CELEX: 62007CJ0459
Community Customs Code
Article 202 and point (d) of the first paragraph of Article 233
Incurrence of a customs debt
Unlawful introduction of goods
Seizure and confiscation
Extinction of the customs debt
Moment at which seizure must take place

This reference for a preliminary ruling concerns the interpretation of Article 202 and point (d) of the first paragraph of
Article 233 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302,
p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000
L 311, p. 17) (‘the Customs Code’).
The reference has been made in the course of proceedings between Mr Elshani and the Hauptzollamt (Principal Customs Office)
Linz (‘the Hauptzollamt’) concerning the incurrence and extinction of a customs debt.

Legal context
Article 4 of the Customs Code states:
‘For the purposes of this Code, the following definitions shall apply:
...
(19)      “Presentation of goods to customs” means the notification to the customs authorities, in the manner laid down, of the arrival
of goods at the customs office or at any other place designated or approved by the customs authorities;
...’
Article 38 of the Customs Code states:
‘1.      Goods brought into the customs territory of the Community shall be conveyed by the person bringing them into the Community
without delay, by the route specified by the customs authorities and in accordance with their instructions, if any:
(a)      to the customs office designated by the customs authorities or to any other place designated or approved by those authorities;
…
2.      Any person who assumes responsibility for the carriage of goods after they have been brought into the customs territory of
the Community, inter alia as a result of transhipment, shall become responsible for compliance with the obligation laid down
in paragraph 1.
…’
Article 40 of the Customs Code provides:
‘Goods which, pursuant to Article 38(1)(a), arrive at the customs office or other place designated or approved by the customs
authorities shall be presented to customs by the person who brought the goods into the customs territory of the Community
or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry.’
Article 202 of the Customs Code is worded as follows:
‘1.      A customs debt on importation shall be incurred through:
(a)      the unlawful introduction into the customs territory of the Community of goods liable to import duties …
…
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:
–        the person who introduced such goods unlawfully,
...’
Article 203 of the Customs Code provides:
‘1.      A customs debt on importation shall be incurred through:
–        the unlawful removal from customs supervision of goods liable to import duties.
2.      The customs debt shall be incurred at the moment when the goods are removed from customs supervision.
…’
Article 233 of the Customs Code states:
‘Without prejudice to the provisions in force relating to the time-barring of a customs debt and non-recovery of such a debt
in the event of the legally established insolvency of the debtor, a customs debt shall be extinguished:
(a)      by payment of the amount of duty;
(b)      by remission of the amount of duty;
(c)      where, in respect of goods declared for a customs procedure entailing the obligation to pay duties:
–        the customs declaration is invalidated;
–        the goods, before their release, are either seized and simultaneously or subsequently confiscated, destroyed on the instructions
of the customs authorities, destroyed or abandoned in accordance with Article 182, or destroyed or irretrievably lost as a
result of their actual nature or of unforeseeable circumstances or force majeure;
(d)      where goods in respect of which a customs debt is incurred in accordance with Article 202 are seized upon their unlawful introduction
and are simultaneously or subsequently confiscated.
In the event of seizure and confiscation, the customs debt shall none the less, for the purposes of the criminal law applicable
to customs offences, be deemed not to have been extinguished where, under a Member State’s criminal law, customs duties provide
the basis for determining penalties or the existence of a customs debt is grounds for taking criminal proceedings.’
In relation to the introduction of goods into the Community, Article 163 of Commission Regulation (EEC) No 2454/93 of 2 July
1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission
Regulation (EC) No 2787/2000 of 15 December 2000 (OJ 2000 L 330, p. 1), provides:
‘1.      For the purposes of Article 32(1)(e) and Article 33(a) of the [Customs] Code, the place of introduction into the customs territory
of the Community shall be:
...
(c)      for goods carried by rail, inland waterway, or road, the place where the first customs office is situated;
...’

The dispute in the main proceedings and the questions referred for a preliminary ruling
It is apparent from the case-file submitted to the Court that the regional police for the
Land
of Upper Austria carried out telephone surveillance in the Eferding area in connection with cigarette smuggling. Suspicions
were raised about Mr Elshani and his brother, who were suspected of smuggling cigarettes from Kosovo to Austria in two tourist
coaches.
As a result of that telephone surveillance, Mr Elshani was stopped very near to the town of Wels (Austria) in one of the coaches,
in which 150 cartons of cigarettes had been concealed in the central aisle. The coach had not yet reached its destination,
Eferding. The cigarettes were seized by the Austrian customs authorities, and subsequently confiscated and destroyed under
official supervision.
