61998CC0310_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 Joined Cases C-310/98 and C-406/98 concern references made to the Court by the Bundesfinanzhof (Federal Finance Court), Germany under Article 177 of the EC Treaty (now Article 234 EC) for a preliminary ruling on the interpretation of Articles 454 and 455 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (1)
(hereinafter the `implementing regulation').
I - Legal framework
2 Articles 454(3) and 455, which relate to the international transport of goods under cover of TIR carnets, provide as follows:
Article 454(3):
`Where it is not possible to determine in which territory the offence or irregularity was committed, such offence or irregularity shall be deemed to have been committed in the Member State where it was detected unless, within the period laid down in Article 455(1), proof of the regularity of the operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities.
Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State in which it was detected, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or national provisions.
If the Member State where the said offence or irregularity was actually committed is subsequently determined, the duties and other charges (apart from those levied, pursuant to the second subparagraph, as own resources of the Community) to which the goods are liable in that Member State shall be returned to it by the Member State which had originally recovered them.
In that case, any overpayment shall be repaid to the person who had originally paid the charges.
Where the amount of the duties and other charges originally levied and returned by the Member State which had recovered them is smaller than that of the duties and other charges due in the Member State where the offence or irregularity was actually committed, that Member State shall levy the difference in accordance with Community or national provisions.'
3. Article 455 provides:
`1. Where an offence or irregularity is found to have been committed in the course of or in connection with a transport operation carried out under cover of a TIR carnet or a transit operation carried out under cover of an ATA carnet, the customs authorities shall notify the holder of the TIR carnet or ATA carnet and the guaranteeing association within the period prescribed in Article 11(1) of the TIR Convention or Article 6(4) of the ATA Convention, as the case may be.
2. Proof of the regularity of the operation carried out under cover of a TIR carnet or an ATA carnet within the meaning of the first subparagraph of Article 454(3) shall be furnished within the period prescribed in Article 11(2) of the TIR Convention or Article 7(1) and (2) of the ATA Convention, as the case may be.
3 Such proof may be furnished to the satisfaction of the customs authorities inter alia:
(a) by production of a document certified by the customs authorities establishing that the goods in question have been presented at the office of destination.
This document must include information enabling the goods to be identified; or
(b) by the production of a customs document issued in a third country showing release for home use, or a copy or photocopy thereof; such copy or photocopy must be certified as a true copy either by the body which endorsed the original document, or by the authorities of the third country concerned, or by the authorities of one of the Member States.
This document must include information enabling the goods in question to be identified; or
(c) for the purposes of the ATA Convention ...'.
4 These provisions apply without prejudice to the specific provisions of Council Regulation (EEC) No 2112/78 of 25 July 1978 concerning the conclusion of the Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 at Geneva. (2)
5 Article 11 of the TIR Convention, to which I shall return, provides:
`1.
Where a TIR carnet has not been discharged or has been discharged conditionally, the competent authorities shall not have the right to claim payment of the sums mentioned in Article 8(1) and (2) from the guaranteeing association unless, within a period of one year from the date of acceptance of the TIR carnet by those authorities, they have notified the association in writing of the non-discharge or conditional discharge.
The same provision shall apply where the certificate of discharge was obtained in an improper or fraudulent manner, save that the period shall be two years.
2. The claim for payment of the sums referred to in Article 8(1) and (2) shall be made to the guaranteeing association at the earliest three months after the date on which the association was informed that the carnet had not been discharged or had been discharged conditionally or that the certificate of discharge had been obtained in an improper or fraudulent manner and at the latest not more than two years after that date.
However, in cases which, during the abovementioned period of two years, become the subject of legal proceedings, any claim for payment shall be made within one year of the date on which the decision of the court becomes enforceable.
3. The guaranteeing association shall have a period of three months, from the date when a claim for payment is made upon it, in which to pay the amounts claimed.
The sums paid shall be reimbursed to the association if, within the two years following the date on which the claim for payment was made, it has been established to the satisfaction of the customs authorities that no irregularity was committed in connection with the transport operation in question.'
6 The aforementioned Articles 454(3) and 455 also refer to the ATA Convention (3) which, however, has no bearing on the cases under consideration here.
II - Facts and proceedings
7 The underlying facts in these cases are representative of a number of very similar matters now pending before the German courts and may be summarised as follows.
8 In 1994, the Polish transport companies Sagpol and Met-Trans transported, in the one instance, a consignment of butter and, in the other, a consignment of sugar from Poland to a destination in Community customs territory under the external transit procedure, in each case under cover of a TIR carnet.
