61999CC0066_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 By this reference for a preliminary ruling pursuant to Article 177 of the EC Treaty (now Article 234 EC), the Finanzgericht Bremen (Finance Court, Bremen, Germany) has referred to the Court of Justice questions concerning the interpretation of Articles 75, 201(1)(a), 201(2), 203(1) and 204(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (hereinafter `the Customs Code'). (1) The Court is asked, principally, for a ruling concerning the time at which a customs debt is incurred on importation, the measures which the customs authorities can take to deal with the situation of goods which have not been released and the ability of those authorities to invalidate or treat of their own motion as invalid a declaration that has been accepted.
It is also asked for a ruling in connection with the `unlawful removal from customs supervision of goods liable to import duties' and the failures that `have no significant effect on the correct operation of the temporary storage or customs procedure in question', and on the effects which submission of certificates of origin establishing the right to preferential treatment have on the incurrence of a customs debt.
II - The legal background
2 Article 37 of the Customs Code provides:
`1.
Goods brought into the customs territory of the Community shall, from the time of their entry, be subject to customs supervision.
They may be subject to control by the customs authority in accordance with the provisions in force.
2.
They shall remain under such supervision for as long as necessary to determine their customs status, if appropriate, and in the case of non-Community goods and without prejudice to Article 82(1), until their customs status is changed, they enter a free zone or free warehouse or they are re-exported or destroyed in accordance with Article 182.'
3 Article 40 of the Customs Code states:
`Goods which, pursuant to Article 38(1)(a), arrive at the customs office or other place designated or approved by the customs authorities shall be presented to customs by the person who brought the goods into the customs territory of the Community or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry.'
4 Article 50 of the Customs Code states that, until such time as they are assigned a customs-approved treatment or use, goods presented to customs are, following such presentation, to have the status of goods in temporary storage and that such goods are thereinafter to be described as `goods in temporary storage'.
5 Also, Article 51 states:
`1.
Goods in temporary storage shall be stored only in places approved by the customs authorities under the conditions laid down by those authorities.
2.
The customs authorities may require the person holding the goods to provide security with a view to ensuring payment of any customs debt which may arise under Articles 203 or 204.'
6 Article 52 states:
`Without prejudice to the provisions of Article 42, goods in temporary storage shall be subject only to such forms of handling as are designed to ensure their preservation in an unaltered state without modifying their appearance or technical characteristics.'
7 Article 62 states:
`1.
Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose.
They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.
2.
The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.'
8 Article 63 provides:
`Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs.'
9 Article 66(1) provides:
`The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure covered by that declaration or that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.
Nevertheless, where the customs authorities have informed the declarant of their intention to examine the goods, a request for invalidation of the declaration shall not be accepted until after the examination has taken place.'
10 Article 67 provides:
`Save as otherwise expressly provided, the date to be used for the purposes of all the provisions governing the customs procedure for which the goods are declared shall be the date of acceptance of the declaration by the customs authorities.'
11 Article 68 states:
`For the verification of declarations which they have accepted, the customs authorities may:
(a)
examine the documents covering the declaration and the documents accompanying it.
The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration;
(b)
examine the goods and take samples for analysis or for detailed
examination.'
12 Article 71 provides:
`1.
The results of verifying the declaration shall be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed.
2.
Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.'
13 Article 73 of the Customs Code states that, without prejudice to Article 74, `where the conditions for placing the goods under the procedure in question are fulfilled and provided the goods are not subject to any prohibitive or restrictive measures, the customs authorities shall release the goods as soon as the particulars in the declaration have been verified or accepted without verification'.
14 Article 74 provides:
`1.
Where acceptance of a customs declaration gives rise to a customs debt, the goods covered by the declaration shall not be released unless the customs debt has been paid or secured.
However, without prejudice to paragraph 2, this provision shall not apply to the temporary importation procedure with partial relief from import duties.
2. Where, pursuant to the provisions governing the customs procedure for which the goods are declared, the customs authorities require the provision of a security, the said goods shall not be released for the customs procedure in question until such security is provided.'
15 Article 75 provides:
`Any necessary measures, including confiscation and sale, shall be taken to deal with goods which:
(a) cannot be released because:
- it has not been possible to undertake or continue examination of the goods within the period prescribed by the customs authorities for reasons attributable to the declarant; or,
- the documents which must be produced before the goods can be placed under the customs procedure requested have not been produced; or,
-
payments or security which should have been made or provided in respect of import duties or export duties, as the case may be, have not been made or provided within the period prescribed; or
- they are subject to bans or restrictions;
(b) ...'.
16 In addition, Article 79 states:
`Release for free circulation shall confer on non-Community goods the customs status of Community goods.
It shall entail application of commercial policy measures, completion of the other formalities laid down in respect of the importation of goods and the charging of any duties legally due.'
17 Article 201 of the Customs Code provides:
`1. A customs debt on importation shall be incurred through:
(a)
the release for free circulation of goods liable to import duties, or
(b)
...
2.
A customs debt shall be incurred at the time of acceptance of the customs declaration in question.
3.
...'
18 Article 203 states:
`1.
A customs debt on importation shall be incurred through:
-
the unlawful removal from customs supervision of goods liable to import duties.
2.
The customs debt shall be incurred at the moment when the goods are removed from customs supervision.'
19 In addition, Article 204 provides:
`1.
A customs debt on importation shall be incurred through:
(a)
non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or
(b) non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods,
in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.
2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.
3.
...'
20 Finally, Article 233 states:
`Without prejudice to the provisions in force relating to the time-barring of a customs debt and non-recovery of such a debt in the event of the legally established insolvency of the debtor, a customs debt shall be extinguished:
(a)
...
(b)
...
(c)
where, in respect of goods declared for a customs procedure entailing the obligation to pay duties:
-
the customs declaration is invalidated in accordance with Article 66,
...'.
21 Article 218(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (hereinafter `the implementing regulation') (2) states:
`The following documents shall accompany the customs declaration for release for free circulation:
...
(c) the documents required for the application of preferential tariff arrangements or other measures derogating from the legal rules applicable to the goods declared;
...'.
22 Article 241 of the implementing regulation states:
`1. The declarant or the person designated by him to be present at the examination of the goods shall render the customs authorities the assistance required to facilitate their work.
Should the customs authorities consider the assistance rendered unsatisfactory, they may require the declarant to designate another person able to give the necessary assistance.
2.
Where the declarant refuses to be present at the examination of the goods or to designate a person able to give the assistance which the customs authorities consider necessary, the said authorities shall set a deadline for compliance, unless they consider that such an examination may be dispensed with.
If, on expiry of the deadline, the declarant has not complied with the requirements of the customs authorities, the latter, for the purpose of applying Article 75(a) of the Code, shall proceed with the examination of the goods, at the declarant's risk and expense, calling if necessary on the services of an expert or any other person designated in accordance with the provisions in force.
