Opinion of the Advocate General — ECLI:EU:C:2016:76
Date: 2016-02-04
Language of the case: Hungarian
Subject matter: Accession;Taxation;Free movement of goods;Principles, objectives and tasks of the Treaties;Approximation of laws;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary notification and regular presentation, and held that the obligation to present was infringed, ‘when the presentation … is accompanied by the lodging of a summary declaration or of a customs declaration which gives a description of the type of goods which bears no relation to reality’. (45) 122. This relationship is expressly provided for by Article 186(1) of Regulation No 2454/93 (‘CC Implementation Regulation’). (46) It provides that non-Community goods presented to customs shall be covered by a summary declaration for temporary storage, to be provided at the latest at the time of presentation. 123. By contrast with the case of Papismedov, however, the false description (‘cookware’ instead of ‘cookware and cigarettes’) did not in the present case mislead as regards the true nature of a large part of the goods. In the present case, as regards a large part of the goods there was no complete failure in the notification of their arrival at the customs office. It is only the declaration of CN subheading 2401 10 35 that contradicts the actual facts, given that the goods are in truth to be classified under CN subheading 2403 10 90. 124. Therefore, against this background the issue is whether the substantively incorrect statement of the tariff heading in a summary declaration for temporary storage in itself means that the goods are to be regarded as not having been presented, and that a customs and excise duty debt could thus arise. 125. A summary declaration in relation to temporary storage is different as regards both content and purpose from a summary declaration relating to introduction, which is required to be made by Article 36a CC prior to the introduction of the goods into the customs territory, and from a customs declaration under Article 59 CC. 126. Whereas the Customs Code and its implementation provisions require specific CN details to be given for entry and customs declaration, Article 186(1)(a) CCIP does not require the same for a summary declaration for temporary storage, but only that the customs authorities make provision for the details. For example, form 0306 issued by the German customs authorities does not contain any requirement to give the CN tariff heading. 127. That matters cannot depend on the provision of the correct CN heading in the context of a summary declaration relating to temporary storage corresponds also to the purpose of the provisions governing it. 128. A summary declaration relating to temporary storage is intended to enable the customs authorities to verify whether the goods are assigned a customs-approved treatment within the applicable time limit, (47) and whether the goods which are temporarily stored are in fact being stored only at the places specified and under the conditions laid down therefor. 129. It follows from this purpose that the incorrect statement of the tariff heading need not in itself preclude a valid presentation, provided that the goods are in essence correctly described in terms of their nature, the quantity of goods is correct, and the details as regards the packaging of the goods correspond to the facts. The question as to whether the details are sufficient in that regard does not depend on the correct statement of the relevant chapter of the CN. This is because the Combined Nomenclature sometimes includes goods of very different types within the same chapter. For example, Chapter 24, which is applicable in the present case, applies not only for tobacco refuse but also for cigars. Whether a description of the goods for the purposes of presentation and temporary storage is to be regarded as in essence correct must instead be assessed by reference to whether the details which are given as a whole enable an unambiguous attribution of the goods to the declaration. 130. On the basis of the information available to the Court, it appears that on the facts in the main proceedings this was the case in relation to the presentation of the goods; but this is a matter to be assessed by the national court. 131. In the absence of an infringement within the meaning of Article 202 CC, on their entry into Slovenia the goods in question would have been validly placed in a suspensive procedure under Article 4(6) of Directive 2008/118, so that importation occurred in terms of Article 2(b) of that directive and no liability to excise duty arose. 132. However, there remains to be discussed whether, despite the incorrect tariff heading being stated, the goods which were stored temporarily were subsequently validly placed in external transit and were properly placed in customs warehousing in Hungary, and again no liability to excise duty thereby arose under Article 4(8) of Directive 2008/118. ii) Placing in external transit or customs warehousing 133. Article 59(1) CC provides that all goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure. Within the framework of this declaration, the tariff heading of the goods, together with the correct subheading, is to be declared. (48) This applies equally for external transit and customs warehousing. The provision of an incorrect tariff heading infringes this obligation. 134. However, it is to be observed that cases such as the present concern placing goods into a suspensive procedure, i.e. the question is whether importation duties are to be paid at all, and not the amount of such duties. In principle, all non-Community goods can be placed in external transit or customs warehousing without this depending on their tariff heading. 