9 The customs office of departure, at Pomellen in Germany, had set a time-limit for production of the goods to the customs offices of destination, in Madrid (Spain) for the butter consignment and in Porto (Portugal) for the sugar.
10 The checks and enquiries made by the Hauptzollamt (Principal Customs Office) Neubrandenburg, Germany (hereinafter the `Hauptzollamt') established that in neither case had the goods in transit ever been produced to the office of destination. Thus, in each case, the counterfoil of Voucher No 2 of the TIR carnet in question, which should have been returned by the office of destination to the office of departure to enable it to conclude the transit operation, had not in fact been returned.
11 During the course of the investigation conducted by the Hauptzollamt, Germany counterfoils of Voucher No 2 came to hand, but they were found to bear forged stamps and, in one case, a forged signature.
12 The Hauptzollamt informed the transport companies in each case that the goods had not been produced and that the place where the offence had been committed could not be ascertained.
13 It set the companies a time-limit of three months within which to prove where the offence had actually been committed.
14 Met-Trans endeavoured to establish the place of the offence by providing the Hauptzollamt, within this time-limit, with transportation invoices and orders and a statement by the driver who had effected the transport operation.
15 The Hauptzollamt, however, rejected this evidence as unsatisfactory and issued a recovery notice against Met-Trans.
Having challenged the notice unsuccessfully, Met-Trans appealed to the Finanzgericht (Finance Court), Germany, which found that the Hauptzollamt did not have jurisdiction to issue the notice because Met-Trans had satisfactorily proved, within the time-limit prescribed, that the place where the offence was actually committed was Porto.
16 A recovery notice was also issued against Sagpol, which had failed to respond within the time-limit allowed it.
17 Sagpol brought a complaint, producing a copy of a CMR consignment note and all the other documents it had, including fuel invoices, which it considered to constitute evidence that the goods had in fact been conveyed to Madrid. It also produced a statement by its driver.
18 Upon its complaint being dismissed, it appealed to the Finanzgericht which ruled that the Hauptzollamt was not competent to issue the notice of recovery in question because Sagpol had, within the time-limit, furnished satisfactory evidence that the actual place of the offence was Madrid.
19 In each case, the Hauptzollamt appealed on a point of law (`Revision') to the Bundesfinanzhof, which has referred five questions for a preliminary ruling.
III - The questions referred for a preliminary ruling
20 The questions raised in connection with the Sagpol case are as follows:
(1)`(1) Is it compatible with the first subparagraph of Article 454(3) and with Article 455(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) if, where a consignment which has been cleared for the external transit procedure under a TIR carnet is not produced at the destination, the customs authorities of the Member State of dispatch set the carnet holder a preclusive period of three months in which to provide satisfactory proof of the actual place where the offence or irregularity was committed, with the consequence that proof which is produced later leaves unaffected the competence of the Member State of dispatch to recover the duties?
If the above question is answered in the negative: Within what period may the carnet holder prove the actual place where the offence or irregularity has been committed?
(2) If the answer to the questions at (1) above leads to the conclusion that the carnet holder has not failed to comply with the time-limit for proving the actual place where the offence or irregularity was committed:
What are the requirements for furnishing satisfactory proof of the place where the offence or irregularity was actually committed in the course of a transport operation carried out under cover of a TIR carnet (first subparagraph of Article 454(3) of Commission Regulation (EEC) No 2454/93)?
May a statement by the carnet holder and the testimony of the lorry driver who has effected the transport for the carnet holder be sufficient proof, or can proof only be provided by documents which unambiguously show that the competent authorities of the other Member State have found that the offence or irregularity was committed on their territory?
(3) If the Court of Justice considers that proof of the actual place where the offence or irregularity was committed was provided in due time, and considers it permissible to adduce such proof in the manner described:
Are the third and fourth subparagraphs of Article 454(3) of Regulation (EEC) No
2454/93 to be interpreted as meaning that they also apply in cases where the duties were recovered in the Member State where the offence or irregularity was detected, even though it has been proved within the period prescribed by the first subparagraph of Article 454(3) and by Article 455(1) of Regulation No 2454/93 that the offence or irregularity was actually committed in another Member State?'
21 The questions referred for a preliminary ruling in the Met-Trans case are as follows:
`(1) What should the requirements be for furnishing proof of the place where an irregularity or offence was actually committed in the course of a transport operation carried out under cover of a TIR carnet (first subparagraph of Article 454(3) of Commission Regulation (EEC) No 2454/93, OJ 1993 L 253, p. 1)?
