Summary;Judgment — ECLI:EU:C:2024:59
Date: 2024-01-18
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Taxation;Free movement of goods;Value added tax;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-791/22 – 1 
Case C-791/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 December 2022 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
6 December 2022 
Applicant: 
G.A. 
Defendant: 
Hauptzollamt Braunschweig 
  
Subject matter of the main proceedings 
Cigarettes from third countries which were offered untaxed at a market in Poland 
and were sold on to a buyer in Germany – Directive 2006/112/EC – Community 
Customs Code – Possibility for the tax authorities in Germany to collect import 
VAT 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Is Directive 2006/112/EC and, in particular, Articles 30 and 60 thereof, infringed 
where Article 215(4) of Regulation (EEC) No 2913/92 is declared under a 
national provision to be applicable mutatis mutandis to import VAT? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-791/22 
 
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Provisions of European Union law relied on 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, in particular Articles 30, 60, 62, 70, 71 
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the 
Community Customs Code (‘the Customs Code’), in particular Articles 40, 202, 
215(4) 
Provisions of national law relied on 
Umsatzsteuergesetz (Law on turnover tax, UStG), in particular Paragraph 21(2), 
which provides that the rules governing customs duty apply mutatis mutandis to 
import turnover tax. 
Succinct presentation of the facts and procedure 
1 The applicant is contesting the assessment of import VAT on smuggled cigarettes. 
On 29 September 2012, at a market in Słubice (Poland), the applicant, who is 
resident in Poland, acquired a total of 43 760 cigarettes, to which only Ukrainian 
and Belarussian revenue stamps were affixed. Without informing the customs 
authorities, he transported those cigarettes to Germany, where he delivered them 
to his German buyer near Braunschweig on 2 October 2012. On making the 
delivery, the applicant was arrested and the cigarettes were seized and 
subsequently destroyed. 
2 By tax notice of 3 February 2015, the defendant assessed import VAT for the 
cigarettes at EUR 2 006.38. The cigarettes had been unlawfully introduced into 
the customs territory of the European Union. The customs debt had therefore been 
incurred pursuant to Article 202(1)(a) of the Customs Code. Since the applicant 
should have been aware of this, he was a debtor under the third indent of 
Article 202(3) of the Customs Code. On the basis of the application mutatis 
mutandis of those customs rules in accordance with Paragraph 21(2) of the UStG, 
the tax debt had been incurred and the applicant had become a debtor in respect of 
import VAT. By his action, the applicant is contesting that tax notice. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
3 The question referred for a preliminary ruling is substantively identical to the 
second question referred in Case C-368/21. The Court was not able to answer that 
question in the judgment of 8 September 2022, Hauptzollamt Hamburg (Place 
where VAT is incurred II) (C-368/21, EU:C:2022:647) because, having regard to 
the answer to the first question, it was not relevant to the decision. 
4 In contrast with Case C-368/21, the referring court considers that the place of 
importation for VAT purposes of the goods at issue in this case cannot be in 
HAUPTZOLLAMT BRAUNSCHWEIG 
 
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Germany. Rather, the place of importation of the cigarettes is in Poland. The 
cigarettes are non-Union goods because they bore Ukrainian and Belarussian 
revenue stamps. They were introduced into Poland by an unknown route. They 
entered the economic network of the European Union there because they were 
offered for sale at a Polish market. Consequently, the cigarettes were not in transit 
like the parcels that were the subject of Case C-26/18 (judgment of 10 July 2019, 
Federal Express Corporation Deutsche Niederlassung, C-26/18, EU:C:2019:579) 
or the vehicle at issue in Case C-368/21. There is absolutely no suggestion that the 
cigarettes were intended solely for consumption outside Poland. In fact, the 
cigarettes were also purchased by a person resident in Poland, the applicant. Only 
he took the decision to sell them on to Germany. 
5 The referring court therefore considers that there are three taxable transactions: 
(1) the importation of the cigarettes from a third country to Poland 
(Article 2(1)(d) of Directive 2006/112), 
(2) the supply of the cigarettes to the applicant by the vendor at the market 
in Słubice (Article 2(1)(a) of Directive 2006/112), 
(3) the intra-Community acquisition of the cigarettes in Germany by the 
applicant’s customers (Article 2(1)(b)(iii) of Directive 2006/112). 
