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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Sohl & Sohlke (Free movement of goods) [1999] EUECJ C-48/98 (11 November 1999) URL: http://www.bailii.org/eu/cases/EUECJ/1999/C4898.html Cite as: [1999] EUECJ C-48/98 |
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JUDGMENT OF THE COURT (Sixth Chamber)
11 November 1999 (1)
(Community Customs Code and implementing Regulation - Exceeding of time-limits for the customs clearance of non-Community goods in temporary storage - Failure having 'no significant effect on the correct operation of the temporary storage or customs procedure in question - Extension of period - 'Obvious negligence)
In Case C-48/98,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Finanzgericht Bremen (Germany) for a preliminary ruling in the proceedings pending before that court between
Firma Söhl & Söhlke
and
Hauptzollamt Bremen,
on the interpretation of Articles 49, 204 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and Article 212a of Regulation No 2913/92, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997, L 17, p. 1) and on the validity and interpretation of Article 859 and the interpretation of Articles 900 and 905 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of RegulationNo 2913/92 (OJ 1993 L 253, p. 1), as amended by Article 1(29) of Commission Regulation (EC) No 3254/94 of 19 December 1994 (OJ 1994 L 346, p. 1),
THE COURT (Sixth Chamber),
composed of: R. Schintgen (Rapporteur), President of the Second Chamber acting for the President of the Sixth Chamber, P.J.G. Kapteyn and H. Ragnemalm, Judges,
Advocate General: F.G. Jacobs,
Registrar: H. von Holstein, Deputy Registrar,
after considering the written observations submitted on behalf of:
- Firma Söhl & Söhlke by H. Glashoff, Financial Adviser, and H.-J. Stiehle, Rechtsanwalt, Frankfurt am Main,
- Hauptzollamt Bremen by M. Tischler, Zolloberamtrat at the Hauptzollamt Bremen, acting as Agent,
- the German Government by E. Röder, Ministerialrat at the Federal Ministry of the Economy, and C.D. Quassowksi, Regierungsdirektor at the same Ministry, acting as Agents,
- the United Kingdom Government by D. Cooper, of the Treasury Solicitor's Department, acting as Agent, and S. Moore, Barrister,
- the Commission of the European Communities by R. Tricot, of its Legal Service, and K. Schreyer a national civil servant on secondment to the Legal Service, acting as Agents, and R. Bierwagen, of the Brussels Bar,
having regard to the Report for the Hearing,
after hearing the oral observations of Firma Söhl & Söhlke, represented by H.-J. Stiehle, of the German Government, represented W.-D. Plessing, Ministerialrat at the Federal Ministry of Finance, acting as Agent, and of the Commission, represented by K. Schreyer and R. Bierwagen, at the hearing on 11 February 1999,
after hearing the Opinion of the Advocate General at the sitting on 29 April 1999,
gives the following
The relevant Community provisions
'1. Where goods are covered by a summary declaration, the formalities necessary for them to be assigned a customs-approved treatment or use must be carried out within:
(a) ...
(b) 20 days from the date on which the summary declaration is lodged in the case of goods carried otherwise than by sea.
2. Where circumstances so warrant, the customs authorities may set a shorter period or authorise an extension of the periods referred to in paragraph 1. Such extension shall not, however, exceed the genuine requirements which are justified by the circumstances.
'A customs debt on importation shall be incurred through:
(a) non-fulfilment of one of 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 are placed,
or
(b) ...
in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.
'Where customs legislation provides for partial or total exemption from import or export duties pursuant to Articles 18[4] to 187, such partial or total exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211 where the behaviour of the declarant implies neither fraudulent dealing nor manifest negligence and he produces evidence that the other conditions for the application of relief or exemption have been satisfied.
'1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238:
- to be determined in accordance with the procedure of the committee,
- resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.
2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.
However, the customs authorities may permit this period to be exceeded in duly justified exceptional cases.
'1. Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.