Is a statement from the carnet holder and the testimony of the lorry driver who has effected the transport for the carnet holder sufficient or must the proof comprise documents which unambiguously show that the competent authorities in the other Member State reached the conclusion that the irregularity or offence was committed on their territory?
(2) If the Court of Justice takes the view that the actual place where the irregularity or offence was committed can be proved on the basis of statements of the carnet holder and the testimony of the lorry driver who effected the transport operation, are the third and fourth subparagraphs of Article 454(3) of Regulation (EEC) No
2454/93 to be interpreted as meaning that they also apply in cases where the charges were recovered in the Member State where the irregularity or offence was detected, even though it has been proved that the irregularity or offence was actually committed in another Member State?'
22 It is readily apparent from a perusal of the questions formulated by the Bundesfinanzhof that the second question in the Sagpol case corresponds to the first in the Met-Trans case. Similarly, the subject of the third question in the Sagpol case is the same as that of the second question in the Met-Trans case.
23 The five questions referred to the Court can therefore be reduced to three concerning:
- the time-limit for proving the actual place of the offence; - the type of evidence admissible;
- the consequences of adjudging the evidence adduced to be satisfactory after the prescribed time-limit has expired.
A - Time-limit for furnishing evidence
(First question in the Sagpol case)
24 The first question referred by the Bundesfinanzhof is essentially asking whether the first subparagraph of Article 454(3) and Article 455(1) of the implementing regulation should be interpreted as meaning that where a consignment which has been cleared for the external transit procedure under cover of a TIR carnet has not been produced to the office of destination, the customs authorities of the Member State of departure are entitled to set the carnet holder a preclusive period of three months in which to provide satisfactory evidence of the actual place where the offence was committed.
25 The Bundesfinanzhof also wishes to know whether proof which is provided later affects the competence of the Member State of departure to recover the duties.
26 The Bundesfinanzhof considers that, although the first subparagraph of Article 454(3), in conjunction with Article 455(1), of the implementing regulation does refer to Article 11(1) of the TIR Convention, it nevertheless entertains doubts as to whether the time-limit in Article 11(1) may be applied to proof of the actual place of an offence.
Its doubts are based on several considerations drawn from the wording of the articles themselves.
It points out that the time-limit laid down in Article 11(1) of the TIR Convention is for the customs authorities to observe, whereas the time-limit stipulated in the first subparagraph of Article 454(3) of the implementing regulation is intended to be observed by the customs debtor. Moreover, the period prescribed by Article 11(1) of the TIR Convention does not begin to run at the time of notification of the guaranteeing association by the customs authorities but at the time of acceptance of the TIR carnet, whereas it is only reasonable for the period prescribed in the first subparagraph of Article 454(3) of the implementing regulation to begin to run at the time of notification by the customs authority.
27 Sagpol, for its part, argues that since both the first subparagraph of Article 454(3) and Article 455(1) refer to the provisions of Article 11(1) of the TIR Convention, the period within which the TIR carnet holder may produce proof of the place of the offence should be one year.
28 The Commission and the governments which have submitted observations, on the other hand, invoke an administrative agreement concluded by the Member States, according to which the period for producing proof is three months. This would correspond to the period laid down for the Community's external transit procedure by Article 379 of the regulation, as well as to the principle of the effectiveness (`effet utile') of Community rules, since a longer period might preclude the collection of duty because of limitation periods.
Opinion
29 The texts are unquestionably confused and the Commission is right to refer to `legal carelessness'.
30 Once again, the first subparagraph of Article 454(3) of the implementing regulation provides as follows:
`Where it is not possible to determine in which territory the offence or irregularity was committed, such offence or irregularity shall be deemed to have been committed in the Member State where it was detected unless, within the period laid down in Article 455(1), proof of the regularity of the operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities.'
31 It is clear on the wording of this provision alone that the Community legislature intended that proof of the regularity of the operation and proof of the place of the offence or irregularity should be subject to the same time-limit.
32 The first subparagraph of Article 454(3) refers in that connection to Article 455(1), which in turn refers to the abovementioned Article 11(1) of the TIR Convention.
33 However, Article 455(2) of the implementing regulation provides that `[p]roof of the regularity of the operation ... within the meaning of the first subparagraph of Article 454(3)' is to be furnished within the period prescribed in Article 11(2) of the TIR Convention.
34 The purely mechanical application of these successive references thus leads to an absurd situation in which there are different prescribed periods at once, depending on whether one uses the reference to Article 11(1) or that to Article 11(2) of the TIR Convention.
