CELEX: 62009CJ0488
TIR Convention
Community Customs Code
Transport carried out under cover of a TIR carnet
Guaranteeing association
Irregular unloading
Determination of the place of the offence
Recovery of import duties

This reference for a preliminary ruling concerns the interpretation of various provisions of the European Union (‘EU’) customs
legislation and the Customs Convention on the international transport of goods under cover of TIR carnets, signed at Geneva
on 14 November 1975 (‘the TIR Convention’), which was approved on behalf of the European Economic Community by Council Regulation
(EEC) No 2112/78 of 25 July 1978 (OJ 1978 L 252, p. 1) and entered into force on 20 June 1983.
The reference was made in proceedings between the Asociación de Transporte Internacional por Carretera (International Road
Haulage Association) (‘ASTIC’) and the Administración General del Estado (General State Administration) concerning the recovery
of a customs debt which arose from the unlawful unloading of a consignment of cigarettes in Spain.

Legal context

The TIR Convention
The TIR Convention provides, inter alia, that goods carried under the TIR procedure which it establishes are not to be subject
to the payment or deposit of import or export duties and taxes at customs offices en route.
Article 11 of the TIR Convention reads as follows:
‘1.       Where a TIR carnet has not been discharged or has been discharged conditionally, the competent authorities shall not have
the right to claim payment of the sums mentioned in Article 8, paragraphs 1 and 2, from the guaranteeing association unless,
within a period of one year from the date of acceptance of the TIR carnet by those authorities, they have notified the association
in writing of the non-discharge or conditional discharge. The same provision shall apply where the certificate of discharge
was obtained in an improper or fraudulent manner, save that the period shall be two years.
2.      The claim for payment of the sums referred to in Article 8, paragraphs 1 and 2, shall be made to the guaranteeing association
at the earliest three months after the date on which the association was informed that the carnet had not been discharged
or had been discharged conditionally or that the certificate of discharge had been obtained in an improper or fraudulent manner
and at the latest not more than two years after that date. However, in cases which, during the abovementioned period of two
years, become the subject of legal proceedings, any claim for payment shall be made within one year of the date on which the
decision of the court becomes enforceable.
3.      The guaranteeing association shall have a period of three months, from the date when a claim for payment is made upon it,
in which to pay the amounts claimed. The sums paid shall be reimbursed to the association if, within the two years following
the date on which the claim for payment was made, it has been established to the satisfaction of the customs authorities that
no irregularity was committed in connection with the transport operation in question.’
Article 37 of the TIR Convention states:
‘When it is not possible to establish in which territory an irregularity was committed, it shall be deemed to have been committed
in the territory of the Contracting Party where it is detected.’

EU law
Under Article 203 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’), a customs debt on importation is to be incurred through ‘the unlawful removal from customs supervision
of goods liable to import duties’ and is to arise at the time when that removal takes place.
Article 215 of the Customs Code provides:
‘1.      A customs debt shall be incurred at the place where the events from which it arises occur.
2.      Where it is not possible to determine the place referred to in paragraph 1, the customs debt shall be deemed to have been
incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is
incurred.
3.      Where a customs procedure is not discharged for goods, the customs debt shall be deemed to have been incurred at the place
where the goods:
–        were placed under that procedure, or
–        enter the Community under that procedure.
4.      Where the information available to the customs authorities enables them to establish that the customs debt was already incurred
when the goods were in another place at an earlier date, the customs debt shall be deemed to have been incurred at the place
which may be established as the location of the goods at the earliest time when existence of the customs debt may be established.’
Article 221 of the Customs Code states:
‘1.      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.
...
3.      Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs
debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the
customs authorities were unable to determine the exact amount legally due, such communication may, in so far as the provisions
in force so allow, be made after the expiry of such three-year period.’
Under Article 451 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; ‘the implementing regulation’), the customs territory of the European Union is,
for the purposes of the rules governing the use of the TIR carnet for international transport, to be considered to form a
single territory.
