Judgment;Summary — ECLI:EU:C:2022:647
Date: 2022-09-08
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Taxation;Free movement of goods;Internal market - Principles;Common customs tariff;Value added tax;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-368/21 – 1 
Case C-368/21 
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: 
14 June 2021 
Referring court or tribunal: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
2 June 2021 
Applicant: 
R.T. 
Defendant: 
Hauptzollamt Hamburg 
  
Subject matter of the main proceedings 
Value added tax  Directive 2006/112/EC  Place of importation of a means of 
transport registered in a third country and imported into the EU in breach of EU 
customs legislation  Admissibility of the application mutatis mutandis of 
Article 87(4) of Regulation (EU) No 952/2013 to import VAT 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are Articles 30 and 60 of Directive 2006/112/EC to be interpreted as 
meaning that the place of importation under VAT legislation of a means of 
transport registered in a third country and imported into the EU in breach of 
customs legislation is located in the Member State in which the customs 
legislation was infringed and the means of transport was first used as such in 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-368/21 
 
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the EU, or is it located in the Member State in which the person who failed 
to comply with customs obligations resides and uses the vehicle? 
2. If the place of importation is located in a Member State other than Germany, 
is Directive 2006/112/EC and, in particular, Articles 30 and 60 thereof, 
infringed where Article 87(4) of Regulation (EU) No 952/2013 is declared 
under a national provision to be applicable mutatis mutandis to import 
VAT? 
Provisions of EU law cited 
Council 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, especially Article 1, point 6 
Council Directive 2006/112/EC of 28 November 2006 on the common system of 
value added tax, especially Articles 30, 60 and 71(1), second subparagraph 
Regulation (EU) No 952/2013 of the European Parliament and of the Council of 
9 October 2013 laying down the Union Customs Code, especially Articles 79, 
87(4) and 139 
Provisions of national law cited 
Umsatzsteuergesetz (Law on value added tax, ‘the UStG’) of 21 February 2005, 
especially Paragraph 21(2) 
Brief summary of the facts and procedure in the main proceedings 
1 The applicant is contesting the assessment of import VAT on a vehicle imported 
into the territory of the EU in breach of customs legislation. 
2 The applicant, a Georgian national who has been resident and registered in 
Germany for several years, purchased and registered a vehicle in his name in 
January 2019. In March 2019, he drove the vehicle from Georgia to Germany via 
Turkey, Bulgaria, Serbia, Hungary and Austria without conveying and presenting 
it to a customs office of entry into the EU. In Germany, he used the vehicle both 
for private trips and – although the defendant Hauptzollamt (main customs office) 
contests this – for business trips. On 28 March 2019, he was stopped on one of 
those trips by one of the defendant’s control teams. 
3 By notice dated 13 May 2019, the defendant customs office assessed customs duty 
and import VAT of EUR 8 460.59 against the applicant. The defendant gave as its 
reason that the applicant had failed to present the vehicle to the first customs 
office in the territory of the Union, in breach of his obligation under Article 139 of 
Regulation No 952/2013; that, therefore, the vehicle had been imported into the 
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customs territory of the Union in breach of the legislation, thereby giving rise to a 
customs debt on import pursuant to Article 79(1)(a) of Regulation No 952/2013; 
that the applicant had a customs debt pursuant to Article 79(3)(a) of Regulation 
No 952/2013 because he had an obligation to present the vehicle; and that the 
import VAT was owed in application mutatis mutandis of the said customs 
legislation pursuant to Paragraph 21(2) of the UStG. 
4 Following an unsuccessful appeal procedure, the applicant lodged an action 
against that notice. 
Brief summary of the reasoning in the request for a preliminary ruling 
5 The referring court takes the view that it is beyond doubt that the customs debt 
accrued pursuant to Article 79(1)(a) of Regulation No 952/2013. However, it does 
have doubts as to whether Germany has jurisdiction to assess the import VAT as 
well. It would, if an interpretation of Articles 30 and 60 of Directive 2006/112 
showed that the place of importation is located in Germany, even though the 
applicant drove the vehicle through several Member States prior to his arrival in 
Germany. That is the subject matter of the first question referred. Otherwise, it 
would be necessary to consider whether Article 87(4) of Regulation No 952/2013 
should apply mutatis mutandis. That is the subject matter of the second question 
referred. 