35 The unavoidable conclusion is therefore that those who drafted the implementing regulation made one of the following two mistakes:
- either they wrongly stipulated in Article 454(3) that the period for furnishing proof of the regularity of the operation should also be that referred to in Article 455(1), that is to say the period prescribed by Article 11(1) of the TIR Convention, in which case they did not in fact intend the provision of proof to be subject to the same time-limit in both cases;
- or they wrongly stipulated in Article 455(2) that the period for proving the regularity of the operation should be that laid down in Article 11(2) of the TIR Convention.
36 There are several indications that it was the first of these two mistakes that was made.
37 First of all, it seems clear that there is no direct link between the substantive content of Article 455(1) of the implementing regulation and the first subparagraph of Article 454(3).
38 There is no mention in Article 455(1) of a time-limit for proving the regularity of the operation or the place of the offence.
39 As the Bundesfinanzhof points out, Article 455(1) concerns only the period within which the customs authorities must notify the holder of the TIR carnet and the guaranteeing association that an offence or irregularity has been committed in the course of or in connection with a transport operation carried out under cover of a TIR carnet.
40 If the first subparagraph of Article 454(3) did not refer to Article 455(1), it would be inconceivable to refer to it to determine the time-limit for proving the regularity of the operation or the place of the offence.
41 On the other hand, the connection between Article 455(2) and the first subparagraph of Article 454(3) is immediately apparent.
42 Article 455(2) is wholly concerned with the problem of determining the time-limit for proving the regularity of the operation within the meaning of the first subparagraph of Article 454(3).
43 We may therefore conclude that the legislature inadvertently inserted a reference to Article 455(1) in the first subparagraph of Article 454(3) instead of a reference to Article 455(2).
44 It follows that both the time-limit for proving the regularity of the operation and the time-limit for proving the actual place of the offence should be sought in Article 455(2) and in the reference it makes to Article 11(2) of the TIR Convention.
45 However, the Bundesfinanzhof observes that `it is not possible to deduce from Article 11(2) of the TIR Convention ... any period of use for deciding competence, because the provision presupposes the issue of a tax assessment by a competent authority'.
46 This view of the Bundesfinanzhof is echoed by the Commission which states:
`... nor does Article 11(2) of the TIR Convention, to which the said paragraph refers, make it possible to deduce any period of use for determining which is the competent authority - as the Bundesfinanzhof has already explained in its order for reference - since it presupposes the issue of a tax assessment by a competent authority'.
47 There is, however, a provision which, in my opinion, settles the question of competence.
Article 215(3) of the Customs Code provides as follows:
`Where a customs procedure is not discharged for goods, the customs debt shall be deemed to have been incurred at the place where the goods:
- were placed under that procedure.'
48 Article 215(3) does not state expressly that it is therefore the customs authority of the place where the debt was incurred that is competent to calculate the exact amount of the debt and recover it, but it is difficult to see how it could be otherwise. (4)
49 Thus, it is the office of departure that is competent to recover the duties and taxes applicable to a Community transit operation in respect of which the duties have not been discharged.
50 Nevertheless, Article 454 of the implementing regulation does offer the TIR carnet holder (and logically the guaranteeing association as well) an opportunity to challenge the jurisdiction of the office of departure (5) by proving that the taxes on the operation have in fact been discharged or that an offence was committed at a particular place.
51 It is therefore as the State authority that has jurisdiction unless it is proved otherwise that the office of departure sets running the period within which evidence that another Member State has jurisdiction may be adduced.
52 As explained above, this period may be found in Article 11(2) of the TIR Convention.
53 Under that provision, the competent authority of the country of departure of the operation may make a claim to the guaranteeing association for payment of the sums due `at the earliest three months after the date on which the association was informed that the carnet had not been discharged'.
54 Thus, the association automatically has three months in which to furnish proof of the regularity of the operation or of the place where the offence was committed since, until that period has expired, no claim for payment may be made from it.
55 Admittedly, Article 11(2) does not say that the office of departure must give the guaranteeing association or the TIR carnet holder a period of three months, but it certainly allows it to do so, since this period follows indirectly from the prohibition on making a claim for payment before three months have elapsed.
56 The same conclusion can also be reached by applying a process of reasoning by analogy with the Community's external transit procedure. (6) The relevant provision under that procedure, Article 379(2) of the implementing regulation, provides as follows:
`The notification referred to in paragraph 1 shall indicate, in particular, the time limit by which proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed must be furnished to the office of departure to the satisfaction of the customs authorities. That time limit shall be three months from the date of the notification referred to in paragraph 1 ...'.