3.
The findings made by the customs authorities during the examination carried out under the conditions referred to in the preceding paragraph shall have the same validity as if the examination had been carried out in the presence of the declarant.
4.
Instead of the measures laid down in paragraphs 2 and 3, the customs authorities shall have the option of deeming a declaration invalid where it is clear that the declarant's refusal to be present at the examination of the goods or to designate a person able to give the necessary assistance neither prevents, nor seeks to prevent, those authorities from finding that the rules governing the entry of the goods for the customs procedure concerned have been breached, and neither evades, nor seeks to evade, the provisions of Article 66(1) or Article 80(2) of the Code.'
23 Article 243(2) of the implementing regulation provides:
`Where the declarant refuses to be present at the taking of samples or to designate a person to attend, or where he fails to render the customs authorities all the assistance needed to facilitate the operation, the provisions of Article 241(1), (2) and (3) shall apply.'
24 Article 250(1) and (2) of the implementing regulation provides:
`1.
Where the customs authorities have been unable to grant release for one of the reasons specified in the second or third indent of Article 75(a) of the Code, they shall give the declarant a time-limit to regularise the situation of the goods.
2. Where, in the circumstances referred to in the second indent of Article 75(a) of the Code, the declarant has not produced the requisite documents within the time-limit referred to in paragraph 1, the declaration in question shall be deemed invalid and the customs office shall cancel it.
The provisions of Article 66(3) of the Code shall apply.'
25 Article 859 of the implementing regulation states:
`The following failures shall be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question within the meaning of Article 204(1) of the Code, provided:
-
they do not constitute an attempt to remove the goods unlawfully from customs supervision,
-
they do not imply obvious negligence on the part of the person concerned, and
-
all the formalities necessary to regularise the situation of the goods are subsequently carried out:
...
5. in the case of goods in temporary storage or placed under a customs
procedure, unauthorised movement of the goods, provided the goods can be presented to the customs authorities at their request;
...'.
26 Article 860 of the implementing regulation provides:
`The customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the Code unless the person who would be the debtor establishes that the conditions set out in Article 859 are fulfilled.'
27 Article 865 of the implementing regulation states that `the presentation of a customs declaration for the goods in question, or any other act having the same legal effects, and the production of a document for endorsement by the competent authorities, shall be considered as removal of goods from customs supervision within the meaning of Article 203(1) of the Code, where these acts have the effect of wrongly conferring on them the customs status of Community goods'.
28 Article 890 of the implementing regulation states:
`Where a certificate of origin, movement certificate, internal Community transit document or other appropriate document is produced in support of an application for repayment or remission, indicating that the imported goods were eligible, at the time of acceptance of the declaration for free circulation, for Community treatment or preferential tariff treatment, the decision-making customs authority shall grant such application only where it is duly established:
- that the document thus produced refers specifically to the goods in question and that all the conditions relating to acceptance of the said document are fulfilled,
- that all the other conditions for the granting of the preferential tariff treatment are fulfilled.
Repayment or remission shall take place upon presentation of the goods.
Where the goods cannot be presented to the implementing customs office, the latter shall grant repayment or remission only where it has information indicating unequivocally that the certificate or document produced post-clearance applies to the said goods.'
29 Commission Regulation (EC) No 3254/94 of 19 December 1994 (OJ 1994 L 346, p. 1) added the following point to Article 900(1) of the implementing regulation, with retrospective effect as from 1 January 1994:
`[Import duties shall be repaid or remitted where:] (o) the customs debt has been incurred otherwise than under Article 201 of the Code and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Community transit document or other appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.'
III - The facts
30 D. Wandel GmbH (hereinafter `Wandel') is a limited liability company carrying on business as an international haulage and storage firm.
On 12 July 1994, within the framework of its approval as an `authorised consignee', it took receipt of a consignment of 470 boxes of television chassis, 24 boxes of circuit boards and 29 boxes of modules, which, with transit document T 1 VAB 1-1468, had been presented on 11 July 1994 at the HZA (Principal Customs Office, hereinafter `HZA') Hamburg-Waltershof.
On 13 July 1994 Wandel presented to the competent Hohetor processing customs office of the HZA Bremen-Ost the part of the transit declaration intended for the customs office of destination and at the same time declared the goods for release into free circulation on behalf of Schneider Rundfunkwerke AG Türkheim.
31 The customs office registered the transit document, which served as a summary declaration pursuant to Article 183(3) of the implementing regulation, under reference GB I 665 and accepted the customs declaration registered under reference F 459.
At the same time, the processing official of the customs office who was responsible for accepting and examining the customs declaration informed Wandel's employee present for the submission of the customs declaration that the declared goods were to be subjected, on 14 July 1994, to a customs examination at Wandel's commercial premises, which served as the place of storage under Article 51(1) of the Customs Code.
32 The customs examination could not be carried out because, when the official responsible for that examination arrived, the declared goods were no longer in Wandel's custody but had already been handed over to the company in whose name the declaration had been lodged, established in southern Germany.
33 The HZA thereupon entered the following note in red pen on the single administrative document 0779:
`Invalidated (Article 66(1) of the Customs Code).
When steps were taken to carry out an examination, the consignment had already been removed; matter passed on to Specialist Department D for the purpose of preparing a notice of assessment, Wacker'.
34 The HZA took the view that the removal from the place of storage and of intended examination constituted removal from customs supervision of temporarily stored non-Community goods.
By an assessment notice of 2 August 1994, it requested that Wandel, as the person responsible under Article 51 of the Customs Code for the temporarily stored goods, pay import duties which had arisen under Article 203 of the Customs Code amounting to DEM 34 534.13 in duty and DEM 44 344.33 in import turnover tax, making a total of DEM 78 878.46.
In this it applied to the television kits the rates of duty applicable to non-member countries on the ground that preference could be granted only in the case where goods entitled to preference had been properly released for free circulation.
35 In its objection lodged on 11 August 1994, Wandel stated that it in fact had custody of the imported goods before it submitted the customs declaration.
It was also aware that this gave rise to a debt in respect of importation duties under Article 203(1) and (3) of the Customs Code.
In the case of the television equipment (television kits), however, for which there was proof of preference on Form A submitted to the HZA with the customs declaration, Wandel maintained that the preferential zero tariff for goods originating in Indonesia applied.
Wandel later submitted that the HZA had accepted the customs declaration and had refrained from rejecting it under Paragraph 7 of the Law on Customs Procedure.
The customs declaration was therefore valid.
For that reason it was also questionable whether a customs debt had been incurred under Article 203(1) and (3) of the Customs Code; at most, a customs debt might have been incurred under Article 204(1)(a) of the Customs Code. Wandel submitted that it was nevertheless doubtful whether the `premature' removal of the goods from the storage procedure had affected the correct operation of the temporary storage, since the goods had been declared through the above customs declaration for release into free circulation, and no serious doubt could have arisen as to the identity of the goods in question in view of the existing commercial documentation, since this had already been checked in the course of the storage procedure.