The first question referred 
6 According to the case-law of the Court, in addition to the customs debt, there may 
also be a requirement to pay VAT where, based on the particular unlawful conduct 
which gave rise to the customs debt, it can be presumed that the goods entered the 
economic network of the Union and, consequently, that they may have undergone 
consumption, that is, the act on which VAT is levied (judgments of 2 June 2016, 
Eurogate Distribution and DHL Hub Leipzig, C-226/14 and C-228/14, 
EU:C:2016:405, paragraph 65; of 1 June 2017, Wallenborn Transports, C-571/15, 
EU:C:2017:417, paragraph 54; of 10 July 2019, Federal Express Corporation 
Deutsche Niederlassung, C-26/18, EU:C:2019:579, paragraph 44; and of 3 March 
2021, VS, C-7/20, EU:C:2021:161, paragraph 30). However, such a presumption 
may be rebutted if it is established that, despite failures to comply with customs 
legislation which result in the incurrence of a customs debt on importation in the 
Member State where those failures occurred, goods have been introduced into the 
economic network of the Union via the territory of another Member State, where 
they were intended for consumption. In such cases, VAT on importation is 
payable in the latter Member State (judgments of 10 July 2019, Federal Express 
Corporation Deutsche Niederlassung, C-26/18, EU:C:2019:579, paragraph 48, 
and of 3 March 2021, VS, C-7/20, EU:C:2021:161, paragraph 30). 
7 Those judgments of the Court were delivered in respect of goods transported 
through various Member States in breach of customs legislation. However, this 
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case does not concern transported goods; it concerns an item (vehicle) which was 
itself used as the means of transport. With regard to means of transport, various 
German finance courts have understood the case-law of the Court cited above to 
mean that a means of transport enters the economic network of the Union in the 
Member State in which it was first actually used as a means of transport. Although 
they are not ‘consumed’ within the meaning of paragraph 44 of the judgment in 
Federal Express, they are used, which is a necessary interim stage prior to 
consumption. Furthermore, third-country goods used in the EU as a means of 
transport compete with transport and rental services available in the EU. 
8 The referring court is inclined, in keeping with that, to find that the applicant’s 
vehicle entered the economic network of the Union in Bulgaria, as that is where it 
was first used as a means of transport within the EU. Therefore, that is where the 
place of importation would be located within the meaning of Article 60 of 
Directive 2006/112. 
9 However, the judgment of 3 March 2021, VS, C-7/20, EU:C:2021:161, calls that 
legal understanding into question. That case was identical to this in terms of 
enabling the referring court to give judgment. The Court starts by describing, at 
paragraphs 32 and 33, the situation with regard to parcels, the taxation of which 
was the subject matter in Federal Express. It stated that, although customs 
legislation had been infringed in Germany in that case, the parcels were then 
transhipped to their final destination in Greece, where they entered the economic 
network, and that, according to the finding in the judgment in Federal Express, 
despite the breach of customs legislation in Germany, the import VAT was 
therefore first incurred not there, but in Greece. 
10 The Court then compared the facts in Federal Express with the facts in VS. 
Having done so, it came to what was, in the view of the referring court, the 
unexpected conclusion that the two cases were similar. It found that, although the 
vehicle in VS ‘physically entered the territory of the Union through Bulgaria’, so 
that it was there that there was a failure to comply with customs obligations 
(paragraph 34), the vehicle was ‘actually used in Germany, VS’ Member State of 
residence’. Thus, as concluded by the Court at paragraph 35 of its judgment in VS, 
the vehicle first entered the economic network of the Union in Germany and 
therefore that is where the import VAT was first incurred. 
11 In light of the definition of entry into the economic network set out above 
(paragraph 6), the referring court seeks clarification as to whether it has 
understood the Court correctly and that, where a vehicle is used as a means of 
transport in order to transit a Member State, it only enters the economic network 
of the Union once it reaches the Member State of residence of the driver of the 
vehicle, not in the Member State of transit. The Court based its judgment in VS 
(paragraph 35) on the fact that, although the vehicle at issue first entered the 
customs territory of the Union in Bulgaria (est d’abord entré), it was actually used 
(a été utilisé effectivement) in Germany. 