57 Moreover, if the goods, which were intended for delivery to a specific point in the customs territory of the Community under a transit procedure, had not already been placed under a TIR carnet in a third country, namely Poland, they would have been subject to the Community's external transit procedure.
58 If a longer period for furnishing proof were to be allowed under the TIR procedure, that might have the effect of encouraging recourse to that procedure solely for the purpose of avoiding the more stringent provisions of Article 379(2).
59 Finally, the Bundesfinanzhof and the Commission point out that, in order to clarify the situation, the Member States have concluded, and the Community transit committee has accepted, an administrative agreement.
Under that agreement the Member States have resolved that the period for proving the regularity of an operation in the context of the TIR transit procedure is to be three months.
The agreement has been incorporated in the compendium of administrative agreements.
It is attached to the Commission's written observations.
60 The Bundesfinanzhof and the Commission also refer to a letter from the Commission to the Federal Ministry of Financial Affairs dated 16 March 1998, according to which the period specified in the administrative agreement should also be applied to proof of the place of the offence.
61 Clearly, one can only speculate on the legal force of such completely unpublicised guidelines and letters which would appear to be intended, outside the usual legislative processes available to the Community legislature, if not to fill gaps in the rules, then at least to interpret them.
62 However, as they represent the unanimous opinion of the members of the Council (the author of
the Customs Code) and of the Commission (the author of its implementing regulation), the guidelines confirm that my proposed interpretation of the texts does indeed reflect the intention of the authors of those texts.
63 Thus, it is hardly surprising that the governments which have submitted written observations on this first question, namely the French and Finnish Governments, and, at the hearing, the Danish Government should have proposed that it be answered in the affirmative.
64 Finally, with regard to the observations made by Sagpol, it should be noted that Sagpol has not advanced any arguments based on the special nature of the TIR regime such as to show that the time-limit for furnishing proof under that regime should be different from that applicable under the Community's external transit procedure.
65 Sagpol's invocation of the principles of proportionality, legal certainty and equal treatment cannot alter the Court's reply to the first question.
66 An international transport company which uses the TIR procedure should be aware that its first duty is duly to complete the procedure by producing the goods to a customs office in the country of destination. As a list of these offices is available, at the very least, in the office of departure, the company should give its driver the precise address of the office of destination and instruct him not to remove the seals until that office has authorised him to do so. The company is also assumed to be aware of the consequences it will suffer if the TIR procedure is not discharged.
It must necessarily conclude from all these requirements that, in the event of an offence or irregularity, it has a duty to furnish, as quickly as possible, as much evidence as it can to show where the offence or irregularity was committed. Accordingly, setting a period of three months for gathering and submitting such evidence cannot be regarded as an infringement of the principle of proportionality.
67 As for the principle of legal certainty, it too requires that the outcome of an operation of this type be clarified as quickly as possible, and having a three-month time-limit is conducive to that end.
68 Finally, the principle of equal treatment has not been infringed, since the same rules apply to all carriers who find themselves in a comparable situation.
69 In relation to the same question, the Bundesfinanzhof also enquires whether the right of a Member State to set a preclusive period of three months means that proof which is produced later leaves the competence of the Member State of dispatch to recover the duties unaffected.
70 It follows from the foregoing that if, by the end of this three-month period, proof of the actual place of the offence has not been furnished or if the proof furnished fails to establish the place of the offence to the satisfaction of the `customs authorities', the jurisdiction of the Member State of the office of departure will have been definitively established, thus allowing that Member State to recover the duties and taxes payable.
71 Since it is not denied that the taxes are payable and the only problem is how to identify the Member State entitled to recover them, the effectiveness of the system requires that proof furnished `subsequently', that is to say, after the three months have passed, should give rise only to transfers between Member States and to the repayment of any overpayment to the operator.
72 If it is found, even after the three-month time-limit has expired, that the duties and taxes have in fact been paid in the country of destination, the operator's interests are still safeguarded.
73 In these circumstances, the second sentence of Article 11(3) of the TIR Convention applies. This reads: `The sums paid shall be reimbursed to the association if, within the two years following the date on which the claim for payment was made, it has been established to the satisfaction of the customs authorities that no irregularity was committed in connection with the transport operation in question'.
74 The situation where proof furnished within the time-limit but deemed unsatisfactory by the customs authorities is nevertheless found to be satisfactory by a court after the three-month period has expired will be considered in the context of the third question.
