**Case C-230/08**

**Dansk Transport og Logistik**

**v**

**Skatteministeriet**

(Reference for a preliminary ruling from the Østre Landsret)

(Community Customs Code – Articles 202, 215(1) and (3), 217(1) and point (d) of the first paragraph of Article 233 – Concept 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)

Summary of the Judgment

1.        *Customs union – Extinction of the customs debt – Goods seized on their unlawful introduction and simultaneously or subsequently
confiscated – Concept – Goods held on their introduction into the customs territory of the Community and simultaneously or
subsequently destroyed – Included*

*(Council Regulation No 2913/92, Art. 233(1)(d))*

2.        *Tax provisions – Harmonisation of laws – Excise duties – Directive 92/12 – Goods seized on their introduction into the territory
of the Community and simultaneously or subsequently destroyed – No occurrence of the chargeable event for excise duty – Goods
seized after their unlawful introduction and simultaneously or subsequently destroyed – Occurrence of the chargeable event
for excise duty and chargeability of the excise duty*

*(Council Regulation No 2913/92, Arts 84(1)(a) and 98; Commission Regulation No 2454/93, Art. 867 bis; Council Directive 92/12,
Arts 5(1)(3) and (2)(1) and 6(1)(c))*

3.        *Tax provisions – Harmonisation of laws – Turnover taxes – Common system of value added tax – Import tax – Goods seized on
their introduction into the territory of the Community and simultaneously or subsequently destroyed – No occurrence of the
chargeable event for tax – Goods seized after their unlawful introduction and simultaneously or subsequently destroyed – Occurrence
of the chargeable event for tax and chargeability of the tax*

*(Council Regulation No 2454/93, Art. 867 bis; Council Directive 77/388, Arts 2, point 2, 7, 10(3)(2) and 16(1), title B(c))*

4.        *Customs union – Customs debt – Value added tax – Excise duties – Directive 92/12 – Member State competent for recovery*

*(Council Regulation No 2913/92, Arts 202, 215(1) and (3), and 217; Council Directives 77/388, Arts 7(2) and 10(3), and 92/12,
Arts 6(1) and 7(1))*

1.        A situation in which goods that 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 ‘seized and simultaneously or subsequently confiscated’ in point (d) of the first paragraph of Article 233 of Regulation
No 2913/92 establishing the Community Customs Code, as amended by Regulation No 955/1999, with the result that the customs
debt is extinguished pursuant to that provision.

(see para. 66, operative part 1)

2.        The third subparagraph of Article 5(1) and Article 6(1) of Directive 92/12 on the general arrangements for products subject
to excise duty and on the holding, movement and monitoring of such products, as amended by Directive 96/99, 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. When 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 establishing the Community Customs Code, as amended
by Regulation No 955/1999, and Article 867a of Regulation No 2454/93 laying down provisions for the implementation of Regulation
No 2913/92, as amended by Regulation No 1662/1999 with the result that the chargeable event for excise duty on those goods
occurs and, consequently, the excise duty on them becomes chargeable.

(see para. 86, operative part 2)

3.        Articles 2(2), 7 and 10(3) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover
taxes, as amended by Directive 1999/85, 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 the Sixth Directive and Article 867a of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community customs
code, 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.

(see para. 99, operative part 3)

4.        Articles 202, 215(1) and (3), and 217 of Regulation No 2913/92 establishing the Community customs code, as amended by Regulation
No 955/1999, and Articles 7(2) and 10(3) of Sixth Directive 77/388 on the harmonisation of the laws of the Member States relating
to turnover taxes, 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 that 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 on the general arrangements
for products subject to excise duty and on the holding, movement and monitoring of such products, 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.

(see para. 116, operative part 4)


JUDGMENT OF THE COURT (Third Chamber)

29 April 2010 ([\*](#Footnote*))

(Community Customs Code – Articles 202, 215(1) and (3), 217(1) and point (d) of the first paragraph of Article 233 – Concept 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)

In Case C‐230/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Østre Landsret (Denmark), made by decision of 20 May 2008,
received at the Court on 28 May 2008, in the proceedings

**Dansk Transport og Logistik**

v

**Skatteministeriet,**

THE COURT (Third Chamber),

composed of J.N. Cunha Rodrigues, President of the Second Chamber, acting as President of the Third Chamber, A. Rosas, U. Lõhmus
(Rapporteur), A. Ó Caoimh and A. Arabadjiev, Judges,

Advocate General: V. Trstenjak,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 13 May 2009,

after considering the observations submitted on behalf of:

–        Dansk Transport og Logistik, by C. Alsøe, advokat,

–        the Danish Government, by R. Holdgaard, acting as Agent, and P. Biering, advokat,

–        the Italian Government, by G. Palmieri, acting as Agent, and G. Albenzio, avvocato dello Stato,

–        the Netherlands Government, by C. Wissels and M. de Grave, acting as Agents,

–        the Commission of the European Communities, by S. Schønberg and L. Bouyon, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2009,

gives the following

**Judgment**

1        This reference for a preliminary ruling concerns the interpretation of provisions 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 955/1999 of
the European Parliament and of the Council of 13 April 1999 (OJ 1999 L 119, p. 1) (‘the Customs Code’), 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 1662/1999 of 28 July 1999 (OJ 1999 L 197, p. 25) (‘the Implementing Regulation’),
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), as amended by Council Directive 96/99/EC of 30
December 1996 (OJ 1997 L 8, p. 12) (‘the Excise Duty Directive’), and 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), as amended by Council Directive 1999/85/EC of 22 October 1999 (OJ 1999 L 277, p. 34)
(‘the Sixth Directive’).

2        The reference was made in the context of a dispute between Dansk Transport og Logistik (‘DTL’) and the Skatteministeriet (Danish
Ministry of Taxation) concerning the levying of customs duty, excise duty and value added tax (‘VAT’) claimed by the customs
and tax authorities on cigarettes in connection with TIR transport operations for which DTL had issued TIR carnets and acted
as guarantor.

