Opinion of the Advocate General — ECLI:EU:C:2009:259
Date: 2009-04-23
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, it must be stated that the contested consignment constitutes grouped transportation of various individual consignments to the different customers and that PTT, for example, is not the consignee of a complete consignment the value of which exceeds the maximum limit laid down in Article 27. 2. Spirit and purpose of the exemption 41. Referring to the first recital of the preamble to Regulation No 3357/91, which mentions ‘administrative simplification’ as the purpose of the exemption, the national court considers that Article 27 of Regulation No 918/83 might cover only situations where the administrative costs of declaration are higher than the amount owed in customs duty. Because that imbalance between the administrative costs and the amount due in customs duty does not necessarily exist in the case of a joint customs declaration, it is uncertain whether such consignments are also covered by the exemption. 42. This idea is certainly not supported by the wording of Article 27. That provision does not require an imbalance between the administrative expenditure for the collection of customs duties and the customs duties to be collected in respect of the individual consignment. Article 27 mentions only the value of the individual consignment and does not distinguish according to the method of customs declaration either. According to its wording, exemption from customs duties is not limited solely to consignments of negligible value which are declared individually and thus give rise to relatively high administrative expenditure. In fact, the wording of Article 27 automatically also covers consignments of negligible value which are simultaneously dispatched together in bulk by a commercial consignor and therefore give rise to much lower administrative expenditure in the event of possible joint customs declaration. According to the wording of Article 27, the ratio between the customs duties to be collected in principle and the associated administrative expenditure is irrelevant. 43. Nor can it be inferred from the first recital that relief from customs duties is to be granted only where there is an imbalance between the administrative costs of collecting duties and the amount due in a specific case. The first recital merely expresses the aim pursued by Article 27, which is to simplify administration in connection with the collection of customs duties. 44. Lastly, however, joint declaration also brings about an administrative simplification for the customs authorities. The information which would otherwise be filed separately with each individual consignment is brought together in one application. If a grouped consignment were generally excluded from the scope of the exemption, and duty would therefore have to be paid on consignments of negligible value solely because they are declared jointly in one application, the aim of administrative simplification would certainly not be served. The consequence would be that the declarant would instead declare a large number of individual consignments in order to benefit from relief. This would entail considerable additional expenditure for the customs authorities without any return. For commercial consignors, on the other hand, such individual declaration would probably be easy to manage by automated means. 45. There is therefore no scope for the proposed teleological reduction of the broad terms of Article 27. 3. Interim conclusion: 46. The answer to the first question must therefore be that Article 27 of Regulation No 918/83 is to be interpreted as meaning that the relief referred to in that article may be claimed in respect of the grouped dispatch of individual consignments, the value of which does not exceed EUR 22, if the individual consignments are dispatched to individual consignees in the Community and the goods in question were not previously placed under another customs procedure. B. The second question 47. By the second question, the referring court is seeking to ascertain whether the exemption laid down in Article 27 of Regulation No 918/83 also applies where the contractual partner of the consignee of the consignment in question is established in the Community or whether it is relevant only where the consignee’s contractual partner is established in the third country from which the goods in question are dispatched. In the main proceedings the contract of sale relating to the consignment is not between the consignee and the consignor in Switzerland, but between the consignee and an undertaking in the Netherlands. That undertaking then has the goods dispatched from its warehouse in Switzerland to the consignee in the Netherlands. 48. It does not follow from the wording of Article 27 of Regulation No 918/83 that relief from customs duties applies only where there are contractual relations between the consignor and the consignee of the goods. Article 27 of the regulation applies the purely factual test of a dispatch and merely refers to the goods being dispatched direct from a third country to a consignee in the Community. There is no reference to the place in which the contractual partner of the consignee of the goods is established or the existence of legal relations between the consigner and the consignee. The terms chosen were not purchaser and seller, but consignor and consignee. 49. By the criterion of ‘direct dispatch’, as has already been explained above, (9) the intention is to exclude from relief only consignments which were previously placed under another customs procedure. It cannot therefore be inferred from that criterion that there must be contractual relations between the consignor and the consignee. 50. It can therefore be stated, as an interim conclusion, that Article 27 of Regulation No 918/83 does not make relief from customs duties contingent on the consignor being the contractual partner of the consignee. 51. Finally, it must be considered whether grounds relating to prevention of abuse suggest that a different understanding of the regulation should be adopted. 52. The Netherlands Government takes the view that ECI’s behaviour constitutes abuse in so far as from the very beginning it aimed to pay no value added tax on the goods in question. Under Article 101 of the Netherlands Customs Code (Douaneregeling) goods which are covered by the customs exemption laid down in Article 27 of Regulation No 918/83 are not chargeable to value added tax either. 