Any person who has applied to the customs authorities for a decision relating to the application of customs legislation and has not obtained a ruling on that request within the period referred to in Article 6(2) shall also be entitled to exercise the right of appeal.
The appeal must be lodged in the Member State where the decision has been taken or applied for.
2. The right of appeal may be exercised:
(a) initially, before the customs authorities designated for that purpose by the Member States;
(b) subsequently, before an independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.
'The provisions for the implementation of the appeals procedure shall be determined by the Member States.
'1. The provisions required for the implementation of this Code, including implementation of the Regulation referred to in Article 184, except for Title VIII and subject to Articles 9 and 10 of Council Regulation (EEC) No 2658/87 and to paragraph 4, shall be adopted in accordance with the procedure laid down in paragraphs 2 and 3, in compliance with the international commitments entered into by the Community.
2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency ofthe matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.
3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.
(b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the provisions to be adopted. The Council shall act by a qualified majority.
(c) If, on the expiry of a period of three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.
4. The provisions necessary for implementing Articles 11, 12 and 21 shall be adopted by the procedure referred to in Article 10 of Regulation (EEC) No 2658/87.
'... it is important to guarantee the uniform application of this Code and to provide, to that end, for a Community procedure which enables the procedures for its implementation to be adopted within a suitable time; ... a Customs Code Committee should be set up in order to ensure close and effective cooperation between the Member States and the Commission in this field;
... in adopting the measures required to implement this Code, the utmost care must be taken to prevent any fraud or irregularity liable to affect adversely the General Budget of the European Communities.
'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,
- they do not imply obvious negligence on the part of the person concerned, and
- all the formalities necessary to regularise the situation of the goods are subsequently carried out:
1. exceeding the time-limit allowed for assignment of the goods to one of the customs-approved treatments or uses provided for under the temporary storage or customs procedure in question, where the time-limit would have been extended had an extension been applied for in time;
2. in the case of goods placed under a transit procedure, exceeding the time-limit for presentation of the goods to the office of destination, where such presentation takes place later;
3. in the case of goods placed in temporary storage or under the customs warehousing procedure, handling not authorised in advance by the customs authorities, provided such handling would have been authorised if applied for;
4. in the case of goods placed under the temporary importation procedure, use of the goods otherwise than as provided for in the authorisation, provided such use would have been authorised under that procedure if applied for;
5. in the case of goods in temporary storage or placed under a customs procedure, unauthorised movement of the goods, provided the goods can be presented to the customs authorities at their request;
6. in the case of goods in temporary storage or placed under a customs procedure, removal of the goods from the customs territory of the Community or their entry into a free zone or free warehouse without completion of the necessary formalities;
7. in the case of goods having received favourable tariff treatment by reason of their end-use, transfer of the goods without notification to the customs authorities, before they have been put to the intended use, provided that:
(a) the transfer is recorded in the transferor's stock records; and
(b) the transferee is the holder of an authorisation for the goods in question.
'The customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the Code unless the person who would be the debtor establishes that the conditions set out in Article 859 are fulfilled.
- 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 concerned.
The person concerned shall mean the person or persons referred to in Article 878(1), or their representatives, and any other person who was involved with the completion of the customs formalities relating to the goods concerned or gave the instructions necessary for the completion of these formalities,
- is based on grounds corresponding to one of the circumstances referred to in Article 904, it shall not repay or remit the amount of import duties concerned.
'Import duties shall be repaid or remitted where:
...
(o) the customs debt has been incurred otherwise than under Article 201 of the Code and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Community transit document or other appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.
'Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the Code has been submitted cannot take a decision on the basis of Article 899, but the application is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909.
The term the person concerned shall be interpreted in the same way as in Article 899.
In all other cases, the decision-making customs authority shall refuse the application.