**Legal context**

*The provisions applicable to TIR transit*

3        The Customs Convention on the International Transport of Goods under Cover of TIR Carnets (‘the TIR Convention’), signed in
Geneva on 14 November 1975, was approved on behalf of the Community by Council Regulation (EEC) No 2112/78 of 25 July 1978
(OJ 1978 L 252, p. 1). The convention entered into force for the Community on 20 June 1983 (OJ 1983 L 31, p. 13).

4        Article 4 of the TIR Convention provides that ‘[g]oods carried under the TIR procedure shall not be subjected to the payment
or deposit of import or export duties and taxes at customs offices en route’.

5        Article 5 of that convention is worded as follows:

‘1.      Goods carried under the TIR procedure in sealed road vehicles, combinations of vehicles or containers shall not as a general
rule be subjected to examination at customs offices en route.

2.      However, to prevent abuses, customs authorities may in exceptional cases, and particularly when irregularity is suspected,
carry out an examination of the goods at such offices.’

6        Article 6(1) of the TIR Convention states that, ‘[s]ubject to such conditions and guarantees as it shall determine, each Contracting
Party may authorise associations to issue TIR carnets, either directly or through corresponding associations, and to act as
guarantors’.

7        Article 37 of the TIR Convention states that, ‘[w]hen 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’.

*Community legislation*

 Customs legislation

8        According to Article 4(16)(c) of the Customs Code, the customs procedure includes customs warehousing, inter alia.

9        Article 84(1)(a) of that code, which forms part of point A, entitled ‘Provisions common to several procedures’, of Section
3 concerning suspensive arrangements and customs procedures with economic impact, provides, inter alia, that, ‘where the term
“suspensive arrangement” is used [in Articles 85 to 90], it is understood as applying, in the case of non-Community goods,
to ... customs warehousing’.

10      Article 98 of the Customs Code states:

‘1.      The customs warehousing procedure shall allow the storage in a customs warehouse of:

(a)      non-Community goods, without such goods being subject to import duties or commercial policy measures;

...

2.      Customs warehouse means any place approved by and under the supervision of the customs authorities where goods may be stored
under the conditions laid down.

...’

11      Under Article 202 of that 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, or

...

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.

...’

12      Under Article 215 of the Customs Code:

‘1.      A customs debt shall be incurred:

–        at the place where the events from which it arises occur,

–        if it is not possible to determine that place, at the place where the customs authorities conclude that the goods are in a
situation in which a customs debt is incurred,

...

3.      The customs authorities referred to in Article 217(1) are those of the Member State where the customs debt is incurred or
is deemed to have been incurred in accordance with this Article.

...’

13      Article 217(1) of the Customs Code states that ‘[e]ach and every amount of import duty or export duty resulting from a customs
debt, hereinafter called “amount of duty”, shall be calculated by the customs authorities as soon as they have the necessary
particulars, and entered by those authorities in the accounting records or on any other equivalent medium (entry in the accounts)’.

14      According to Article 233 of that code:

‘Without prejudice to the provisions in force relating to the time-barring of a customs debt and non-recovery of such a debt
in the event of the legally established insolvency of the debtor, a customs debt shall be extinguished:

...

(c)      where, in respect of goods declared for a customs procedure entailing the obligation to pay duties:

         ...

–        the goods, before their release, are either seized and simultaneously or subsequently confiscated, destroyed on the instructions
of the customs authorities, destroyed or abandoned in accordance with Article 182, or destroyed or irretrievably lost as a
result of their actual nature or of unforeseeable circumstances or *force majeure*;

(d)      where goods in respect of which a customs debt is incurred in accordance with Article 202 are seized upon their unlawful introduction
and are simultaneously or subsequently confiscated.

In the event of seizure and confiscation, the customs debt shall, none the less for the purposes of the criminal law applicable
to customs offences, be deemed not to have been extinguished where, under a Member State’s criminal law, customs duties provide
the basis for determining penalties or the existence of a customs debt is grounds for taking criminal proceedings.’

15      Article 454 of the Implementing Regulation contains, inter alia, certain provisions specific to the TIR Convention and provides:

‘1.      This Article shall apply without prejudice to the specific provisions of the TIR ... [Convention] concerning the liability of
the guaranteeing associations when a TIR ... 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
..., 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.

...’

16      Article 867a of the Implementing Regulation is worded as follows:

‘1.      Non-Community goods which have been abandoned to the Exchequer or seized or confiscated shall be considered to have been entered
for the customs warehousing procedure.

2.      The goods referred to in paragraph 1 may be sold by the customs authorities only on the condition that the buyer immediately
carries out the formalities to assign them a customs-approved treatment or use.

...’

 The Excise Duty Directive

17      Article 4 of the Excise Duty Directive defines ‘suspension arrangement’ as ‘a tax arrangement applied to the production, processing,
holding and movement of products, excise duty being suspended’.

18      Under Article 5(1) and (2) of that directive:

‘1.      The products referred to in Article 3(1) shall be subject to excise duty at the time of their production within the territory
of the Community as defined in Article 2 or of their importation into that territory.

“Importation of a product subject to excise duty” shall mean the entry of that product into the territory of the Community
...

However, where the product is placed under a Community customs procedure on entry into the territory of the Community, importation
shall be deemed to take place when it leaves the Community customs procedure.

2.      Without prejudice to national and Community provisions regarding customs matters, when products subject to excise duty:

–        are coming from, or going to, third countries ... and are placed under one of the customs suspensive procedures listed in Article
84(1)(a) of [the Customs Code] or in a free zone or a free warehouse,

...

the excise duty on them shall be deemed to be suspended.

...’

19      Article 6 of that directive states:

‘1.      Excise duty shall become chargeable at the time of release for consumption or when shortages are recorded which must be subject
to excise duty in accordance with Article 14(3).

Release for consumption of products subject to excise duty shall mean:

(a)      any departure, including irregular departure, from a suspension arrangement;

...

(c)      any importation of those products, including irregular importation, where those products have not been placed under a suspension
arrangement.

2.      The chargeability conditions and rate of excise duty to be adopted shall be those in force on the date on which duty becomes
chargeable in the Member State where release for consumption takes place or shortages are recorded. Excise duty shall be levied
and collected according to the procedure laid down by each Member State, it being understood that Member States shall apply
the same procedures for levying and collection to national products and to those from other Member States.’

