# C_2010161EN.01000402.xml

| 19.6.2010 | EN | Official Journal of the European Union | C 161/4 |
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19.6.2010

EN

Official Journal of the European Union

C 161/4

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Judgment of the Court (Third Chamber) of 29 April 2010 (reference for a preliminary ruling from the Østre Landsret — Denmark) — Dansk Transport og Logistik v Skatteministeriet

(Case C-230/08) (1)

(Community Customs Code - Articles 202, 215(1) and (3), 217(1) and point (d) of the first paragraph of Article 233 - Notion of goods which are ‘seized and simultaneously or subsequently confiscated’ - Regulation implementing the Customs Code - Article 867a - Directive 92/12/EEC - Articles 5(1) and (2), 6, 7(1), 8 and 9 - Sixth VAT Directive - Articles 7, 10(3) and 16(1) - Unlawful introduction of goods - Transport of goods with a TIR carnet - Seizure and destruction - Determination of the Member State in which the customs debt is incurred and VAT and excise duty become chargeable - Extinction of the customs and tax debt)

(2010/C 161/06)

Language of the case: Danish

Referring court

Østre Landsret

Parties to the main proceedings

Applicant: Dansk Transport og Logistik

Defendant: Skatteministeriet

Re:

Reference for a preliminary ruling — Østre Landsret — Interpretation of Articles 215 and 233 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), Article 454 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1993 L 253, p. 1), Articles 5 and 6 of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1), and Articles 7 and 10 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Extinction of customs and tax debts upon seizure and destruction by the authorities of a Member State when the goods are unlawfully brought into the customs territory of the Community

Operative part of the judgment

| 1. | A situation in which goods which are detained by the local customs and tax authorities when introduced into the customs territory of the Community in the area in which the first customs office is situated at the external border of the Community, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, is covered by the concept of goods which are ‘seized and simultaneously or subsequently confiscated’ in 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 955/1999 of the European Parliament and of the Council of 13 April 1999, with the result that the customs debt is extinguished pursuant to that provision. |
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1.

A situation in which goods which are detained by the local customs and tax authorities when introduced into the customs territory of the Community in the area in which the first customs office is situated at the external border of the Community, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, is covered by the concept of goods which are ‘seized and simultaneously or subsequently confiscated’ in 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 955/1999 of the European Parliament and of the Council of 13 April 1999, with the result that the customs debt is extinguished pursuant to that provision.

| 2. | The third subparagraph of Article 5(1) and Article 6(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for excise duty on them does not occur. Where goods are seized after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and simultaneously or subsequently destroyed by those authorities, without having left their possession, the excise duty on them is not to be deemed ‘to have been placed under a suspension arrangement’ for the purposes of the first subparagraph of Article 5(2) and Article 6(1)(c) of that directive, read in conjunction with Articles 84(1)(a) and 98 of Regulation No 2913/92, as amended by Regulation No 955/99, and Article 867a of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, with the result that the chargeable event for excise duty on those goods occurs and, consequently, the excise duty on them becomes chargeable. |
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2.

The third subparagraph of Article 5(1) and Article 6(1) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, as amended by Council Directive 96/99/EC of 30 December 1996, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for excise duty on them does not occur. Where goods are seized after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and simultaneously or subsequently destroyed by those authorities, without having left their possession, the excise duty on them is not to be deemed ‘to have been placed under a suspension arrangement’ for the purposes of the first subparagraph of Article 5(2) and Article 6(1)(c) of that directive, read in conjunction with Articles 84(1)(a) and 98 of Regulation No 2913/92, as amended by Regulation No 955/99, and Article 867a of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 1662/1999 of 28 July 1999, with the result that the chargeable event for excise duty on those goods occurs and, consequently, the excise duty on them becomes chargeable.

| 3. | Articles 2(2), 7 and 10(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 1999/85/EC of 22 October 1999, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for value added tax on them does not occur and, consequently, that tax does not become chargeable. However, the second subparagraph of Article 10(3) in conjunction with Article 16(1)(B)(c) of that directive and Article 867a of Regulation No 2454/93, as amended by Regulation No 1662/1999, must be interpreted as meaning that, for goods which are seized by those authorities after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, the chargeable event for value added tax occurs and that tax is chargeable, even if those goods are subsequently placed under a customs warehousing procedure. |
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3.

Articles 2(2), 7 and 10(3) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 1999/85/EC of 22 October 1999, must be interpreted as meaning that goods seized by the local customs and tax authorities on their introduction into the territory of the Community and simultaneously or subsequently destroyed by those authorities, without having left their possession, must be regarded as not having been imported into the Community, with the result that the chargeable event for value added tax on them does not occur and, consequently, that tax does not become chargeable. However, the second subparagraph of Article 10(3) in conjunction with Article 16(1)(B)(c) of that directive and Article 867a of Regulation No 2454/93, as amended by Regulation No 1662/1999, must be interpreted as meaning that, for goods which are seized by those authorities after their unlawful introduction into that territory, namely once they have gone beyond the area in which the first customs office inside that territory is situated, and are simultaneously or subsequently destroyed by those authorities, without having left their possession, the chargeable event for value added tax occurs and that tax is chargeable, even if those goods are subsequently placed under a customs warehousing procedure.

| 4. | Articles 202, 215(1) and (3), and 217 of Regulation No 2913/92, as amended by Regulation No 955/1999, and Articles 7(2) and 10(3) of Sixth Directive 77/388, as amended by Directive 1999/85, must be interpreted as meaning that it is the authorities in the Member State situated at the external border of the Community at which the goods were unlawfully introduced into the customs territory of the Community which are competent to recover the customs debt and the value added tax, even if those goods were then transported to another Member State where they were discovered then seized. Articles 6(1) and 7(1) of Directive 92/12, as amended by Directive 96/99, must be interpreted as meaning that the authorities in that latter Member State are competent to recover the excise duty, provided that those goods are held for commercial purposes. It is for the national court to determine whether that condition is satisfied in the dispute before it. |
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4.

Articles 202, 215(1) and (3), and 217 of Regulation No 2913/92, as amended by Regulation No 955/1999, and Articles 7(2) and 10(3) of Sixth Directive 77/388, as amended by Directive 1999/85, must be interpreted as meaning that it is the authorities in the Member State situated at the external border of the Community at which the goods were unlawfully introduced into the customs territory of the Community which are competent to recover the customs debt and the value added tax, even if those goods were then transported to another Member State where they were discovered then seized. Articles 6(1) and 7(1) of Directive 92/12, as amended by Directive 96/99, must be interpreted as meaning that the authorities in that latter Member State are competent to recover the excise duty, provided that those goods are held for commercial purposes. It is for the national court to determine whether that condition is satisfied in the dispute before it.

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(1)  OJ C 197, 2.8.2008.

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