Opinion of the Advocate General — ECLI:EU:C:2014:84
Date: 2014-02-13
Language of the case: Dutch
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (First Chamber), 15 May 2014 1. Customs union — Incurrence of a customs debt following the non-fulfilment of an obligation relating to the use of the customs procedure in question — Failures which have no effect on the correct operation of the customs procedure — Scope — Failure to observe the time limit for presentation of the goods — Failure to do so within a reasonable time — Not included (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Arts 203 and 204; Commission Regulation No 2454/93, as amended by Regulation No 444/2002, Arts 356 and 859(2)(c)) 2. Customs union — Incurrence of a customs debt following the non-fulfilment of an obligation relating to the use of the customs procedure in question — Failures which have no effect on the correct operation of the customs procedure — Scope — Failure to observe the time limit for presentation of the goods — Not included — Lack of information as to the reasons for exceeding the time limit or on the location of the goods — No effect (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Arts 203 and 204; Commission Regulation No 2454/93, as amended by Regulation No 444/2002, Arts 356 and 859(2)(c)) 3. Harmonisation of fiscal legislation — Common system of value added tax — Supply of goods — Definition — Sale of goods ceasing to be covered by customs arrangement — Included — Customs debt incurred exclusively on the basis of Article 204 of Regulation No 2913/92 — No effect (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Art. 204; Council Directive 77/388, as amended by Directive 2004/66, Arts 2 and 7(3), para. 1)) 1. Articles 203 and 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, read in conjunction with Article 859(2)(c) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 444/2002 must be interpreted as meaning that merely exceeding the time-limit for presentation, set under Article 356(1) of Regulation No 2454/93, as amended, does not lead to a customs debt being incurred for removal from customs supervision of the goods in question within the meaning of Article 203 of Regulation No 2913/92, as amended, but to a customs debt being incurred on the basis of Article 204 of that regulation. Articles 203 and 204 of Regulation No 2913/92 have different spheres of application. Whilst the first provision covers conduct leading to the goods being removed from customs supervision, the second covers failure to fulfil obligations and non-compliance with the conditions of the various customs schemes which have no effect on customs supervision. Accordingly it is clear from the wording of Article 204 of Regulation No 2913/92 that it applies only to situations which do not fall within the scope of Article 203 of that regulation. In that regard, under Article 204(1)(a) of Regulation No 2913/92, a customs debt on importation is incurred through non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from the use of the customs procedure under which they are placed, unless it is established that the failure has no significant effect on the correct operation of the procedure in question. Any circumstance not covered by this exception falls within the sphere of application of Article 204 of Regulation No 2913/92. However, Article 859(2)(c) of Regulation No 2454/93 expressly provides that, where the time-limit set under Article 356 thereof has not been complied with and the belated presentation of the goods at the office of destination cannot be justified under Article 356(3) thereof, exceeding the time‑limit for presenting the goods is considered as having no significant effect on the correct operation of the temporary storage or customs procedure in question, where the goods were nevertheless presented to the office of destination within a reasonable time. (see paras 31, 32, 39, 41, 45, operative part 1) 2. Article 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, read in conjunction with Article 859(2)(c) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 444/2002, must be interpreted as meaning that it is not necessary, for a customs debt to be incurred under Article 204 of that regulation, that the interested parties supply to the customs authorities information on the reasons for exceeding the time‑limit set under Article 356 of Regulation No 2454/93, as amended, or on the location of the goods during the time which elapsed between that time‑limit and the time at which they were actually presented at the customs office of destination. Where the goods are produced at the office of destination after expiry of the time-limit prescribed by the office of departure and where this failure to comply with the time-limit is due to circumstances which are explained to the satisfaction of the office of destination and which are beyond the control of the carrier or the principal, the latter is deemed to have complied with the time-limit prescribed. (see paras 43, 45, operative part 1) 3. The first paragraph of Article 7(3) of Sixth Council Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes as amended by Directive 2004/66/EC must be interpreted as meaning that value added tax is due where the goods in question are not covered by the arrangements provided for in that article, even where a customs debt is incurred exclusively on the basis of Article 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005. In the event that those goods have already ceased to be covered by those arrangements on the date of their re-exportation on account of a customs debt being incurred they must be considered as having been the subject of an ‘importation’ within the meaning of Article 2(2) of the Sixth Directive. Under Article 2 thereof, the importation of goods are subject, inter alia, to value added tax. (see paras 47, 54, 55, operative part 2)