36 By a decision of 3 January 1995, the HZA rejected the objection as unfounded.
It stated as follows: Wandel had had custody of the non-Community goods which were the subject of the dispute before the customs declaration was submitted.
When the customs declaration was submitted, the goods were no longer in the place specified in the authorisation granted to Wandel as `authorised consignee' and had therefore at that time not been presented within the meaning of Article 63 of the Customs Code.
The customs declaration which Wandel submitted on behalf of Schneider Rundfunkwerke AG was void since it related to goods which had not been presented; the bona fide acceptance of the customs declaration by the customs office could not alter that.
The customs debt was thus incurred not under Article 201 but under Article 203(1) of the Customs Code and Wandel could be held liable for it under Article 203(3).
The creation of a debt under Article 204 of the Customs Code, considered possible by Wandel, could be discounted in the light of the wording of that provision, but would not, however, lead to any different result.
Application of a preferential rate could be ruled out in every case where a customs debt is incurred other than under Article 201 of the Customs Code. Tariff preferences for products from developing countries, which are at issue in the present case, are governed in addition by Article 87 of the implementing regulation. The tariff rate of 14% of the value normally applicable to such goods was therefore correctly used as the basis for calculating the duty on the television equipment.
In the case of the other goods (modules and circuit boards under Code Nos 8529 9070 and 0990) - which it is common ground were not entitled to preferential treatment - the import duties were calculated and charged in accordance with the applicable rate of 7.2% of the value.
37 On 9 February 1995, Wandel appealed to the Finanzgericht Bremen requesting that the notice of assessment of 2 August 1994, as contained in the decision of 3 January 1995 on the objection, be amended by reduction of the amount of duty set to DEM 2 093.73.
IV - Questions referred for a preliminary ruling
38 On 2 February 1999 the Second Chamber of the Finanzgericht Bremen decided to stay the proceedings before it and refer the following questions to the Court of Justice for a preliminary ruling:
`1.
Is Article 201(1)(a), in conjunction with Article 201(2), of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) to be construed as meaning that a customs debt on importation is incurred once a customs declaration for the release of non-Community goods into free circulation satisfying the requirements of Article 62 of the Customs Code has been received by the competent customs office and its acceptance evidenced by the attachment of a customs registration stamp?
2.
If Question 1 is answered in the affirmative:
Is Article 75 of the Customs Code to be construed as meaning that the customs office which has accepted such a customs declaration is entitled to treat the declaration as invalid or to invalidate it without a request by the declarant to that end, with the result that a customs debt incurred under Article 201(1)(a) of the Customs Code is deemed not to have been incurred or is extinguished under the first indent of Article 233(c) of the Customs Code, if the declared goods cannot be released to the declarant because they were removed, before the customs examination ordered was carried out, from their prescribed place of storage and from the area for which the customs office is responsible?
3. If Question 1 is answered in the negative or Question 2 in the affirmative:
Is Article 203(1) of the Customs Code to be construed as meaning that there is a removal from customs supervision where the non-Community goods declared for release for free circulation are removed from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible, even though the customs office had ordered a customs examination?
4.
If Question 3 is answered in the negative:
Is Article 204(1) of the Customs Code to be construed as meaning that the unauthorised removal of the goods from their place of storage has had "no significant effect" on the correct operation of the temporary storage if, after their removal, the goods could, on request, have been presented at another customs office?
5.
Can there be no question of a customs debt on importation being incurred
(a) under Article 201(1)(a), in conjunction with Article 201(2), of the Customs Code, where the customs declaration is merely received by the customs office, or
(b) under Article 203(1) of the Customs Code, or
(c) under Article 204 of the Customs Code,
if technically correct certificates of origin corresponding to Form A were attached to the customs declaration received by the customs office and a zero preferential tariff applied to the goods covered by the declaration?'
V - Reply to questions referred for a preliminary ruling
A - The first question
39 By the first question referred for a preliminary ruling, the Finanzgericht Bremen asks the Court to determine whether, in the context of the facts of the main proceedings, a customs debt on importation is incurred, under Article 201(1) and (2) of the Customs Code, once a customs declaration has been received by the competent customs office and its acceptance evidenced by the attachment of a customs registration stamp.
40 It should be noted at the outset that, in accordance with the wording of Article 201(1)(a) of the Customs Code, in order for a customs debt on importation to be incurred the goods must have been released for free circulation. Provided that is the case, the time of acceptance of the customs declaration in question is considered to be the time when the relevant customs debt is incurred (Article 201(2)).
41 On an initial reading of the above provision, the conclusion arrived at by Wandel in its written observations might be reached, namely that, in any case, the time at which the declaration is formally accepted, as provided for under Article 63 of the Customs Code, (3) constitutes the time at which the goods are released for free circulation and the time at which a customs debt on importation is incurred.
42 However, I consider that the above reading of the provision does not fully capture the temporally dynamic nature of either the legal act of releasing goods for free circulation or that of determining a customs debt on importation. In particular, the above reading, by stressing the formal attestation accepting the declaration and overemphasising the importance of the time at which formal acceptance occurs, lends the above acts an instantaneous character, limiting the scope of their meaning.
As I will now immediately examine, those acts, depending on the particular circumstances of each case, may cover different time-spans (either instantaneous or of longer duration).
43 Both the release of goods for free circulation and the determination of a customs debt on importation constitute legal procedures which start with the submission (which also constitutes a request for release of the goods for free circulation) and formal acceptance of the relevant declaration, but are not always completed thereby.
44 According to Article 79 of the Customs Code, release for free circulation entails, inter alia, completion of the formalities laid down in respect of the importation of goods (which logically include the carrying out of customs checks considered necessary) and the charging of any duties legally due.
Accordingly, if the duties in question have not been definitively assessed and charged, there can be no question of the goods having been definitively released for free circulation.
45 Moreover, it follows from Articles 68, 71 and 73(1) of the Customs Code that the formal acceptance of a declaration may be combined, as in the main proceedings, with an order for verification of the declaration by the customs authorities.
Such verification may include examination of the goods and, where necessary, the taking of samples for analysis and detailed examination.
46 It is clear from the wording of the above provisions and the need to ensure their effectiveness that, where a declaration is accepted without any verification of the particulars contained in it, not only is a customs debt incurred at that point, but the amount of that debt is also definitively determined.
On the other hand, where a declaration is accepted with an order for verification of the particulars contained in it, the customs debt formally arises, but is not definitive, because, until such time as the goods have been examined and the particulars in the declaration verified, the amount of the particular debt has not been definitively determined and confirmed. Consequently, it must be accepted that, in this second case, until the above particulars have been verified, the duties lawfully due have not been definitively imposed, (4) and the goods have not yet been definitively released for free circulation.