53. The Netherlands Government submits that in order to benefit from relief from value added tax ECI first transported the goods from the Netherlands into Switzerland, with a view to having them delivered from there to its customers in the Netherlands. This behaviour results in distortions of competition, as consignors which dispatch their goods to their Dutch customers directly from the Netherlands are required to pay value added tax. In order to prevent such abuse, Article 27 of Regulation No 918/83 must be given a narrow interpretation in such a way that no relief from customs duties is granted in situations like the present case. 54. The Netherlands Government does not therefore argue that the undertaking in question is abusively benefitting from relief from customs duties. According to the description of facts by the Netherlands Government, it is likewise not apparent that the undertaking chooses its dispatch model in order to benefit abusively from relief from customs duties. Even if the goods were dispatched direct from the Netherlands, no customs duties would be incurred from the outset and dispatching the goods from Switzerland does not therefore give the shipment undertaking any customs advantage. 55. However, the Netherlands Government claims that the undertaking abusively obtains relief from value added tax. 56. Article 22 of Council Directive 83/181/EEC of 28 March 1983 determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods (10) provides that Member States may grant exemption for imported goods of a total value of more than EUR 10 but not exceeding EUR 22. (11) The Netherlands has exercised that option and exempts the importation of goods of negligible value from value added tax. Netherlands law thus links exemption from value added tax to the relief from customs duties to be granted under Article 27 of Regulation No 918/83. 57. The argument that relief from customs duties should be narrowly interpreted in order to prevent abuse with regard to value added tax is not persuasive. The connection between relief from customs duties and a potentially abusive exemption from value added tax follows only from the link established in this regard by Netherlands law. 58. Inasmuch as the first sentence of the first paragraph of Article 22 of Directive 83/181 provides for an obligatory exemption from tax for goods of a value below EUR 10, as the Commission also has pointed out, the second paragraph of Article 22 gives the Member States the option to exclude goods which have been imported on mail order from this exemption. 59. Potential abuse with regard to exemption from value added tax must therefore also be combated in the context of exemption from value added tax. This does not mean that, in the context of relief from customs duties, there must be a restrictive interpretation of Article 27 of Regulation No 918/83. 60. With regard to value added tax, the Court has held that refusal of a tax advantage is lawful where the transactions concerned result in the accrual of a tax advantage, the grant of which would be contrary to the purpose of those provisions, and it is apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage. (12) The Court thus found that obtaining tax advantages in a manner which constitutes an abuse of rights may be countered. 61. The argument of a potential abuse in connection with exemption from value added tax, which is linked to relief from customs duties in national law, must therefore be taken into consideration in the context of exemption from value added tax and cannot result in a restrictive interpretation of Article 27 of Regulation No 918/83, contrary to its broad wording. V – Conclusion 62. In the light of the above arguments, I suggest that the Court answer the questions referred by the Hoge Raad der Nederlanden as follows: (1) Article 27 of Regulation (EEC) No 918/83, as amended by Regulation No 3357/91, is to be interpreted as meaning that the relief referred to in that article may be claimed in respect of the grouped dispatch of individual consignments, the value of which does not exceed EUR 22, if the individual consignments are dispatched to individual consignees in the Community and the goods in question were not previously placed under another customs procedure. (2) When interpreting Article 27 of that regulation, the words ‘dispatched direct from a third country to a consignee in the Community’ must be assumed to cover also a situation in which the goods are in a third country before being dispatched to the consignee but the consignee’s contractual partner is established in the Community. 1 – Original language: German. 2 – OJ 1983 L 105, p. 1, as amended by Council Regulation (EEC) No 3357/91 of 7 November 1991 amending Regulation No 918/83 setting up a Community system of reliefs from customs duty (OJ 1991 L 318, p. 3). 3 – Regulation of 28 March 1983 setting up a Community system of reliefs from customs duty (OJ 1983 L 105, p. 1). 4 – Article 2(1) of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1 et seq.) provides that every reference to the ECU was replaced by a reference to the euro at a rate of one euro to one ECU. Hereinafter ‘ECU’ is thus replaced by ‘euro’. See also Case C‑294/02 Commission v AMI Semiconductor Belgium and Others [2005] ECR I‑2175, paragraph 32. 5 – Regulation of 29 June 1983 laying down provisions for the implementation of Article 127 of Regulation No 918/83 setting up a Community system of reliefs from customs duty (OJ 1983 L 220, p. 12). 6 – Regulation No 3357/91 (cited in footnote 2). 7 – Title II of Annex 37 to Regulation No 2454/93 establishing the Community customs code. 8 – See, in that regard, the views set out in point 4.3.18 of the Opinion of Advocaat General W. de Wit of 13 July 2006, which forms part of the Hoge Raad’s order for reference. 9 – See point 38 et seq. of this Opinion. 10 – Directive 83/181/EEC, as amended by Council Directive 88/331/EEC of 13 June 1988 (OJ 1983 L 151, p. 79). 11 – For goods the value of which is less than EUR 10 the directive provides for a mandatory exemption from VAT. 12 – Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraphs 74 and 75, and Case C‑425/06 Part Service [2008] ECR I‑897, paragraph 42.