75 For all the foregoing reasons, I propose that the Court should reply to the first question raised by the Bundesfinanzhof in the Sagpol case as follows:
`It is compatible with the first subparagraph of Article 454(3) and with Article 455(1) of the regulation for the implementation of the Customs Code if, where a consignment which has been cleared for the external transit procedure under a TIR carnet is not produced at the office of destination, the customs authorities set the carnet holder a preclusive period of three months in which to provide satisfactory proof of the actual place where the offence was committed, with the consequence that proof which is produced later does not affect the competence of the Member State of dispatch to recover the duties.'
B - The types of admissible evidence
(First question in the Met-Trans case and second question in the Sagpol case)
76 The Bundesfinanzhof wishes to know what proof of the place where the offence was actually committed in the course of a transport operation carried out under cover of a TIR carnet should be considered satisfactory within the meaning of the first subparagraph of Article 454(3) of the implementing regulation.
It asks whether a statement by the carnet holder and the testimony of the lorry driver who effected the transport operation for the carnet holder can be sufficient proof or whether proof can only comprise documents which unambiguously show that the competent authorities of the other Member State have found that the offence was committed on their territory.
77 Let me begin by clarifying two points on which my reasoning will be based.
78 The Bundesfinanzhof finds, in paragraph II.4(b) of its order in the Met-Trans case, `that the types of evidence which are admissible to prove the actual place where the offence or irregularity took place are not regulated in the way that evidence that transportation under cover of a TIR carnet has been properly carried out is regulated by Article 455(3) of Regulation No 2454/93.
Thus, according to the wording of the provision, all types of evidence which divulge a probability verging on certainty that the irregularity or offence was committed in a particular place are admissible.'
However, the Bundesfinanzhof subsequently explains why it considers that all types of evidence should not be admitted, and it is on this point that my attention will principally be focused.
79 At this stage we may simply acknowledge with the Bundesfinanzhof that the documents mentioned in Article 455(3) concern only proof of the regularity of the operation and that the regulation does not prescribe different documents to prove the place of the offence.
Nor has this been disputed in the course of the proceedings before the Court.
80 We must also consider whether the Court can offer the Bundesfinanzhof guidance concerning the meaning that should be given to the expression `glaubhaft nachweisen' (literally: prove credibly), a notion which in the other language versions has been rendered by the expression `proof ... to the satisfaction of the customs authorities'.
81 The Bundesfinanzhof points out that the German version of Article 378(1) of the implementing regulation concerning the Community's external transit procedure does not use the term `glaubhaft'.
It concludes that in such cases the operator must furnish absolute proof of his assertions (it appears that `Nachweis' standing alone is more stringent than `glaubhafter Nachweis').
It is inconceivable that laxer requirements with regard to proof of the place of the offence should be imposed under the TIR regime. The Bundesfinanzhof concludes that, in both cases, the operator must convey to the authorities `a probability verging on certainty' (`die an Sicherheit grenzende Wahrscheinlichkeit') with regard to the alleged fact and not merely `the impression of [its] preponderant probability' (`den Eindruck der überwiegenden Wahrscheinlichkeit'), within the meaning of German law on civil procedure.
82 However, I do not consider that such a finely shaded interpretation of the texts in question is possible since the different language versions are all authentic and, in this instance, not entirely consistent.
83 Thus, for example, in the English, Spanish, French, Italian, Dutch and Portuguese versions of Article 378(1) the words `to the satisfaction of the customs authorities' are used where the German uses `glaubhaft'.
84 It should also be noted that, in connection with this same formula `to the satisfaction of the competent authorities', which was similarly employed in Article 2(d) of Council Directive 79/623/EEC of 25 June 1979 on the harmonisation of provisions laid down by law, regulation or administrative action relating to customs debt, (7) since repealed, at paragraph 24 of its judgment in Joined Cases C-246/94 to C-249/94 (8) the Court declared that `the phrase "... the competent authorities are satisfied" in Article 2(d) of Directive 79/623, which is in itself superfluous, merely stresses the task of verification which the competent national authorities must carry out in any event, subject to review by the national courts'.
85 The German version of Article 2(d) of Directive 79/623 did not use the term `glaubhaft' to render the idea of `to the satisfaction', but stated: `... es sei denn, daß sich diese Unterlassungen nachweislich auf die ordnungsgemäße Abwicklung der betreffenden vorübergehenden Verwahrung oder des betreffenden Zollverfahrens nicht wirklich ausgewirkt haben'.
86 Thus, no special significance should be attached to the term `glaubhaft' as used in the first subparagraph of Article 454(3) of the implementing regulation.
