Opinion of the Advocate General — ECLI:EU:C:2010:790
Date: 2010-12-16
Language of the case: French
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: France

Summary 90. It is clear from Articles 213, 233 and 239 of the CC that a decision of the customs authorities to grant partial remission under Article 239 of the CC and Article 900(1)(o) of the Implementing Regulation to one jointly and severally liable debtor cannot have an automatic effect to the benefit of the other debtors liable for this customs debt. Those provisions therefore prevent the application of a national provision which provides for such an effect. VII – Conclusion 91. On the basis of the above considerations, I propose that the Court reply as follows to the question referred for a preliminary ruling: Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code are to be interpreted as meaning that in a case such as the present one a jointly and severally liable debtor of a customs debt who is not the beneficiary of a decision to remit that debt cannot rely on a decision to remit based on Article 239 of this Regulation in conjunction with Article 900(1)(o) 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 which was made in respect of another jointly and severally liable debtor in order to be released from payment of the customs debt. 1 – Original language: German. Language of the case: French. 2 – In accordance with the terminology used in the Treaty on European Union and in the TFEU, the term ‘European Union law’ is used as an overall term for Community law and European Union law. Where this Opinion refers to individual items of primary law, the provisions applicable ratione temporis are cited. 3 – OJ 1988 L 102, p. 5. 4 – OJ 1992 L 302, p. 1. 5 – OJ 2008 L 145, p. 1. 6 – OJ 1993 L 253, p. 1. 7 – OJ 2003 L 187, p. 16. 8 – OJ 1994 L 346, p. 1. 9 – Demands for the payment of other duties (taxes, etc.) were also served on APP and Maprochim, but these were not relevant to the present reference for a preliminary ruling. 10 – For details of the proceedings before the national authorities and the Commission, see the judgment of 25 January 2007 in Case T‑55/05 Rijn Schelde Mondia France v Commission, not published in the ECR. 11 – See, to that effect, Joined Cases 28/62 to 30/62 Da Costa en Schaake and Others [1963] ECR 31, at p. 38; Case 62/72 Bollmann [1973] ECR 269, paragraph 4; Case C‑261/95 Palmisani [1997] ECR I‑4025, paragraph 31; and Case C‑2/06 Kempter [2008] ECR I‑411, paragraph 41 et seq. 12 – As also stated by Reiche, K., in: Witte, P., Zollkodex, Beck, 4th edition, 2006, Article 5, paragraph 5. 13 – Case C‑314/06 Société Pipeline Méditerranée et Rhône [2007] ECR I‑12273, paragraph 21; Case C‑103/01 Commission v Germany [2003] ECR I‑5369, paragraph 33; Case C‑296/95 EMU Tabac and Others [1998] ECR I‑1605, paragraph 30; and Case C‑75/09 Agra [2010] ECR I‑0000, paragraph 32 et seq. 14 – Witte, P., in Witte, P. (cited in footnote 12 above), Article 233, paragraph 12. 15 – See Henke, R., Huchatz, W., ‘Das neue Abgabenverwaltungsrecht für Ein- und Ausfuhrabgaben’, Zeitschrift für Zölle und Verbrauchsteuern, 1996, p. 226 et seq. and p. 231. 16 – Case C‑112/01 SPKR [2002] ECR I‑10655, paragraph 31; Case C‑459/07 Elshani [2009] ECR I‑2759, paragraph 31; and Case C‑230/08 Dansk Transport og Logistik [2010] ECR I‑0000, paragraph 51. 17 – See paragraph 73 of this Opinion. 18 – Witte, P., cited in footnote 14 above, Article 233, paragraph 12. 19 – To this effect, see also Witte, P., cited in footnote 14 above, Article 213, paragraph 11, and Article 233, paragraph 12. The author points out that the remission of a customs debt in favour of a debtor is required on grounds of fairness and that in this way amends can be made that is not possible by the exercise of discretion. 20 – Case C‑48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraph 52, and Case C‑156/00 Netherlands v Commission [2003] ECR I‑2527, paragraph 91. 21 – By contrast, under other provisions the authorities may remit on their own initiative; see the third subparagraph of Article 236(2) of the CC. 22 – Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading v Commission [2008] ECR I‑8599, paragraphs 53 and 54. 23 – In paragraph 58 of this Opinion. 24 – See Case C‑360/06 Heinrich Bauer Verlag [2008] ECR I‑7333, paragraph 15, and Joined Cases C‑482/01 and C‑493/01 Orfanopoulos and Oliveri [2004] ECR I‑5257, paragraph 42.