20      Article 7 of the Excise Duty Directive states:

‘1.      In the event of products subject to excise duty and already released for consumption in one Member State being held for commercial
purposes in another Member State, the excise duty shall be levied in the Member State in which those products are held.

2.      To that end, without prejudice to Article 6, where products already released for consumption as defined in Article 6 in one
Member State are delivered or intended for delivery in another Member State or used in another Member State for the purposes
of a trader carrying out an economic activity independently or for the purposes of a body governed by public law, excise duty
shall become chargeable in that other Member State.

3.      Depending on all the circumstances, the duty shall be due from the person making the delivery or holding the products intended
for delivery or from the person receiving the products for use in a Member State other than the one where the products have
already been released for consumption, or from the relevant trader or body governed by public law.

...’

21      Article 8 of the Excise Duty Directive provides that, ‘[a]s regards products acquired by private individuals for their own
use and transported by them, the principle governing the internal market lays down that excise duty shall be charged in the
Member State in which they are acquired’.

22      Article 9(1) of that directive reads as follows:

‘Without prejudice to Articles 6, 7 and 8, excise duty shall become chargeable where products for consumption in a Member
State are held for commercial purpose in another Member State.

In this case, the duty shall be due in the Member State in whose territory the products are and shall become chargeable to
the holder of the products.’

 The Sixth Directive

23      Article 7 of the Sixth Directive provides:

‘1.      “Importation of goods” shall mean:

(a)      the entry into the Community of goods which do not fulfil the conditions laid down in Articles 9 and 10 of the Treaty establishing
the European Economic Community ...

...

2.      The place of import of goods shall be the Member State within the territory of which the goods are when they enter the Community.

3.      Notwithstanding paragraph 2, where goods referred to in paragraph 1(a) are, on entry into the Community, placed under one
of the arrangements referred to in Article 16(1)(B)(a), (b), (c) and (d), under arrangements for temporary importation with
total exemption from import duty or under external transit arrangements, the place of import of such goods shall be the Member
State within the territory of which they cease to be covered by those arrangements.

...’

24      Article 10(3) of that directive states:

‘The chargeable event shall occur and the tax shall become chargeable when the goods are imported. Where goods are placed
under one of the arrangements referred to in Article 7(3) on entry into the Community, the chargeable event shall occur and
the tax shall become chargeable only when the goods cease to be covered by those arrangements.

However, where imported goods are subject to customs duties, to agricultural levies or to charges having equivalent effect
established under a common policy, the chargeable event shall occur and the tax shall become chargeable when the chargeable
event for those Community duties occurs and those duties become chargeable.

Where imported goods are not subject to any of those Community duties, Member States shall apply the provisions in force governing
customs duties as regards the occurrence of the chargeable event and the moment when the tax becomes chargeable.’

25      Article 16 of the Sixth Directive, in the version resulting from Article 28c(E)(1) thereof, is worded as follows:

‘1.      Without prejudice to other Community tax provisions, Member States may, subject to the consultations provided for in Article
29, take special measures designed to exempt all or some of the following transactions, provided that they are not aimed at
final use and/or consumption and that the amount of value added tax due on cessation of the arrangements [or] situations referred
to at A to E corresponds to the amount of tax which would have been due had each of these transactions been taxed within the
territory of the country:

...

B.      supplies of goods which are intended to be:

...

(c)      placed under customs warehousing arrangements or inward processing arrangements;

...

The places referred to in (a), (b), (c) and (d) shall be as defined by the Community customs provisions in force;

...’

*National legislation*

 Legislation on customs duties

26      The Customs Law (Toldloven), in the version of Consolidated Law No 113 of 27 February 1996, as amended (‘the Customs Law’),
lays down, in Paragraph 83, the procedures relating to the treatment of goods in the case of smuggling or attempted smuggling.

27      Under the first sentence of Paragraph 83(1) of that law, goods discovered in connection with smuggling or attempted smuggling,
including goods on which a traveller evades or attempts to evade import duties, are to be ‘detained’ by the State customs
and tax authorities or by the police. Under the second sentence of Paragraph 83(1), smuggled goods and other goods in respect
of which customs duties or taxes are evaded or an attempt is made to evade customs duties or taxes are to be ‘detained or
seized’ by the relevant authorities, subject to the rules on seizure in Chapter 75b of the Danish Code of Civil Procedure.

28      Paragraph 83(2) of the Customs Law is worded as follows:

‘Where an amount of customs duty, tax or fine owed or the costs of proceedings are paid, goods which have been detained or
seized shall be returned, subject to the general rules on imports, to the person from whom they were detained or seized, or
to another person who proves that he is entitled to the goods. If the goods are not claimed within two months after the end
of the month in which the case is definitively resolved, they shall be sold off by the State customs and tax authorities at
a duly advertised public auction. Goods which, in the view of the State customs and tax authorities, are unmarketable or unsaleable
may, however, be destroyed under customs supervision after the specified period has expired. The amount raised from the auction
shall be used first to cover the costs incurred by the public authorities in storing and selling the goods and then the amount
of customs duty, tax or fine owed and the costs of proceedings. Any surplus shall be paid to the owner, provided that he comes
forward within three years after the auction and duly proves his ownership of the goods that have been sold off.’

 Legislation governing excise duty on tobacco

29      Under Paragraph 2(1) of the Law on excise duty on tobacco (Tobaksafgiftsloven), in the version of Consolidated Law No 635
of 21 August 1998, as amended, excise duty due on goods for consumption in Denmark was to be paid at the latest when the goods
subject to duty were received from abroad.

30      Paragraph 12(1) of that law states that ‘duty is to be paid on goods subject to duty imported from places outside the European
Union ...’.

31      According to the order for reference, that law does not contain any detailed rules on tax treatment in connection with the
smuggling or attempted smuggling of tobacco goods or on the seizure, confiscation or destruction of those goods.

 VAT legislation

32      Under Paragraph 12(1) of the Law on VAT (Momsloven), in the version of Consolidated Law No 422 of 2 June 1999, as amended,
VAT is to be paid on goods imported into Denmark from places outside the European Union. Paragraph 12(2) of that law provides
that where goods are, on importation, stored in Copenhagen’s Free Port, in a free warehouse or in a customs warehouse, the
tax becomes chargeable only when the goods cease to be covered by one of those arrangements.

