Opinion of the Advocate General — ECLI:EU:C:2011:488
Date: 2011-07-14
Language of the case: German
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the customs obligations incumbent on sellers. 61. As I indicated above, however, it is for the referring court to determine whether, in the light of the nature of the activities engaged in by Mr Jestel, the information with which he was required to make himself familiar and the factual and legal context in which those activities took place – in particular, the fact that the goods at issue were introduced in the course of postal traffic – he can be regarded as the ‘debtor of the customs debt incurred through the unlawful introduction of goods into the EU customs territory’ for the purposes of the second indent of Article 202(3) of the Customs Code. V – Conclusion 62. I therefore propose that the Court’s answer to the questions referred by the Bundesfinanzhof should be as follows: The second indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that a customs debt arising from participation in the unlawful introduction of goods into the customs territory of the European Union is payable by a person who, without being directly involved in the introduction of the goods, participated in that introduction by acting as intermediary in the conclusion of the contracts of sale relating to those goods, where it is established that, in the light of the information to which that person had or could have had access under normal circumstances, there is a sufficient degree of probability that he acted knowingly. To that end, it is for the competent national authorities and competent national courts to evaluate and weigh the various relevant factors at their disposal in compliance with the rules governing the taking of evidence in comparable situations and consistently with the principles of equivalence and effectiveness. 2 – Original language: French. 3 – 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 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’). 4 – See, in particular, Joined Cases C‑238/02 and C‑246/02 Viluckas and Jonusas [2004] ECR I‑2141; Case C-414/02 Spedition Ulustrans [2004] ECR I-8633; and Case C-195/03 Papismedov and Others [2005] ECR I-1667. 5 – As, for example, the European Economic and Social Committee noted in its opinion on the Proposal for a Regulation (EC) of the European Parliament and of the Council laying down the Community Customs Code (Modernised Customs Code) (COM(2005) 608 final) (OJ 2006 C 309, p. 22),‘the amount of online and catalogue purchases of goods in countries outside the EU is growing exponentially’. 6 – More broadly, this case may have an impact on the development of business practices such as drop shipments, whereby the vendor sells goods which he acquires from a supplier who himself takes responsibility for delivery, thus avoiding problems connected with stock management, logistics and after-sales services, among other things. 7 – At the material time, that is to say, between April 2004 and May 2006, the Customs Code was amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 amending Regulation No 2913/92 (OJ 2005 L 117, p. 13). However, the amendments made to the Customs Code by that regulation, in particular those relating to Article 40, have no direct bearing on the outcome of the dispute in the main proceedings. 8 – It is worth pointing out at the outset that, even though Mr Jestel carried out his activities over the internet, Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on eletronic commerce) (OJ 2000 L 178, p. 1) is not applicable. After all, while eBay’s intermediary activities fall within the scope of that directive, Article 2(h)(ii) thereof provides that ‘the supply of goods in respect of which a contract has been concluded by electronic means’ does not, as the Court itself has held (see Case C‑108/09 Ker-Optika [2010] ECR I-12213, paragraphs 29 and 30). 9 – .Spedition Ulustrans, paragraph 39, and Papismedov and Others, paragraph 38. See also Case C‑140/04 United Antwerp Maritime Agencies and Seaport Terminals [2005] ECR I-8245, paragraph 30. 10 – .Papismedov and Others, paragraph 38. 11 – This would be true, for example, of a lorry driver who failed to report the goods he was carrying to the first customs post he encountered on entering the territory of the European Union, as in the case giving rise to the judgment in Viluckas and Jonusas. 12 – .Viluckas and Jonusas, paragraph 29, and Spedition Ulustrans. 13 – .Papismedov and Others, paragraph 40. 14 – .Spedition Ulustrans, paragraphs 27 and 28, and Papismedov and Others, paragraph 40. 