Opinion of the Advocate General — ECLI:EU:C:2008:596
Date: 2008-11-04
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 1. Customs union – Incurrence of a customs debt following the unlawful introduction of goods –– Concept of unlawful introduction and moment at which it takes place – Going beyond the first customs office without having carried out customs formalities (Council Regulation No 2913/92, Arts 38(1), 40 and 202(1)) 2. Customs union – Incurrence of a customs debt following the unlawful introduction of goods – Extinction of the customs debt – Timing of the intervention for the seizure of the goods unlawfully introduced into the customs territory of the Community (European Parliament and Council Regulation No 2700/2000; Council Regulation No 2913/92, Arts 202 and 233, first para., (d)) 3. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant and hypothetical questions referred in a context precluding the possibility of a useful answer – Questions unrelated to the subject‑matter of the dispute in the main proceedings (Art. 234 EC) 1. An importation of goods constitutes an unlawful introduction into the customs territory of the Community if it does not comply with the stages laid down by Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000. First, under Article 38(1) of that code, goods brought into the customs territory of the Community must be conveyed without delay to the designated customs office or to a free zone. Secondly, under Article 40 of that code, when the goods arrive at the customs office they must be presented to customs. Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the Community within the meaning of Article 202 of the Community Customs Code where, having crossed the external land border of the Community, the goods are in that territory beyond the first customs office situated inside the customs territory of the Community, 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. Moreover, an importation of goods which takes place in those circumstances gives rise to a customs debt as against, among others, the person who carried out that importation at the very moment of the unlawful introduction, that is to say, at the time when it is undisputed that the formalities laid down in, inter alia, Articles 38 to 41 of the Customs Code have not been completed. Thus, the unlawful introduction and the incurrence of the debt occur simultaneously. (see paras 21, 26-28, operative part 1) 2. Article 202 and point (d) of the first paragraph of Article 233 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, 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 European Community must take place before those goods go beyond the first customs office situated inside that territory. The objective of the extinction of the customs debt, laid down in point (d) of the first paragraph of Article 233 of the Customs Code, is to avoid the imposition of duty in the case where the goods, although introduced unlawfully into the territory of the Community, could not have been placed on the market and therefore do not constitute a threat, in terms of competition, to Community goods. In the context of that code, the seizure and confiscation of the goods upon their unlawful introduction, laid down in point (d) of the first paragraph of Article 233 of that code, constitutes a ground for the extinction of the customs debt which must be narrowly construed, which addresses the need to protect the Community’s own resources. That constitutes an objective which may not be prejudiced by creating new grounds for the extinction of a customs debt. That is all the more necessary in relation to the determination of the moment of seizure of goods liable to lead to the extinction of the customs debt in relation to those goods. It follows that the seizure of goods introduced into the customs territory of the Community in breach of the formalities laid down in Articles 38 to 41 of the Customs Code which takes place beyond the first customs office situated inside that territory and which occurs practically at random is not capable of leading to the extinction of the customs debt for the purposes of point (d) of the first paragraph of Article 233 of the Customs Code. (see paras 29-31, 34, operative part 1) 3. It is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Nevertheless, the Court cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. That is the case where a question referred for a preliminary ruling seeks to have the Court assess the validity of a rule of Community law which is not at issue in the main proceedings, and is clearly unrelated to the subject‑matter of the dispute in the main proceedings. (see paras 40-45)