Judgment;Summary — ECLI:EU:C:2021:161
Date: 2021-03-03
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Taxation;Free movement of goods;Internal market - Principles;Common customs tariff;Value added tax;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation  C-7/20 — 1 
Case C-7/20 
Request for a preliminary ruling 
Date lodged: 
9 January 2020 
Referring court: 
Finanzgericht Düsseldorf (Germany) 
Date of the decision to refer: 
11 December 2019 
Applicant: 
VS 
Defendant: 
Hauptzollamt Münster 
  
FINANZGERICHT DÜSSELDORF (FINANCE COURT, DÜSSELDORF) 
ORDER 
In the case of 
VS 
applicant    
[...] 
v     Hauptzollamt Münster [...] 
defendant   
concerning customs duties and import turnover tax 
the Fourth Chamber [...] 
[composition of the Chamber] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2019 — CASE C-7/20 
 
2  
made the following order on 11 December 2019: 
1. The proceedings are stayed. 
2. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the second subparagraph of 
Article 267 of the Treaty on the Functioning of the European Union: [Or. 2] 
Is the second subparagraph of Article 71(1) of Council Directive 
2006/112/EC of 28 November 2006 on the common system of value added 
tax to be interpreted as meaning that Article 87(4) of Regulation (EU) 
No 952/2013 of the European Parliament and of the Council of 9 October 
2013 establishing the EU Customs Code can be applied mutatis mutandis to 
the recovery of VAT (import turnover tax)?  
No appeal lies against this order. [Or. 3] 
Grounds: 
I. 
1. The applicant is resident in Germany. In October 2017, he brought his car with 
official Turkish registration plates from Turkey through Bulgaria, Serbia, Hungary 
and Austria to Germany without transporting and presenting the car to a customs 
office. The importation of the car was discovered in Germany during a police 
check on 26 February 2018. In March 2018, the applicant drove the car back to 
Turkey and sold it there. 
2. The defendant, the Hauptzollamt (Principal Customs Office, ‘the HZA’), levied an 
import duty of EUR 1 589 and import turnover tax of EUR 3 321.01 against the 
applicant. It took the view that the applicant had unlawfully imported the car into 
the customs territory of the European Union. Following an unsuccessful 
complaint, the applicant brought an action before the Finanzgericht (Finance 
Court).  
3. The applicant takes the view that there is no importation subject to duty because 
he used the car for a short period exclusively as a means of transport for purely 
private journeys. The applicant submits that there was an implied placing of the 
car under the customs procedure for temporary importation. 
4. The HZA takes the view, however, that a customs debt on import was incurred 
under Article 79(1)(a) of Regulation (EU) No 952/2013 of the European 
Parliament and of the Council of 9 October 2013 laying down the Union Customs 
Code (‘the UCC’, OJ L 269, p. 1) and that it was competent to assess the import 
duty in accordance with Article 87(4) of the UCC. Under Paragraph 21(2) of the 
German Umsatzsteuergesetz (Law on turnover tax, ‘the UStG’), as amended on 
21 February 2005 (Bundesgesetzblatt I 2005, 386), those provisions can be 
applied mutatis mutandis to the recovery of turnover tax on imports (VAT). 
VS 
 