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12 The referring court takes the view that the vehicle at issue in the main proceedings 
had already been used in Bulgaria and it was there that it first entered the 
economic network of the Union. That is because the applicant used the vehicle to 
transit Bulgaria. The referring court fails to see how that use of the vehicle as a 
means of transport – which, according to the judgment of the Court in VS, did not 
establish entry into the economic network of the Union – differs from the journeys 
subsequently completed in Germany, as a result of which, according to the finding 
of the Court in VS, the vehicle (first) entered the economic network there. 
13 The Court found at paragraph 35 of its judgment in VS that Germany was VS’ 
Member State of residence. That might give the impression that the Court regards 
the place of residence of the person who uses the goods as the criterion for entry 
into the economic network. However, the referring court is not aware of any 
judgments of the Court in which the Member State of residence of the person 
concerned was of relevance to the entry of goods into the economic network of the 
Union. 
The second question referred 
14 The second question only arises if the place of importation within the meaning of 
Articles 30 and 60 of Directive 2006/112 was located in a Member State other 
than Germany, as only then is the question of whether the German customs 
authorities had jurisdiction to assess that tax under Article 87(4) of Regulation 
No 952/2013, which applies mutatis mutandis to import VAT pursuant to 
Paragraph 21(2) of the UStG, of relevance. The requirements of Article 87(4) of 
Regulation No 952/2013 would be satisfied here: according to Article 79(1)(a) of 
the Regulation, applied mutatis mutandis, the import VAT debt would be regarded 
as having been incurred in Bulgaria at the time of importation there. The import 
VAT chargeable in Germany is lower than EUR 10 000. Therefore, the only 
question that arises is whether the application mutatis mutandis of Article 87(4) of 
the Regulation infringes Directive 2006/112. 
15 There would be no objection to the application mutatis mutandis of Article 87(4) 
of Regulation No 952/2013 under EU law if EU law itself prescribed the 
application of that provision of customs legislation in these circumstances (see 
(a)). Even if Directive 2006/112 does not require the application mutatis mutandis 
of Article 87(4), it would be allowed under EU law unless prohibited by the 
Directive (see (b)). 
a) Interpretation of Article 71(1), second subparagraph, of Directive 
2006/112 
16 The only provision of Directive 2006/112 that might prescribe the application of 
Article 87(4) of Regulation No 952/2013 to import VAT in this case is the second 
subparagraph of Article 71(1) of the Directive. In contrast to Article 71(2) of the 
Directive, that rule presupposes that the goods are actually subject to customs 
duty, which is the case here. The second subparagraph of Article 71(1) stipulates 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-368/21 
 
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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’, including in a case such as this. The chargeable event is defined in 
Article 62, point 1, of Directive 2006/112 as the occurrence by virtue of which the 
legal conditions necessary for VAT to become chargeable are fulfilled. According 
to Article 62, point 2, of the Directive, VAT becomes chargeable when payment 
of the VAT can be claimed. 
17 The referring court is of the opinion that the reference to customs legislation in the 
second subparagraph of Article 71(1) of Directive 2006/112/EC can be understood 
in one of two ways. Understood broadly, the provision refers to customs 
legislation for the purpose of all the preconditions to the incurrence of VAT. 
Understood narrowly, the rule refers to customs legislation only for the time at 
which the chargeable event occurs and the VAT becomes chargeable. The Court 
has not yet made an unequivocal pronouncement on this point. 
18 The Bundesfinanzhof (Federal Finance Court) understands the second 
subparagraph of Article 71(1) of Directive 2006/112 to be a comprehensive 
reference to customs legislation. That would ensure that the duties chargeable on 
importation can be charged by one and the same authority. Based on that 
understanding, the second subparagraph of Article 71(1) would explicitly 
prescribe the application mutatis mutandis of Article 87(4) of Regulation 
No 952/2013, in which case the answer to the second question referred would be 
in the negative. 