6 The request for a preliminary ruling concerns only the taxation of the first 
transaction, the importation of the cigarettes to Poland. Because import VAT was 
incurred in Poland, however, the German customs authorities would be competent 
for the assessment of import VAT only if the import VAT were deemed to have 
been incurred in Germany by virtue of the fictitious event under Article 215(4) of 
the Customs Code mutatis mutandis. Under Paragraph 21(2) of the UStG, that 
provision of customs legislation is applicable mutatis mutandis to import VAT. 
The conditions laid down in Article 215(4) of the Customs Code are fulfilled 
mutatis mutandis in the case being referred. The defendant German customs 
authority has established that the import VAT debt was incurred through the 
unlawful introduction of the cigarettes into Poland from a third country under 
Article 202(1)(a) of the Customs Code mutatis mutandis. That import VAT debt 
amounts to less than EUR 5 000, namely EUR 2 006.38. The import VAT debt is 
thus deemed to have been incurred in Germany. 
7 It is uncertain, however, whether the application mutatis mutandis of 
Article 215(4) of the Customs Code, as prescribed by Paragraph 21(2) of the 
UStG, infringes Directive 2006/112. In that case, it would seem that 
Article 215(4) of the Customs Code could not be applied mutatis mutandis to 
import VAT. There would be no objection under EU law to the application 
mutatis mutandis of Article 215(4) of the Customs Code if Directive 2006/112 
itself prescribed the application of that provision of customs legislation in these 
circumstances, and even if the VAT Directive did not require the application 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-791/22 
 
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mutatis mutandis of Article 215(4) of the Customs Code, it would be permitted 
under EU law unless prohibited by the VAT Directive. 
8 The only provision of Directive 2006/112 that might prescribe the application of 
Article 215(4) of the Customs Code to import VAT in this case is the second 
subparagraph of Article 71(1) of that directive. In contrast with Article 71(2) of 
the directive, that rule presupposes that goods are actually subject to customs duty. 
That is the case here because through the unlawful introduction of the cigarettes a 
customs debt has been incurred pursuant to Article 202(1)(a) of the Customs 
Code. Under subheading 2402 20 90 of the Combined Nomenclature, as amended 
by Regulation (EU) No 1006/2011 of 27 September 2011, the customs debt is 
calculated on the basis of a rate of duty of 57.6%. The second subparagraph of 
Article 71(1) of Directive 2006/112 stipulates for cases like this that ‘the 
chargeable event shall occur and VAT shall become chargeable when the 
chargeable event in respect of those duties occurs and those duties become 
chargeable’. The chargeable event is defined in Article 62(1) of the directive as 
the occurrence by virtue of which the legal conditions necessary for VAT to 
become chargeable are fulfilled. Under Article 62(2) of the directive, VAT 
becomes chargeable when payment of the VAT can be claimed. 
9 In that provision the chargeable event for VAT and VAT becoming chargeable 
are, in abstract terms, linked in a certain respect with customs duty becoming 
chargeable. In the view of the referring court, this reference to customs legislation 
can be understood in two ways. Understood broadly, the provision refers to 
customs legislation for the purpose of all the conditions for the incurrence of 
VAT. Understood narrowly, the rule refers to customs legislation only with regard 
to the time when the chargeable event occurs and VAT becomes chargeable. 
10 The German Bundesfinanzhof (Federal Finance Court) understands the second 
subparagraph of Article 71(1) of Directive 2006/112 to be a comprehensive 
reference to customs legislation. Based on that understanding, not only would the 
second subparagraph of Article 71(1) of Directive 2006/112 not prohibit the 
application mutatis mutandis of Article 215(4) of the Customs Code, but it would 
prescribe it. The question referred would therefore clearly have to be answered in 
the negative. 
11 The referring court, on the other hand, tends towards the view that the second 
subparagraph of Article 71(1) of Directive 2006/112 refers to customs legislation 
only with regard to the time when the chargeable event for VAT occurs and VAT 
becomes chargeable. That understanding is corroborated by the wording, history 
and scheme of the rule. 
12 The wording of the second subparagraph of Article 71(1) of Directive 2006/112 
links the occurrence of the chargeable event for VAT and VAT becoming 
chargeable to customs legislation only with regard to the relevant time. The 
wording of the rule presupposes that a chargeable event for VAT has occurred and 
that VAT has become chargeable in accordance with Article 62 of the directive. 