33      The first sentence of Paragraph 26 of the Law on VAT states that the tax becomes chargeable upon importation of the goods.
The second sentence of that paragraph provides that the tax becomes chargeable on goods under one of the arrangements referred
to in Paragraph 12(2) of the Law on VAT only when they cease to be covered by the arrangement concerned.

34      According to the order for reference, that law contains no detailed rules on tax treatment in connection with the smuggling
or attempted smuggling of tobacco goods or on the seizure, confiscation or destruction of those goods.

**The disputes in the main proceedings and the questions referred for a preliminary ruling**

35      Pursuant to an authorisation from the Danish customs and tax authorities granted under Article 6 of the TIR Convention, DTL
is entitled to issue TIR carnets and act as the guarantor association in connection with TIR transport operations.

36      The referring court is hearing three disputes relating to customs and tax debts in connection with the smuggling of cigarettes
in the course of TIR operations, for which DTL had issued TIR carnets and acted as guarantor. In two of the cases in the main
proceedings, the goods were transported to Denmark by sea and, in the third case, by land.

37      The introduction, by sea, of the goods into Community customs territory was discovered by the local customs and tax authorities
on 2 May 2000. Two lorries crossed the Danish border, on board a ferry from Klaipeda, in Lithuania, which at the time of the
facts in the main proceedings was not yet a Member State of the European Union. When the ferry docked in Åbenrå, those lorries
were inspected by the abovementioned authorities, following which they found a large quantity of cigarettes hidden in the
semi-trailers which were not enumerated in the TIR carnets.

38      The introduction of the goods by land was discovered by the local customs and tax authorities on 11 October 2000. A Lithuanian
lorry arrived in Frøslev, a Danish town on the border between Denmark and Germany, where those authorities discovered, in
addition to the goods mentioned in the TIR carnets, a large quantity of cigarettes hidden in the semi-trailer. Those goods
were brought illegally into Community customs territory when crossing the border between Poland, which at the time of the
facts in the main proceedings was not yet a Member State of the European Union, and Germany. They were then transported from
Germany to Denmark, without being detected by the German authorities. The seals of the lorry and the semi-trailer were not
broken until the customs check carried out in Denmark.

39      In all the cases in the main proceedings the customs authorities immediately detained the cigarettes, in accordance with the
first sentence of Paragraph 83(1) of the Customs Law. The cigarettes remained in the possession of those authorities from
their seizure to their destruction between November 2004 and March 2005.

40      By letters sent between December 2001 and August 2002, those authorities sought from the transporters, namely the Lithuanian
undertakings whose names the TIR carnets were in, payment of customs duty, excise duty and VAT in respect of the smuggled
cigarettes.

41      Since those undertakings did not reply to those letters, the customs and tax authorities decided, on 4 February 2003 in two
of the cases in the main proceedings and on 16 April 2002 in the third case, that DTL, as the association acting as guarantor
under the TIR Convention, was required to pay the sum corresponding to its maximum liability under the TIR carnets which it
had issued for those transport operations. DTL brought an action against those decisions before the Landsskatteret (Tax Court),
which upheld them.

42      DTL then lodged an appeal against that judgment before the Østre Landsret (Eastern Regional Court) and paid, on a conditional
basis, the sum sought in two of the cases in the main proceedings, but did not pay the sum sought in relation to the third
case.

43      The referring court considers that Paragraph 83 of the Customs Law does not expressly state whether the customs and tax debt
relating to the smuggled goods exists and may be recovered where the goods are detained, seized or destroyed in accordance
with that provision.

44      In those circumstances, the Østre Landsret decided to stay the proceedings and to refer the following questions to the Court
of Justice for a preliminary ruling:

‘(1)      Is the expression “seized and simultaneously or subsequently confiscated” in point (d) of [the first paragraph] of Article
233 of the Customs Code to be interpreted as meaning that the provision covers situations where goods detained under ... Paragraph
83(1) of the Customs Law on unlawful introduction are simultaneously or subsequently destroyed by the authorities without
their having left the authorities’ possession?

(2)      Is the Excise Duty Directive to be interpreted as meaning that unlawfully introduced goods which are seized on importation
and simultaneously or subsequently destroyed by the authorities are to be regarded as placed under “a suspension arrangement”
with the effect that the excise duty is not incurred or is extinguished (see the first subparagraph of Article 5(2) and Article
6(1)(c) of the Excise Duty Directive, read in conjunction with Articles 84(1)(a) and 98 of the Customs Code, and Article 867a
of the [I]mplementing [Regulation])?

Is the answer affected by whether or not a customs debt incurred on such unlawful introduction is extinguished under point
(d) of [the first paragraph of] Article 233 of the Customs Code?

(3)      Is the Sixth Directive to be interpreted as meaning that unlawfully introduced goods seized on importation and simultaneously
or subsequently destroyed by the authorities are to be regarded as being placed under a “customs warehousing procedure” with
the effect that the VAT debt is not incurred or is extinguished (see Articles 7(3), 10(3) and 16(1)(B)(c) of the Sixth Directive
and Article 867a of the [I]mplementing [Regulation])?

         Is the answer affected by whether or not a customs debt incurred on such unlawful introduction is extinguished under point
(d) of [the first paragraph of] Article 233 of the Customs Code?

(4)      Are the Customs Code, the [I]mplementing [Regulation], [the Excise Duty Directive] and the Sixth Directive to be interpreted
as meaning that the customs authorities in the Member State where unlawful introduction of goods during a TIR operation is
detected are competent to charge customs duty, excise duty and VAT on the operation where the authorities in another Member
State, where the unlawful introduction into the Community occurred, did not detect the irregularity and consequently did not
charge customs duty, excise duty and VAT (see Article 215 in conjunction with Article 217 of the Customs Code, Article 454(2)
and (3) of the [I]mplementing [Regulation] then in force, [Article 7(1) of the Excise Duty Directive] and Article 7 of the
Sixth Directive)?’

**The questions referred**

*The first question*

45      By its first question, the referring court asks, in essence, whether a situation in which goods which are detained by the
local customs and tax authorities on their unlawful introduction into the customs territory of the Community and 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 the Customs
Code.

