CELEX: 62002CJ0056
Free movement of goods
Trade with third countries
Procedure for returned goods
Article 187 of Regulation (EEC) No 2913/92
Reimportation of compensating products originally re-exported subsequent to an inward processing procedure
Determination of the import duty legally owed
Burden of proof in respect of the proportion of the value of the reimported products corresponding to inward processing

By order of 22 January 2002, received at the Court on 22 February 2002, the Bundesfinanzhof (Federal Finance Court) referred
for a preliminary ruling under Article 234 EC a question on the interpretation of the second paragraph of Article 187 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; hereinafter
the Customs Code).
That question was  raised in the course of proceedings between IHW Rebmann GmbH (hereinafter
Rebmann) and Hauptzollamt Weiden concerning the amount of customs duty owed upon the reimportation into the Community of compensating
products as returned goods.
Legal background
Inward processing within the meaning of Article 114 of the Customs Code occurs where non-Community goods intended for re-export
from the customs territory of the Community are used in the customs territory of the Community in one or more processing operations.
The products resulting from processing operations are known as
compensating products.
A person intending to carry out processing operations must apply for authorisation. The customs authorities set him a time-limit,
on the expiry of which he must have re-exported the compensating products. The holder of the authorisation may also assign
to the compensating products a new customs-approved treatment or use, and in particular release them for free circulation
in the Community by paying the duty on goods which have been imported and placed under the inward processing procedure.
Community goods which have been exported and which it is subsequently intended to reimport into the Community are known as
returned goods. Under Articles 185 and 186 of the Customs Code, they may be reimported within a period of three years with relief from import
duties.
Under the first paragraph of Article 187 of the Customs Code, compensating products originally exported or re-exported subsequent
to an inward processing procedure may also qualify for application of the procedure for returned goods and be reimported with
relief from import duties.  However, relief applies only to the proportion of the value of the product which corresponds to
inward processing carried out in the Community, whereas the proportion of the value of the product which corresponds to the
import goods used in the manufacture of that product will give rise to the payment of import duties.  In that regard, the
second paragraph of Article 187 of that code is worded as follows: The amount of import duty legally owed shall be determined on the basis of the rules applicable under the inward processing
procedure, the date of re-export being regarded as the date of release for free circulation.
Pursuant to Article 62(1) of the Customs Code, a declaration in writing for the purpose of placing goods under a customs procedure
must contain all the particulars necessary for implementation of the provisions governing that procedure.  Article 62(2) of
that code provides that the declaration is to be accompanied by all the documents required for implementation of the provisions
governing the customs procedure for which the goods are declared.
However, certain provisions assign a role to the customs authorities in gathering the information necessary to take their
decision. Thus, in general terms, Article 2 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions
for the implementation of Council Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1; hereinafter
the implementing regulation) provides that
[w]here a person making a request for a decision is not in a position to provide all the documents and information necessary
to give a ruling, the customs authorities shall provide the documents and information at their disposal.
Article 611 of the implementing regulation, which forms part of the subsection dealing with administrative cooperation, of
the section concerning provisions applying to the suspension system, of the chapter on inward processing, provides for an
information sheet referred to as the INF 1 sheet.  Pursuant to Article 611(2)(b), that sheet is to be used for
the release for free circulation of compensating products or goods in the unaltered state at a customs office other than an
office of discharge.
Article 613(1), first subparagraph, and (5) of the implementing regulation provide:
1.
Under Article 611(2)(b), where the release for free circulation of all or part of the compensating products or goods in the
unaltered state is requested, the customs authorities responsible for accepting the declaration, using the INF 1 sheet endorsed
by them, shall ask the supervising customs office to indicate:
─
in box 9(a), the amount of import duties to be levied under Article 121 or 128(4) of the Code,
─
in box 9(b), the amount of compensatory interest to be levied under Article 589,
─
the quantity, CN code and origin of the import goods used in the manufacture of the compensating products released for free
circulation.
...
5.