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Such a narrow, wording-based understanding of the second subparagraph of 
Article 71(1) of the directive also makes sense because there are a number of 
provisions of customs legislation dealing with the time when the customs debt is 
incurred, such as Article 201(2), Articles 202-204, Article 209(2), Article 210(2) 
and Article 211(2) of the Customs Code. The application mutatis mutandis of 
those provisions of customs legislation to import VAT would mean that import 
VAT was also incurred at those times. 
13 The evolution of the second subparagraph of Article 71(1) of Directive 2006/112 
suggests, however, that the rule presupposes that a chargeable event for VAT has 
already occurred and VAT has already become chargeable. The relationship 
between custom duty and import VAT was regulated for the first time in Article 7 
of Second Council Directive 67/228/EEC on the harmonisation of legislation of 
Member States concerning turnover taxes – Structure and procedures for 
application of the common system of value added tax (OJ, English Special Edition 
1967 (I), p. 16). In Article 7(2) of that directive, the chargeable event and the date 
when payment of customs duties falls due are expressly linked with the chargeable 
event and the date when payment of VAT falls due. Similarly, Article 10(3) of the 
original version of Sixth Council Directive 77/388/EEC of 17 May 1977 on the 
harmonisation of the laws of the Member States relating to turnover taxes – 
Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, 
p. 1) states: ‘As regards imported goods, the chargeable event shall occur and the 
tax shall become chargeable at the time when goods enter the territory of the 
country as defined in Article 3. Where imported goods are subject to customs 
duties …, Member States may link the chargeable event and the date when the tax 
becomes chargeable with those laid down for these Community duties.’ 
14 Article 10(3) of the Sixth Directive was amended by Article 1(6) of Directive 
91/680/EEC of 16 December 1991 supplementing the common system of value 
added tax and amending Directive 77/388/EEC with a view to the abolition of 
fiscal frontiers (OJ 1991 L 376, p. 1). That amended version is almost identical to 
the version of the second subparagraph of Article 71(1) of Directive 2006/112 
applicable in this case. In that version, the link between the chargeable event and 
the chargeability of import VAT and customs duty is restricted to the time when 
the customs duty is incurred. 
15 The schematic positioning of the second subparagraph of Article 71(1) of 
Directive 2006/112 also suggests that the reference does not extend to customs 
legislation addressing aspects other than the time when the duty is incurred. For 
example, the place of importation is addressed in Chapter 4 of Title V of the 
directive (Articles 60 and 61). That title explicitly regulates the ‘place of taxable 
transactions’. The second subparagraph of Article 71(1) of the directive, on the 
other hand, falls under Title VI of the directive, which addresses the ‘chargeable 
event and chargeability of VAT’. 
16 The positioning of Article 71 within Chapter 4 of Title VI of Directive 2006/112 
also suggests that the rule addresses only the time when VAT becomes 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-791/22 
 
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chargeable, but not the place. That chapter comprises two articles (Article 70 and 
Article 71). Article 70 establishes when the chargeable event occurs and VAT 
becomes chargeable in the case of importation. It is no surprise that it provides 
that this is when the goods are imported. Article 70 thus determines for 
importation what is laid down in Article 63 for the supply of good and services 
and in Article 68 of Directive 2006/112 for the intra-Community acquisition of 
goods: the time when the chargeable event occurs and VAT becomes chargeable. 
17 Lastly, a further schematic consideration militates against a broad understanding 
of the second subparagraph of Article 71(1) of Directive 2006/112: if that 
provision did in fact contain a comprehensive reference to customs legislation, the 
provisions of Directive 2006/112 on import VAT would be obsolete. For imports 
which are subject to customs duties, all aspects of import VAT would be 
determined solely on the basis of customs legislation. For all other imports which 
are not subject to such duties, the application of customs legislation would follow 
from Article 71(2) of Directive 2006/112. 
18 The referring court cannot infer clearly from the Court’s case-law whether the 
second subparagraph of Article 71(1) of Directive 2006/112 also refers to customs 
legislation with regard to the place in which VAT debt is incurred. In its answer to 
the fourth question in the ruling in Dansk Transport og Logistik, the Court, on the 
one hand, underlines the autonomy of customs duty and import VAT (judgment of 
29 April 2010, Dansk Transport og Logistik, C-230/08, EU:C:2010:231, 
paragraph 102). On the other hand, in the answer to the third question it makes 
clear that the chargeable event for customs duties and VAT and the chargeability 
of customs duties and VAT are essentially the same (paragraph 91). 