46      DTL, the Netherlands and Italian Governments and the Commission of the European Communities consider that that concept should
be applied to goods in such a situation, with the result that, pursuant to point (d) of the first paragraph of Article 233
of the Customs Code, the customs debt is extinguished in relation to those goods. The Danish Government argues to the contrary,
claiming that confiscation, within the meaning of that provision of the Customs Code, cannot be assimilated to the destruction
of the goods in accordance with Paragraph 83(1) of the Customs Law.

47      It should be noted, at the outset, that, pursuant to point (d) of the first paragraph of Article 233 of the Customs Code,
the customs debt is extinguished if the goods in respect of which that debt arises, in accordance with Article 202 of that
code, are seized on their unlawful introduction into the customs territory of the Community and are simultaneously or subsequently
confiscated.

48      First, as regards the interpretation of the expression ‘on unlawful introduction’ of goods into the customs territory of the
Community, in Article 202 and point (d) of the first paragraph of Article 233 of the Customs Code, it should be noted, first
of all, that the unlawful introduction is completed at the moment at which the goods go beyond the first customs office situated
inside that territory without those goods having been presented there (Case C‐459/07 *Elshani* [2009] ECR I‐0000, paragraph 25).

49      Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the Community within the meaning
of Article 202 of the Customs Code where, having crossed the external land border of the Community, the goods are in that
territory beyond the first customs office, without having been conveyed to that office and without having been presented to
customs, with the result that the customs authorities have not been notified of the fact that those goods have been introduced
by the persons responsible for compliance with that obligation (*Elshani*, paragraph 26).

50      Next, the Court has held that Article 202 and point (d) of the first paragraph of Article 233 of the Customs Code must be
interpreted as meaning that, in order to lead to the extinction of the customs debt, the seizure of goods unlawfully introduced
into the customs territory of the Community must take place before those goods go beyond the first customs office situated
inside that territory (see, to that effect, *Elshani*, paragraph 38).

51      That analysis is justified, in the first place, by the fact that the seizure and confiscation of goods upon their unlawful
introduction, laid down in point (d) of the first paragraph of Article 233 of the Customs Code, constitutes a ground for the
extinction of the customs debt which must be narrowly construed (see *Elshani*, paragraph 30). That article addresses the need to protect the Community’s own resources and that objective may not be prejudiced
by creating new grounds for the extinction of a customs debt (see, to that effect, Case C‐112/01 *SPKR* [2002] ECR I‐10655, paragraph 31, and *Elshani*, paragraph 31).

52      In the second place, the presence of unlawfully introduced goods in the customs territory of the Community comprises, of itself,
a very high risk that those goods will end up forming part of the economic networks of the Member States and that, once those
goods have gone beyond the area in which the first customs office is situated inside the customs territory, there is less
likelihood that the customs authorities will, fortuitously, discover those goods in the course of spot checks (*Elshani*, paragraph 32).

53      Consequently, the seizure of such goods, together with their simultaneous or subsequent confiscation within the meaning of
point (d) of the first paragraph of Article 233 of the Customs Code, can only lead to the extinction of the customs debt if
that seizure was executed before those goods went beyond the area in which the first customs office is situated inside the
customs territory of the Community.

54      Finally, contrary to what the Danish Government claims, that interpretation is also transposable to goods transported with
a TIR carnet.

55      In that regard, while it is indeed apparent, first, from Article 4 of the TIR Convention that goods carried under the TIR
procedure will not be made subject to the payment or deposit of import or export duties and taxes at customs offices en route
and, second, from Article 5 of that convention that those goods will not, as a general rule, be made subject to examination
at customs offices en route, it is none the less the case that, when goods are introduced into the customs territory of the
Community, the TIR carnet is generally inspected at the customs office at the external border of the Community. At that point,
the customs seals are also checked.

56      In addition, as stated by the Advocate General in point 102 of her Opinion, even in relation to transport operations with
a TIR carnet, once the goods which have been introduced unlawfully into the customs territory of the Community have gone beyond
the area in which the first customs office inside that territory is situated, it is less likely that they will, fortuitously,
be discovered in the course of spot checks. Consequently, there is a high risk that such goods will end up forming part of
the economic networks of the Member States.

57      Consequently, even in relation to goods transported with a TIR carnet, pursuant to point (d) of the first paragraph of Article
233 of the Customs Code, the customs debt is extinguished only if the seizure of the goods was executed before those goods
went beyond the area in which the first customs office is situated inside the customs territory of the Community.

58      In the present case, as regards the two cases in which the goods were introduced into the customs territory of the Community
by sea, it seems that the goods were detained by the local customs and tax authorities on their unlawful introduction into
that territory, in accordance with point (d) of the first paragraph of Article 233 of the Customs Code. Thus, it appears that
those cases fall within that situation.

59      As regards the case in which the goods were transported to Denmark by land, it is apparent from the order for reference that
the unlawful introduction into the customs territory of the Community took place when the border between Poland and Germany
was crossed. The detainment and destruction of those goods occurred at the crossing of the border between Germany and Denmark,
namely after the ‘unlawful introduction’ and not at the same point in time. Consequently, it would appear that the facts in
that case do not fall within the situation envisaged in point (d) of the first paragraph of Article 233 of the Customs Code.

60      Second, in so far as concerns the interpretation of the terms ‘seizure’ and ‘confiscation’ for the purposes of point (d) of
the first paragraph of Article 233 of the Customs Code, DTL considers that seizure and confiscation are successive measures
and that confiscation is a more restrictive measure than seizure. By contrast, according to the Danish Government, that provision
makes the extinction of the customs debt subject to both the seizure and the confiscation of the unlawfully introduced goods.

61      In that regard, it should be noted that, even if they are two separate measures, they may in practice take place simultaneously.
As the Advocate General stated in point 110 of her Opinion, ‘seizure’ of the goods for the purposes of point (d) of the first
paragraph of Article 233 of the Customs Code is to be understood as action by the competent authorities to assume actual physical
control of the goods in order to keep them safe and prevent them from physically entering the economic networks of the Member
States.

