Judgment;Information — ECLI:EU:C:2021:90
Date: 2021-02-03
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-92/20 – 1 
Case C-92/20 
Request for a preliminary ruling 
Date lodged: 
25 February 2020 
Referring court: 
Finanzgericht Düsseldorf (Germany) 
Date of the decision to refer: 
5 February 2020 
Applicant: 
Rottendorf Pharma GmbH 
Defendant: 
Hauptzollamt Bielefeld 
  
FINANZGERICHT DÜSSELDORF (Finance Court, Düsseldorf) 
ORDER 
In the case 
Rottendorf Pharma GmbH, […] 
– Applicant – 
[…] 
v 
Hauptzollamt Bielefeld (Main Customs Office, Bielefeld) […] 
– Defendant – 
in the matter of     duty 
the 4th Chamber […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2020 – CASE C-92/20 
 
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made the following order following the hearing on 5 February 2020: 
The proceedings are stayed. 
The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the second paragraph of 
Article 267 of the Treaty on the Functioning of the European Union: [Or. 2] 
Is the second indent of Article 239(1) of Council Regulation (EEC) 
No 2913/92 of 12 October 1992 establishing the Community Customs Code 
to be interpreted as meaning that, in a case such as that in the main 
proceedings, in which the non-Community goods imported by the person 
concerned were re-exported from the Community customs area and the 
circumstances that gave rise to the customs debt may not be attributed to 
obvious negligence on the part of the person concerned, the duty may be 
repaid? 
This order is not open to appeal. 
 
Grounds:  
I. 
1. The applicant manufactures and distributes medicinal products. In October 2008, 
the defendant Main Customs Office granted the applicant authorisation to export 
Community goods as an approved exporter. 
2. In December 2014, the applicant declared 12.5 kg of ertugliflozin imported from 
the USA and intended for use in the manufacture of a medicinal product to the 
defendant Main Customs Office for release for free circulation. The defendant 
Main Customs Office accepted the customs declarations and charged the applicant 
duty of EUR 181 491.82, whereupon the applicant’s employee responsible for the 
import then marked the imported ertugliflozin as Community goods in the 
applicant’s data processing system, using the code ‘IM’. 
3. The applicant subsequently decided to process the imported ertugliflozin in an 
inward-processing procedure. It therefore asked the defendant Main Customs 
Office to grant it the necessary authorisation with retroactive effect. The defendant 
Main Customs Office granted the applicant authorisation with retroactive effect 
from 1 December 2014 for inward processing in the suspension system for the 
manufacture of medicinal products using the [Or. 3] imported ertugliflozin and 
declared the customs declarations accepted for release for free circulation to be 
null and void. It then advised the applicant that, in order to end inward processing, 
the processed products had to be presented to the Zollamt Beckum (Customs 
Office, Beckum) and either re-exported from the Community customs area under 
procedure code 3151 or placed under another customs procedure. 
ROTTENDORF PHARMA 
 
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4. As the customs declarations for release for free circulation had been declared null 
and void, the defendant Main Customs Office repaid the duty charged to the 
applicant. 
5. In March and April 2015, the applicant exported a total of 219 361 kg of 
medicinal products manufactured using the ertugliflozin and 4.31 kg of 
unprocessed ertugliflozin from the Community customs area to the USA. It 
declared the export of the processed products and the ertugliflozin under its 
authorisation as an approved exporter using procedure codes 1000 and 1041, as 
the employee responsible for handling the imports had omitted to mark the 
ertugliflozin as non-Community goods in its data processing system after the 
customs declarations for release for free circulation had been declared null and 
void. As a result, the processed products exported by the applicant and the 
ertugliflozin were not presented to the Customs Office, Beckum. 
6. The defendant Main Customs Office charged the applicant duty of 
EUR 179 241.32, as the applicant had removed the ertugliflozin and the processed 
products from customs supervision. 
7. The applicant submitted an objection to this. It also requested that the duty 
charged be repaid. It argued that it had mistakenly used the wrong procedure code 
for the initial inward-processing procedure, and that the goods had in fact been re-
exported and had therefore not entered the Community economic circuit. 
8. The defendant Main Customs Office dismissed the objection to the duty charged 
as unfounded. The Chamber dismissed the action subsequently brought by the 
applicant [Or. 4] by what is now a final judgment. It found that the customs debt 
had been incurred pursuant to Article 203(1) of Council Regulation (EEC) 
No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 
1992 L 302, p. 1) (‘the Customs Code’); that, as the procedure codes used had 
been those provided for the export of Community goods (1000 or 1041), rather 
than procedure code 3151, the processed products exported to the USA and the 
unprocessed ertugliflozin had been wrongly recognised as Community goods for 
customs purposes; that, although the export declarations submitted by the 
applicant with the incorrect procedure codes 1000 and 1041 could be corrected in 
application of Article 78(3) of the Customs Code as the applicant intended to 
declare re-exportation of non-Community goods following inward processing and 
the processed products and the ertugliflozin had been re-exported from the 
Community customs area, that did not change the fact that the non-Community 
goods were not presented to the Customs Office, Beckum prior to their actual re-
exportation from the Community customs area, in breach of the authorisation 
granted; and that the actual re-exportation of the processed products and the 
ertugliflozin from the Community customs area did not prevent the customs debt 
from being incurred and did not result in the extinction of the customs debt. 
9. The defendant Main Customs Office then refused to repay the duty in application 
of Article 239 of the Customs Code. It argued that the applicant had displayed 
REQUEST FOR A PRELIMINARY RULING OF 5. 2. 2020 – CASE C-92/20 
 