Under Article 454 of the implementing regulation:
‘1.      This Article shall apply without prejudice to the specific provisions of the TIR and ATA Conventions concerning the liability
of the guaranteeing associations when a TIR or an ATA carnet is being used.
2.      Where it is found that, in the course of or in connection with a transport operation carried out under cover of a TIR carnet
or a transit operation carried out under cover of an ATA carnet, an offence or irregularity has been committed in a particular
Member State, the recovery of duties and other charges which may be payable shall be effected by that Member State in accordance
with Community or national provisions, without prejudice to the institution of criminal proceedings.
3.      Where it is not possible to determine in which territory the offence or irregularity was committed, such offence or irregularity
shall be deemed to have been committed in the Member State where it was detected unless, within the period laid down in Article
455(1), proof of the regularity of the operation or of the place where the offence or irregularity was actually committed
is furnished to the satisfaction of the customs authorities.
Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member
State in which it was detected, the duties and other charges relating to the goods concerned shall be levied by that Member
State in accordance with Community or national provisions.
If the Member State where the said offence or irregularity was actually committed is subsequently determined, the duties and
other charges (apart from those levied, pursuant to the second subparagraph, as own resources of the Community) to which the
goods are liable in that Member State shall be returned to it by the Member State which had originally recovered them. In
that case, any overpayment shall be repaid to the person who had originally paid the charges.
Where the amount of the duties and other charges originally levied and returned by the Member State which had recovered them
is smaller than that of the duties and other charges due in the Member State where the offence or irregularity was actually
committed, that Member State shall levy the difference in accordance with Community or national provisions.
The customs administrations of the Member States shall take the necessary measures to deal with any offence or irregularity
and to impose effective penalties.’
Article 455 of the implementing regulation is worded as follows:
‘1.      Where an offence or irregularity is found to have been committed in the course of or in connection with a transport operation
carried out under cover of a TIR carnet or a transit operation carried out under cover of an ATA carnet, the customs authorities
shall notify the holder of the TIR carnet or ATA carnet and the guaranteeing association within the period prescribed in Article
11(1) of the TIR Convention or Article 6(4) of the ATA Convention, as the case may be.
2.      Proof of the regularity of the operation carried out under cover of a TIR carnet or an ATA carnet within the meaning of the
first subparagraph of Article 454(3) shall be furnished within the period prescribed in Article 11(2) of the TIR Convention
or Article 7(1) and (2) of the ATA Convention, as the case may be.
...’
Article 457 of the implementing regulation provides:
‘For the purposes of Article 8(4) of the TIR Convention, where a consignment enters the customs territory of the Community
or starts from a customs office of departure situated in the customs territory of the Community, the guaranteeing association
shall become or shall be responsible to the customs authorities of each Member State the territory of which the TIR consignment
enters, up to the point at which it leave the customs territory of the Community or up to the customs office of destination
in that territory.’

The dispute in the main proceedings and the questions referred for a preliminary ruling
ASTIC is the guaranteeing association for transport operations carried out under cover of a TIR carnet (‘TIR transport operations’)
on Spanish territory. Under an instrument of guarantee signed on 18 February 1994, that association’s liability cannot exceed
USD 200 000.
The Bundesverband Güterkraftverkehr Logistik und Entorgung eV (Federal Road Haulage and Logistics Association) (‘the BGL’)
is the guaranteeing association for TIR transport operations carried out on German territory.
On 18 March 1994, the Principal Customs Office, Lindau (Germany) registered the passage of TIR carnet 10099706 relating to
the shipment of cigarettes originating from Switzerland bound for the customs office in Oporto (Portugal). After establishing
that the goods had not been presented at the customs office of destination, the Lindau customs office issued tax assessments
against the transport operator and the TIR carnet holder, which were notified on 12 and 17 January 1995 respectively. That
customs office also informed the BGL on 17 January 1995 that the TIR carnet had not been discharged and, on 26 February 1996,
made a claim for payment against that association.