47 In other words, definitive release of goods for free circulation requires the type and the amount of the customs debt to be accurately determined.
Where such determination is effectively subject to verification of the declaration and, in particular, examination of the goods, definitive release of the goods for free circulation requires that the examination ordered for the purpose of validating the declaration be carried out and completed.
48 This finding does not conflict with the wording of Article 201(2) of the Customs Code.
That provision, according to which a customs debt is incurred on formal acceptance of the declaration, does not mean that the recognition and imposition of that debt, and, therefore, release of the goods for free circulation are always achieved at the same time.
On the contrary, having regard also to Article 67 of the Customs Code, it means that, for reasons of legal certainty, whenever the amount of the debt is definitively determined, it will be calculated on the basis of the rules in force at the time when the declaration was formally accepted. (5)
49 In light of the above, it appears that there can be no question of definitive recognition of a customs debt so long as the examination of the goods ordered in order to verify the declaration has not yet been completed.
Final determination of that debt is subject to the suspensory condition that the examination be carried out.
Until such time as the examination is conducted and completed, the conditional recognition of the customs debt cannot produce legal effect.
50 In the main proceedings, the competent customs authorities formally accepted the declaration by attaching a registration stamp to it, reserving the right to examine the relevant goods on 14 July 1994 at Wandel's commercial premises which legally served as the place of storage.
The fact that the examination could not be carried out because the goods, which still had the status of goods in temporary storage, had been removed by Wandel without the permission of the customs office (6) meant that the duties payable under Article 201 of the Customs Code were not definitively determined.
Consequently, the conditional recognition of the customs debt on importation pursuant to Article 201 of the Customs Code could not produce any legal effect because the condition relating to verification of the declaration and determination of the type and amount of the debt was not fulfilled, having been rendered purposeless. Accordingly, the goods were not definitively released for free circulation nor could a customs release be granted. (7)
51 The fact that the suspensory condition relating to examination of the goods and verification of the particulars contained in the declaration is not fulfilled, having been rendered purposeless, must therefore, in particular where that is attributable to the declarant, lead to the conclusion that a customs debt pursuant to Article 201(1) of the Customs Code, whose recognition is subject to the above suspensory condition, has not been incurred.
That is the legal conclusion to be drawn from the general principles governing the meaning and role of suspensory conditions, which often accompany the recognition of rights and obligations.
This differs conceptually both from the situation where a declaration is invalidated, as provided for in Article 66 of the Customs Code, which concerns the validity of the formal acceptance of a declaration and not definitive recognition of a customs debt, and from the situation where a customs debt is extinguished, under Articles 233 and 234 of the Customs Code, which requires the customs debt in question to have become definitive.
52 In light of the above, the answer to the first question referred for a preliminary ruling must be that Article 201(1)(a), in conjunction with Article 201(2), of the Customs Code, must be construed as meaning that a customs debt on importation is not to be regarded as having been incurred if, for reasons attributable to the declarant - the goods which had the status of goods in temporary storage having been removed without the permission of the customs office - the suspensory condition concerning examination of those goods has not been fulfilled, having been rendered purposeless, where that condition accompanied the acceptance by the competent customs office of a declaration for the release of non-Community goods into free circulation that satisfied the requirements of Article 62 of the Customs Code and its acceptance was evidenced by the attachment of a customs registration stamp.
B - The second question
53 By the second question, the Finanzgericht Bremen asks the Court to determine whether, if the first question is answered in the affirmative, Article 75 of the Customs Code is to be construed as meaning that the customs office which has accepted a customs declaration as in the main proceedings is entitled to treat that declaration as invalid or to invalidate it without a request by the declarant to that end, with the result that a customs debt incurred under Article 201(1)(a) of the Customs Code is deemed not to have been incurred or is extinguished under the first indent of Article 233(c) of the Customs Code, if the declared goods cannot be released to the declarant because they were removed, before the customs examination ordered was carried out, from their prescribed place of storage and from the area for which the customs office is responsible.
54 I consider it would be useful to make two introductory comments.
First, the second question referred for a preliminary ruling, which essentially concerns the general issue of the power of the customs authorities to invalidate of their own motion a declaration that has already been accepted, must in any event be answered after having regard to the proposed answer to the first question, which cannot be regarded as affirmative or negative for the purpose of the questions as formulated by the national court.
Second, as the Commission has correctly observed, it should be borne in mind at the outset that, under Article 177 of the Treaty, the Court has no power to apply rules of Community law to a particular case but may only provide a national court with information on the interpretation of Community law which may be useful to it in assessing the effects of applying a provision of national law. (8)
55 Article 75 of the Customs Code comes under Title IV, Chapter 2, Section 1 of that code and, more specifically, forms part of the provisions governing the `normal procedure' for the entry of goods for a customs procedure. Moreover, it is clear from the article's very wording that it refers to `measures', including confiscation and sale, to deal with goods still to be found in an area for which the customs office is responsible either because the goods `cannot be released' (Article 75(a)) or because they `are not removed within a reasonable period after their release' (Article 75(b)).
56 As the Finnish Government correctly notes, this article does not apply therefore to `abnormal' situations such as the removal of goods from their prescribed place of storage before the customs examination ordered has been carried out.
Nor does it appear to apply to measures not directly connected with the goods, but rather to the validation of the declaration and the fate of the customs debt in general.
57 In that regard, it should be noted that Article 66 of the Customs Code provides that the customs authorities are to invalidate a declaration which has already been formally accepted only on specific grounds and under certain conditions which include, in particular, a request by the declarant to that end.
In other words, that article makes no provision for the customs authorities to invalidate the declaration or declare it invalid of their own motion. Moreover, it deals with the situation where a declaration is formally accepted subject to verification of the particulars contained therein by providing that `where the customs authorities have informed the declarant of their intention to examine the goods, a request for invalidation of the declaration shall not be accepted until after the examination has taken place'.
58 As noted in the order for reference, after it was established that the customs examination could not be carried out because, when the official responsible for that examination arrived, the declared goods were no longer in the plaintiff's custody, the competent customs office wrote on the relevant document: [declaration] `invalidated (Article 66(1) of the Customs Code).
When steps were taken to carry out an examination, the consignment had already been removed; matter passed on to Specialist Department D for the purpose of preparing a notice of assessment, Wacker'.
59 In view of the abovementioned preconditions for application of Article 66 of the Customs Code, it is clear that the customs office was mistaken in relying on that article to invalidate the declaration since there is nothing in the file to indicate that the declarant made a request to that end as provided for in the article.
60 Moreover, it is clear that, in any event, Article 75 of the Customs Code could not constitute a legal basis for taking the above measure of invalidating the declaration as the general conditions for its application are not met and, more particularly, invalidation of the declaration does not constitute, in the present case, a measure dealing with the situation of goods which continue to be stored in the prescribed area.