3 
II. 
5. The resolution of the dispute depends — without prejudice to additional legal 
issues in relation to which the Chamber does not require clarification — on 
whether Article 87(4) of the UCC can be applied mutatis mutandis to turnover tax 
on imports (VAT). [Or. 4] 
6. By importing the car into the customs territory of the Union, the applicant failed 
to fulfil his customs law obligations, in particular the obligation to convey the 
goods to the customs office (Article 135(1) of the UCC) and to present them to 
customs (Article 139(1) of the UCC). A customs debt on import was therefore 
incurred pursuant to Article 79(1)(a) of the UCC. The applicant is a debtor under 
Article 79(3)(a) of the UCC.  
7. It is not the case that an implied declaration of the car for temporary importation 
was made by going through a customs office, pursuant to Article 141(1)(b) of 
Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 
supplementing Regulation (EU) No 952/2013 of the European Parliament and of 
the Council as regards detailed rules concerning certain provisions of the Union 
Customs Code (‘the Delegated Regulation’, OJ L 343, p. 1), on the basis of which 
the car could be deemed to have been conveyed and presented, pursuant to 
Article 218(a) of Commission Implementing Regulation (EU) 2015/2447 of 
24 November 2015 laying down detailed rules for implementing certain 
provisions of Regulation (EU) No 952/2013 of the European Parliament and of the 
Council laying down the Union Customs Code (‘the UCC Implementing 
Regulation’, OJ L 343, p. 558). This is because, under Article 219 of the UCC 
Implementing Regulation, the declaration (customs declaration) is considered not 
to have been lodged if the goods brought in do not meet the conditions as referred 
to in Articles 138, 139 and 140 of the Delegated Regulation. Pursuant to 
Article 139(1) in conjunction with Article 136(1)(a) of the Delegated Regulation, 
customs declarations for, inter alia, temporary admission can be lodged in respect 
of means of transport under Articles 208-212 of the Delegated Regulation. Under 
Article 250(2)(d) of the UCC in conjunction with Article 212(3)(a) of the 
Delegated Regulation, total relief from import duty in the case of temporary 
admission of means of transport is granted only if the means of transport are 
registered outside the customs territory of the Union in the name of a person 
established outside that territory. The applicant, however, is established in the 
customs territory of the Union since he is resident in Germany (see 
Article 5(31)(a) of the UCC). 
8. The objections raised by the applicant to a customs debt on import having been 
incurred are irrelevant. The Chamber does not consider that the points of law 
raised by the applicant in that context require clarification since there can be no 
question of applying, by analogy, the provisions on temporary admission to [Or. 
5] persons established in the customs territory of the Union. It follows from 
Article 250(2)(c) of the UCC that the temporary admission procedure may only be 
used if the holder of the procedure is established outside the customs territory of 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2019 — CASE C-7/20 
 
4  
the Union, unless an exception applies. The relevant exceptions can be found in 
Article 214 et seq. of the Delegated Regulation, and none of the conditions for an 
exception to apply are met in the present case. In view of those detailed and 
differentiated provisions, there is no unintended regulatory gap, which is a 
prerequisite for an application by analogy.  
9. The customs debt was deemed to have been incurred in Germany pursuant to 
Article 87(4) of the UCC, because the customs authorities in Germany had 
established that the customs debt had been incurred under Article 79 of the UCC 
in another Member State, namely Bulgaria, and the amount of the duty 
corresponding to that debt was lower than EUR 10 000. 
10. Clarification is sought as to whether, by applying the scheme of Article 87(4) of 
the UCC mutatis mutandis, VAT was also deemed to have been incurred in 
Germany. 
11.  The importation of goods is subject to VAT under Article 2(1)(d) of Council 
Directive 2006/112/EC of 28 November 2006 on the common system of value 
added tax (‘the VAT Directive’, OJ L 347, p. 1). Under the first paragraph of 
Article 30 of the VAT Directive, ‘importation of goods’ means the entry into the 
Community of goods which are not in free circulation. 
12. Under Article 60 of the VAT Directive, the place of importation is the Member 
State within whose territory the goods are located when they enter the Union. By 
way of derogation therefrom, the first paragraph of Article 61 of the VAT 
Directive states that, where, on entry into the Union, goods which are not in free 
circulation are placed under one of the arrangements or situations referred to in 
Article 156 of the VAT Directive, or under temporary importation arrangements 
with total exemption from import duty, or under external transit arrangements, the 
place of importation of such goods shall be the Member State within whose 
territory the goods cease to be covered by those arrangements or situations. [Or. 
6] 
13. Under Article 70 of the VAT Directive, the chargeable event occurs and the tax 
becomes chargeable at the time of importation. Pursuant to the second 
subparagraph of Article 71(1) of the VAT Directive, where imported goods are 
subject to customs duties, the chargeable event occurs and VAT becomes 
chargeable when the chargeable event in respect of those duties occurs and those 
duties become chargeable.  
14. The importation of goods into Germany [...] is subject to turnover tax (import 
turnover tax) under Paragraph 1(4) of the UStG. Pursuant to Paragraph 21(2) of 
the UStG, the provisions on customs duties apply mutatis mutandis to import 
turnover tax — with certain exceptions which are not relevant to the present 
dispute. 
15. Paragraph 21(2) of the UStG, in conjunction with Article 79(1)(a) of the UCC, 
could be interpreted to mean that the liability to import turnover tax, like the 
VS 
 