The applicant in the main proceedings is responsible for the customs debt incurred in the course of the period between 19
and 21 May 2001. The exact date is to be determined on the basis of the moment at which, pursuant to a given itinerary leading
first from Kosovo to Brindisi (Italy) via Albania, and then to Austria, those cartons were unlawfully introduced into the
customs territory of the Community.
By decision of 13 November 2002, the Hauptzollamt claimed payment of import duties for those cartons in the amount of EUR 961.46
from the applicant in the main proceedings.
The applicant in the main proceedings challenged that decision on 13 December 2002. By decision of 7 July 2003, the Hauptzollamt
rejected that challenge as unfounded.
Mr Elshani lodged an appeal against the Hauptzollamt’s decision with the Unabhängiger Finanzsenat, Außenstelle Graz (Independent
Tax Tribunal, Graz Division), which decided to stay the proceedings and to refer the following questions to the Court for
a preliminary ruling:
‘1.      The criterion for extinction [of the customs debt] laid down in point (d) of the first paragraph of Article 233 of [the Customs
Code] does not refer to the time at which the customs debt is incurred but to a time after the customs debt is incurred, because
it presupposes a customs debt “incurred” in accordance with Article 202 of the Customs Code. Is the expression “upon their
unlawful introduction” within the meaning of point (d) of the first paragraph of Article 233 of the Customs Code to be interpreted
as meaning that:
–      the introduction into the customs territory of the Community of goods in respect of which a customs debt is incurred in accordance
with Article 202 of the Customs Code ends when they are introduced at the … customs office or at any other place designated
by the customs authorities, but at the latest when they leave the premises of the … customs office or of the otherwise designated
place, because the goods have thus entered the customs territory, with the result that seizure and confiscation of the goods
after that time no longer results in the extinction of the customs debt,
or as meaning that:
–      the introduction into the customs territory of the Community of goods in respect of which a customs debt is incurred in accordance
with Article 202 of the Customs Code continues, adopting an economic approach, for as long as their transport continues as
a single process following the introduction of the goods into the customs territory, and the goods in the custom territory
have not yet therefore reached their first destination and come to rest there, with the result that seizure and confiscation
of the goods up to that time results in the extinction of the customs debt?
2.      In the event of unlawful conduct for the purposes of Article 202 of the Customs Code which is discovered upon introduction,
the customs debt must be extinguished. By contrast, seizure of goods directly upon their being removed from customs supervision,
as unlawful conduct for the purposes of Article 203 of the Customs Code, results in no immediate extinction of the customs
debt. Is point (d) of the first paragraph of Article 233 of the Customs Code to be interpreted as meaning that this extinction
of the customs debt, which is restricted expressly to cases where the customs debt is incurred in accordance with Article
202 of the Customs Code, is nevertheless consistent with the principle of equal treatment of unlawful conduct?’

The questions referred for a preliminary ruling

The first question
By the first question, the referring court asks, in essence, whether Article 202 and point (d) of the first paragraph of Article
233 of the Customs Code are to be interpreted as meaning that the seizure of goods unlawfully introduced into the customs
territory of the Community leads to the extinction of the customs debt only when it takes place before those goods leave the
customs office or whether it still leads to such an extinction when it occurs later, during transport, but before the goods
reach their first destination.
The Austrian Government contends that the expression ‘upon their unlawful introduction’ in point (d) of the first paragraph
of Article 233 of the Customs Code constitutes an autonomous concept which encompasses a period of time which should not be
confused with the moment of introduction into the customs territory
per se
, which ends once the border is actually crossed.
According to the Austrian and Finnish Governments, the introduction of goods in respect of which a customs debt is incurred
in accordance with Article 202 of the Customs Code lasts, from an economic point of view, as long as their transport continues,
this being regarded as a single process, until the goods arrive at their first destination, with the result that the seizure
and confiscation of the goods still has the effect, up to that moment, of extinguishing the customs debt. That interpretation,
it is submitted, is consistent with the economic role of customs duties and their purpose, which imply that the customs debt
becomes extinct when the unlawfully introduced goods are seized and confiscated before they have entered into economic circulation.
In that regard, it should be noted that the introduction of goods into the customs territory of the Community, as it is governed
by, inter alia, Articles 37 to 57 of the Customs Code – the provisions applicable to goods introduced into that territory
until they have reached a customs point – ends, in the event of an introduction over land, by the mere crossing of the border
by the goods and that concept is not the same as the concept of ‘unlawful introduction’ within the meaning of Article 202
of the Customs Code.
It is clear from Article 202(1) of the Customs Code that ‘unlawful introduction’, within the meaning of that provision, means,
inter alia, any introduction contrary to Articles 38 to 41 of that code.