61 It should be noted that there appear to be no grounds for applying either the first indent of Article 233(c) of the Customs Code or Articles 241(4), 243(2) or 250(2) of the implementing regulation.
62 The first indent of Article 233(c) of the Customs Code provides that a customs debt is to be extinguished where, in respect of goods declared for a customs procedure entailing the obligation to pay duties, the customs declaration is invalidated in accordance with Article 66 of the Customs Code.
However, as noted above, in the present case there is no possibility of invalidating the declaration on the basis of Article 66.
63 Article 241(4) of the implementing regulation provides that, where the declarant refuses to be present at the examination of the goods or to designate a person able to give the assistance which the customs authorities consider necessary, the customs authorities have the option of deeming a declaration invalid where it is clear that the declarant's refusal to be present at the examination or to designate a person able to give the necessary assistance neither prevents, nor seeks to prevent, those authorities from finding that the rules governing the entry of the goods for the customs procedure concerned have been breached, and neither evades, nor seeks to evade, the provisions of Article 66(1) or Article 80(2) of the Code. In the present case, the declarant has not refused to be present at the examination of the goods or to designate a suitable person as described above, and therefore the conditions for the application of that article are not met.
64 For the same reasons, Article 243(2) of the implementing regulation could not in any event apply.
That article lays down provisions similar to those of Article 241 of the implementing regulation for cases where the declarant refuses to give the necessary assistance on the taking of samples by the customs authorities.
65 Moreover, it is clear that, in the present case, there is no question of Article 250(2) of the implementing regulation being applied, under which a declaration may be deemed invalid or invalidated if the declarant has not produced the requisite documents in the circumstances referred to in the second indent of Article 75(a) of the Code.
There is nothing in the file to indicate that Wandel failed to produce the requisite documents.
66 At this point, however, it should be noted that it would be strange if a declaration could be invalidated or declared invalid by virtue of the above provisions where the declarant has merely failed to provide assistance for the examination of the goods or has failed to produce the requisite documents, but a declaration could not be contested where the goods have been removed without a customs release, thereby making it impossible for the examination to be carried out for reasons attributable to the declarant.
67 Indeed, as the national court correctly points out, it is questionable whether the customs office is obliged, pursuant to Article 71(2) of the Customs Code, to levy duties on the basis of the particulars contained in the declaration even though it ordered a customs examination to check on the preferential origin of the goods but that examination could not be carried out for reasons attributable to the declarant.
68 At first sight, it could be argued that the above observation by the national court would justify in the present case the analogous application - or better the a minori ad maius application - of the foregoing provisions under which a formally accepted declaration may be invalidated or declared invalid.
However, the technical nature of those provisions makes it difficult in practice to apply them in that way since various specific problems are raised.
For example, it is not at all clear whether the customs authorities would be obliged or merely able to invalidate the declaration when, as a result of goods being removed by the declarant without a customs release, an examination of the goods which has been ordered cannot be carried out and the declaration cannot be verified.
Nor is it clear whether the customs authorities would be obliged, before invalidating the declaration, to order the return of the goods. (9) The Court would have difficulty in resolving these matters without performing a primary legislative role which is not consistent with its judicial role.
69 Moreover, in the present case, the analogous application of the above provisions under which a declaration may be invalidated or declared invalid does not appear to be necessary as it is not an essential precondition for incurrence of a customs debt, which may be incurred not on the basis of Article 201(1)(a) but pursuant to another provision of the Customs Code such as, for example, Article 203(1).
In this connection, I consider that the general theory of suspensory conditions, on which the analysis of the first question referred for a preliminary ruling was based, may also provide a legitimate legal basis for the analysis of the present question.
As I have already noted, the fact that the condition relating to examination of the goods and verification of the formally accepted declaration was not fulfilled, having been rendered purposeless, meant that the customs debt pursuant to Article 201(1)(a) of the Customs Code was not definitively determined and, therefore, that it must be regarded as never having been incurred.
The latter consequence means, in turn, that a separate customs debt may be incurred, pursuant to a different provision of the Customs Code, without the same goods improperly being made subject to two different customs procedures.
70 The objection could of course be raised that, before accepting that a customs debt has never been incurred pursuant to Article 201(1)(a) of the Customs Code, the customs authority should take those steps which, theoretically, could still make it possible for the condition relating to examination of the goods to be fulfilled.
Wandel asserts in this regard that under Article 75 of the Customs Code a declaration cannot be declared invalid but it would have been lawful and appropriate to order Wandel to produce the goods immediately so that the examination ordered could be carried out.
71 I consider that the above objection cannot be accepted for the following two reasons.
72 First, no specific provision or general principle provides that the competent customs authorities are under a general obligation to prevent the declarant from failing to fulfil - rendering purposeless - a suspensory condition to which definitive recognition of a customs debt under Article 201 of the Customs Code is subject.
To have regard to the spirit and the possible analogous application of the abovementioned Articles 241(4) (10) and 250(1) and (2) (11) of the implementing regulation would not be of any particular assistance because, although Article 250(1) and (2) expressly provides that, before invalidating the declaration, the customs authorities are to set a time-limit for the declarant to rectify his omissions, under Article 241(4) the declaration may be invalidated even without his attempting to rectify his omissions.
73 Second, it could not be accepted, in particular, that the customs administration is obliged to take measures to rectify acts or omissions on the part of the declarant which have specific legal consequences under another provision of the Customs Code or other legislation. Specifically, if removal of the goods without a customs release constitutes `unlawful removal from customs supervision of goods liable to import duties' or `non-fulfilment of one of the obligations arising in respect of goods liable to import duties, from their temporary storage', (12) the competent customs authorities cannot take measures that could help to preclude or delay the application of Article 203 or 204 of the Customs Code or any other legal provision which has legal effects deriving from that removal.
74 In light of the above considerations, the answer to the national court's second question must therefore be that Article 75 of the Customs Code must be construed as meaning that the customs office which has accepted a customs declaration is not entitled to treat that declaration as invalid or to invalidate it if, as is the case in the main proceedings, the declared goods cannot be released to the declarant because they were removed, before the customs examination ordered was carried out, from their prescribed place of storage and from the area for which the customs office is responsible.
C - The third question
75 By the third question, the Finanzgericht Bremen asks whether, if it is considered that no customs debt under Article 201(1)(a) of the Customs Code has been incurred (or after being incurred has been extinguished), Article 203(1) of that code is to be construed as meaning that there is an unlawful removal from customs supervision where the non-Community goods declared for release into free circulation are removed from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible, even though the customs office had ordered a customs examination.
The national court also asks, in particular, whether the question whether goods are removed from customs supervision is judged on the basis of objective criteria or whether specific intent to commit that act is also required.
76 Pursuant to Article 37 of the Customs Code, non-Community goods brought into Community territory are to be subject to customs supervision from the time of their entry until their customs status is changed, they enter a free zone or free warehouse, or they are re-exported or destroyed in accordance with Article 182.