19 In the judgment of 11 July 2013, Harry Winston (C-273/12, EU:C:2013:466, 
paragraph 41), the Court states with regard to the second subparagraph of 
Article 71(1) of Directive 2006/112: ‘In this regard, it should be noted that import 
VAT and customs duties display comparable essential features since they arise 
from the fact of importation of goods into the European Union and the subsequent 
distribution of those goods through the economic channels of the Member States. 
This parallel nature is, moreover, confirmed by the fact that the second 
subparagraph of Article 71(1) of the VAT directive authorises Member States to 
link the chargeable event and the date on which the VAT on importation becomes 
chargeable with those laid down for customs duties …’ 
20 The second sentence of this passage could be construed to mean that the Court 
understands the second subparagraph of Article 71(1) of Directive 2006/112 as a 
comprehensive reference to customs legislation. However, the referring court has 
doubts whether the statements are to be understood in that way. The passage cites 
mutatis mutandis the judgment of 6 December 1990, Witzemann (C-343/89, 
EU:C:1990:445, paragraph 18), and merely substitutes Article 10(3) of the Sixth 
Directive with the second subparagraph of Article 71(1) of Directive 2006/112. 
The judgment in Witzemann in turn cites the judgment of 28 February 1984, 
Einberger (294/82, EU:C:1984:81, paragraph 18). Both of the cited judgments 
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were, however, delivered prior to the amendment of Article 10(3) of the Sixth 
Directive by Directive 91/680/EEC. Because the Court substituted the provisions 
in paragraph 41 of the judgment in Harry Winston but did not adapt its 
formulation to the wording of the second subparagraph of Article 71(1) of 
Directive 2006/112 (it states that the second subparagraph of Article 71(1) of the 
VAT Directive ‘authorises’ Member States, even though for a long time they have 
been ‘obliged’ by Directive 91/680/EEC), the referring court does not wish to 
base its judgment rashly on this statement made by the Court. 
21 The significance of paragraph 41 of the judgment in Harry Winston is qualified, 
lastly, by the fact that, while the Court cites that passage in the judgment of 
10 July 2019, Federal Express Corporation Deutsche Niederlassung (C-26/18, 
EU:C:2019:579, paragraph 41), it concludes that the incurrence of customs duties 
does not necessarily give rise to the incurrence of import VAT. In this regard the 
referring court makes reference to point 91 of the Opinion of Advocate General 
Campos Sánchez-Bordona in Eurogate Distribution and DHL Hub Leipzig 
(C-226/14 and C-228/14, EU:C:2016:1), which correctly characterises the 
analytical framework within which the question referred in this case should also 
be answered. 
22 In its subsequent judgments of 2 June 2016, Eurogate Distribution (C-226/14 and 
C-228/14, EU:C:2016:405), of 1 June 2017, Wallenborn Transports (C-571/15, 
EU:C:2017:417), and of 10 July 2019, Federal Express Corporation Deutsche 
Niederlassung (C-26/18, EU:C:2019:579), the Court adopted this analytical 
framework and enquired in the specific case whether the incurrence of import 
VAT can be justified under the rules on VAT. These considerations would be 
pointless if the second subparagraph of Article 71(1) of Directive 2006/112 had to 
be understood as a comprehensive reference to customs legislation. If the rule 
cannot be understood to mean that the incurrence of the customs debt results 
almost automatically in the incurrence of the import VAT debt, there is no reason 
to consider that it requires the application mutatis mutandis of a rule on 
competence laid down in customs legislation to the rules on import VAT. 
23 Furthermore, the referring court considers that the Court has not already answered 
the question referred for a preliminary ruling in the judgment of 3 March 2021, 
Hauptzollamt Münster (Place where VAT is incurred) (C-7/20, EU:C:2021:161). 
24 Indications as to the interpretation of the second subparagraph of Article 71(1) of 
Directive 2006/112 are provided, lastly, by the judgment of 7 April 2022, Kauno 
teritorinė muitinė (C-489/20, EU:C:2022:277), in which the Court declined to 
apply Article 124(1)(e) of the Union Customs Code mutatis mutandis to import 
VAT. 