The Court has held that an importation of goods constitutes an unlawful introduction if it does not comply with the following
stages laid down by the Customs Code. First, under Article 38(1) of that code, goods brought into the customs territory of
the Community must be conveyed without delay to the designated customs office or to a free zone. Secondly, under Article 40
of that code, when the goods arrive at the customs office they must be presented to customs. ‘Presentation of goods to customs’
is defined in Article 4(19) of that code as the notification to the customs authorities, in the manner laid down, of the arrival
of goods at that customs office or at any other place designated or approved (Case C‑195/03
Papismedov and Others
[2005] ECR I‑1667, paragraph 26).
It is clear from the actual wording of Articles 38 to 41 of the Customs Code that, for goods to be regarded as having been
lawfully introduced into the customs territory of the Community, they must, on their arrival, be taken to a customs office
or to a free zone and be presented to customs. The aim of the latter obligation, which falls on the person responsible for
the introduction or on the person who assumes responsibility for the transport, is to ensure that the customs authorities
are informed not only of the fact that the goods have arrived, but also of all relevant information about the type of article
or product concerned and the quantity of those goods. It is that information which will enable the goods to be correctly identified,
for the purposes of their tariff classification and, if appropriate, for the calculation of import duties (
Papismedov and Others
, paragraph 27).
In that regard, the Court has held that it is clear from the wording and the broad logic of Articles 4(19), 38(1) and 40 of
the Customs Code that all goods introduced into the customs territory of the Community must be presented to customs. The fact
that certain goods were concealed in secret compartments in the vehicle in which they were transported does not have the effect
of releasing them from that obligation (Joined Cases C‑238/02 and C‑246/02
Viluckas and Jonusas
[2004] ECR I‑2141, paragraph 22).
It must be added that, as is clear from Article 163(1)(c) of Regulation No 2454/93, as amended by Regulation No 2787/2000,
for the purposes of determining the customs value of the imported goods, ‘the place of introduction into the customs territory
of the Community’ is to be, for goods carried over land, the place where the first customs office is situated.
It follows, as the Commission of the European Communities correctly contends, that the unlawful introduction of goods is completed
at the moment at which those goods go beyond the first customs office situated inside the customs territory of the Community
without those goods having been presented there.
Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the Community within the meaning
of Article 202 of the Customs Code where, having crossed the external land border of the Community, the goods are in that
territory beyond the first customs office, without having been conveyed to that office and without having been presented to
customs, with the result that the customs authorities have not been notified of the fact that those goods have been introduced
by the persons responsible for compliance with that obligation.
It is apparent, moreover, from the wording of Article 202(2) and (3) of the Customs Code that an importation of goods into
the customs territory of the Community which takes place in the circumstances described in the last paragraph gives rise to
a customs debt as against, among others, the person who carried out that importation at the very moment of the unlawful introduction,
that is to say, at the time when it is undisputed that the formalities laid down in, inter alia, Articles 38 to 41 of the
Customs Code have not been completed. Thus, the unlawful introduction and the incurrence of the debt occur simultaneously.
Since the seizure of the goods, upon their unlawful introduction, and their simultaneous or subsequent confiscation lead,
under point (d) of the first paragraph of Article 233 of the Customs Code, to the extinction of the customs debt, the question
arises as to the point in time from which that seizure should have the effect of releasing the debtor from his liability.
The objective of the extinction of the customs debt, laid down in point (d) of the first paragraph of Article 233 of the Customs
Code, is to avoid the imposition of duty in the case where the goods, although introduced unlawfully into the territory of
the Community, could not have been placed on the market and therefore do not constitute a threat, in terms of competition,
to Community goods.
In the context of the Customs Code, the seizure and confiscation of the goods upon their unlawful introduction, laid down
in point (d) of the first paragraph of Article 233 of that code, constitutes – in the same way as the situations referred
to in points (a) to (c) of the first paragraph of Article 233, namely payment of the amount of the duty, remission of the
amount of the duty, the invalid nature of the customs declaration and, before their release, the seizure and confiscation,
destruction, abandonment or irretrievable loss of the goods declared – a ground for the extinction of the customs debt which
must be narrowly construed.
That analysis is confirmed by the case‑law of the Court, which held in Case C‑112/01
SPKR
[2002] ECR I‑10655, paragraph 31, that Article 233 of the Customs Code addresses the need to protect the Community’s own resources.
That objective may not be prejudiced by creating new grounds for the extinction of a customs debt. That is all the more necessary
in relation to the determination of the moment of seizure of goods which is liable to lead to the extinction of the customs
debt in relation to those goods.