62      As regards the question whether the destruction of the goods may be regarded as ‘confiscation’ for the purposes of point (d)
of the first paragraph of Article 233 of the Customs Code, DTL, the Netherlands Government and the Commission argue that confiscation
implies the loss of the owner’s right of ownership of the goods and that the possible acquisition of the ownership of those
goods by the authorities is irrelevant. DTL considers, in particular, that confiscation takes place at the moment when the
original owner loses his property right over the seized goods. The Danish Government states, by contrast, that confiscation
presupposes a transfer of property to the State. In the cases in the main proceedings, the Danish State did not become the
owner of the detained goods at any point.

63      It should be noted, in that regard, that point (d) of the first paragraph of Article 233 of the Customs Code, first, does
not make any reference to a possible transfer of ownership of the goods and, second, relates exclusively to the definitive
withdrawal of the original owner’s power to dispose of the goods and to preventing the marketing of those goods without tax
being paid on them in the economic network of the Community. Since the destruction of such goods under State supervision definitively
prevents them from entering the economic network, it does not matter whether the State acquires ownership of the seized goods
or not.

64      Finally, contrary to what the Danish Government argues, that assessment is not precluded by the fact that, in the second indent
of point (c) of the first paragraph of Article 233 of the Customs Code, the destruction of the goods is set out separately
from the seizure and confiscation of those goods, or even the fact that point (d) of the first paragraph of Article 233 of
the Customs Code refers only to confiscation.

65      The second indent of point (c) of the first paragraph of Article 233 of the Customs Code covers situations in which goods
declared for a customs procedure remain at the disposal of the importer, by providing for grounds for extinction of the customs
debt also in respect of declared goods which are not at the disposal of the customs authorities and which are destroyed on
their instruction. By contrast, point (d) of the first paragraph of Article 233 of the Customs Code refers only to goods which
are not at the importer’s disposal.

66      It follows from the above that the answer to the first question is that 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 the Customs Code, with the result that
the customs debt is extinguished pursuant to that provision.

*The second question*

67      By its second question, the referring court asks, in essence, whether, where goods are seized on their introduction into the
territory of the Community and simultaneously or subsequently destroyed by the competent authorities, the excise duty on those
goods is 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 the Excise Duty Directive, read in conjunction with Articles 84(1)(a) and 98 of the Customs Code,
and Article 867a of the Implementing Regulation, with the result that the obligation to pay excise duty on them is not incurred
or is extinguished.

68      That court also asks whether the answer to that question is affected by whether or not the customs debt incurred on such an
importation is extinguished for the purposes of point (d) of the first paragraph of Article 233 of the Customs Code.

69      In order to assess the effect of the detainment and destruction of the goods on the incurrence of the excise duty debt, it
needs first to be determined whether the chargeable event under Article 5(1) of the Excise Duty Directive occurred. Only afterwards
do the issues arise of the chargeability and possible suspension of the excise duty under Articles 6(1) and 5(2) of that directive,
respectively.

70      First, as regards the chargeable event for excise duty, it is apparent from the first subparagraph of Article 5(1) of the
Excise Duty Directive that the duty becomes chargeable at the time of the production of the goods subject to excise duty within
the territory of the Community or on the importation of such goods into that territory. The second subparagraph of Article
5(1) states that ‘importation’ is to mean ‘the entry of that product into the territory of the Community’.

71      In order to ensure a coherent interpretation of the Community legislation at issue, the latter term must be interpreted in
the light of the concept of ‘introduction’ set out in point (d) of the first paragraph of Article 233 of the Customs Code.

72      Accordingly, goods subject to excise duty must be regarded as having entered the territory of the Community for the purposes
of Article 5(1) of the Excise Duty Directive as of the moment they go beyond the area in which the first customs office is
situated inside the customs territory of the Community (see, by analogy, *Elshani*, paragraph 25).

73      In circumstances such as those at issue in the two cases in the main proceedings in which goods transported by sea were seized
and subsequently destroyed by the local customs and tax authorities before going beyond the first customs office situated
inside the territory of the Community, it appears that those goods were not imported into the territory of the Community,
with the result that the chargeable event for excise duty, laid down in Article 5(1) of the Excise Duty Directive, did not
occur. Consequently, those goods cannot be made subject to excise duty.

74      If, on the other hand, such goods are seized and destroyed by the authorities after going beyond the first border customs
office situated inside the territory of the Community, they must be regarded as having been imported into the Community with
the result that the chargeable event for excise duty has occurred in relation to those goods, in accordance with Article 5(1)
of the Excise Duty Directive. That seems to be the case for the goods at issue in the case in the main proceedings in which
the unlawful introduction into the territory of the Community took place in Germany, whereas the subsequent seizure and destruction
of those goods took place in Denmark.

75      Second, it should be noted, as regards the question whether and at what point the excise duty, in respect of which the chargeable
event is the introduction of goods into the territory of the Community, becomes chargeable, that it is apparent from Article
6(1) of the Excise Duty Directive that that tax becomes chargeable, inter alia, at the time those goods are released for consumption.
Point (c) of the second subparagraph of Article 6(1) states that release for consumption includes ‘any importation of those
products, including irregular importation, where those products have not been placed under a suspension arrangement’.

76      As noted in paragraphs 71 and 72 above, the concept of ‘importation’ of goods for the purposes of the Excise Duty Directive
presupposes that the goods have gone beyond the area in which the first customs office inside the customs territory of the
Community is situated.

77      Third, as regards the goods at issue in the case in the main proceedings in which those goods were transported by land, the
referring court asks whether the chargeability of the excise duty can be suspended under Article 5(2) of the Excise Duty Directive,
on the ground that the goods which were seized and confiscated after their unlawful introduction into the customs territory
of the Community have been entered for the customs warehousing procedure in accordance with Article 867a of the Implementing
Regulation.

78      In that regard, it should be noted that the suspension arrangement defined in Article 4(c) of the Excise Duty Directive is
the tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended.
It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable
event for taxation purposes has already taken place (Case C‐395/00 *Cipriani* [2002] ECR I‐11877, paragraph 42). Consequently, as regards the products subject to excise duty, that arrangement postpones
the chargeability of excise duty until one of the conditions of chargeability is met.