77 Also, pursuant to Article 50 of the Customs Code, until such time as they are assigned a customs-approved treatment or use, goods presented to customs are, following such presentation, to have the status of goods in temporary storage. Under Article 51 of the Customs Code, they are to be stored only in places approved by the customs authorities under the conditions laid down by those authorities.
Finally, pursuant to Article 52 goods in temporary storage are to be subject only to such forms of handling as are designed to ensure their preservation in an unaltered state without modifying their appearance or technical characteristics; this is expressed to be without prejudice to Article 42 under which goods may, with the permission of the customs authorities, be examined or samples may be taken, in order that they may be assigned a customs-approved treatment or use.
78 In the main proceedings, as noted in relation to the first question referred for a preliminary ruling, when the examination of the goods which had been ordered was not carried out, the goods were not definitively released for free circulation, but continued to have the status of goods in temporary storage.
Moreover, they continued to be under customs supervision as their customs status had not definitively altered.
79 That means that it is in principle conceivable in the present case that Article 203(1) of the Customs Code be applied, which provides that a customs debt is to be incurred through the unlawful removal from customs supervision of goods liable to import duties if it is considered that they have been unlawfully removed from customs supervision.
80 The possibility of such application is moreover envisaged by Article 51(2) of the Customs Code which provides that the customs authorities may require the person holding the goods in temporary storage to provide security with a view to ensuring payment of any customs debt which may arise under Article 203 or 204.
81 It should also be remembered that, in view of the fact that the examination which was ordered had not been carried out before the removal of the goods from the place of storage and, for that reason, the customs debt under Article 201(1)(a) of the Customs Code could be regarded as never having been incurred, the creation of a customs debt under Article 203(1) of the Customs Code is in principle conceivable, without any risk of the same goods being improperly made subject to two different customs procedures. (13)
82 The issue still to be considered, in the present case, is whether the removal of goods from the place of temporary storage, as effected by Wandel in the main proceedings, may be termed an `unlawful removal from customs supervision of goods liable to import duties'.
83 When does such `unlawful removal' from customs supervision within the meaning of Article 203 of the Customs Code occur however?
84 In my view it must be accepted that, as stated by the national court, (14) the Commission (15) and Wandel (16) who refer to academic writings and Member States' case-law, there is an unlawful removal from customs supervision, within the meaning of Article 203(1) of the Customs Code, when as the result of an act or omission the customs authorities become completely unable to gain access to the goods (whereas they could initially) and consequently cannot complete specific customs supervision measures which they have already begun to apply.
As the Commission indicates, a typical example of unlawful removal from customs supervision is the removal of goods from a place of temporary storage.
85 It should, however, be noted at this point that Article 865 of the implementing regulation provides: `The presentation of a customs declaration for the goods in question, or any other act having the same legal effects, and the production of a document for endorsement by the competent authorities, shall be considered as removal of goods from customs supervision within the meaning of Article 203(1) of the Code, where these acts have the effect of wrongly conferring on them the customs status of Community goods.'
86 That provision appears to restrict removal from customs supervision, within the meaning of Article 203(1) of the Customs Code, to situations where it is sought by the use of documents (the presentation of a customs declaration or any other act having the same legal effects, and the production of a document for endorsement by the competent authorities) wrongly to confer on goods the customs status of Community goods so that those goods avoid from the outset the customs supervision prescribed for non-Community goods which are brought into the Community.
87 However, it must be found that Article 865 of the implementing regulation does not provide an exhaustive definition of the concept of `unlawful removal from customs supervision' under Article 203(1) of the Customs Code, but merely cites by way of example certain additional specific instances of such removal.
88 To accept those instances as exhaustive would be contrary to the clear meaning of Article 203(1) of the Customs Code. (17) Indeed, there appears to be no doubt that the scope of that provision encompasses not only the acts of removal from customs supervision as referred to in Article 865 of the implementing regulation, but in principle all acts or omissions which have the effect of preventing the customs authorities from gaining access to the goods and, in particular, the customs supervision already set in motion by means of specific measures from being completed.
89 Finally, it should be noted that unlawful removal from customs supervision, within the meaning of Article 203(1) of the Customs Code, does not appear to require any subjective intent to avoid such supervision. As the Finnish Government correctly observes, the chief aim of customs legislation is to levy the prescribed duties on the basis of objective criteria.
The particular objective of a declarant who has removed goods from the place of temporary storage is irrelevant to the incurrence of a customs debt. On the other hand, it may be relevant when calculating any administrative or criminal penalty.
90 As stated in the order for reference, in the present case the customs authorities had ordered an examination of the goods to be carried out on a given date (14 July 1994) at the applicant's premises where the goods remained under customs supervision in temporary storage.
91 The customs examination could not be carried out because, when the official responsible for the examination arrived, the declared goods were no longer in the plaintiff's custody but had already been handed over to the company in whose name the declaration had been lodged. However, the national court does not find that Wandel intentionally removed the goods from temporary supervision.
92 In light of the above analyses, it appears that in the main proceedings the goods were in fact unlawfully removed from customs supervision, within the meaning of Article 203(1) of the Customs Code.
First, customs supervision, within the framework of which the specific measure, namely examination of the goods, was ordered, had already begun to apply.
Second, the removal of the goods clearly made it impossible for the customs authorities to gain access to them and, therefore, to continue customs supervision by carrying out the examination which had been ordered.
93 Of course, it could be argued, following the reasoning adopted by Wandel, that even though the goods were removed from the place prescribed for customs purposes, there cannot be a removal from customs supervision since the goods had been declared in due form and the customs authorities had all the relevant documentation at their disposal.
According to Wandel, the premature removal therefore amounts to no more than a mere failure to implement a customs measure.
94 However, I consider that the above interpretation of the facts of the main proceedings would not be convincing. First, the fact that the goods in question had already been declared certainly precludes removal from customs supervision ab initio, but it does not preclude removal from supervision which had already started and could not be completed.
Second, in the present case there is not merely a failure to comply with a general obligation entailed by the temporary storage of the goods, which could under certain conditions justify the application of Article 204(1)(a) of the Customs Code, but a removal of goods which makes it impossible for the customs authorities to gain access to them and thus impedes the effectiveness generally of any form of customs supervision and, in particular, implementation of a specific measure of customs supervision ordered which, in the present case, was examination of the relevant goods.
95 In light of the above, the answer to the third question referred for a preliminary ruling must be that Article 203(1) of the Customs Code is to be construed as meaning that there is an unlawful removal from customs supervision where the non-Community goods declared for release into free circulation are removed by the declarant, without the authorisation of the competent customs authorities, from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible and are handed over to the company in whose name the declaration was lodged, even though the customs office has ordered a customs examination.