135. In addition there must be taken into account that the tariff legislation is complex and depends not only on facts but also on legal evaluations. The correct interpretation and application of the heading in the Combined Nomenclature is regularly the subject of legal disputes and judicial decisions, as the present case indeed demonstrates. Not every error which occurs in that regard must needs be serious. 136. In the present case, the goods were indeed incorrectly classified, but were not attributed with a CN heading that was completely alien to their nature. The heading given to them and the actual heading have broadly comparable characteristics. Even if one may expect a certain expertise in tariff classification of goods from transport and logistics undertakings such as Schenker, the present case does not involve an obviously and completely divergent mistaken classification. 137. Nor does the possibility available in principle of applying in advance to the customs authorities for a binding tariff information under Article 12(1) CC and giving the goods a corresponding designation mean that every incorrect classification must give rise to a customs debt. Otherwise, Article 12 CC would result in goods transporters being forced even by the least uncertainty to make such an application. This would not be practicable for either the carrier or the customs authorities, as was indicated at the oral hearing, and would in addition be inconsistent with the purposes of Article 12 CC, which is primarily intended to provide an optional means of assistance to improve certainty as regards the customs treatment of goods by the customs authority. 138. In addition, Article 65 CC, which enables errors in customs declarations to be corrected, would be largely devoid of purpose if merely providing an incorrect tariff heading in a customs declaration automatically gave rise to a customs debt. 139. Accordingly, ultimately it does not appear justified to punish the provision of an incorrect tariff heading in a declaration relating to external transit or customs warehousing with the creation of a customs debt, provided that the goods are described essentially correctly. 140. Even if the decision in this regard is for the national court, the available information indicates that the infringement was not sufficiently serious. (49) In that case, suspensive effect pursuant to Article 4(8) of Directive 2008/118 continued during the introduction, and during storage in Hungary. In the absence of any ‘importation’ within the meaning of Article 2(b) of that directive, it would follow that no liability to excise duty arose. 3. Result as regards the second and third questions 141. On the basis of the foregoing, the answer to be given to the second and third question is that given that, from the time of their entry into the territory of the Union, the disputed goods were subject to customs supervision which counted as a ‘suspensive procedure’ within the meaning of Article 4(6) of Directive 2008/118, in the absence of their importation within the meaning of Article 4(8) of that directive they did not become liable to excise duty under Article 2(b) thereof, and despite the incorrect details in the accompanying documents no liability to excise duty arose. Article 4(6) of Directive 2008/118 is to be interpreted as meaning that notwithstanding the provision of an incorrect tariff heading goods may be regarded as having been placed in temporary storage, external transit or customs warehousing, and thus as in a ‘customs suspensive procedure or arrangement’, provided that the goods have been in essence correctly described in terms of their nature, and the quantity of goods as well as the details as regards their packaging correspond to the actual facts. If this is the case, then in the absence of importation within the meaning of Article 4(8) they have not become liable to excise duty pursuant to Article 2(b) of Directive 2008/118. C – The fourth question 142. By its fourth question the national court asks, in essence, whether, for the purposes of Article 38 of Directive 2008/118, the term ‘irregularity’ is to be interpreted as encompassing cases in which goods have been given an incorrect tariff heading in the documents accompanying them. 143. By contrast with Articles 2 and 7, Article 38 of Directive 2008/118 does not govern the occurrence of a liability to excise duty but resolves potential conflicts between different Member States as regards taxing power in relation to excise duty. Therefore, the interpretation of the term ‘irregularity’ is important only for the question as to which Member State has the power to levy excise duty, and not as regards the question of whether a liability to excise duty has arisen. 144. Article 38(1) of Directive 2008/118 provides that where an irregularity has occurred during a movement of excise goods in a Member State other than the Member State in which they were released for consumption, they shall be subject to excise duty and excise duty shall be chargeable in the Member State where the irregularity occurred. 145. In that connection, Article 38(4) of Directive 2008/118 defines ‘irregularity’ as a situation occurring during a movement of excise goods under Article 33(1) or Article 36(1), not covered by Article 37, (50) due to which a movement of excise goods has not duly ended. (51) 146. For the purposes of Directive 2008/118, there is a transport of excise goods if goods which have already been released for consumption in one Member State are held for commercial purposes (52) in another Member State in order to be delivered or used there, or are purchased from another Member State and are dispatched or transported by the seller to there. 