The passage as a whole should be understood to mean that the evidence produced in order to establish the place of the offence will not be accepted if it is not convincing.
Proof that fails to convince the customs authorities and the courts that supervise them is no proof at all.
If the criterion developed by German case-law is that of an `impression ... of probability verging on certainty', I see no reason why it should not be applied in the context of Article 454.
87 It remains to be seen whether one can infer from Articles 454 and 455 that only certain types of evidence are admissible to prove `to the satisfaction' of the customs authorities that the offence was committed in a particular place.
88 Considering that both the competence of the Member States to recover the customs debt and the amount of the debt depend on such proof, the Bundesfinanzhof has concerns as to whether statements made by the TIR carnet holder, witness evidence and documents such as invoices and consignment notes are sufficient proof, since they `largely [escape] any objective legal analysis'.
The Bundesfinanzhof also points out that `the recovery of import duties in the event of an irregularity or offence must be secured as far as at all possible', which can only be achieved if `the evidence as to the actual place where the irregularity or offence was committed is binding not only on the Member State in which the irregularity or offence was originally detected but also in the Member State in which the irregularity or offence is alleged actually to have been committed'.
Accordingly, the Bundesfinanzhof considers that following the spirit and purpose of the provision, in a way similar to Article 455(3) of Regulation No 2454/93 in order for evidence as to the place where the offence was actually committed to be objective, `only specific sorts of evidence should be regarded as appropriate to prove where an irregularity or offence was actually committed'.
Such evidence might `comprise documents which show unambiguously that the competent authorities in another Member State have concluded that the irregularity or offence in connection with the transportation under cover of the relevant TIR carnet was actually committed on their territory'.
89 The French, Netherlands and Finnish Governments and the Commission all share the Bundesfinanzhof's view.
90 The Swedish Government, on the other hand, points out that `the fact that the customs authorities must be furnished ... with satisfactory evidence as to the place where the offence or irregularity was committed in itself implies that there must be room for different kinds of evidence and different assessments of that evidence'.
91 It is not possible to establish a parallel between Article 454 and Article 455(3), since the two provisions relate to different situations and Article 455(3) is not even exhaustive on the question of admissible evidence.
92 In the absence of any indication in the Community regulation as to what is meant by `proof ... to the satisfaction of the authorities', it must be left to the national court making the reference to assess, on the basis of national procedural law, what should be considered to be proof furnished to the satisfaction of the authorities and, in a case such as that before the Court, the means of proof should not be restricted solely to the official document suggested by the Bundesfinanzhof, when no such restriction can be found in the legislation itself.
If the right to adduce evidence needs to be limited in some way, it is for the legislature to take action.
93 In its observations at the hearing, the Danish Government said that, for the most part, it shared the opinion expressed by the Swedish Government and by the defendant companies.
The Danish Government could not accept that the expression `to the satisfaction of the customs authorities' could be taken to imply a heavier burden of proof.
94 When there is no express obligation in Community law, either in the relevant measure or in the case-law of the Court, it is incumbent upon the Member States, under their procedural law, to decide on the evidence required, provided that they apply the same criteria as those applied to the collection of national taxes.
95 To admit as evidence only official documents from the authorities of the Member State in question would be tantamount to demanding the impossible.
Nor would it be easy to define what was meant by objective and subjective evidence.
Opinion
96 The analogous reasoning suggested by several governments and the Commission leaves me unconvinced.
Analysis of the logical structure of Articles 454 and 455 points to an interpretation based on differentiation rather than analogy.
97 According to the first subparagraph of Article 454(3), an offence is deemed to have been committed in the Member State where it was detected, unless proof
- of the regularity of the operation or
- of the place where the offence or irregularity was committed
is furnished to the satisfaction of the customs authorities.
98 Article 455(3) goes on to state that proof of the regularity of the operation may be furnished inter alia by producing the documents listed.
On the other hand, nowhere is any indication given as to how to furnish proof of the place of the offence.
99 In the light of these texts, is it more logical to conclude that proof of the place where the offence or irregularity was committed should also be furnished by producing documents (extrapolation) or that proof of the irregularity does not need to be furnished by producing documents because the text contains no such requirement and even proof of regularity could, at the material time, also have been furnished by other means (differentiation-based interpretation)? In my view, it is clearly the second of these conclusions to which precedence should be given.
100 In 1997, (9) by deleting the words `inter alia', the Commission limited the types of proof of the regularity of the operation to the documents listed.
It could also have taken this opportunity to introduce the principle that the place of the offence must be proved by means of an official document.