D - The fourth question
96 By the fourth question referred for a preliminary ruling, the Court is asked, should the third question be answered in the negative, to determine whether Article 204(1) of the Customs Code is to be construed as meaning that the unauthorised removal of the goods from their place of storage has had `no significant effect' on the correct operation of the temporary storage if, after their removal, the goods could, on request, have been presented at another customs office.
97 In view of the proposed answer to the third question referred for a preliminary ruling and given that Article 203 is a special provision which precludes the application of Article 204, it is superfluous to answer the fourth question. (18) However, in case the Court rules that Article 203(1) of the Customs Code is not applicable, the following comments interpreting Article 204(1) of the Code should be made.
98 According to the provision at issue, 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 their temporary storage or from the use of the customs procedure under which they are placed, in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.
99 In the present case, if it is held that Article 203(1) of the Customs Code does not apply, I consider that the general condition for the application of Article 204(1)(a) of the code is undoubtedly met.
The removal of the goods by Wandel constitutes in any event non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage and, specifically, of the obligation to keep goods, in an unaltered state, available to the supervising customs office until they are assigned a customs-approved treatment or use.
(19)
100 It thus remains to be examined whether the failure did not affect the operation of the temporary storage.
101 As the Court held in Söhl & Söhlke, (20) Article 859 of the implementing regulation contains a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of the Customs Code, which `have no significant effect on the correct operation of the temporary storage or customs procedure in question'. (21)
102 According to Article 859(5) of the implementing regulation, there shall be considered to be no significant effect on the correct operation of the temporary storage or customs procedure in question, within the meaning of Article 204(1) of the Customs Code, in the case of unauthorised movement of goods which are in temporary storage or placed under a customs procedure, provided the goods can be presented to the customs authorities at their request and, as laid down by the first paragraph of Article 859, provided their unauthorised movement does not constitute an attempt to remove them unlawfully from customs supervision or imply obvious negligence on the part of the person concerned and all the formalities necessary to regularise the situation of the goods are subsequently observed. It should also be noted that, pursuant to Article 860 of the implementing regulation, Wandel has the burden of proving to the customs authorities in the present case that the conditions set out in Article 859 of the implementing regulation are fulfilled.
103 As regards the above conditions, the following specific points should be made.
104 First, Article 859(5) of the implementing regulation does not explicitly state that the goods may be presented, if requested by the customs authorities, only at the customs office for the place of temporary storage.
I consider that they could in principle be presented at another customs office, provided of course that such action could make good the relevant breach of procedure without the correct operation of the temporary storage or the customs procedure in question being affected.
It is for the national court to assess that condition in each particular case, when asked to rule whether, having regard to the facts of the main proceedings, their correct operation is actually affected.
105 Second, as regards the condition, laid down in Article 859, that the failure is not to entail obvious negligence on the part of the person liable for the customs debt, it is worth noting that the Court has held that, in order to determine whether there is obvious negligence, account must be taken in particular of the precise nature of any error and the professional experience of, and care taken by, the trader in the particular case.
It is for the national court to determine, on the basis of those criteria, whether there is obvious negligence on the part of the trader. (22)
106 Although it is for the national court, which is more conversant with the facts of the main proceedings, to determine whether all the conditions are met for the application of Article 859(5) of the implementing regulation, it is worth noting, in my view, that in the present case the removal of the goods from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible and the handing over of the goods to the company in whose name the declaration was lodged, even though the customs office had ordered a customs examination, clearly seem to have affected the correct operation of the temporary storage.
First of all, as already noted, the removal of the goods not only interfered with the purpose of storing them, which is precisely so that they can be maintained in an unaltered state in the place of storage and be available to the supervising customs office until such time as they are assigned a customs-approved treatment or use, but also prevented their expressly ordered examination from being carried out. Also, in my view, it is clear that Wandel did not exhibit, having regard to its professional experience, the care required of it so as to ensure that the goods were not removed and the examination frustrated.
Finally, I consider that even if the goods had been presented later to the customs authorities at their request, objectively it would have been extremely difficult, once the goods had been removed from customs supervision and handed over to the company in whose name they were declared, for Wandel to prove that the goods presented were the same as those for which an examination had been ordered.
E - The fifth question
107 By the fifth question referred for a preliminary ruling, the Finanzgericht Bremen essentially asks the Court to determine what is the significance and effect, with regard to incurrence of a customs debt under Article 201(1)(a) and (2), Article 203(1) or Article 204 of the Customs Code, of technically correct certificates of origin being attached to the customs declaration accepted by the customs office (23) and it being established that a zero preferential tariff in fact applies to the goods covered by that declaration.
108 It should be noted, by way of introduction, that given the proposed answers to the preceding questions, an answer to the fifth question appears to be useful only in so far as regards incurrence of a customs debt under Article 203(1) of the Customs Code.
However, for reasons of completeness, I will examine the question in terms of the three legal bases, referred to by the national court, under which a customs debt on importation may be incurred.
109 First, as regards incurrence of a customs debt under Article 201 of the Customs Code, it follows from Article 62(2) of that code in conjunction with Article 218(1)(c) of the implementing regulation that a declaration for release into free circulation is to be accompanied by the documents required to prove that the preferential tariff arrangements for which the goods are declared apply.
110 Submission of the above supporting documents together with the declaration is thus of assistance in applying the preferential tariff arrangements and determining the duties to be levied.
Thus, their submission, far from precluding recognition and confirmation of the customs debt, ultimately serves to establish it. (24)
111 By contrast, in the context of the application of Article 203 (which is of principal interest in the present case) and Article 204 of the Customs Code, which preclude the application of Article 201, submission of the above supporting documents together with the declaration has no effect at all on the incurrence of a customs debt as such a debt is incurred through customs breaches (in the present case, the unlawful removal of goods from customs supervision) and not through entry under specific tariff arrangements on the basis of an accepted declaration.
112 It should be noted that Wandel maintains that Article 900(1)(o) of the implementing regulation means that the production, together with the duly completed declaration, of valid proof that goods are to be entered under preferential tariff arrangements should have the effect of preferential tariffs being granted even in cases where errors or breaches may occur.
113 As regards such reliance on Article 900(1)(o) of the implementing regulation, that provision is concerned with requests for the repayment or remission of import duties which are to be granted where the customs debt has been incurred otherwise than under Article 201 of the Customs Code (in the present case, under Article 203) and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Community transit document or other appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.
114 In the main proceedings no request for repayment or remission of the duties levied was submitted, nor was the issue ever raised.
Therefore, that article cannot apply.
115 Moreover, Wandel's argument that the article in question could apply in the present case, despite the fact that it is concerned with the procedure for the repayment and remission of debts, is obviously without foundation. In the present case, the errors or breaches involved relate to the very impossibility of carrying out the customs examination of the goods in order to assess their eligibility for preferential arrangements.
As the national court points out, goods cannot be entered under preferential tariff arrangements as a result of the mere submission of the declaration forms if, for reasons attributable to the declarant, the customs examination of the goods under Article 68(b) of the Customs Code could not be carried out.