147. So far as the facts of the present case are concerned, the requirements of Article 38(4) of Directive 2008/118 are not satisfied. 148. In the first place, the goods were not released for consumption in Slovenia, but were in a suspensive procedure. Second, Schenker had not held the goods for commercial purposes in Hungary in order to be delivered or used there within the meaning of Article 33 of Directive 2008/118, but intended to transport them onwards to the Ukraine. 149. Accordingly, ultimately one must agree with the Commission, Hungary and Schenker that the provision of an incorrect tariff heading in the present circumstances does not result in an irregularity falling within Article 38 of Directive 2008/118. VI – Conclusion 150. In the light of all the foregoing, I propose that the Court answer the questions referred as follows: Goods which may be used as smoking tobacco without further processing, such as those in dispute in the main proceedings, are not to be regarded as ‘‘light air-cured’ tobacco’ within CN subheading 2401 10 35 of the Combined Nomenclature, but, if they do not essentially consist of tobacco refuse, they are to be regarded as ‘other manufactured tobacco’ and classified under CN heading 2403. Furthermore, if the goods are loose, pressed, and packaged in plastic-wrapped cartons of a net weight of 30 kg, they are to be classified under CN subheading 2403 10 90. Given that, from the time of their entry into the territory of the Union, the disputed goods were subject to customs supervision which counted as a ‘suspensive procedure’ within the meaning of Article 34(6) of Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC, in the absence of their importation within the meaning of Article 4(8) of that directive they did not become liable to excise duty under Article 2(b) thereof, and despite the incorrect details in the accompanying documents no liability to excise duty arose. Article 4(6) of Directive 2008/118 is to be interpreted as meaning that notwithstanding the provision of an incorrect tariff heading goods may be regarded as having been placed in temporary storage, external transit or customs warehousing, and thus as in a ‘customs suspensive procedure or arrangement’, provided that the goods have been in essence correctly described in terms of their nature, and the quantity of goods as well as the details as regards their packaging correspond to the actual facts. If this is the case, then in the absence of importation within the meaning of Article 4(8) the goods have not become liable to excise duty pursuant to Article 2(b) of Directive 2008/118. The provision of an incorrect tariff heading in the present circumstances does not result in an irregularity falling within Article 38 of Directive 2008/118. 1 – Original language: German. 2 – Administrative and Employment Court, Debrecen. 3 – Regional Finance Directorate of the National Duties and Taxes Authority for the Northern Great Plain region. 4 – OJ 1987 L 198, p. 3. 5 – See the Final Provisions of the International Convention on the Harmonised Commodity Description and Coding System, OJ 1987 L 198, p. 9: ‘Done … in the English and French languages, both texts being equally authentic …’. 6 – Because the law in force as at spring 2011, when the goods entered the territory of the Union, is applicable, the relevant version of the Explanatory Notes is the version in force in 2007 and not in 2012. 7 – Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1997 L 256, p. 1), as amended by Commission Regulation (EU) No 861/2010 of 5 October 2010 (OJ 2010 L 284, p. 1). 8 – Pursuant to Article 2 of Regulation No 861/2010, the version in question entered into force on 1 January 2011, and this version is the relevant one for the decision on the law in the present case. 9 – Explanatory Notes to the Combined Nomenclature of the European Union (2011/C 137/01), publication made in accordance with Article 9(1) of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 C 137, p. 1). 10 – Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1). 11 – Regulation (EC) No 450/2008 of the European Parliament and the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1) is not relevant to the decision on the legal issues as at the material time for the decision. Admittedly, Article 188(1) of this regulation refers to provisions in force from 24 June 2008. However, these are merely the legal bases for the implementing provisions. With the exception of Article 30 concerning charges and costs, Article 188(2) provides that all other provisions shall be applicable only once the implementing provisions adopted on the basis of the articles referred to in paragraph 1 are applicable. As at the material time in the present case (January 2011), this was not the case. 12 – Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2008 L 9, p. 12), as amended by Council Directive 2010/12/EU of 16 February 2010 amending Directives 92/79/EEC, 92/80/EEC and 95/59/EC on the structure and rates of excise duty applied on manufactured tobacco and Directive 2008/118 (OJ 2010 L 50, p. 1). 13 – Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ 2011 L 176, p. 24). In terms of Article 22, it entered into force on 1 January 2011. 