Case C-222/01

British American Tobacco Manufacturing BV

v

Hauptzollamt Krefeld

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Free movement of goods – External Community transit – Temporary removal of transit and transport documents – Breaking of seals and partial unloading of the goods – Removal of goods from customs supervision – Incurring of a customs debt on importation – Unsuspected presence of undercover customs agents – Special circumstances justifying the remission or repayment of import duties – Responsibility of the principal in the case of deception or obvious negligence on the part of persons engaged by him)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation sought owing to the applicability of provisions of Community law to an internal situation as a result of a reference made by national law – Admissibility

(Art. 234 EC)

2. Customs union – Incurrence of a customs debt on importation following removal from customs supervision of goods liable to import duty – Meaning of removal – Temporary removal of T 1 transit document preventing its presentation at any possible requisition, even if not actually demanded – Included

(Council Regulations Nos 222/77, Arts 12, 13, 19(1) and 20, and 2144/87, Art. 2(1)(c))

3. Own resources of the European Communities – Repayment or remission of import or export duties – ‘Special situation’ – Meaning – Infringement of Community transit system originating in the conduct of an undercover customs agent – Included – Conditions – Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations – Fact not in itself excluding repayment

(Council Regulations Nos 222/77, Art. 13(a) and 1430/79, Art. 13(1))

1. Questions referred for a preliminary ruling are not inadmissible where referred in a context in which the Community rules to be interpreted apply only by virtue of a reference made by domestic law, since, where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to ensure a single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.

(see para. 40)

2. In so far as the temporary removal of the T 1 transit document from the goods to which it relates prevents the presentation of that document at any possible requisition by the customs service, such a removal constitutes a removal of those goods from customs supervision within the meaning of Article 2(1)(c) of Regulation No 2144/87, which provides that a customs debt is incurred in such a case, even if the customs authorities have not demanded presentation of the document or established that it could not have been presented to them without considerable delay.

(see para. 56, operative part 1)

3. The fact that infringements of the Community transit system originate in the conduct of an undercover agent belonging to the customs services constitutes a special situation within the meaning of Article 13(1) of Regulation No 1430/79, which may, in appropriate cases, justify the remission or repayment of duties paid by the principal, provided no deception or obvious negligence may be attributed to him.

Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations contracted under that system does not, in itself, exclude repayment to the principal of duties incurred as a result of the removal of goods placed under that system from customs supervision, provided no deception or obvious negligence is attributable to the principal.

(see paras 66, 73, operative part 2-3)

JUDGMENT OF THE COURT (Fifth Chamber) 29 April 2004 (1)

(Free movement of goods – External Community transit – Temporary removal of transit and transport documents – Breaking of seals and partial unloading of the goods – Removal of goods from customs supervision – Incurring of a customs debt on importation – Unsuspected presence of undercover customs agents – Special circumstances justifying the remission or repayment of import duties – Responsibility of the principal in the case of deception or obvious negligence on the part of persons engaged by him)

In Case C-222/01,

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

and

on the interpretation of the Community rules concerning the incurring, remission and repayment of a customs debt,

THE COURT (Fifth Chamber),,

composed of: C.W.A. Timmermans (Rapporteur), acting for the President of the Fifth Chamber, A. La Pergola and S. von Bahr, Judges,

Advocate General: A. Tizzano,

after considering the written observations submitted on behalf of:

after hearing the oral observations of British American Tobacco Manufacturing BV and the Commission at the hearing on 6 February 2003,

after hearing the Opinion of the Advocate General at the sitting on 26 June 2003,

gives the following

‘For the purposes of this Regulation:

(a)

means the person who, in person or through an authorised representative, requests permission, in a declaration in accordance with the required customs formalities, to carry out a Community transit operation and thereby makes himself responsible to the competent authorities for the execution of the operation in accordance with the rules;

…

(c)

means the customs office where the Community transit operation begins;

…

(e)

means the customs office where the goods must be produced to complete the Community transit operation;

…’

‘1.

…

4.…

6.The office of departure may dispense with production of this document during the customs formalities. However, the transport document must be produced whenever required by the customs authorities in the course of carriage.’

(a)

(b)

‘The office of departure shall register the T 1 declaration, prescribe the period within which the goods must be produced at the office of destination, and take such measures for identification as it considers necessary.’

‘1.

…

4.‘The copies of the T 1 document delivered to the principal or to his representative by the office of departure must accompany the goods.’

‘Copies of the T 1 document shall be produced in each Member State as required by the customs authorities, who may satisfy themselves that the seals are unbroken. The goods shall not be inspected unless some irregularity is suspected which could result in abuse.’

‘If seals are broken in the course of carriage without the carrier so intending, he shall, as soon as possible, request that a certified report be drawn up in the Member State in which the means of transport is located, by the customs authority if there is one nearby or, if not, by any other competent authority. The authority concerned shall, if possible, affix new seals.’

‘When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings.’

…

(c)

(d)

‘The moment when a customs debt on importation is incurred shall be deemed to be:

…

(c)

(d)

…’

‘Without prejudice to the provisions in force concerning the withdrawal of action to recover the amount of a customs debt in the event of the time bar for that debt having lapsed, and also concerning the non-recovery of such amounts due to the establishment by judicial process of the insolvency of the debtor, a customs debt shall be extinguished:

(a)

(b)

‘1. Where a customs debt has been incurred pursuant to Article 2(1)(c) of Regulation (EEC) No 2144/87, the person who removed the goods from customs supervision shall be liable for payment of such debt.

Under the provisions in force in the Member States, the following shall also be jointly and severally liable for payment of such debt:

(a)

(b)

2.‘Where a customs debt has been incurred pursuant to Article 2(1)(d) of Regulation (EEC) No 2144/87, the person who is required, according to the circumstances, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they have been placed or to comply with the conditions to which the placing of the goods under that procedure is subject, shall be liable for payment of such debt.’

‘For the purposes of this regulation:

…

(c)

(d)

‘Import duties shall be repaid or remitted in so far as the competent authorities are satisfied that the amount of such duties entered in the accounts:

‘Import duties may be repaid or remitted in special situations other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

The situations in which the first subparagraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined in accordance with the procedure laid down in Article 25. Repayment or remission may be made subject to special conditions.’

‘Where tobacco products or cigarette paper are imported into the territory in which the tax is levied, the provisions for customs duties shall apply mutatis mutandis to the incurrence 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 procedure, and, where the tax is not paid through the use of revenue stamps, to the time of payment, deferment of payment, remission and repayment. This shall apply even where customs duties are not to be levied.’

‘(1)

(2)

Have goods cleared for Community transit been removed from customs supervision if the customs seal affixed to ensure their identification was opened and the goods were partially unloaded, without the consignment first being duly produced for customs, even though the operation was arranged with the persons in question by customs investigation officers operating incognito and observed in every detail by those officers?

(3)

Do special circumstances exist within the meaning of Article 13 of Regulation No 1430/79 if a customs investigation officer acting undercover has provoked infringements of the Community transit procedure? Does the deception or obviously negligent conduct of persons used by the principal in fulfilling the obligations assumed by him under the Community transit procedure preclude repayment to him of the duties incurred by the removal from customs supervision of goods cleared for Community transit?’

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Bundesfinanzhof by order of 24 April 2001, hereby rules:

Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations contracted under the Community external transit system does not, in itself, exclude repayment to the principal of duties incurred as a result of the removal of goods placed under that system from customs supervision, provided no deception or obvious negligence is attributable to the principal.

Timmermans

La Pergola

von Bahr

Delivered in open court in Luxembourg on 29 April 2004.

R. Grass

V. Skouris

Registrar

President