The supervising office to which the INF 1 sheet is sent shall supply the information requested in boxes 8, 9 and 10 of the
sheet, endorse it, retain the copy and return the original. However, it shall not be obliged to supply such information beyond
the expiry of the period for which it is required to keep records.
The form for the INF 1 sheet, the specimen of which is contained in Annex 82 to the implementing regulation, comprises various
boxes. Of those:
─
box 8 is entitled
Particulars necessary for application of specific commercial policy measures;
─
box 9 is subdivided into four spaces marked (a) to (d), the first three for entering amounts of, respectively, customs duties,
charges having equivalent effect and other charges, and the last for entering the currency in which those amounts are expressed.
─
box 10 is for indicating whether specific common commercial policy measures are applicable.
Article 848(1), first subparagraph, first indent, and (3) of the implementing regulation, relating to returned goods, provide:
1.
The following shall be accepted as returned goods:
─
goods for which the following documents are produced in support of the declaration for release for free circulation:
(a)
the copy of the export declaration returned to the exporter by the customs authorities, or a copy of such document certified
true by the said authorities; or
(b)
the information sheet provided for in Article 850. Where evidence available to the customs authorities at the customs office of reimportation or ascertainable by them from the
person concerned indicates that the goods declared for free circulation were originally exported from the customs territory
of the Community, and at that time satisfied the conditions for acceptance as returned goods, the documents referred to at
(a) and (b) shall not be required.
...
3.
Where they consider it necessary, the customs authorities at the customs office of reimportation may ask the person concerned
to submit additional evidence for the purposes of identification of the returned goods.
Article 15 of the Customs Code, which relates to professional secrecy, provides: All information which is by nature confidential or which is provided on a confidential basis shall be covered by the obligation
of professional secrecy. It shall not be disclosed by the customs authorities without the express permission of the person
or authority providing it; the communication of information shall be permitted where the customs authorities may be obliged
or authorised to do so pursuant to the provisions in force, particularly in respect of data protection, or in connection with
legal proceedings.
The main proceedings and the question referred for a preliminary ruling
From 13 December 1994 to 17 March 1995, Rebmann declared 20 consignments containing a total of 158 new German-origin cars
of a particular make and model from the Czech Republic as returned goods for release for free circulation.  On each occasion
it produced a declaration of returned goods and an invoice bearing the export stamp of the German customs authorities.
However, the customs authorities realised that those vehicles did not originate entirely in the Community, but had undergone
inward processing there. In the absence of any documents from which the proportion of the value of those products corresponding
to inward processing could be determined, they demanded payment of import duties on their full value.
Rebmann protested, pointing to the fact that the duties should not have been calculated on the proportion of the value of
the vehicles corresponding to inward processing, since they were compensating products qualifying for application of the procedure
for returned goods. Since Rebmann had not itself carried out the inward processing, it did not have the
calculation formula for determining the value of the Community components. It asked the customs authorities to obtain the necessary information
from the supervising office.
However, the customs authorities did not agree to that request, on the grounds, firstly, that under Article 62 of the Customs
Code it is for the importer to prove that the conditions for implementation of the applicable customs procedure are satisfied
and, secondly, that pursuant to the second paragraph of Article 187 of that code the import duty legally owed is to be determined
on the basis of the rules applicable under the inward processing procedure for the non-Community goods contained in the compensating
products.  They also stated that Article 15 of that code, relating to professional secrecy, prevented them, in the absence
of the exporter's agreement, from disclosing the amount of duty in respect of the proportion of the value of the reimported
products corresponding to inward processing.
In the appeal on a point of law (
Revision) which it has brought before the Bundesfinanzhof, Rebmann argues that it is sufficient for it to prove that an imported product
is a compensating product which has undergone inward processing.  Under Article 613 of the implementing regulation, it is
then for the customs authorities to determine the amount of duty owed, using the information provided by the exporter of the
compensating products.
In the order for reference, the Bundesfinanzhof indicates its uncertainty as to the interpretation of the Community provisions
relied on by the customs authorities and as to whether customs duty may be charged on the proportion of the value of the reimported
products corresponding to inward processing.