79      It is true that it is apparent from Article 5(2) of the Excise Duty Directive that the suspension of the duty presupposes
that the goods introduced unlawfully are under one of the customs suspensive procedures listed in Article 84(1)(a) of the
Customs Code, one of which is customs warehousing.

80      However, it is apparent from paragraphs 75 and 76 above that, in the cases in the main proceedings, the duty became chargeable
as soon as the goods went beyond the area in which the first customs office inside the customs territory of the Community
is situated.

81      Accordingly, smuggled goods which were imported unlawfully in that way are to be regarded as having been released for consumption,
with the result that the fact that they were subsequently entered for a customs warehousing procedure in accordance with Article
867a of the Implementing Regulation, following their seizure and confiscation, has no effect on the chargeability of the excise
duty.

82      Article 867a of the Implementing Regulation, read in conjunction with Article 84(1)(a) of the Customs Code and the first subparagraph
of Article 5(2) of the Excise Duty Directive, cannot impede the chargeability of the duty which results from point (c) of
the second subparagraph of Article 6(1) of that directive.

83      Finally, as regards the question whether the extinction of the customs debt under point (d) of the first paragraph of Article
233 of the Customs Code affects whether the excise duty incurred on those goods is extinguished, the Excise Duty Directive
does not contain any express provision concerning the extinction of the excise duty in the case of unlawful importation of
goods.

84      In those circumstances, given the similarities between customs duties and excise duties in that they arise from the importation
of goods into the Community and their subsequent distribution through the economic channels of the Member States, and in order
to ensure a coherent interpretation of the Community legislation at issue, it must be found that excise duty is extinguished
in the same way as customs duty.

85      Consequently, as is apparent from paragraph 50 above, in order to lead to the extinction of the excise duty, the seizure or
the confiscation of the goods must take place before those goods go beyond the area in which the first customs office inside
the customs territory of the Community is situated.

86      Therefore, the answer to the second question is that the third subparagraph of Article 5(1) and Article 6(1) of the Excise
Duty Directive 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 the Excise Duty Directive, read in conjunction with Articles 84(1)(a) and 98 of the Customs Code, and Article
867a of the Implementing Regulation, with the result that the chargeable event for excise duty on those goods occurs and,
consequently, the excise duty on them becomes chargeable.

*The third question*

87      By its third question, the referring court asks, in essence, whether Articles 7(3), 10(3) and 16(1)(B)(c) of the Sixth Directive
read in conjunction with Article 867a of the Implementing Regulation must be interpreted as meaning that goods which are seized
by the local customs and tax authorities either on their importation into the Community or thereafter, and are simultaneously
or subsequently destroyed by those authorities, without having left their possession, must be regarded as having been placed
under a customs warehousing procedure, so that the chargeable event for VAT does not occur and that tax does not become chargeable.

88      That court also asks whether the answer to that question is affected by whether or not the customs debt incurred on such an
unlawful importation is extinguished for the purposes of point (d) of the first paragraph of Article 233 of the Customs Code.

89      In the first place, as regards the chargeable event for, and the chargeability of, VAT on goods unlawfully introduced into
the Community, it must be noted that, in accordance with Article 2(2) of the Sixth Directive, ‘importation’ is subject to
VAT. According to Article 7(1)(a) of that directive, importation is constituted by the ‘entry into the Community’ of the relevant
goods.

90      Next, the second subparagraph of Article 10(3) of the Sixth Directive states that, where imported goods are subject inter
alia, to customs duties, ‘the chargeable event shall occur and the tax shall become chargeable when the chargeable event for
those ... duties occurs and those duties become chargeable’.

91      In addition, according to the Court’s case-law on the applicability of the Sixth Directive to the unlawful importation of
drugs, the chargeable event for customs duties and the chargeability of VAT are essentially the same in such cases. The two
charges display comparable essential features since they arise from the importation of goods into the Community and their
subsequent distribution through the economic channels of the Member States (see, to that effect, Case 294/82 *Einberger* [1984] ECR 1177, paragraph 18, and Case C‐343/89 *Witzemann* [1990] ECR I‐4477, paragraph 18).

92      In that regard, and taking account of what has been stated in paragraph 48 above, the second subparagraph of Article 10(3)
of the Sixth Directive must be interpreted as meaning that the chargeable event for VAT and the chargeability of VAT on smuggled
goods which have been seized and simultaneously or subsequently confiscated can occur only once the goods have gone beyond
the area in which the first customs office inside the customs territory of the Community is situated.

93      Consequently, where the imported goods are seized and simultaneously or subsequently destroyed by the competent authorities
before going beyond the first customs office situated inside the customs territory of the Community, it must be found that
neither the chargeable event for VAT has occurred nor has that VAT become chargeable for the purposes of that article. That
appears to be the situation in the two cases in the main proceedings in which the goods were transported by sea.

94      By contrast, where the goods have been seized and simultaneously or subsequently confiscated by the authorities in another
Member State after going beyond the first customs office situated inside the customs territory of the Community, the chargeable
event for VAT has already occurred and the VAT has become chargeable as a result, pursuant to the second subparagraph of Article
10(3) of the Sixth Directive. That appears to be the situation in the third case in the main proceedings in which the goods
were transported by land.

95      In the second place, it is apparent from the question referred to the Court of Justice that the national court seeks to determine
whether Article 867a of the Implementing Regulation has an effect on the chargeability of the VAT, with the result that the
seized goods would need to be regarded as being placed under ‘a customs warehousing procedure’, a procedure which is laid
down in Article 16(1)(B)(c) of the Sixth Directive, so that the chargeable event for VAT does not occur and, consequently,
that tax does not become chargeable. The national court also seeks to determine whether the suspensive effect of the occurrence
of both the chargeable event for, and the chargeability of, tax, laid down in the second sentence of the first subparagraph
of Article 10(3) of the Sixth Directive, may operate for such goods.

96      In that respect, as regards the situation in which ‘goods are placed under one of the arrangements referred to in Article
7(3)’, a situation which is referred to in the second sentence of the first subparagraph of Article 10(3) of the Sixth Directive,
the words ‘on entry’ must be understood as meaning that the goods have not gone beyond the first customs office and have,
thus, not been imported into the territory of the Community. Consequently, where goods are seized and confiscated on their
entry at an external border of the Community, the chargeable event does not occur and the tax does not become chargeable and
there is no need to seek to determine the possible effect of the second subparagraph of Article 10(3) and Article 16(1)(B)
of the Sixth Directive or of Article 867a of the Implementing Regulation, and this was the case in relation to the goods imported
by sea in two of the cases in the main proceedings.

