Judgment — ECLI:EU:C:2008:186
Date: 2008-04-03
Language of the case: Italian
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Concepts: Community transit;Jurisdiction of the Court of Justice
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court (Art. 234 EC) 2. Free movement of goods – Community transit – External Community transit – Offences or irregularities (Council Regulation No 2913/92, Arts 203(1) and 215(1); Commission Regulation No 2454/93, Arts 378 and 379) 3. Free movement of goods – Community transit – External Community transit – Offences or irregularities (Commission Regulation No 2454/93, Art. 378 and 379(1) and (2)) 4. Free movement of goods – Community transit – External Community transit – Offences or irregularities (Council Regulation No 2913/92, Art. 239; Commission Regulation No 2454/93, Arts 899 to 905) 1. In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question. (see para. 19) 2. In order to verify whether the Member State which recovered customs duties has jurisdiction, it is for the national court to determine whether, at the time when it came to light that the consignment had not been presented at the office of destination, it was possible to establish the place where the offence or irregularity occurred. If that is the case, the Member State in which the first offence or irregularity capable of being classified as a removal from customs surveillance was committed can be identified as the State with jurisdiction to recover the customs debt, pursuant to Articles 203(1) and 215(1) of Regulation No 2913/92 establishing the Community Customs Code. On the other hand, if the place where the offence or irregularity was committed cannot be thus established, the Member State to which the office of departure belongs has jurisdiction to recover the customs duties, in accordance with Articles 378 and 379 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92. Article 378(1) of the implementing regulation provides that, without prejudice to the rules on the determination of the place where a customs debt is incurred, laid down in Article 215 of the Customs Code, where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity is deemed to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2) of the implementing regulation, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished. (see paras 30, 36, operative part 1) 3. Where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, it is for the office of departure alone to make the notification required within the 11‑month and 3‑month time-limits laid down by Article 379(1) and (2) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92. (see paras 41-42, operative part 2) 4. It is not contrary to the principle of proportionality to hold a customs clearance agent, in his capacity as principal, liable for a customs debt, regardless of the extent of that debt in relation to the fees he receives when acting as customs clearance agent. The principal, in his capacity as holder under the external Community transit procedure, is the debtor of the customs debt arising from the failure to observe the provisions governing that procedure. The liability thus imposed is intended to ensure the diligent and uniform application of the provisions relating to the recovery of customs debts in order to protect the financial interests of the Community and its Member States. Similarly, nor is the fact that the principal acted in good faith and that the breach of the external Community transit procedure was the result of a forgery in which he had no part capable of constituting an infringement of the principle of proportionality. If that were the case, the principal would no longer have so great an incentive to ensure that transit operations were properly conducted. However, where the customs debt arises as a result of circumstances in which neither deception nor obvious negligence may be attributed to the principal, Article 239 of Regulation No 2913/92 establishing the Community Customs Code, which is a general equitable provision, permits the principal to apply for the remission of duties. To that end, Articles 899 to 905 of Regulation No 2454/93 laying down provisions for the implementation of the Customs Code provide for a procedure for administrative cooperation between the customs authorities and the Commission. (see paras 48-51, operative part 3)