It submits that the reference in the second paragraph of Article 187 of the Customs Code to the rules applicable under the
inward processing procedure can be interpreted as not being confined to the rules for the calculation of import duty, but
as also covering the procedures relating to the method of determining duty.  According to that interpretation, the customs
office to which a request is made for the release for free circulation of reimported compensating products is obliged, under
Article 613(1) of the implementing regulation, to ask the supervising customs office, using the INF 1 sheet, to communicate
to it the information referred to in that provision so as to enable it to determine, on that basis, the import duty legally
owed under the second paragraph of Article 187 of the Customs Code.  Article 2 of the implementing regulation supports that
interpretation.  The Bundesfinanzhof points out, however, that such an interpretation of the second paragraph of Article 187
of the Customs Code could conflict with Article 15 of that code, relating to professional secrecy.
The Bundesfinanzhof further submits that it is hardly justifiable from the point of view of customs law if compensating products
that are declared for release for free circulation, either immediately subsequent to the inward processing procedure or after
the application of an intervening customs procedure, are subject to a different procedure from compensating products that
are declared for release for free circulation after reimportation as returned goods.  Whilst in the first case cooperation
between the customs authorities is expressly required by Articles 610 to 615 of the implementing regulation, in the second
case, on a strict interpretation of Article 187 of the Customs Code, such cooperation would not be permissible.  The Bundesfinanzhof
notes in that regard that, in either case, the interest of the user of the inward processing procedure in maintaining professional
secrecy can be similarly affected if it is not he but a third party which declares the compensating products for release for
free circulation.  Moreover, the administrative burden entailed by the request for the necessary information made, using the
INF 1 sheet, by the customs authority responsible for accepting the declaration would be the same in both cases.
In those circumstances, the Bundesfinanzhof decided to refer the following question to the Court for a preliminary ruling:
Is Article 187, second paragraph, of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
Code to be interpreted as meaning that, where compensating products that are declared as returned goods are released for free
circulation, the factual particulars required to calculate the import duties legally owed on those compensating products must
also be declared and proved, or is it for the endorsing customs office, so far as possible, to ascertain those factual particulars
from the supervising office using an INF 1 sheet, pursuant to the procedure established in Article 613 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, in the version in force until 30 June 2001?
The question referred for a preliminary ruling
Observations submitted to the Court
Only Rebmann and the Commission submitted observations. However, the German Government replied to various written questions
put by the Court.
Rebmann maintains that, in a situation such as that at issue in the main proceedings, the importer is not required to prove
the information necessary for calculating the import duty legally owed, but that that duty can be determined by the customs
authorities under the procedure provided for in Article 613 of the implementing regulation.  It argues that that analysis
is supported both by the actual wording of the second paragraph of Article 187 of the Customs Code and by the fact that taxing
products where it is established that a proportion of their value corresponds to inward processing is not justified.
According to Rebmann, Article 15 of the Customs Code does not preclude the solution proposed by it.  The supervising customs
office would merely have to indicate the amount of duty owed in box 9 of the INF 1 sheet.  That indication would obviate the
need for that of
the quantity, CN code and origin of the import goods used in the manufacture of the compensating products released for free
circulation, provided for in Article 613(1), first subparagraph, third indent, of the implementing regulation, but for which the INF
1 sheet provides no space.  In Rebmann's submission, merely indicating the amount of duty owed would not give the reimporter
any information liable to harm the interests of the holder of the inward processing authorisation.
The Commission, on the other hand, submits that the wording of the second paragraph of Article 187 of the Customs Code is
clear inasmuch as that provision refers only to the rules for the calculation of import duty which are applicable under the
inward processing procedure, and not to the procedures for collecting the information to be used as the basis for that calculation.  It
draws attention to the formal and procedural nature of customs law, which is necessary to ensure legal certainty in relations
between the administrative authorities and taxpayers.  That explains why, in its submission, in the case in the main proceedings,
under Article 62 of that code it is for Rebmann to prove not only the status of the motor vehicles as returned goods, but
also the proportion of the value of the vehicles corresponding to inward processing, on which no duty should be charged on
reimportation.