Also on 17 January 1995, the Lindau customs office informed the Public Prosecutor’s Office of the irregularity it had detected,
and an investigation was initiated. That procedure led to a judgment in criminal proceedings from the Landgericht Augsburg
(Criminal Court for the district of Augsburg-Land) (Germany) of 17 March 1998, finding that the goods had been unloaded in
Seville (Spain) and convicting the lorry driver for smuggling and forgery. On the basis of those facts, the German customs
authorities forwarded the file to the Spanish customs authorities, in order for the latter to proceed with recovery of the
customs debt pursuant to Article 215 of the Customs Code, read in conjunction with the third subparagraph of Article 454(3)
of the implementing regulation.
Consequently, on 13 January 1999 the Spanish customs authorities notified the lorry driver, the holder of the TIR carnets
and ASTIC of the amount of the shortfall and notified ASTIC, in its capacity as guaranteeing association with respect to the
TIR transport operations carried out in Spain, of the facts relating to the offence committed and the amount of the non-recovered
duties, namely ESP 230 342 114 (approximately EUR 1 384 384). On 22 March 1999 ASTIC was issued with a provisional assessment
in respect of that debt.
Following rejection of the administrative claim it had brought against that provisional assessment and the appeal it had brought
against the decision rejecting that claim, ASTIC brought an action before the Chamber for Contentious Administrative Proceedings
of the Audiencia Nacional (Spain), which upheld the action in part, holding that ASTIC’s liability could not exceed USD 200 000.
ASTIC appealed against the judgment of that court before the Tribunal Supremo (Supreme Court), pleading inter alia that the
Spanish customs authorities were not competent to recover the duties payable, and that the recovery action against it was
time-barred, since no action had been brought against it within two years of the date on which the German customs authorities
had accepted the TIR carnet.
The Tribunal Supremo first expresses doubts as to whether those authorities are competent to initiate fresh proceedings to
recover the duties owed where the place of the infringement, namely Spanish territory, was determined after the expiry of
the time-limit laid down in Articles 454(3) and 455 of the implementing regulation and where the German customs authorities
issued a demand for payment of the duties owed to the guaranteeing association in respect of the TIR transport operations
carried out on German territory.
Second, the referring court asks whether the expiry of the time-limits laid down in Articles 454(3) and 455 of the implementing
regulation, Article 221(3) of the Customs Code or Article 11(2) of the TIR Convention may be relied on by an association such
as ASTIC in the circumstances of the main proceedings, in order to claim that the action brought by the customs administration
against that association for the purposes of enforcing the guarantee is time-barred.
Third, the referring court asks whether the assessment issued by the German customs authorities against the guaranteeing association
in respect of the TIR transport operations carried out on German territory has suspensory effect with regard to ASTIC, given
that those authorities did not suspend the claim for payment made against that association.
In that context, the Tribunal Supremo decided to stay the proceedings and to refer the following questions to the Court for
a preliminary ruling:
‘1.      If, after a Member State has detected an irregularity in the customs treatment of a TIR transport operation and has made a
claim for payment of the amount corresponding to the assessment issued to the local guaranteeing association, the place where
the infringement was actually committed is determined, is it compatible with Article 454(3) and Article 455 of [the implementing
regulation] for the Member State where the infringement was committed to initiate new proceedings to recover the duties owed
by the persons principally liable and by the guaranteeing association of the place where the infringement was actually committed,
up to the limit of its liability, where the place where the infringement was committed is determined after the expiry of the
time-limit laid down in the Community legislation?
If the answer is in the affirmative:
2.      May the guaranteeing association of the Member State in which the irregularity was actually committed claim, under Articles
454(3) and 455 of [the implementing regulation] or Article 221(3) of the … Customs Code, that the right to recover the amount
of the guaranteed liability is time-barred because the prescribed time-limit has expired and it had no knowledge of the facts
before the expiry of that time-limit?
3.      Does the claim for payment made against the guaranteeing association of the State which detected the irregularity by the customs
authorities of that State under Article 11(2) of the TIR Convention have suspensory effect with respect to the proceedings
initiated against the guaranteeing association of the place where the infringement was committed?
