Case C-414/02

Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul

v

Finanzlandesdirektion für Oberösterreich

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(Community Customs Code – Article 202 – Accrual of the customs debt – Unlawful introduction into the Community customs territory – Meaning of ‘debtor’ of such a debt – Extension to the employer of liability for the debt of an employee who has committed irregularities in the performance of customs obligations)

Summary of the Judgment

Customs union – Accrual of a customs debt following the unlawful introduction of goods – Meaning of ‘debtor’ – Employer of the person who introduced the goods – Included by national legislation – Requirements for permissibility

(Council Regulation No 2913/92, Art. 202(3))

Article 202(3) of Regulation No 2913/92 establishing the Community Customs Code is to be interpreted as meaning that it does not preclude national legislation which, in the event of unlawful introduction into the customs territory of the Community of goods subject to import duties, makes the employer co‑debtor of the customs debt of the employee who introduced those goods in the conduct of the employer’s affairs, so long as such legislation requires that the employer took part in the introduction of the goods and knew or ought reasonably to have known that such introduction was unlawful.

(see para. 45, operative part)

JUDGMENT OF THE COURT (Second Chamber) 23 September 2004 (1)

(Community Customs Code – Article 202 – Accrual of the customs debt – Unlawful introduction into the Community customs territory – Meaning of ‘debtor’ of such a debt – Extension to the employer of liability for the debt of an employee who has committed irregularities in the performance of customs obligations)

In Case C-414/02,REFERENCE for a preliminary ruling under Article 234 ECfrom the Verwaltungsgerichtshof (Austria), made by decision of 6 November 2002, received on 19 November 2002, in the proceedings brought by

v

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.‑P. Puissochet (Rapporteur), R. Schintgen and F. Macken, Judges,

Advocate General: A. Tizzano,

having regard to the written procedure,after considering the observations submitted on behalf of:

after hearing the Opinion of the Advocate General at the sitting on 6 May 2004,

gives the following

‘1. A customs debt on importation shall be incurred through:

2. A customs debt shall be incurred at the time of acceptance of the customs declaration in question.

3. The debtor shall be the declarant. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor.

Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up on the basis of information which leads to all or part of the duties legally owed not being collected, the persons who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false may also be considered debtors in accordance with the national provisions in force.’

‘1. A customs debt on importation shall be incurred through:

For the purpose of this article, unlawful introduction means any introduction in violation of the provisions of Articles 38 to 41 and the second indent of Article 177.

2. The customs debt shall be incurred at the moment when the goods are unlawfully introduced.

3. The debtors shall be:

‘1. A customs debt on importation shall be incurred through:

2. The customs debt shall be incurred at the moment when the goods are removed from customs supervision.

3. The debtors shall be:

‘Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt.’

‘As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.’

‘Where an employee or other person contracted by an undertaking incurs liability for a customs debt because that person has, in the discharge of the affairs of his employer or the undertaking which engaged him, acted unlawfully with regard to customs obligations, the employer or undertaking shall simultaneously incur liability for that customs debt in so far as it has not become the customs debtor in respect thereof pursuant to any other provision.’

‘Does Paragraph 79(2) of the [ZollR-DG] (under which an employer or undertaking incurs liability for a customs debt at the same time as the employee or other person contracted by the undertaking incurs liability for the debt, if that person has, in the discharge of his employer’s or the undertaking’s affairs, acted unlawfully with regard to customs obligations), widen the meaning of the term “customs debtor” in a manner that is contrary to Article 202(3) of the Customs Code and therefore incompatible with Community law?’

On those grounds, the Court (Second Chamber) rules as follows:

Signatures.