«(Free movement of goods – External transit operation – Transport under cover of a TIR carnet – Offences or irregularities – Possibility for a guaranteeing association to prove the place where the offence or irregularity was committed – Time-limit for furnishing proof – Existence of an obligation for the Member State which detects an offence or irregularity to investigate the place where it was committed)»

1.. Free movement of goods – Community external transit – Transportation under cover of a TIR carnet – Offences and irregularities – Place where the offence or irregularity was committed – Furnishing of proof by a guaranteeing association within the limitation period – Whether permissible (Commission Regulation No 2454/93, Arts 454(3), first subpara., and 455)

2.. Free movement of goods – Community external transit – Transportation under cover of a TIR carnet – Offences and irregularities – Place where the offence or irregularity was committed – Furnishing of proof by a guaranteeing association – Point at which time starts to run and length of period – Principle of legal certainty

3.. Free movement of goods – Community external transit – Transportation under cover of a TIR carnet – Offences and irregularities – Obligations of the Member State detecting an offence – Obligation to investigate the actual place where the offence was committed and the identity of the customs debtors – Not included (Commission Regulation No 2454/93, Arts 454 and 455)

JUDGMENT OF THE COURT 23 September 2003 (1)

((Free movement of goods – External transit operation – Transport under cover of a TIR carnet – Offences or irregularities – Possibility for a guaranteeing association to prove the place where the offence or irregularity was committed – Time-limit for furnishing proof – Existence of an obligation for the Member State which detects an offence or irregularity to investigate the place where it was committed))

In Case C-78/01,

REFERENCE to the Court under Article 234 EC by the Bundesgerichtshof (Germany) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Articles 454 and 455 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1),

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, A. La Pergola, V. Skouris, F. Macken, N. Colneric, J.N. Cunha Rodrigues and A. Rosas (Rapporteur), Judges,

Advocate General: P. Léger,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of Bundesverband Güterkraftverkehr und Logistik eV (BGL), represented by M. Gräfin von Westerholt and M. Lausterer; the Hauptzollamt Friedrichshafen, represented by J. Kummer; Préservatrice Foncière Tiard SA, represented by H.-J. Prieß; and the Commission, represented by U. Wölker, acting as Agent, at the hearing on 9 July 2002,

after hearing the Opinion of the Advocate General at the sitting on 14 January 2003,

gives the following

Provisions applicable to TIR transit

The TIR Convention

...

Community law

Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State in which it was detected, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or national provisions.If the Member State where the said offence or irregularity was actually committed is subsequently determined, the duties and other charges (apart from those levied, pursuant to the second subparagraph, as own resources of the Community) to which the goods are liable in that Member State shall be returned to it by the Member State which had originally recovered them. In that case, any overpayment shall be repaid to the person who had originally paid the charges.Where the amount of the duties and other charges originally levied and returned by the Member State which had recovered them is smaller than that of the duties and other charges due in the Member State where the offence or irregularity was actually committed, that Member State shall levy the difference in accordance with Community or national provisions.The customs administrations of the Member States shall take the necessary measures to deal with any offence or irregularity and to impose effective penalties.

Mutual assistance between the administrative authorities of the Member States

In order to carry out these enquiries the requested authority or the administrative authority which it has addressed shall proceed as though it were acting on its own account or at the request of another authority in its own country.The requested authority shall communicate the results of these enquiries to the applicant authority.

Question 1(a) on the application to the guaranteeing association of the period for furnishing proof of the place of the irregularity and Question 1(b)(ii) on the nature of that period

Observations submitted to the Court

Findings of the Court

Question 1(b)(i) on the period for furnishing proof

Observations submitted to the Court

Findings of the Court

Question 2(a) on the existence of an obligation on the Member State to investigate

Observations submitted to the Court

Findings of the Court

On those grounds,

THE COURT,

in answer to the questions referred to it by the Bundesgerichtshof by order of 11 January 2001, hereby rules:

Rodríguez Iglesias

Wathelet

Schintgen

Timmermans

Gulmann

La Pergola

Skouris

Macken

Colneric

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 23 September 2003.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President