4.      Can the last sentence of Article 11(2) of the TIR Convention be interpreted as meaning that the time-limit which it establishes
is applicable to the State of the place of infringement even where the State which detected the irregularity did not suspend
the demand for payment against the guaranteeing association, despite the existence of criminal proceedings relating to the
same acts found to have been committed?’

Consideration of the questions referred for a preliminary ruling

Consideration of the first question
By its first question, the referring court asks, essentially, whether Articles 454 and 455 of the implementing regulation
preclude the customs authorities of the Member State in whose territory an offence under the customs rules applicable to a
TIR transport was committed from initiating new proceedings to recover duties owing as a result of that offence, where the
place of the offence was determined judicially after the competent authorities of another Member State had already detected
an irregularity in the customs rules applicable to that TIR transport operation.
It should be borne in mind, as a preliminary point, that under Article 451 of the implementing regulation the customs territory
of the European Union is, for the purposes of the use of the TIR carnets, considered to form a single territory.
Moreover, under Article 203 of the Customs Code, a customs debt is incurred through the removal from customs supervision of
goods liable to import duties.
Since competence to recover customs debts is shared amongst the different customs authorities of the Member States, Article
454(2) of the implementing regulation provides that recovery of duties arising from an offence or irregularity is to be effected
by the Member State where the offence or irregularity occurred.
However, under Article 37 of the TIR Convention, when it is not possible to establish with certainty in which Member State’s
territory the offence or irregularity was committed, there is to be a provisional presumption that the State where the offence
or irregularity is detected is competent. That presumption is rebutted, however, where it is subsequently established that
the first State did have competence (see, to that effect, Joined Cases C‑310/98 and C‑406/98
Met‑Trans and Sagpol
[2000] ECR I‑1797, paragraph 37).
That mechanism reflects the idea, on the one hand, that the Member States constitute a single customs territory vis-à-vis
third countries concerned by operations under the EU external transit procedure and, on the other hand, that the question
as to which Member State has competence to recover customs duties is a problem internal to the European Union, such that if
a different Member State becomes the competent State, that does not affect the debtor’s liability to pay the customs duties
(see
Met-Trans and Sagpol
, paragraph 38).
With respect, first, to the right to furnish proof of the place where the offence or irregularity was actually committed,
it should be observed that Articles 454 and 455 of the implementing regulation do not specify the person who must or may furnish
that proof (see Case C‑78/01
BGL
[2003] ECR I‑9543, paragraph 50).
With respect, second, to the time-limit within which that proof must be made out, the first subparagraph of Article 454(3)
of the implementing regulation refers, effectively, to Article 455(2) of that regulation (see, to that effect,
BGL
, paragraphs 64 to 66).
Thus, the Court has held that, under the combined provisions of Articles 454 and 455 of the implementing regulation, a guaranteeing
association has available to it, for the purposes of furnishing proof of the place where the offence or irregularity was actually
committed, a period of two years from the date on which the claim for payment of the customs debt arising from that offence
or irregularity was notified to it (see, to that effect,
BGL
, paragraph 73).
It should nevertheless be observed in that regard that Article 11(2) of the TIR Convention, to which Article 455(2) of the
implementing regulation refers and which, consequently, must be taken into account in the interpretation of the latter provision,
provides expressly for an exception to that two-year time-limit where the facts giving rise to the offence have become the
subject of legal proceedings. It follows that, where the place of the offence or irregularity is determined judicially, an
exception may be made to that time-limit, subject however to the condition that those facts became the subject of legal proceedings
within two years from the date on which the guaranteeing association for the territory on which the offence or irregularity
was detected was notified of that offence or irregularity.
In the present case, it is apparent from the order for reference, first, that, after having found that the goods which entered
into German territory under cover of a TIR carnet had not arrived at their destination, the German customs authorities informed
the BGL accordingly on 17 January 1995, before issuing it with a claim for payment of the duties arising from that irregularity
on 26 February 1996.