'... Article 890 of Regulation (EEC) No 2454/93 provides that duties may be repaid or remitted on imports eligible for Community treatment or preferential tariff treatment, where a customs debt has been incurred as a result of release for free circulation;
... there are also cases in which the importer is able to produce a document showing entitlement to such preferential treatment but the customs debt has been incurred for reasons other than release for free circulation; ... the obligation to pay duty in such cases, where no deception or obvious negligence is involved, is disproportionate to the need for protection which the common customs tariff is intended to provide.
The dispute in the main proceedings
'1. Does Article 859 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 implementing Regulation) contain a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (the Customs Code), which have no significant effect on the correct operation of the temporary storage or customs procedure in question?
2. If Question 1 is to be answered in the affirmative:
(a) Where an application is made in time for an extension of the time-limit referred to in Article 859(1) of the implementing Regulation, is the national court precluded from examining of its own motion the criteria for the grant of such an extension where it has been refused by a now unappealable decision of the customs authority?
(b) Is it permissible for an application for an extension to relate not to declarations to be listed individually but instead globally to all declarations to be made within a given period (in this case, several months), where reference is made, by way of justification, to special problems existing during that period in the applicant's business (for example, the fact that employees have suddenly fallen ill or have been absent on leave, the induction of new employees, problems with the application of a data processing system developed for the purposes of carrying out customs formalities or, in cases involving outward processing, the excessive work involved in the preparation of attributions which should in fact have been prepared by the customs authorities), without obvious negligence arising under the second indent of Article 859 of the implementing Regulation?
3. If Question 1 is to be answered in the negative:
Must it be assumed that the numerous instances of failure to comply in time with the obligation to assign to goods presented to customs a customs-approved treatment or use are to be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question where such treatment or use is assigned to the goods after the time-limit has expired and an extension of the time allowed for such assignment would not have been justified under Article 49(2) of the Customs Code?
4. If Question 2(b) or Question 3 is to be answered in the negative:
Is Article 900(1)(o) of the implementing Regulation, as inserted by Article 1(29) of Commission Regulation (EC) No 3254/94 of 19 December 1994 (OJ 1994 L 346, p. 1), concerning eligibility for preferential rates or Community treatment, also applicable to the grant of other forms of preferential tariff treatment?
5. If Question 4 is to be answered in the negative:
Where a claim is made for repayment, are the customs authorities and courts required to examine of their own motion whether all relevant criteriafor repayment are fulfilled, even in the event that the claimant expressly bases his claim for repayment on one legal criterion only, thus rendering it necessary, in circumstances such as those of the present case, to examine whether the conditions laid down in the second indent of Article 239(1) of the Customs Code in conjunction with the first sentence of Article 905(1) of the implementing Regulation are fulfilled with regard to declarations for entry into free circulation in which valid movement certificates on Form EUR.1 or certificates of origin on Form A have been produced, and where there exists the possibility of total or partial exemption from import duties of goods which have been re-imported following outward processing (differential customs clearance) or goods returned following repair?
6. Where the repayment criteria laid down in Article 900(1)(o) of the implementing Regulation are fulfilled, can it ordinarily be assumed that the person concerned has not acted with any fraudulent intent or in a manner which is obviously negligent?
7. If Question 6 and/or Question 4 are to be answered in the negative:
Should the term offensichtliche Fahrlässigkeit (obvious negligence) in the second indent of Article 239(1) of the Customs Code be defined according to objective and/or subjective criteria, and does it have the same meaning as the term grobe Fahrlässigkeit (obvious negligence) in the second indent of Article 859 of the implementing Regulation and the term offenkundige Fahrlässigkeit (manifest negligence) in Article 212a? Can no obvious negligence be said to exist within the meaning of Article 239 of the Customs Code where customs debts on importation have been incurred under Article 204(1)(a) because, for reasons such as those given by way of example in Question 2(b), there has been non-compliance over a period of many months with the time-limit laid down in Article 49(1) of the Customs Code and no circumstances justifying extensions of time existed, with the result that there was also obvious negligence under the second indent of Article 859 of the implementing Regulation?
