CELEX: 62010CJ0078
Community Customs Code
Articles 213, 233 and 239
Joint and several liability of several debtors for the same customs debt
Remission of import duties
Extinction of the customs debt
No possibility for a jointly and severally liable debtor to rely on a remission granted to another debtor

This reference for a preliminary ruling concerns the interpretation of Articles 213, 233 and 239 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 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1) (‘the Customs Code’).
The reference has been made in proceedings between Mr Berel, acting as agent of the company Port Angot Développement, the
successor to Manutention de Produits Chimiques et Miniers Maprochim SAS (‘Maprochim’), Rijn Schelde Mondia France SA (‘Mondia
France’) and Asia Pulp & Paper France EURL (‘Asia P & P’) and the Administration des douanes de Rouen, the Receveur principal
des douanes du Havre and the Administration des douanes du Havre (‘the customs authorities’) concerning the recovery of a
customs debt which Maprochim, Asia P & P and Mondia France are jointly and severally liable to pay and in respect of which
Mondia France has been granted a partial remission.

Legal context

European Union (‘EU’) law
Article 4 of the Customs Code provides:
‘For the purposes of this Code, the following definitions shall apply:
…
(9)      “Customs debt” means the obligation on a person to pay the amount of the import duties (customs debt on importation) … which
apply to specific goods under the Community provisions in force.
…
(12)      “Debtor” means any person liable for payment of a customs debt.
…’
Article 5 of the Customs Code provides:
‘1.      … any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities
laid down by customs rules.
2.      Such representation may be:
–        direct, in which case the representative shall act in the name of and on behalf of another person, or
–        indirect, in which case the representative shall act in his own name but on behalf of another person.
…
4.      A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct
or indirect and be empowered to act as a representative.
A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting
in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name
and on his own behalf.
…’
In accordance with Article 202 of the Customs Code:
‘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,
–        any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been aware
that such introduction was unlawful, and
–        any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time
of acquiring or receiving the goods that they had been introduced unlawfully.’
Article 203 of the Customs Code reads as follows:
‘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.
3.      The debtors shall be:
–        the person who removed the goods from customs supervision,
–        any persons who participated in such removal and who were aware or should reasonably have been aware that the goods were being
removed from customs supervision,
–        any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time
of acquiring or receiving the goods that they had been removed from customs supervision, and
–        where appropriate, the person required to fulfil the obligations arising from temporary storage of the goods or from the use
of the customs procedure under which those goods are placed.’
Article 213 of the Customs Code provides:
‘Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt.’
Article 233 of the Customs Code provides:
‘… a customs debt shall be extinguished:
(a)      by payment of the amount of duty;
(b)      by remission of the amount of duty;
…’
Article 236 of the Customs Code provides:
‘1.      Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such
duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).
Import duties or export duties shall be remitted in so far as it is established that when they were entered in the accounts
the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).
No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which
was not legally owed are the result of deliberate action by the person concerned.
2.      Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office
within a period of three years from the date on which the amount of those duties was communicated to the debtor.
That period shall be extended if the person concerned provides evidence that he was prevented from submitting his application
within the said period as a result of unforeseeable circumstances or force majeure.
Where the customs authorities themselves discover within this period that one or other of the situations described in the
first and second subparagraphs of paragraph 1 exists, they shall repay or remit on their own initiative.’
Under Article 239 of the Customs Code:
‘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.
…’
Article 878(1) 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 1677/98 of 29 July 1998 (OJ 1998 L 212, p. 18),
(‘the Implementing Regulation’) provides:
‘Application for repayment or remission of import or export duties, hereinafter referred to as “application for repayment
or remission”, shall be made by the person who paid or is liable to pay those duties, or the persons who have taken over his
rights and obligations.
Application for repayment or remission may also be made by the representative of the person or persons referred in the first
subparagraph.’
Article 899 of the Implementing Regulation provides:
‘Without prejudice to other situations to be considered case by case in accordance with the procedure laid down in Articles
905 to 909, where the decision-making customs authority establishes that an application for repayment or remission submitted
to it under Article 239(2) of the [Customs] Code:
–        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.’