Second, on 17 January 1995, the German customs authorities notified the irregularity detected to the Public Prosecutor’s Office,
which initiated an investigation. The ensuing judicial proceedings culminated in a judgment of the Landgericht Augsburg on
17 March 1998, which identified the territory of Spain as that on which the goods at issue in the main proceedings had been
removed from customs supervision.
The German customs authorities forwarded that judgment to the Spanish customs authorities on 24 August 1998.
It follows from all the foregoing that, contrary to ASTIC’s submissions, even though the judgment identifying the place where
the offence was committed was delivered more than two years after the claim for payment was issued to the BGL, the German
customs authorities did not unlawfully waive their entitlement to recover the customs debt at issue in the main proceedings
in favour of the Spanish customs authorities.
The facts of the main proceedings became the subject of legal proceedings within the time-limits provided for by the combined
provisions of Articles 454 and 455 of the implementing regulation and it was following the judgment resulting from those proceedings
that the territory of Spain was identified as the place of the offence giving rise to the customs debt at issue and that,
accordingly, the German customs authorities’ competence to recover that debt yielded in favour of the Spanish authorities’
competence to do so.
Consequently, the answer to the first question is that Articles 454 and 455 of the implementing regulation are to be interpreted
as meaning that, where the presumption that competence to recover a customs debt lies with the Member State on whose territory
an offence committed in the course of a TIR transport operation was detected is rebutted following a judgment establishing
that that offence was committed on the territory of another Member State, the customs authorities of the latter Member State
become competent to recover that debt, provided that the facts giving rise to the offence became the subject of legal proceedings
within two years of the date on which the guaranteeing association for the territory on which the offence was detected was
notified thereof.

Consideration of the second, third and fourth questions
By those questions, the national court asks, essentially, whether ASTIC may rely on the limitation period provided for in
Articles 454(3) and 455(1) of the implementing regulation, Article 11(1) of the TIR Convention and Article 221 of the Customs
Code to contest a claim for payment made against it by the Spanish customs authorities. That court also wishes to know the
likely implications, as regards that claim for payment, of the proceedings commenced initially by the German customs authorities.
It should be borne in mind, as a preliminary point, that Article 454(3) of the implementing regulation relates to the time
allowed for determining the competent Member State and that Article 221(3) of the Customs Code fixes the time-limits upon
expiry of which notification of a customs debt to the debtor may no longer be made.
Accordingly, it is Article 455(1) of the implementing regulation, read in conjunction with Article 11(1) of the TIR Convention,
which determines the limitation period for the planned recovery action against the guaranteeing association. Thus, the competent
authorities are not entitled to demand payment of the customs debt from the guaranteeing association unless they have notified
it, in writing, of the offence committed, within one year from the date on which they accepted the TIR carnet.
In the case under consideration, ASTIC was notified on 13 January 1999 that the offence had been committed on Spanish territory,
whereas the TIR carnet at issue in the main proceedings had been accepted by the German customs authorities on 18 March 1994,
that is to say, more than four years before that notification.
However, ASTIC cannot argue, in the specific circumstances of the case before the referring court, that the Spanish authorities’
entitlement to demand payment of the customs debt up to the amount guaranteed is time-barred under Article 455(1) of the implementing
regulation, read in conjunction with Article 11(1) of the TIR Convention.
To allow that claim for payment to be time-barred in circumstances such as those of the case before the referring court would
undermine the effectiveness of the system for recovering customs debts established by the TIR Convention, the Customs Code
and the implementing regulation.
Thus, the objective of the time-limit provided for in Article 455(1) of the implementing regulation, read in conjunction with
Article 11(1) of the TIR Convention, is to ensure the diligent and uniform application of the provisions relating to the recovery
of duties and taxes in order to secure rapid and effective availability of the European Union’s own resources. In the light
of that objective, the time-limit provided for in that provision must therefore be regarded as constituting a procedural rule
which is directed only at the administrative authorities with a view to encouraging them to intervene as soon as possible
(see, by analogy, Case C‑161/08
Internationaal Verhuis- en Transportbedrijf Jan de Lely
[2009] ECR I‑4075, paragraphs 50 and 51, in respect of Commission Regulation (EEC) No 1593/91 of 12 June 1991 providing for
the implementation of Council Regulation (EEC) No 719/91 on the use in the Community of TIR carnets and ATA carnets as transit
documents (OJ 1991 L 148, p. 11)).