The Commission further points out that the information provided by the exporter is confidential and protected under Article
15 of the Customs Code.
At the hearing, the Commission qualified its position and explained that customs law must also be interpreted having regard
to its economic nature.  Since the objective of that law is to protect Community producers from imports from third countries,
that justifies observance of the confidentiality rule.
Reply of the Court
The first paragraph of Article 187 of the Customs Code, which allows the reimportation, with relief from import duties, of
compensating products originally exported or re-exported subsequent to an inward processing procedure, does not by any means
require such reimportation to be effected by the holder of the inward processing authorisation.
Likewise, the second paragraph of that article, under which
[t]he amount of import duty legally owed shall be determined on the basis of the rules applicable under the inward processing
procedure, must, as the Advocate General rightly observes in points 41 and 42 of his Opinion, be interpreted as referring to all the
rules applicable under the inward processing procedure, which include those relating to administrative cooperation.  It follows
that that provision does not require the reimporter of the compensating products himself to provide, in all circumstances,
all the information permitting calculation of the duty legally owed.
That interpretation is supported by the wording of Article 611(2)(b) of the implementing regulation, which provides for the
use of the INF 1 sheet for the release for free circulation of compensating products at a customs office other than an office
of discharge, without making any distinction based on whether the declarant is the holder of the inward processing authorisation.
Article 62 of the Customs Code does not preclude such an interpretation.  It is true that that provision requires a customs
declaration to contain all the particulars necessary for implementation of the provisions governing the customs procedure
for which the goods are declared.  It is therefore, in principle, for the declarant to provide the information necessary for
calculating the customs duty payable when the compensating products are reimported as returned goods.  However, that article
must necessarily be applied having regard to all the provisions governing inward processing, which include those relating
to administrative cooperation.
Moreover, account must be taken of Article 2 of the implementing regulation, a general provision under which, where a person
making a request for a decision is not in a position to provide all the documents and information necessary to give a ruling,
the customs authorities are to provide the documents and information at their disposal.
Thus it must be held that, in a situation such as that at issue in the main proceedings, where the importer provides proof
that the imported goods are compensating products qualifying for application of the procedure for returned goods under Article
848 of the implementing regulation, but is unable to provide all the information necessary for calculating the duty legally
owed, the administrative cooperation procedure provided for in Articles 611(2)(b) and 613 of the implementing regulation must
be used by the customs authorities.
Article 15 of the Customs Code does not preclude use of that procedure.  That provision permits the communication of information
where the customs authorities [are] obliged or authorised to do so pursuant to the provisions in force.  That may indeed be the case with regard to the information referred to in Article 613 of the implementing regulation, which
must be communicated, using the INF 1 sheet, by the supervising office to the customs authority responsible for accepting
the declaration, especially where it is necessary to communicate only the amount of duty legally owed.
The answer to the question referred for a preliminary ruling must therefore be that the second paragraph of Article 187 of
the Customs Code is to be interpreted as meaning that, where an importer has provided proof that the imported goods are compensating
products qualifying for application of the procedure for returned goods under Article 848 of the implementing regulation,
but is unable to provide all the information necessary for calculating the duty legally owed, the administrative cooperation
procedure provided for in Articles 611(2)(b) and 613 of the implementing regulation must be used by the customs authorities
responsible for accepting the declaration.  Those authorities must therefore ask the supervising customs office, using the
INF 1 sheet, to communicate to them the amount of duty legally owed.
Costs
The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.  Since these proceedings
are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on
costs is a matter for that court.
On those grounds,
THE COURT (First Chamber),
in answer to the question referred to it by the Bundesfinanzhof by order of 22 January 2002, hereby rules:
Wathelet
Jann
Rosas
Delivered in open court in Luxembourg on 22 May 2003.
R. Grass
M. Wathelet
Registrar
President of the First Chamber
–
Language of the case: German.