Article 900(1)(o) of the Implementing Regulation provides:
‘Import duties shall be repaid or remitted where:
…
(o)      the customs debt has been incurred otherwise than under Article 201 of the [Customs] Code and the person concerned is able
to produce a certificate of origin … 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.’

National law
Article 1208 of the Code civil (Civil Code) provides:
‘A jointly and severally liable debtor sued by the creditor may put forward all the defences which follow from the nature
of the obligation, all those which are personal to him, and those which are common to all the debtors.
He may not put forward defences which are purely personal to some of the other debtors.’
In accordance with Article 1285 of the Code civil:
‘A remission or agreed discharge for the benefit of one of the jointly and severally liable debtors releases all the others,
unless the creditor has expressly reserved his rights against them.
In the latter case, he may recover the debt only after deducting the share of the person to whom he has granted the remission.’

The dispute in the main proceedings and the question referred for a preliminary ruling
Mondia France is a company specialising in the import and export of forestry products, in particular paper and woodpulp, and
the storage and distribution of those goods. For those purposes it holds a licence to operate warehouses and temporary storage
places (MADT) in Rouen and Le Havre.
Asia P & P, a customer of Mondia France, entrusted Mondia France with the transport, storage and customs clearance of the
goods it markets in the European Union, principally paper of Indonesian origin.
Mondia France commissioned Maprochim, a customs agent, to perform on its behalf the customs clearance operations for those
goods.
In April 2000 the customs authorities carried out an investigation into the imports of those goods during 1998 and 1999 in
Le Havre and Rouen.
In the course of that investigation it was found that some of the goods stored in Mondia France’s warehouses had been delivered
to Asia P & P without the customs clearance formalities having been carried out. For those goods the authorities considered
that the offence of importation without declaration had been committed.
In respect of another part of the goods, it was found that they had been delivered without the customs clearance formalities
having been carried out, those formalities being carried out only after the date on which the goods left Mondia France’s authorised
warehouse. For those goods the customs authorities considered that the offence of unlawful removal of goods from customs supervision
had been committed.
The customs authorities notified Mondia France, Asia P & P and Maprochim of the offences they had found to have been committed,
and claimed the duties and charges corresponding to the deliveries of the goods, consisting of customs duties and other charges.
They subsequently issued notices of recovery addressed to those three companies, inter alia for the payment of the customs
duties.
After their objections to the notices had been dismissed by the customs authorities, the three companies in question brought
proceedings against the authorities before the Tribunal d’instance du Havre (District Court, Le Havre) and the Tribunal d’instance
de Rouen (District Court, Rouen), seeking annulment both of the notices of recovery and of the decisions dismissing their
objections. The Tribunal d’instance du Havre subsequently declined jurisdiction in favour of the Tribunal d’instance de Rouen
on account of the connection between the cases concerned.
On 31 October 2000 Mondia France also applied to the Direction générale des douanes (Directorate-General of Customs) for remission
of duty on the basis of Article 239 of the Customs Code and Article 900(1)(o) of the Implementing Regulation, relying on the
absence of deceitful or obviously negligent conduct and seeking to be granted
a posteriori
the preferential tariff treatment applicable to paper of Indonesian origin.
At first the application was dismissed, as the Direction générale des douanes had previously asked the Commission of the European
Communities for its opinion, and the Commission had expressed the view, in a letter of 7 October 2004, that obvious negligence
on the part of Mondia France had to be considered. An action brought against that letter was dismissed as manifestly inadmissible
by order of the Court of First Instance of the European Communities of 25 January 2007 in Case T‑55/05
Rijn Schelde Mondia France
v
Commission
.
However, in the light of further evidence brought to their attention, the customs authorities subsequently, by letters of
6 February and 3 March 2006, granted Mondia France a partial remission of duty.
By judgment of 11 April 2008, the Tribunal d’instance de Rouen, taking note of the remission, dismissed the applications by
Mondia France, Asia P & P and Maprochim for annulment of the notices of recovery of the duties concerning those companies.
As regards the remission of duty claimed by Asia P & P and Maprochim, the court held that it followed from Article 1208 of
the Code civil that, since each jointly and severally liable debtor had to be regarded as necessarily representing the other
debtors, a determination in respect of one could be relied on against the others, even if they had taken no part in the proceedings.