First question
Third question
Seventh question
First and third parts of the seventh question
Second part of the seventh question.
Second question
First limb of the second question
Second limb of the second question
Fourth question
Fifth question
Sixth question
- 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 concerned.
Costs
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Finanzgericht Bremen by order of 2 December 1997, hereby rules:
1. Article 859 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 contains a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code which 'have no significant effect on the correct operation of the temporary storage or customs procedure in question.
2. (a) The terms used to qualify negligence in the German version of Article 212a of Regulation No 2913/92, as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, Article 239 of Regulation No 2913/92 and Article 859 of Regulation No 2454/93 have one and the same meaning. In the German version those terms must be understood as referring to 'offensichtliche Fahrlässigkeit (obvious negligence).
(b) It is not possible to conclude that there was no obvious negligence within the meaning of the second indent of Article 239(1) of Regulation No 2913/92 where a customs debt is incurred pursuant to Article 204(1)(a) of Regulation No 2913/92 as a result of behaviour which constitutes obvious negligence within the meaning of the second indent of Article 859 of Regulation No 2454/93.
(c) In order to determine whether there is 'obvious negligence within the meaning of the second indent of Article 239(1) of Regulation No 2913/92, account must be taken in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred and the professional experience of, and the caretaken by, the trader. It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader.
3. Community law does not preclude a national court from determining independently whether the criterion laid down in Article 859(1) of Regulation No 2454/93, namely that the time-limit ought to have been extended, is fulfilled where an application for an extension made in time has been refused by a now unappealable decision of the customs authority.
4. (a) Only circumstances liable to put the applicant in an exceptional situation in relation to other traders carrying on the same activity can justify an extension of the time-limit referred to in Article 49(1) of Regulation No 2913/92. Exceptional circumstances which, although not unknown to the trader, are not events which would normally confront any trader in the exercise of his occupation may constitute such circumstances. It is for the customs authorities and the national courts to determine in each case whether such circumstances exist.
(b) Community law does not preclude a trader from lodging a single application for an extension of the prescribed time-limit for assigning to goods covered by several summary declarations a customs-approved treatment or use. However, even in the case of a single application, the time-limit may be extended only in respect of goods in relation to which the prescribed time-limit for assigning a customs-approved treatment or use has not yet expired.
5. Article 900(1)(o) of Regulation No 2454/93, as amended by Article 1(29) of Commission Regulation (EC) No 3254/94 of 19 December 1994, applies to cases in which the goods would have been eligible for Community treatment or preferential tariff treatment, but not to cases in which the goods would have been eligible for other forms of favourable treatment.
6. The customs authority or national court to which an application is submitted for repayment on the basis of Article 900(1)(o) of Regulation No. 2454/93, as amended by Article 1(29) of Regulation No 3254/94, is required, where it is unable to grant the repayment applied for pursuant to that provision, to examine of its own motion the merits of that application in the light of the other provisions of Article 900 and Articles 901 to 904 of Regulation No 2454/93. Where the decision-making authority is not in a position, on the basis of the grounds adduced, to take a decision to repay or remit duties on the basis of Article 899 of Regulation No 2454/93, it is required to examine of its own motion whether there is any evidence 'which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the personconcerned within the meaning of Article 905(1) of Regulation No 2454/93 which would necessitate examination of the file by the Commission.
7. Where an application is submitted for the repayment or remission of import or export duties, the customs authority or national court cannot assume that the person concerned has not acted with any fraudulent intent or in a manner which is obviously negligent on the sole ground that he is in a situation referred to in Article 900(1)(o) of Regulation No 2454/93, as amended by Article 1(29) of Regulation No 3254/94.
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Schintgen
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Delivered in open court in Luxembourg on 11 November 1999.
R. Grass J.C. Moitinho de Almeida
Registrar President of the Sixth Chamber
1: Language of the case: German.