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obvious negligence; that it could have avoided using the incorrect procedure code, 
which ultimately resulted in its incurring the customs debt, by simply reading the 
authorisations granted to it; that it had also been advised to use the correct 
procedure code; that no special circumstances existed; and that there had been no 
exceptional circumstances in the applicant’s case, as compared to other traders. 
10. After its objection was dismissed, the applicant brought an action, by which it 
argues that the re-exportation of the non-Community goods is a special 
circumstance, and that the cause of the customs debt incurred, that is the input 
error, could not have been avoided by reading the authorisations. [Or. 5] 
11. The defendant Main Customs Office argues that an error on the part of one of the 
applicant’s employees when entering the procedure code cannot be regarded as a 
special circumstance; that, furthermore, obvious negligence had been displayed; 
and that, precisely because the relevant provisions are so complex, the applicant’s 
employee should have taken note of the terms of the authorisations. 
II. 
12. A decision in this dispute depends on the interpretation of the second indent of 
Article 239(1) of the Customs Code. 
13. Special circumstances within the meaning of the second indent of Article 239(1) 
of the Customs Code may exist in the main proceedings. Generally speaking, 
special circumstances apply where the trader was in an exceptional situation 
compared to other traders, or where the relationship between the trader and the 
administration is such that it would have been inequitable to allow the trader to 
bear a loss which he normally would not have incurred (judgment of 29 April 
2004, C-222/01, EU:C:2004:250, paragraphs 63 and 64). 
14. The applicant may have been in an exceptional situation. The Court held in its 
judgment of 12 February 2004, C-337/01, EU:C:2004:90, paragraphs 34 and 35, 
that, although the re-exportation of non-Community goods does not preclude the 
conclusion that a customs debt has been incurred on the basis of Article 203(1) of 
the Customs Code, it is for the referring court to ascertain whether the conditions 
for repayment of import duty, as laid down in Article 239(1) of the Customs Code, 
are met. Advocate General Tizzano stated in his Opinion of 12 June 2003, 
C-337/01, EU:C:2003:344, point 68, that the complexity of the provisions 
applicable to the facts in that case and the experience of the traders justified the 
conclusion that it was a special situation in which repayment of the duty might be 
considered in accordance with Article 239 of the Customs Code. 
15. The facts in the main proceedings were complex in view of the way in which the 
applicant was granted authorisation for inward processing with [Or. 6] retroactive 
effect. Prior to that, it had simply been granted authorisation in October 2008 to 
export Community goods as an approved exporter. Nonetheless, it submitted 
export declarations for the processed products and the ertugliflozin to the 
responsible Customs Office, Beckum. However, due to the input error made by 
ROTTENDORF PHARMA 
 
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one of its employees, it used the wrong procedure code, as a result of which the 
non-Community goods were not presented prior to their re-exportation. 
16. In the light of the statements made by the Court in its judgment of 12 February 
2004, C-337/01, EU:C:2004:90, paragraphs 34 and 35, and by Advocate General 
Tizzano in his Opinion of 12 June 2003, C-337/01, EU:C:2003:344, point 68, the 
Chamber considers it possible, therefore, that special circumstances for the 
purposes of the second indent of Article 239(1) of the Customs Code might also 
exist in the main proceedings. That may also be borne out by the rules laid down 
in Article 900(1)(e) and (f) of Commission Regulation (EEC) No 2454/93 of 
2 July 1993 laying down provisions for the implementation of Council Regulation 
(EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 
1. 
17. The Chamber is of the opinion that the applicant has not displayed obvious 
negligence that would preclude repayment of the duty charged by the defendant 
Main Customs Office. In examining the question whether the person concerned 
has displayed obvious negligence, account must be taken in particular of the 
complexity of the provisions non-compliance with which resulted in the customs 
debt being incurred and the experience of, and care taken by, the trader 
(judgments of 13 September 2007, C-443/05 P, EU:C:2007:511, paragraph 174, 
and of 20 November 2008, C-38/07 P, EU:C:2008:641, paragraph 40). With 
regard to the trader’s experience, it is necessary to examine whether or not his 
business activities consist mainly in import and export transactions and whether 
he had already gained some experience in the conduct of such transactions 
(judgments of 13 September 2007, C-443/05 P, EU:C:2007:511, paragraph 188, 
and of 20 November 2008, C-38/07 P, EU:C:2008:641, paragraph 50). 
18. The provisions non-compliance with which resulted in the customs debt being 
incurred were complex. The fact that authorisation for inward processing was 
granted with retroactive effect [Or. 7] put the applicant in a complex customs 
situation. Moreover, it was not an experienced trader in terms of inward 
processing. The defendant Main Customs Office’s objection that, precisely 
because the relevant provisions are so complex, the applicant’s employees should 
have taken note of the terms of the authorisations cannot, in the opinion of the 
Chamber, justify a conclusion that the applicant displayed obvious negligence. 
Rather, it was due to an error on the part of one of the applicant’s employees that 
the goods were declared as non-Community goods under the wrong procedure 
code and not presented prior to their re-exportation. The employee responsible for 
processing imports had omitted to mark the ertugliflozin as non-Community 
goods in the applicant’s data processing system once the customs declarations for 
release for free circulation had been declared null and void. That error could not 
have been avoided by reading the authorisations. 
[Signatures] […]