It concluded that when Mondia France had made an application for remission of duty, it had to be regarded as acting not only
on its own behalf but also as the representative of the other joint debtor, namely Asia P & P.
It therefore reduced the amount of the customs debt owed by Asia P & P by the amount of the partial remission of duty granted
to Mondia France, so that the amount of that debt should be the same as that owed by Mondia France. Asia P & P’s debt of EUR
980 058.65 was thus reduced to EUR 224 390.73.
As regards Maprochim, the court found that that company owed a customs debt of EUR 49 284 pursuant to Article 203(3) of the
Customs Code for having participated in the unlawful removal of the goods from customs supervision, where it knew or ought
reasonably to have known that the removal was unlawful.
It further held that Maprochim could not claim a remission of duty on the basis of Article 236 of the Customs Code, since
that provision does not apply in the case of a customs debt arising not from the release of the goods into free circulation
but from their unlawful removal from customs supervision.
Mondia France, Asia P & P and Maprochim and also the customs authorities appealed against that judgment to the Cour d’appel
de Rouen (Court of Appeal, Rouen).
The Cour d’appel de Rouen took the view, first, that since the notices of recovery served on Asia P & P were regular, that
company could no longer make an application to that court for remission of the debt, as the period of 12 months laid down
in Article 239(2) of the Customs Code had expired.
Next, the court rejected Asia P & P’s argument that it should have the benefit of the remission granted to Mondia France,
since Mondia France had a general power of representation and had thus submitted the claim for remission on behalf also of
Asia P & P. On this point, the court held that the conditions laid down in Article 5(4) of the Customs Code are of general
application, and none of them was satisfied in this case.
Finally, still with respect to Asia P & P, the court considered that the decision to grant remission of duty to Mondia France
was a defence that was purely personal to that company within the meaning of Article 1208 of the Code civil, which Asia P
& P could not rely on as such, in the same way as it could not put forward that defence because it was not common to all the
other jointly and severally liable debtors.
The court raised the question, however, whether Articles 213, 233 and 239 of the Customs Code preclude the application of
the principle of the mutual representation of jointly and severally liable debtors which follows, in certain circumstances,
from Article 1200 et seq. of the Code civil, thereby allowing Asia P & P, which had commissioned Mondia France to carry out
the customs clearance operations, to benefit from the remission granted to Mondia France on the basis of Article 239 of the
Customs Code and Article 900(1)(o) of the Implementing Regulation.
The court raised the same question with respect to Port Angot Développement, the successor to Maprochim and the subject of
a judicial liquidation procedure, since that company had applied to that court to benefit from the remission granted to Mondia
France, the benefit of which had been extended to Asia P & P by the Tribunal d’instance de Rouen by virtue of that principle
of the mutual representation of jointly and severally liable debtors.
In those circumstances, the Cour d’appel de Rouen decided to stay the proceedings and refer the following question to the
Court for a preliminary ruling:
‘Do Articles 213, 233 and 239 of the … Customs Code prevent a jointly and severally liable debtor of a customs debt who is
not the beneficiary of a decision to remit that debt from relying, against the administration responsible for collection,
on a decision to remit based on Article 239 of the … Code which that administration notified to another jointly and severally
liable debtor, in order to be released from payment of the customs debt?’

Consideration of the question referred
By its question the referring court asks essentially whether Articles 213, 233 and 239 of the Customs Code must be interpreted
as precluding the application, in the context of joint and several liability for a customs debt within the meaning of Article
213 such as that at issue in the main proceedings, of a principle of national law which has the effect that a partial remission
of duty granted on the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so that the extinction
of the debt provided for in point (b) of Article 233 of the Code relates to the debt as such and thus releases all the jointly
and severally liable debtors from payment of the debt to the extent of the amount remitted.
It should be observed that, unlike the second paragraph of Article 3 and the second subparagraph of Article 4(1) of Council
Regulation (EEC) No 1031/88 of 18 April 1988 determining the persons liable for payment of a customs debt (OJ 1988 L 102,
p. 5), which, where several debtors were liable for the same customs debt, prescribed that ‘[u]nder the provisions in force
in Member States’ they were to be ‘jointly and severally liable’, Article 213 of the Customs Code, which replaced those provisions,
no longer makes reference to national law.
