Judgment — ECLI:EU:C:2008:607
Date: 2008-11-06
Language of the case: Dutch
Court formation: Third Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Concepts: Jurisdiction of the Court of Justice;Specific customs procedures
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – Questions not related to the purpose of the main proceedings (Art. 234 EC) 2. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Person importing the goods or having them imported for free circulation within the meaning of Article 291(1) of Regulation No 2454/93 – Meaning (Council Regulation No 2913/92, Art. 5(4), second para.; Commission Regulations No 2454/93, Arts 291(1) and (3), second para., and 293, and No 89/97) 3. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Transfer of goods within the Community – Meaning (Commission Regulations No 2454/93, Arts 291, 297(1), 298(4) and (5), and 300, second para., and No 89/97) 4. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Transfer of goods within the Community – Transferee within the meaning of Article 297 of Regulation No 2454/93 – Meaning (Council Regulation No 2913/92, Art. 5; Commission Regulations No 2454/93, Arts 291 and 297(1), and No 89/97) 1. In the context of the cooperation between the Court of Justice and the national courts laid down by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of Community law bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (see paras 32-33) 2. Article 291(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers to the person for whom the goods are destined and who intends to assign them to the prescribed end-use, irrespective of whether he makes the customs declaration himself or has that done by a representative within the meaning of Article 5 of Regulation No 2913/92. That concept does not refer to the representative of that person before the customs authorities, disregarding those cases in which that person is deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No 2913/92 and who must therefore be considered an importer. In that regard, although it is true that Part II, Title I, Chapter 2, of the implementing regulation, which governs the admission of goods with favourable tariff treatment by reason of their end-use, does not define the concept of ‘person importing the goods or having them imported for free circulation’, the fact remains that that legislation places certain obligations on the holder of that authorisation which allow identification of the person referred to in Article 291(1) of that regulation. Thus, both the obligation laid down in the second subparagraph of Article 291(3) of that regulation, which states that the person concerned is to enable the customs authorities to trace the goods to their satisfaction in the establishment or establishments of the undertaking throughout their processing, and the obligations provided for in Article 293 of that regulation, such as the requirement that the goods be assigned to the prescribed end-use, the keeping of records enabling the customs authorities to carry out any checks which they consider necessary to ensure that the goods are actually put to the prescribed end-use, and the retention of such records, show that the person importing the goods or having them imported, that is to say, the person who is required to hold the authorisation referred to in Article 291 of the implementing regulation, is the person for whom the goods are destined and who intends to assign them to the prescribed end-use. Only that person is in a position to fulfil the obligations laid down in Articles 291 and 293 of that regulation. The fact that Article 291(1) of the implementing regulation uses as alternatives the expressions ‘the person importing … goods’ and ‘[the person] having them imported’ shows that it is possible to import goods which have a particular end-use through a representative before the customs authorities in accordance with Article 5 of Regulation No 2913/92. It follows that the representative who makes customs declarations on behalf of someone else is not the person referred to in Article 291(1) of the implementing regulation and therefore does not have to hold an authorisation within the meaning of that article. It is solely where a customs agent fails to state that he is acting in the name of or on behalf of another person or states that he is acting in the name of or on behalf of another person without being empowered to do so, that that agent is himself considered the importer and must, consequently, hold written authorisation in order to benefit from favourable tariff treatment for the goods imported. (see paras 46-51, 54, operative part 1) 3. Article 297(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that there has been no transfer of goods within the Community in a situation where goods are imported into a Member State and then transported to another Member State, if the person authorised acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in one Member State and then transported to another Member State is irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods are transferred, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation. In that regard, in order to determine whether there is a transfer within the Community within the meaning of Article 297(1) of the implementing regulation, it is apparent from the purpose of that regulation that what is important is the transfer to the transferee of obligations relating to the goods transferred. In that regard, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation. Thus, Article 298(4) and (5) and the second paragraph of Article 300 of the implementing regulation provide that, from the date of transfer of the goods, the obligations which follow from Articles 291 to 304 of the implementing regulation pass from the consignor to the consignee and the latter is required to enter the goods transferred in his records. It follows therefrom that a transfer of goods, within the meaning of Article 297(1) of the implementing regulation, can take place only between persons holding an end-use authorisation, that is to say, persons who intend or intended to assign the goods to the end-use prescribed. (see paras 65-69, operative part 2) 4. Article 297(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘transferee’ contained therein does not refer to a customs agent who carries out customs formalities on behalf of the importer. The transferee is the person who acquires from the consignor the right or goods transferred. Thus, the term ‘transferee’ within the meaning of Article 297(1) of the implementing regulation refers to the person who acquires from the consignor the goods which benefited from favourable tariff treatment, when entered for free circulation, by reason of their end-use but have not yet been assigned to that use at the date of transfer. A customs agent who clears non-Community goods through customs on behalf of the importer is the latter’s representative for the customs authorities within the meaning of Article 5 of Regulation No 2913/92, whereas the importer is the person who has the goods imported for free circulation within the meaning of Article 291 of the implementing regulation. (see paras 72-74, operative part 3)