15 – See also Article 45 of the Customs Code. 16 – OJ 1993 L 253, p. 1. Council Regulation (EEC) No 4151/88 of 21 December 1988 laying down the provisions applicable to goods brought into the customs territory of the Community (OJ 1988 L 367, p. 1), which was repealed by the Customs Code, already included specific provisions governing postal traffic (see, in particular, the fifth recital in the preamble to and Articles 3(4) and 10 of that regulation). 17 – It must be pointed out, however, that, in accordance with Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42), which was applicable at the material time, the European Communities’ own resources referred to in Article 2(1)(a) and (b) of that decision, including customs duties, ‘[were to] be collected by the Member States in accordance with the national provisions imposed by law, regulation or administrative action, which [were], where appropriate, [to] be adapted to meet the requirements of Community rules’. 18 – Thus, Article 237(1)(A) of Regulation No 2454/93 states that postal consignments and, in particular, parcels are to be ‘considered’ to have been declared to customs for release for free circulation either [situation (a)] at the time when they are introduced into the customs territory, provided that they are exempt from the obligation to be conveyed to customs in accordance with the provisions adopted pursuant to Article 38(4) of the Customs Code, or, failing that, [situation (b)] at the time when they are presented to customs, provided that they are accompanied by a CN22 and/or a CN23 declaration. Originally it was a C1 and/or C2/CP3 declaration. The provision was amended by Article 1(6) of Commission Regulation (EC) No 1602/2000 of 24 July 2000 amending Regulation No 2454/93 (OJ 2000 L 188, p. 1) to take account of the fact that the forms provided for by the Universal Postal Union for the declaration of consignments sent by letter or parcel post had been replaced (see recital 9 in the preamble to that regulation). 19 – OJ 1983 L 105, p. 1, and corrigendum OJ 1986 L 271, p. 31. That regulation was amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and the adaptations to the Treaties on which the European Union is based – Protocol No 3 on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus (OJ 2003 L 236, p. 940). That regulation has since been repealed by Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (OJ 2009 L 324, p. 23). 20 – See Articles 27 and 28 of that regulation. That exemption concerned goods sent directly from a third country to an addressee in the territory of the European Union, with the exception of alcoholic beverages, perfumes, toilet waters, tobacco and tobacco products. 21 – See Articles 29 to 31 of that regulation. 22 – That convention, to which all the Member States of the European Union have acceded, lays down the general legal framework governing international postal activities. 23 – Council Decision 75/199/EEC of 18 March 1975 concluding an international convention on the simplification and harmonisation of customs procedures and accepting the Annex thereto concerning customs warehouses (OJ 1975 L 100, p. 1). 24 – By Council Decision 2003/231/EC of 17 March 2003 concerning the accession of the European Community to the Protocol of Amendment to the International Convention on the simplification and harmonisation of customs procedures (Kyoto Convention) (OJ 2003 L 86, p. 21), the European Union acceded to the Protocol of Amendment to the International Convention on the simplification and harmonisation of customs procedures adopted by the Customs Cooperation Council on 26 June 1999. See also Council Decision 2004/485/EC of 26 April 2004 amending Decision 2003/231/EC concerning the accession of the European Community to the Protocol of Amendment to the International Convention on the simplification and harmonisation of customs procedures (Kyoto Convention) (OJ 2004 L 162, p. 113). The accession covers the text of that protocol of amendment, including Appendices I and II, but not Appendix III. 25 – Decision accepting, on behalf of the Community, Annexes E.7 and F.4 to the International Convention on the Simplification and Harmonisation of Customs Procedures (OJ 1994 L 331, p. 11). It should be noted, however, that this annex was approved subject to a general reservation and reservations with respect to Standards 19 and 26 and Recommended Practices 23, 24 and 25. 26 – See, in this regard, my observations in footnote 16. 27 – See, in particular, Case 327/82 Ekro [1984] ECR 107, paragraph 11; Case C‑287/98 Linster [2000] ECR I-6917, paragraph 43; and Case C‑373/00 Adolf Truley [2003] ECR I-1931, paragraph 35. 28 – Case C‑251/00 Ilumitrónica [2002] ECR I-10433, paragraphs 32, 33 and 65. 