25 The Court first reiterated the words familiar from the judgments in Dansk 
Transport og Logistik and Harry Winston that import VAT and customs duties 
display ‘comparable’ essential features and have a parallel nature, which is 
confirmed by the second subparagraph of Article 71(1) of Directive 2006/112 
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(judgment of 7 April 2022, Kauno teritorinė muitinė, C-489/20, EU:C:2022:277, 
paragraph 47). The Court does not, however, transpose the parallel nature to the 
extinguishment of the import VAT debt, unlike in paragraph 98 of the judgment in 
Dansk Transport og Logistik. Instead, it holds that the VAT Directive does not 
regulate the extinguishment of the customs debt relating to smuggled goods on the 
grounds set out in Article 124(1)(e) of Regulation No 952/2013 (judgment of 
7 April 2022, Kauno teritorinė muitinė, C-489/20, EU:C:2022:277, paragraph 49). 
26 Even though the present case does not concern the application mutatis mutandis to 
import VAT of grounds for extinguishment in customs law, but of rules on 
competence laid down in customs legislation, the referring court understands the 
judgment of 7 April 2022, Kauno teritorinė muitinė (C-489/20, EU:C:2022:277), 
to mean that the second subparagraph of Article 71(1) of Directive 2006/112 
cannot be construed as a comprehensive reference to customs legislation. That is 
the only explanation why the Court cites that rule and mentions its consequences 
in terms of customs duties and VAT becoming chargeable in order then to identify 
a gap in the VAT Directive in respect of the extinguishment of the debt linked to 
VAT. 
27 Lastly, the referring court is uncertain whether the rule on competence in 
Directive 2006/112 is definitive. If the Court were to concur with the narrow 
interpretation of the second subparagraph of Article 71(1) of that directive, this 
does not automatically mean, in the view of the referring court, that EU law would 
prohibit Germany from applying Article 215(4) of the Customs Code mutatis 
mutandis to import VAT. It is one question whether, in the second subparagraph 
of Article 71(1), the directive prescribes the application mutatis mutandis of 
Article 215(4) of the Customs Code. It is another question whether it prohibits this 
because it is to be considered definitive. This must be established by means of 
interpretation. 
28 The place of importation is regulated in Articles 60 and 61 of Directive 2006/112. 
The fact that the competence to recover customs duty and VAT must be analysed 
separately (judgment of 29 April 2010, Dansk Transport og Logistik, C-230/08, 
EU:C:2010:231, paragraph 102) could indicate that Articles 60 and 61 are 
definitive. 
29 However, a different reading could also be inferred from the Court’s case-law 
(judgments of 2 June 2016, Eurogate Distribution, C-226/14 and C-228/14, 
EU:C:2016:405, and of 10 July 2019, Federal Express Corporation Deutsche 
Niederlassung, C-26/18, EU:C:2019:579). Just like those proceedings, the present 
case concerns the consequences under VAT law of an infringement of customs 
legislation and the question which Member State is competent for the collection of 
import VAT. The referring chamber understands those decisions to mean that the 
consequences under VAT law of an infringement of customs legislation are not 
regulated definitively in the VAT Directive. Thus, the Court was able in those 
cases to make importation for the purposes of VAT legislation dependent on the 
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unwritten element of the chargeable event, namely entry into the economic 
network of the European Union. 
30 Against this background, it would be conceivable to consider Directive 2006/112 
to be non-definitive also with regard to other aspects of claiming import VAT in 
so far as import VAT is incurred in connection with infringements of customs 
legislation. The wording of Article 60 of Directive 2006/112 offers latitude in this 
regard. Article 215(4) of the Customs Code, if applied mutatis mutandis to import 
VAT, does not establish a place of importation that runs counter to Article 60 of 
Directive 2006/112, but simply establishes, for the purposes of the effective 
collection of the chargeable VAT, the fictitious competence of a different Member 
State for the collection of VAT up to a limit of EUR 5 000. 
31 However, the transfer of competences caused by Article 215(4) of the Customs 
Code mutatis mutandis could be contrary to the principle of territoriality which 
applies to VAT. According to the principle of territorial application of tax, 
revenues belong to the Member State in which final consumption occurred 
(judgment of 27 September 2007, Collée, C-146/05, EU:C:2007:549, 
paragraph 37). In the present case, after acquiring the cigarettes in Poland, the 
applicant sold them on to a buyer in Germany. Because they were offered for 
general sale in Poland, however, they entered the economic network there. 
32 VAT differs in this respect from custom duty, for which the principle of 
territoriality within the European Union is immaterial. Regardless of the Member 
State in which customs duties are collected, they belong to the European Union. In 
the case of custom duty, effective collection, which is achieved by Article 215(4) 
of the Customs Code, is therefore paramount.