to import of the Community of goods liable to duties; 9 export duties without a customs dec- laration, and

— non-fulfilment of one of the obligations arising, in respect of goods, from their — failure to comply with the conditions temporary storage or from the use of under which the goods were allowed to the customs procedure under which leave the customs territory of the they are placed, 10 or non-compliance Community with total or partial relief with a condition governing the placing from export duties. of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods; 11 and

36. I have not found a provision, either in 39. I take the view that the purpose of the the Code or in Commission Regulation increase in issue unquestionably complies (EEC) No 2454/93 of 2 July 1993, 14 which with Community law. specifically provides for any penalty where the customs debt is incurred as a result of a breach of obligations relating to the intro- duction or exportation of goods into (or out of) the Community. Similarly, I have not found any provision imposing a penalty where, as a result of the conduct of the trader, the customs authorities were not 40. As the Austrian Government has able to enter the duty in the accounts pointed out, 1 6the problem that arises immediately after the incurrence of the when a customs debt is incurred under customs debt. Articles 202 to 205, 210 and 211 of the Code, or when a customs debt is the subject of subsequent recovery, is not that the debtor would be late in paying his debt. The problem lies in the fact that as a result of the conduct of the trader, the customs authorities are not always able to immedi- 37. As a result, contrary to the assertions ately enter the customs debt in the accounts made by Hannl, the Member States are or to establish precisely the amount of the empowered to impose penalties which debt and the debtor. Therefore some time appear to them to be appropriate in this may pass between the point at which the field. The Republic of Austria could there- customs debt is incurred and the point at fore legitimately take the measure laid which it is the subject of an entry (or down by Paragraph 108 of the ZollR-DG. subsequent entry) in the accounts.

42. Against that background, the increase in issue aims to counteract a benefit enjoyed by traders who do not comply with the requirements prescribed by cus- toms legislation or who submit incorrect information to the authorities concerned. 45. In this case therefore it is for the As the Austrian Government noted, 17 if Verwaltungsgerichtshof to determine such a measure did not exist, traders who whether the amount of the increase pre- behaved in an illegal or negligent manner scribed by Paragraph 108(1) of the would, as a result of the delay in the entry ZollR-DG complies with the principle of (or subsequent entry) of their debt in the proportionality and whether it is set at a accounts, be at an advantage compared to level which is comparable to that which is traders whose actions led to a swift settle- applicable under national law to equivalent ment of the customs debt. infringements. To that end, the national court may take into account the fact that the increase at issue simply counteracts a benefit that traders would derive from a customs offence, without imposing upon them an effective penalty. In any event, the referring court will ascertain whether the 43. The increase in issue therefore aims to interest rate of 5.66% per annum, which encourage traders to comply with the appears to be reasonable, corresponds to obligations laid down by customs legis- the interest rate applied under national law lation. Such a purpose evidently complies to infringements of the same nature and with Community law. 18 gravity.

— where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211 of the Customs Code, the customs duty is to be increased by an amount which corresponds to the interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts, and

— where a customs debt is the subject of subsequent recovery pursuant to Article 220 of the Customs Code, the customs duty is to be increased by an amount which corresponds to the interest on arrears for the period between the date on which the customs debt originally entered in the accounts was due and the date of the subsequent entry in the accounts,

provided that the amount of interest is determined in accordance with the principle of proportionality and under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity. It is for the national court to determine whether the increase at issue complies with these principles.

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