In that regard, it should be pointed out that the presence of unlawfully introduced goods in the customs territory of the
Community of unlawfully introduced goods comprises, of itself, a very high risk that those goods will end up forming part
of the economic networks of the Member States and that, once those goods have gone beyond the area in which the first customs
office is situated inside the customs territory, there is less likelihood that the customs authorities will, fortuitously,
discover those goods in the course of spot checks.
It is at the customs offices, strategically located at the entry points along the external borders, that the authorities are
best placed to exercise a strict level of control over goods entering the customs territory of the Community, in order to
avoid both unfair competition affecting Community producers and the loss of tax revenues which results from fraudulent importations.
It follows that the seizure of goods introduced into the customs territory of the Community in violation of the formalities
laid down in Articles 38 to 41 of the Customs Code which takes place beyond the first customs office situated inside that
territory and which occurs practically at random is not capable of leading to the extinction of the customs debt for the purposes
of point (d) of the first paragraph of Article 233 of the Customs Code.
The Finnish Government contends that that interpretation of point (d) of the first paragraph of Article 233 of the Customs
Code fails to respect the principle of equal treatment, inasmuch as the persons who have unlawfully introduced goods within
the meaning of Article 202 of the Customs Code would find themselves in a different situation depending on whether their conduct
is discovered at the border customs office or beyond that point.
According to well-established case-law, discrimination is defined as treating differently situations which are identical,
or as treating in the same way situations which are different (see Case C‑282/07
Truck Center
[2008] ECR I‑0000, paragraph 37 and the case-law cited).
In that regard, it must be pointed out that the difference in treatment established by point (d) of the first paragraph of
Article 233 of the Customs Code, in relation to the extinction of the customs debt, according to whether the unlawfully introduced
goods are seized upon that introduction or subsequently, concerns two situations which, as is clear from paragraphs 32 and
33 of the present judgment, are not objectively comparable as regards the risk that the presence of those goods in the customs
territory of the Community entails for the interests of the Community.
In the light of the foregoing, the answer to the first question referred is that Article 202 and point (d) of the first paragraph
of Article 233 of the Customs Code must be interpreted as meaning that, in order to lead to the extinction of the customs
debt, the seizure of goods unlawfully introduced into the customs territory of the Community must take place before those
goods go beyond the first customs office situated inside that territory.

The second question
By its second question, the referring court asks, in essence, whether point (d) of the first paragraph of Article 233 is contrary
to the principle of equal treatment by reason of the fact that it limits the extinction of the customs debt to the situation
where the goods are seized at the time of their unlawful introduction, excluding the situation where a seizure is carried
out in other cases of unlawful conduct, such as the removal of goods from customs supervision referred to in Article 203 of
the Customs Code.
According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must
assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the
case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which
it submits to the Court (see Case C‑466/04
Acereda Herrera
[2006] ECR I‑5341, paragraph 47 and the case‑law cited).
Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where
it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation
to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have
before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see
Acereda Herrera
, paragraph 48).
The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical
questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see Case C‑314/96
Djabali
[1998] ECR I‑1149, paragraph 19, and
Acereda Herrera
, paragraph 49).
In the present case, as is apparent from the very wording of the second question and the grounds given by the referring court
in support of it, the question seeks to subject the validity of point (d) of the first paragraph of Article 233 of the Customs
Code to the Court’s assessment, on account of the fact that the failure of that provision to provide for the extinction of
the customs debt in the circumstances referred to in Article 203 of the Customs Code as well, that is to say, when the goods
are unlawfully removed from customs supervision, could constitute a breach of the principle of equal treatment.
It is, however, clear from the order for reference and the observations submitted to the Court that the unlawful removal of
goods from customs supervision, referred to in Article 203 of the Customs Code as a fact causing a customs debt to be incurred,
is not at issue in the main proceedings.
It must therefore be held, as the Austrian Government and the Commission have stated in their observations, that that question
is clearly unrelated to the subject‑matter of the dispute in the main proceedings, which concerns a debt incurred in accordance
with Article 202 of the Customs Code following an unlawful introduction of goods into the customs territory of the Community.
There is therefore no need to reply to the second question referred.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1.
Article 202 and point (d) of the first paragraph of Article 233 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the
Council of 16 November 2000, must be interpreted as meaning that, in order to lead to the extinction of the customs debt,
the seizure of goods unlawfully introduced into the customs territory of the Community must take place before those goods
go beyond the first customs office situated inside that territory.
2.
There is no need to reply to the second question.
[Signatures]
*
Language of the case: German.