Moreover, it would be strange if such entry, which for good reason, as a result of the impossibility of examining the goods, was not achieved pursuant to Article 201 of the Customs Code, were to come about by means of Article 900(1)(o) of the implementing regulation, which refers to Article 890 of that regulation under which, in order for duties to be repaid or remitted, first, all the conditions for the granting of preferential tariff treatment must be fulfilled and, second, the goods must be presented or, in any event, it must be established that the particulars in the supporting documents of origin refer unequivocally to the contested goods.
116 It is accordingly clear that submission with the declaration of supporting documents attesting that preferential tariff arrangements apply does not preclude a customs debt on importation from being incurred under any of the legal bases referred to in the fifth question submitted for a preliminary ruling (Articles 201(1)(a), 203(1) and 204 of the Customs Code).
117 Consequently, in light of the proposed answers to the preceding questions, the answer to the fifth question must be that a customs debt on importation may be incurred under Article 203(1) of the Customs Code where technically correct certificates of origin corresponding to Form A were attached to the customs declaration received by the customs office and a zero preferential tariff applied to the goods covered by the declaration.
VI - Conclusion
118 In light of the above, I propose that the Court answer the questions referred for a preliminary ruling by the Finanzgericht Bremen as follows:
(1)
Article 201(1)(a), in conjunction with Article 201(2), of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be construed as meaning that a customs debt on importation is not to be regarded as having been incurred if, for reasons attributable to the declarant - the goods which had the status of goods in temporary storage having been removed without the permission of the customs office - the suspensory condition concerning examination of those goods has not been fulfilled, having been rendered purposeless, where that condition accompanied the acceptance by the competent customs office of a declaration for the release of non-Community goods into free circulation that satisfied the requirements of Article 62 of the Customs Code and its acceptance was evidenced by the attachment of a customs registration stamp.
(2) Article 75 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be construed as meaning that the customs office which has accepted a customs declaration is not entitled to treat that declaration as invalid or to invalidate it if, as is the case in the main proceedings, the declared goods cannot be released to the declarant because they were removed, before the customs examination ordered was carried out, from their prescribed place of storage and from the area for which the customs office is responsible.
(3)
Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code is to be construed as meaning that there is an unlawful removal from customs supervision where the non-Community goods declared for release into free circulation are removed by the declarant, without the authorisation of the competent customs authorities, from the prescribed place of storage/examination and consequently from the local area for which the customs office in question is responsible and are handed over to the company in whose name the declaration was lodged, even though the customs office has ordered a customs examination.
(4)
A customs debt on importation may be incurred under Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Customs Code where technically correct certificates of origin corresponding to Form A were attached to the customs declaration received by the customs office and a zero preferential tariff applied to the goods covered by the declaration.
(1) - OJ 1992 L 302, p.1.
(2) - OJ 1993 L 253, p. 1.
(3) - The wording of that provision confirms that acceptance of a declaration does not require the particulars declared to be examined for accuracy or correctness.
The principal matter checked is whether the codes are correctly entered vis-à-vis the declared particulars.
(4) - At this point it should be noted that, pursuant to Article 71(1) of the Customs Code, the results of verifying the declaration are in principle to be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed.
It is true that Article 71(2) provides that, where the declaration is not verified, the provisions referred to in Article 71(1) are to be applied on the basis of the particulars contained in the declaration.
However, it is clear that that provision applies only in cases where failure to examine goods and verify the declaration is attributable to the customs authorities.
If it were accepted that it also applies in cases where the failure to carry out the examination is attributable to the declarant, the declarant could, by removing the goods, render nugatory the provision which provides for the possibility of examining the goods as a condition for their customs clearance.
(5) - See, for example, Case C-413/96 Sportgoods [1998] ECR I-5285, paragraphs 23, 24 and 25.
(6) - The national court, which is responsible for ruling on the facts of the main proceedings and on the expediency of referring questions for a preliminary ruling, notes in the order for reference: `The goods here in dispute still had the status of goods in temporary storage when, without the permission of the customs office, they were removed by the plaintiff, prior to the customs examination, from the commercial premises approved as the place of storage under Article 51 of the Customs Code, which were also designated as the place of the customs examination under Article 239 of the implementing regulation.'
(7) - At this point it is worth noting that, in the present case, there is no question of applying Article 82 of the Customs Code. Although the examination of the goods is related in the present case to the fact that they are subject to preferential tariff arrangements, it is an examination carried out for the purpose of establishing the duties payable and has nothing to do with examinations that may be carried out with a view to continued customs supervision, as provided for under Article 82 of the Customs Code, where goods are released for free circulation at a reduced or zero rate of duty on account of their end-use.
(8) - See, for instance, Case C-86/97 Trans-Ex-Import [1999] ECR I-1041, paragraph 15.
(9) - See also points 72 and 73 below.
(10) - See points 22 and 63 above.
(11) - See points 24 and 65 above.
(12) - See, in this regard, the analysis of the third and fourth questions, point 75 et seq. below.
(13) - See point 69 above.
(14) - See the order for reference, p. 21.
(15) - See paragraph 25 of the Commission's written observations.
(16) - See Wandel's written observations, p. 13.
(17) - It should be noted that the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of the basic legislation of the Customs Code, provided that they are not contrary to such legislation.
See, in that regard, Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraphs 36 and 37.
(18) - It should be noted that, contrary to the submissions in the Commission's written observations, the premiss of the fourth question relating to the possibility of the goods, after their removal, being presented at another customs office if required does not appear to be hypothetical within the meaning of the case-law governing the admissibility of questions submitted for a preliminary ruling. There is nothing in the order for reference clearly indicating that the relevant goods, after their removal, could not have been presented to another customs office if requested. The national court wishes to ascertain whether it is legally justified to have regard to such a possibility with a view to subsequently clarifying whether it is well founded on the facts. The fact that the customs authorities did not request that the removed goods be presented anew does not make the question posed hypothetical because, if it were considered legally justified to have regard to the foregoing possibility, there could be an omission on the part of the customs authorities which Wandel could cite in support of its case.
(19) - In that regard, see point 77 above.
(20) - Cited above, footnote 18.
(21) - Paragraph 43.
(22) - See Söhl & Söhlke, cited in footnote 18 above, paragraphs 56 to 60 and paragraphs 2(a) and (c) of the operative part of that judgment.
(23) - I consider that the phrase `customs declaration received by the customs office' contained in the fifth question must be taken to mean `customs declaration accepted by the customs office', since only the formal acceptance of the declaration, as provided for in Article 63 of the Customs Code, can be linked to the incurrence of a customs debt under Article 201 of that code.
(24) - It should be remembered that the incurrence and ultimate determination of a customs debt depends, in any event, on carrying out the formalities referred to in the analysis of the first question submitted for a preliminary ruling.