Article 213 confines itself to stating the principle of joint and several liability where there are several debtors liable
for the same customs debt. It does not lay down any more specific rule on the implementation of that liability, in particular
as regards the possible effect of a remission granted to one of the debtors on the liability of the others.
Nor, moreover, is such a rule expressly laid down elsewhere in the Customs Code or in the Implementing Regulation.
Thus, while point (b) of Article 233 of the Customs Code provides that the customs debt is extinguished in the event of the
remission of the amount of duty, that provision does not specify whether, where there are several debtors, the extinction
relates solely to the person applying for the remission or whether it necessarily extends also to the other persons liable
for the debt.
However, an interpretation of that provision which limits the extinction of the customs debt solely to the person applying
for the remission appears to be justified in the light of a number of concordant factors.
In the first place, since in accordance with point (b) of Article 233 of the Customs Code the remission of duty extinguishes
the customs debt, it must be interpreted strictly. That article addresses the need to protect the EU’s own resources (see,
to that effect, inter alia, Case C‑230/08
Dansk Transport og Logistik
[2010] ECR I‑0000, paragraph 51 and the case-law cited).
In the second place, it also follows from the Court’s case-law that the Member States retain the possibility of adopting measures
to contribute effectively to the implementation of the objectives of the customs legislation, in particular the objective
of ensuring that the customs debt is actually recovered, and may thus, in compliance with those objectives and in accordance
with the principle of proportionality, prescribe if appropriate rules specifying the conditions of application of the provisions
laid down in that legislation (see, to that effect, Case C‑414/02
Spedition Ulustrans
[2004] ECR I‑8633, paragraph 38 and the case-law cited).
It should be added that the aim of Article 213 of the Customs Code is precisely to achieve that objective of actual recovery
of the customs debt, and hence to ensure the protection of the EU’s own resources. Joint and several liability constitutes
an additional legal device made available to the national authorities to strengthen the effectiveness of the action they take
for the recovery of customs debts.
The application, in the context of joint and several liability to pay a customs debt within the meaning of Article 213 of
the Customs Code, of a principle of national law such as that of the mutual representation of jointly and severally liable
debtors mentioned by the referring court, the result of which is that a remission of duty granted to one of the debtors on
the basis of Article 239 of the Code may be relied on by all the other debtors to oppose a claim for payment of the debt,
so that the extinction of the debt as provided for in point (b) of Article 233 of the Code necessarily relates to the entirety
of the debt, would not contribute to the implementation of that objective, which is of essential importance in the context
of the customs legislation.
In the third place, the application of that principle of national law and the radical consequences it would have for customs
debts also do not appear to be justified in view of the character of a decision to remit duty on the basis of Article 239
of the Customs Code such as that at issue in the main proceedings.
In the present case, the joint and several liability of the three companies for the customs debt does not proceed from the
same origin. Some of them are obliged to pay the debt because they committed the act which gave rise to the customs debt,
in this case either the unlawful introduction of goods into the customs territory of the European Union within the meaning
of Article 202 of the Customs Code or the unlawful removal of goods from customs supervision within the meaning of Article
203 of the Code. The joint and several liability of other companies derives either from their participation in the introduction
or removal or from the fact that they acquired or held the goods.
In such a situation the absence of deception or obvious negligence on the part of the person concerned, which under Article
239 of the Customs Code is a condition for the grant of a remission of import duty, must be examined in the light of the particular
relevant circumstances in relation to the fact which gave rise to the customs debt on the part of each debtor and of that
person’s professional experience and diligence in relation to the acts of which he is accused and which are the basis of his
joint and several liability.
It also follows that in a situation such as that at issue in the main proceedings the conclusions drawn from the examination
of the specific situation of one debtor cannot in principle be extended to other debtors.
Nor, moreover, contrary to Asia P & P’s submissions, can such an extension be justified in the present case on the ground
that Mondia France, which made the application for the remission of duty, made that application as the agent, with general
authority in customs matters, of Asia P & P, another debtor liable for the customs debt.