97      By contrast, as noted in paragraphs 81 and 82 above in relation to the chargeability of the excise duty, where goods which
are introduced into the Community unlawfully are seized and confiscated by the competent authorities after going beyond the
first border customs office, Article 867a of the Implementing Regulation and the second subparagraph of Article 10(3) of the
Sixth Directive do not prevent the VAT on those goods from becoming chargeable, even if they are subsequently placed under
a customs warehousing procedure. That appears to be the situation for the goods transported by land in the third case in the
main proceedings.

98      In the third place, in so far as concerns the effect of the extinction of the customs debt under point (d) of the first paragraph
of Article 233 of the Customs Code on the chargeable event for, and the chargeability of, VAT, in the light of the fact that,
under the second subparagraph of Article 10(3) of the Sixth Directive, the chargeable event for, and the chargeability of,
customs duty and VAT on the importation of goods occur in parallel, as stated in paragraph 91 above, it must be found that
the same conditions apply as regards extinction to both customs duty on importation and VAT.

99      Accordingly, the answer to the third question is that Articles 2(2), 7 and 10(3) of the Sixth Directive 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 VAT 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 the Sixth Directive and Article 867a of the Implementing Regulation 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 VAT occurs and that tax is
chargeable, even if those goods are subsequently placed under a customs warehousing procedure.

*The fourth question*

100    By its fourth question, the national court asks, in essence, whether the customs authorities in the Member State in which
an unlawful importation of goods during a transport operation with a TIR carnet is detected are competent, under Articles
215 and 217 of the Customs Code, in conjunction with Article 454(2) and (3) of the Implementing Regulation, Article 7(1) of
the Excise Duty Directive and Article 7 of the Sixth Directive, to recover customs duty, excise duty and VAT on the smuggled
goods where the authorities in the Member State in which the unlawful introduction into the Community occurred did not detect
that irregularity or recover that duty or those taxes.

101    It should be noted at the outset that, taking account of the answers given to the previous questions, this question concerns
only the case in the main proceedings in which the cigarettes were introduced into the Community by land across the Polish-German
border before being discovered and then seized by the Danish authorities at the German-Danish border.

102    In addition, as asserted by the Netherlands Government and the Commission, the competence to recover customs duty, excise
duty and VAT must be analysed separately.

103    As regards, first, the competence to recover the customs debt, it is apparent, first of all, from the first indent of Article
215(1) of the Customs Code that such a debt is incurred ‘at the place where the events from which it arises occur’.

104    In that regard, it is apparent from the Court’s case-law that the determination of the place where the customs debt was incurred
allows the Member State with jurisdiction to recover customs duties to be identified. Therefore, the purpose of that provision
is to determine territorial jurisdiction to recover the amount of the customs debt (see, to that effect, Case C‐526/06 *Road Air Logistics Customs* [2007] ECR I‐11337, paragraph 26).

105    Next, under Article 215(3) of the Customs Code, the customs authorities referred to in Article 217(1) of that code, which
are competent for entering the customs debt in the accounts, ‘are those of the Member State where the customs debt is incurred’.

106    Finally, as already pointed out in paragraph 48 above, the customs debt is incurred, in accordance with Article 202 of the
Customs Code, at the place where the goods liable to customs duty go beyond the first customs office situated inside the customs
territory of the Community without having been presented there.

107    Thus, it is apparent from a joint reading of the provisions referred to above that, in circumstances such as those in the
relevant case in the main proceedings, 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 – the German authorities in the
case concerned – which are competent to recover the customs debt, even if the unlawful introduction of the goods was detected
subsequently in the territory of another Member State.

108    In addition, as pointed out by DTL, it is apparent from Article 454 of the Implementing Regulation that the distribution of
competences referred to above also applies in relation to transport operations carried out with a TIR carnet.

109    Second, the competence to recover VAT results from a combination of Articles 7(2) and 10(3) of the Sixth Directive.

110    Article 7(2) states that ‘the place of import of goods shall be the Member State within the territory of which the goods are
when they enter the Community’. Article 10(3) provides, as has already been pointed out in paragraph 90 above, that ‘the chargeable
event shall occur and the tax shall become chargeable when the goods are imported’.

111    Consequently, like customs duties, VAT became chargeable in the Member State where the goods were unlawfully introduced into
the Community and, therefore, the authorities in that Member State – the German authorities in the case concerned in the main
proceedings – are competent to recover that tax.

112    Finally, in so far as concerns the competence to recover excise duty, Article 7(1) of the Excise Duty Directive provides,
inter alia, that, in the event of products subject to excise duty and already released for consumption in one Member State
being held for commercial purposes in another Member State, the duty is to be levied by the other Member State.

113    In the present case, it is likely that the goods discovered and seized are being held for commercial purposes. However, it
is for the national court, which is the only court with direct knowledge of the dispute before it, to assess whether that
is the case.

114    If that is the case, it is apparent from Article 6(1) in conjunction with Article 7(1) of the Excise Duty Directive that the
authorities in the Member State in which the goods which are unlawfully introduced into the Community were discovered and
seized are competent to recover excise duty. In the case in the main proceedings at issue, those are the Danish authorities.

115    If that is not the case, the first Member State into which the goods were imported, the Federal Republic of Germany in this
case, remains competent to recover the excise duty pursuant to Article 6 of the Excise Duty Directive, even if the unlawfully
introduced goods were only discovered subsequently by the authorities in another Member State.

116    Therefore, the answer to the fourth question is that Articles 202, 215(1) and (3), and 217 of the Customs Code, and Articles
7(2) and 10(3) of the Sixth Directive 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 VAT, even if those goods were then transported to another Member State
where they were discovered then seized. Articles 6(1) and 7(1) of the Excise Duty Directive 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.

**Costs**

117    Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

1.      **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 955/1999, 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.**

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.**

[Signatures]

---

[\*](#Footref*) Language of the case: Danish.