29 – For example, the employer of the person who carried out the unlawful introduction at issue in the performance of the tasks entrusted to him by that employer (see Spedition Ulustrans). 30 – .Viluckas and Jonusas, paragraphs 23 and 24. 31 – See, in particular, Case C‑459/07 Elshani [2009] ECR I-2759, paragraphs 26 to 28. 32 – Like Articles 203 to 205, 210, 211 and 220 of the Customs Code, which all concern situations in which the operator concerned has failed to comply with the EU customs legislation (see Case C‑546/09 Aurubus Balgaria [2011] ECR I-2531, paragraphs 32 to 34. 33 – As was the case in Spedition Ulustrans. 34 – Point 40 of that Opinion. 35 – That is to say, provided that the second, subjective, condition is satisfied. 36 – This is true of the liability shared by the driver of the lorry in which the goods crossed the external borders of the European Union, in breach of the customs formalities, and his employer, as in Spedition Ulustrans. 37 – .Papismedov and Others, paragraph 36. 38 – See, in particular, Case 104/77 Oehlschläger [1978] ECR 791, paragraph 4; Case 36/79 Denkavit Futtermittel [1979] ECR 3439, paragraph 12; and Joined Cases C‑436/08 and C‑437/08 Haribo Lakritzen Hans Riegel and Österreichische Salinen [2011] ECR I‑305, paragraph 41. 39 – See, in particular, Case C‑49/07 MOTOE [2008] ECR I-4863, paragraph 30; Case C‑142/05 Mickelsson and Roos [2009] ECR I-4273, paragraph 41; Case C‑433/05 Sandström [2010] ECR I‑2885, paragraph 35; and Case C‑12/10 Lecson Elektromobile [2010] ECR I‑14173, paragraph 15. 40 – In French ‘devant raisonnablement savoir’; in German ‘vernünftigerweise hätten wissen müssen’; and in Spanish ‘debiendo saber razonablemente’. 41 – It must be noted that the Customs Code contains other provisions formulated in a similar or identical way. The first indent of Article 8(1) concerns the annulment of a favourable decision adopted on the basis of incorrect or incomplete information. The second subparagraph of Article 201(3) concerns customs declarations based on false information. The second and third indents of Article 203(3) concern the removal of goods from customs supervision. Article 205(3) concerns the consumption, in a free zone or free warehouse, of goods liable to import duties. The second indent of Article 210(3) concerns the removal from the EU customs territory of goods liable to export duties without a customs declaration. The Court has itself used identical forms of words in its own judgments (judgment of 17 March 2011 in Case C‑23/10 Commission v Portugal). The use of similar forms of words is also very widespread in acts imposing sanctions on third States or on particular persons or entities (‘smart sanctions’), since a natural or legal person cannot be held liable for the infringement of a prohibition if he cannot ‘reasonably have been aware’ that his action would have such a consequence (see, for example, Article 10(2) of Council Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 1)). 42 – See, in this regard, my observations in point 32 above. 43 – The criterion of the ‘reasonably circumspect economic agent’ does of course call to mind the criterion of the average consumer, or internet user, who is reasonably well informed and reasonably observant and circumspect, by reference to which, inter alia, the distinctive character of a trade mark is assessed (Case C‑299/99 Philips [2002] ECR I-5475 and Case C‑37/03 P BioID v OHIM [2005] ECR I‑7975). The ‘average consumer, who is reasonably well informed and reasonably observant and circumspect’ is also used in contexts other than trade mark law (see Case C‑210/96 Gut Springenheide and Tusky [1998] ECR I-4657), See also, in relation to consumer protection, Case C‑457/05 Schutzverband der Spirituosen-Industrie [2007] ECR I‑8075 and, in relation to misleading advertising, Case C‑44/01 Pippig Augenoptik [2003] ECR I‑3095). 44 – In this regard, see, in particular, Case C‑276/01 Steffensen [2003] ECR I-3735, paragraph 80; Case C‑526/04 Laboratoires Boiron [2006] ECR I-7529. paragraph 51; Case C‑55/06 Arcor [2008] ECR I‑2931, paragraph 192; and Case C‑264/08 Direct Parcel Distribution Belgium [2010] ECR I‑731, paragraphs 32 to 36 and 42 to 47. 45 – On the other hand, the commercial nature of the activity pursued can obviously be taken into account in assessing the information available to the person in question. 46 – http://pages.ebay.co.uk/help/policies/user-agreement.html. 47 – http://pages.ebay.co.uk/help/policies/seller-rules-overview.html. 48 – http://pages.ebay.co.uk/help/policies/seller-international.html. 49 – http://pages.ebay.co.uk/help/pay/customs.html.