As the referring court points out, such a representation in connection with the remission of duty is subject to compliance
with the conditions set out in Article 5(4) of the Customs Code. Moreover, it suffices to note that the referring court, which
has sole jurisdiction to apply EU law to the facts of the main proceedings, found that none of those conditions was satisfied
in the case of the application for remission of duty made by Mondia France.
As regards Maprochim, it is clear that that company, which itself acted as the representative of Mondia France for the purposes
of Article 5 of the Customs Code with respect to performing on its behalf the formalities in connection with the customs clearance
of the goods, cannot claim to have been represented by Mondia France when that company applied for remission of duty.
Maprochim also cannot rely on the finding that there was no obvious negligence on the part of Mondia France, the economic
operator represented by it.
In that regard, the Court has held that an operator who uses a customs agent, whether for direct or indirect representation,
is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned, and that he cannot
avoid liability by relying on mistakes made by the agent (see Case C‑38/07 P
Heuschen & Schrouff Oriëntal Foods Trading
v
Commission
[2008] ECR I‑8599, paragraph 52).
Similarly, the Court has held that information concerning possible negligence on the part of a customs agent, including the
level of his professional experience, must be taken into account for the purposes of assessing the negligence of the importer
represented, since it cannot be accepted that operators may, by using the services of a customs agent, be able to avoid post-clearance
recovery of customs debts by relying on their inexperience in customs matters (see, to that effect,
Heuschen & Schrouff Oriëntal Foods Trading
v
Commission
, paragraphs 53 and 54).
However, it does not follow that, conversely, a customs agent whose services are usually sought because of his professional
experience in customs matters should be able to benefit from the inexperience in those matters of the economic operator he
represents.
It must be concluded that it follows from the system of Article 239 of the Customs Code that a decision to remit duty on the
basis of that provision, such as that at issue in the main proceedings, can be relied on solely in favour of the person making
the application for remission.
That conclusion is borne out, moreover, by the principle that the repayment or remission of import or export duties, which
may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import
and export procedure and, consequently, the provisions which provide for repayment or remission are to be interpreted strictly
(see, inter alia, Case C‑48/98
Söhl & Söhlke
[1999] ECR I‑7877, paragraph 52).
Finally, in a situation such as that at issue in the main proceedings, if the principle of national law which provides for
the mutual representation of jointly and severally liable debtors could be applied, the result in all cases would be that
the customs debt could no longer be recovered, even if there were a likelihood that the debtors other than the person applying
for remission did not satisfy the condition of absence of deception and obvious negligence, having regard both to the particular
circumstances of the fact giving rise to their joint and several liability for the customs debt and to their professional
experience and diligence.
That consequence would be disproportionate and would therefore, as noted in paragraph 47 above, exceed the limits of the discretion
enjoyed by the Member States in specifying the conditions of application of the provisions laid down in the customs legislation.
Consequently, in a situation of joint and several liability for a customs debt such as that at issue in the main proceedings,
the extinction of that debt in the case of the remission of the amount of duty referred to in point (b) of Article 233 of
the Customs Code concerns solely the person applying for the remission of duty and does not extend to the other debtors.
Having regard to all the foregoing, the answer to the referring court’s question is that Articles 213, 233 and 239 of the
Customs Code must be interpreted as precluding the application, in the context of joint and several liability for a customs
debt within the meaning of Article 213 such as that at issue in the main proceedings, of a principle of national law which
has the effect that a partial remission of duty granted on the basis of Article 239 to one of the debtors may be relied on
by all the other debtors, so that the extinction of the debt provided for in point (b) of Article 233 of the Code relates
to the debt as such and thus releases all the jointly and severally liable debtors from payment of the debt to the extent
of the amount remitted.

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 (Fourth Chamber) hereby rules:
Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code,
as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996, must be interpreted
as precluding the application, in the context of joint and several liability for a customs debt within the meaning of Article
213 such as that at issue in the main proceedings, of a principle of national law which has the effect that a partial remission
of duty granted on the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so that the extinction
of the debt provided for in point (b) of Article 233 of that Code relates to the debt as such and thus releases all the jointly
and severally liable debtors from payment of the debt to the extent of the amount remitted.
[Signatures]
*
Language of the case: French.