14 – Judgments in Lohmann and Medi Bayreuth, C‑260/00 to C‑263/00, EU:C:2002:637, paragraph 26, and Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraphs 27 and 28. 15 – Judgments in Krüger, C‑334/95, EU:C:1997:378, paragraphs 22 and 23; Byankov, C‑249/11, EU:C:2012:608, paragraph 57; and Lukoyl Neftohim Burgas, C‑330/13, EU:C:2014:1757, paragraph 29. 16 – See my Opinions in Ikegami Electronics, C‑467/03, EU:C:2005:49, points 31 to 36; Algemene Scheeps Agentuur Dordrecht, C‑311/04, EU:C:2005:595, points 27, 28 and 35; Uroplasty, C‑514/04, EU:C:2006:56, points 42 to 44; and Turbon International, C‑250/05, EU:C:2006:384, points 38 and 40. 17 – See judgments in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4; LTM, C‑201/96, EU:C:1997:523, paragraph 17; and Glob-Sped, C‑328/97, EU:C:1998:601, paragraph 26. 18 – Judgment in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4. 19 – See my Opinion in Ikegami Electronics, C‑467/03, EU:C:2005:49, point 35. 20 – In the original Hungarian, the expert report uses the term ‘dohányzásra kész dohány’. 21 – This applies also as regards the terms ‘Tabacs bruts ou non fabriqués’ and ‘unmanufactured tobacco’ in the corresponding headings in the authoritative versions of the HS. 22 – Emphasis added. 23– Emphasis added. 24 – In regard to this cross-check, see judgment in Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4. 25 – Number 2 of the Explanatory Notes to the HS (explanatory notes on CN subheading 2401 30 00). 26– Emphasis added. 27– CN heading 2402 is not a possibility. Its wording (‘cigars, cheroots, cigarillos and cigarettes …’) and the Explanatory Notes to the CN make it clear that it covers only, ‘rolls of tobacco, which can be smoked as they are’, and thus not loose tobacco without any cover or wrapper, as is the case in the main proceedings. For that reason, a detailed consideration of this heading is not necessary. 28 – The original proposal for Directive 2011/64 provided for complete harmonisation of excise duty rates for tobacco goods. In the event, the directive restricted itself to setting minimum rates. 29 – Directive 2011/64 brings together Directives 95/59, 92/79 and 92/80, which are mentioned in the wording of Article 1(1)(c) of Directive 2008/118. 30 – See Article 1 and Article 2(1)(c)(i) in conjunction with Article 5(1)(a) and (2) of Directive 2011/64. 31 – There is no indication that the goods in question were ‘released’ from customs supervision, or from external transit or customs warehousing. Thus, it depends solely on the question whether the goods were placed in a customs suspensive procedure or arrangement. 32 – The definition which is relevant in the present case is worded more broadly than that in the Customs Code, which classifies as suspensive procedures only the procedures within Article 84(1)(a) CC. 33 – See section D.II.2.4 of its written submissions. 34 – Judgment in Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 22. 35 – Judgment in Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 21. 36 – In particular, the goods did not change their status, as in terms of Article 79 CC this requires release for free circulation under customs law, which depends inter alia on the correct importation duties having been paid. On this point, see judgment in D. Wandel, C‑66/99, EU:C:2001:69, paragraph 36. 37 – On this point, see my Opinion in Papsidemov and Others, C‑195/03, EU:C:2004:572, point 38. 38 – See for example the formulations, ‘any one of the special procedures’, ‘l’un des régimes spéciaux’, ‘vastgestelde bijzondere procedure’, ‘una delle procedure speciali’, ‘um dos procedimentos especiais’. 39 – ‘“[R]égimen aduanero suspensivo”: cualquiera de los regímenes previstos en el Reglamento (CEE) no 2913/92 en relación con el control aduanero del que su objeto las mercancías no comunitarias en el momento de su introducción en el territorio aduanero de la Comunidad, en depósitos temporales …’. 40 – Article 4(2) of Commission proposal for a Council directive concerning the general arrangements for excise duty, as at 26 February 2008 (COM(2008) 78 final). 41 – Article 50 CC. According to Article 4(19) CC ‘presentation’ means the notification to the customs authorities, in the manner laid down, of the arrival of goods at the customs office or at any other place designated or approved by the customs authorities. 42– Emphasis added. 43 – The intention to avoid duplication of procedures is also apparent from the Explanatory Memorandum for the Commission’s proposal for Directive 2008/118: see p. 6 of the Explanatory Memorandum of the Commission’s proposal for a Council directive concerning the general arrangements for excise duty, as at 26 February 2008. 44 – The provision refers to temporary storage, free zones, free warehouses, and arrangements under Article 84(1) of the Regulation. 45 – Judgment in Papismedov and Others, C-195/03, EU:C:2005:131, paragraph 31. 46 – 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 (EU) No 1063/2010 of 18 November 2010 (OJ 2010 L 307, p. 1). 47 – Article 186(7) CCIP. 48 – Judgment in DP grup EOOD, C‑138/10, EU:C:2011:587, paragraph 40, under reference to judgment in Top Hitz Holzvertrieb v Commission, 378/87, EU:C:1989:209, paragraph 26. 49 – In that regard see points 134 to 137 of this Opinion. 50 – Article 37 of Directive 2008/118 encompasses cases of total destruction and irretrievable loss. 51 – Article 10(6) of Directive 2008/118, which defines ‘irregularity’ in the context of duty suspension arrangements. 52 – Article 33(1) provides that ‘holding for commercial purposes’ means inter alia the holding of excise goods by a person other than a private individual.