19 However, the referring court understands the second subparagraph of 
Article 71(1) of Directive 2006/112 to mean that it refers to customs legislation 
only for the time at which the chargeable event occurs and the VAT becomes 
chargeable. That is corroborated by the wording, history and scheme of the rule. 
20 The wording of the second subparagraph of Article 71(1) of Directive 2006/112 
links the occurrence of the chargeable event and the VAT becoming chargeable to 
customs legislation only with regard to their timing. The wording of the rule 
presupposes that a chargeable event has occurred and that the VAT has become 
chargeable 
21 Under the precursor provisions to the second subparagraph of Article 71(1) of 
Directive 2006/112, the incurrence and the due date of the customs debt and the 
VAT debt were initially explicitly linked to one another. It was not until it was 
amended by Directive 91/680 that the link between the chargeable event and the 
chargeability of import tax and duty was restricted to the time of their incurrence. 
22 The systematic positioning of the second subparagraph of Article 71(1) of 
Directive 2006/112 also suggests that the reference does not extend to customs 
legislation that addresses aspects other than the time at which 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 
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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’. 
23 The positioning of Article 71 within Chapter 4 of Title VI of Directive 2006/112 
also suggests that the rule only addresses the time at which, but not the place in 
which, the VAT becomes chargeable. That chapter comprises two articles 
(Article 70 and Article 71). Article 70 of the Directive establishes when the 
chargeable event and the chargeability of VAT occur in the case of importation, 
while Article 71 sets out the exceptions to the rule in Article 70. 
24 Lastly, the fact that the provisions of the Directive on import VAT would be 
obsolete if that provision did in fact contain a comprehensive reference to customs 
legislation suggests that the second subparagraph of Article 71(1) of Directive 
2006/112 is not to be understood broadly. 
25 The referring court is unable to deduce clearly from the case-law of the Court 
(especially the judgments of 29 April 2010, Dansk Transport og Logistik, 
C-230/08, EU:C:2010:231, paragraphs 91 and 102; of 11 July 2013, Harry 
Winston, C-273/12, EU:C:2013:466, paragraph 41; of 2 June 2016, Eurogate 
Distribution and DHL Hub Leipzig, 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, paragraph 41) whether the second subparagraph of Article 71(1) 
of Directive 2006/112 refers to customs legislation with regard also to the place in 
which the VAT becomes chargeable. 
26 Nor did the Court answer the second question referred here in its judgment of 
3 March 2021, VS, C-7/20, EU:C:2021:161. Although the referring court raised 
the question in that case of the application mutatis mutandis of Article 87(4) of 
Regulation No 952/2013, the Court did not give a ruling on it. 
b) No definitive rule on jurisdiction in Directive 2006/112 
27 As Directive 2006/112 does not prescribe the application mutatis mutandis of 
Article 87(4), the question then arises as to whether it prohibits its application 
mutatis mutandis. The fact that Articles 60 and 61 of Directive 2006/112 regulate 
the place of importation suggests that it might. However, the referring court 
understands the judgments of 2 June 2016, Eurogate Distribution and DHL Hub 
Leipzig, 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, to mean 
that the consequences under VAT law of a breach of customs legislation have not 
been regulated definitively in Directive 2006/112. Thus the Court was able in 
those cases to make importation for the purposes of VAT legislation dependent 
upon an unwritten element of the chargeable event, namely entry into the 
economic network. 
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28 The wording of Article 60 of Directive 2006/112 leaves latitude for that. 
Article 87(4) of Regulation No 952/2013, applied mutatis mutandis, does not 
stipulate a place of importation that contradicts Article 60 of the Directive; it 
simply establishes the fictitious jurisdiction of a different Member State to charge 
VAT where the debt is lower than EUR 10 000 in order to ensure the effective 
collection of the chargeable VAT. Otherwise, there would be a danger, in the view 
of the referring court, that the import VAT would not be claimed at all. If 
Germany does not have jurisdiction to charge the import VAT in this case, it 
would have to be charged in the Member State in which it was originally incurred. 
The defendant main customs office has noted that this is often likely to be 
impossible in practice.