5 
customs debt on import, is deemed to have been incurred in Germany if, as in the 
present case, the conditions of Article 87(4) of the UCC are also met in relation to 
the import turnover tax. 
16. In principle, the conditions for incurring a VAT liability are met. It is true that, 
according to the case-law of the Court of Justice on Articles 30, 60 and 61 of the 
VAT Directive, not every infringement of customs obligations which gives rise to 
a customs debt gives rise to a VAT liability. However, there is a requirement to 
pay VAT where, based on the particular unlawful conduct, it can be presumed that 
the goods brought into the territory of the Union entered the economic network of 
the Union and, consequently, that they may have undergone consumption, that is, 
the act on which VAT is levied (judgments of 2 June 2016, Eurogate Distribution, 
C-226/14 and C-228/14, EU:C:2016:405, paragraph 65; of 1 June 2017, 
Wallenborn Transports, C-571/15, EU:C:2017:417, paragraph 54; and of 10 July 
2019, Federal Express, C-26/18, EU:C:2019:579, paragraph 44). Notwithstanding 
the subsequent re-exportation of the car from the customs territory of the Union, 
in the present dispute the car was initially used in the territory of the Union for 
several months and therefore entered the economic network of the Union and was 
not subject to any customs procedure during that period. 
17. Therefore, resolution of the dispute depends on whether, based on the application 
mutatis mutandis of the customs provisions laid down in Paragraph 21(2) of the 
UStG [Or. 7] to import turnover tax, VAT on the importation was also deemed to 
have been incurred in Germany under Article 87(4) of the UCC, although the 
importation into the customs territory of the Union took place in Bulgaria. If, 
however, it is not possible to apply Article 87(4) of the UCC mutatis mutandis to 
VAT, the German customs authorities would not be competent to assess the 
VAT. In that regard, the action should be upheld as regards VAT. 
18. According to settled case-law of the Bundesfinanzhof (Federal Finance Court, ‘the 
BFH’), the second subparagraph of Article 71(1) of the VAT Directive 
establishes, in relation to importation, a close link between the law on turnover tax 
and customs legislation, which has been transposed into national law by 
Paragraph 21(2) of the UStG. The BFH concludes that Article 215(4) of Council 
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community 
Customs Code (OJ L 302, p. 1), which corresponds to Article 87(4) of the UCC, 
applies mutatis mutandis to the determination of competence for the recovery of 
VAT. This is intended to ensure that duties to be levied on imports can be 
collected simply and expediently by one and the same authority [...] [citation of 
relevant judgments of the BFH]. 
19. The Chamber has doubts about that interpretation of the VAT Directive because 
the competence to recover customs duty, excise duty and VAT must be analysed 
separately (judgment of 29 April 2010, Dansk Transport og Logistik, C-230/08, 
EU:C:2010:231, paragraph 102). The Chamber considers that there are matters 
which militate against the application mutatis mutandis of Article 87(4) of the 
UCC to VAT, namely that Articles 70 and 71 of the VAT Directive govern solely 
REQUEST FOR A PRELIMINARY RULING OF 11. 12. 2019 — CASE C-7/20 
 
6  
the question of when the tax on import is incurred and not also the place of 
importation (Articles 60 and 61 of the UCC) and that no provision which 
derogates from Union law relating to the place of importation or the competence 
of the authorities to assess VAT may be derived from Paragraph 21(2) of the 
UStG, as a rule of national law. 
[...] [Names of the judges involved in the decision]