As it is, even where the customs authorities have acted with the necessary diligence and promptness, the recovery of such
duties would become impossible if, following judicial proceedings ending more than a year after the acceptance of a TIR carnet,
the customs authorities of the Member State where the offence was detected were to see their competence extinguished, pursuant
to Article 454(3) of the implementing regulation, read in conjunction with Article 455(2) of that regulation, in favour of
that of the customs authorities of the Member State on whose territory the offence was committed, but where the latter were
not in a position to recover the debt owed on the ground that the relevant TIR carnet had been accepted more than a year earlier.
It should be remembered, in those circumstances, that although, under Article 451 of the implementing regulation, the customs
territory of the European Union is, for the purposes of the use of the TIR carnets, considered to form a single territory,
each of the 27 Member States is competent, through its own customs authorities, to recover customs debts arising on its territory.
There is, moreover, in each Member State a specific guaranteeing association which is liable for payment of customs debts
arising or presumed to have arisen on the territory of that Member State in connection with a TIR transport operation. A guaranteeing
association such as ASTIC cannot be allowed to take advantage of that administrative fragmentation in order to prevent recovery
of customs debts up to the amounts it guarantees.
Accordingly, it must be held that, in the specific circumstances of the case before the referring court, the one-year time-limit
provided for in Article 455(1) of the implementing regulation, read in conjunction with Article 11(1) of the TIR Convention,
began to run on the date on which the Spanish customs authorities were informed of the enforceable judgment identifying the
territory of Spain as that on which the offence had been committed.
As for the question of the effects of the proceedings commenced by the German customs authorities on the proceedings brought
by the Spanish customs authorities, the case-file submitted to the Court does not indicate that the German authorities undertook
the necessary steps to secure enforcement of the claim for payment that they had issued against the BGL.
In any event, if the referring court were to find that the German customs authorities have recovered part of the duties owed
from that guaranteeing association, it should be borne in mind that Article 454(3) of the implementing regulation provides
for a mechanism for reimbursing duties which have been recovered by the customs authorities of the Member State where the
offence was detected, in favour of the Member State where the offence was actually committed.
Accordingly, the answer to the second, third and fourth questions is that Article 455(1) of the implementing regulation, read
in conjunction with Article 11(1) of the TIR Convention, is to be interpreted as meaning that, in circumstances such as those
of the case before the referring court, a guaranteeing association cannot rely on the limitation period provided for in those
provisions where the customs authorities of the Member State for whose territory it is responsible notify it, within a period
of one year from the date on which those authorities were informed of an enforceable judgment identifying them as competent,
of the facts which gave rise to the customs debt for which it is liable up to the amount that it guarantees.

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 (First Chamber) hereby rules:
1.
Articles 454 and 455 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 are to be interpreted as meaning that, where
the presumption that competence to recover a customs debt lies with the Member State on whose territory an offence committed
in the course of a TIR transport operation was detected is rebutted following a judgment establishing that that offence was
committed on the territory of another Member State, the customs authorities of the latter Member State become competent to
recover that debt, provided that the facts giving rise to the offence became the subject of legal proceedings within two years
of the date on which the guaranteeing association for the territory on which the offence was detected was notified thereof.
2.
Article 455(1) of Regulation No 2454/93, read in conjunction with Article 11(1) of the Customs Convention on the international
transport of goods under cover of TIR carnets, signed at Geneva on 14 November 1975, is to be interpreted as meaning that,
in circumstances such as those of the case before the referring court, a guaranteeing association cannot rely on the limitation
period provided for in those provisions where the customs authorities of the Member State for whose territory it is responsible
notify it, within a period of one year from the date on which those authorities were informed of an enforceable judgment identifying
them as competent, of the facts which gave rise to the customs debt for which it is liable up to the amount that it guarantees.
[Signatures]
*                      Language of the case: Spanish.