101 The arguments in favour of such a solution in the context of these proceedings - which are far from being devoid of merit - were certainly already known at the time. As they did not prevail, it may be concluded that the intention was to maintain a degree of flexibility in this respect, in particular to allow an honest carrier to clear himself of blame.
102 Thus, in its judgment in the Sagpol case, the Finanzgericht pointed out that, if the place of the offence can be determined, the honest carrier generally has an interest - often existential - in offenders who could be held jointly and severally liable for the debt under Article 213 of the Customs Code being able to be indentified in that place. (10)
103 Furthermore, it must be acknowledged that it is very difficult for an official authority to furnish proof of the place of an offence, which - by definition - has been deliberately concealed from it, while, on the other hand, it is not totally impossible to prove the place where an offence has been committed by producing evidence of different kinds.
104 Indeed, it is only very rarely that the customs authorities or police of the (assumed) country of the offence are in a position to certify, for example,
- that the goods have been found in the warehouse of a firm of dubious reputation which was unable to show that duties and taxes had been paid and was in the process of disposing of them outside normal marketing channels;
- that persons have been arrested because they had been found to have copied customs uniforms and falsified stamps in order to fake the customs clearance of a TIR consignment;
- that customs officers are being prosecuted because they are suspected of having accepted bribes from criminal operators to carry out fake clearances without collecting duties and taxes.
105 On the other hand, even though the statements of the carnet holder and the testimony of the lorry driver must necessarily be treated with caution, it should still be possible for the competent authority to conclude that it has been shown, convincingly in its view, that the offence or irregularity was committed in a certain place, when provided with a range of circumstantial evidence such as:
- a TIR carnet identifying the destination;
- shipping orders and invoices;
- highly credible statements by the carnet holder and lorry driver;
- receipts for petrol and motorway tolls;
- no indication whatsoever to suggest that the goods could previously have been unloaded in the country of the office of departure or in one of the other countries through which the lorry has passed.
106 I therefore propose that the Court should reply to the first question in the Met-Trans case and to the second question in the Sagpol case as follows:
`In order to satisfy the customs authorities of a Member State, within the meaning of the first subparagraph of Article 454(3) of Regulation No 2454/93, proof of the place where an offence was actually committed in the course of a transport operation carried out under cover of a TIR carnet need not necessarily consist of documents which clearly show that the competent authorities in the other Member State reached the conclusion that the offence was committed in their territory.'
C - Evidence accepted after expiry of the time-limit
(Second question in the Met-Trans case and third question in the Sagpol case)
107 The third and fourth subparagraphs of Article 454(3) of the implementing regulation lay down the procedure to be followed if the Member State in which the offence was committed is determined after the time-limit set for the transport company guaranteeing association has expired.
108 These two subparagraphs are worded as follows:
`If the Member State where the said offence or irregularity was actually committed is subsequently determined, the duties and other charges (apart from those levied, pursuant to the second subparagraph, as own resources of the Community) to which the goods are liable in that Member State shall be returned to it by the Member State which had originally recovered them.
In that case, any overpayment shall be repaid to the person who had originally paid the charges.
Where the amount of the duties and other charges originally levied and returned by the Member State which had recovered them is smaller than that of the duties and other charges due in the Member State where the offence or irregularity was actually committed, that Member State shall levy the difference in accordance with Community or national provisions.'
109 The Bundesfinanzhof wishes to know whether these provisions also apply in cases in which the duties and other charges were recovered in the Member State where the offence was detected, even though it has been satisfactorily proved, in due time, that the offence was actually committed in another Member State.
110 First of all, it is important to clarify the meaning of the expression `in due time', which appears only in the third question in the Sagpol case.
Obviously, if satisfactory proof of the place of the offence is furnished and accepted by the customs authority within the three-month time-limit, that authority will not recover the duties and the question of the application of the third subparagraph of Article 454(3) does not arise.
111 Thus, the question only concerns cases where the customs authorities recover the duties and other charges because they consider the evidence furnished in due time to be unsatisfactory but it is subsequently established by the courts that that evidence should in fact have been accepted.
112 In such cases, should the recovery of the duties and other charges be considered null and void and the sum recovered duly repaid to the economic agent?
Or should the recovery be considered valid and the duties and charges (apart from those levied as own resources of the Community) simply transferred by the Member State which recovered them to the Member State where the offence was ultimately found to have been committed (the economic agent being entitled only to a refund of any overpayment resulting from a higher rate of taxation in the country of the office of departure)?
113 The Bundesfinanzhof considers that it would be conceivable, going beyond the wording of the third and fourth subparagraphs of Article 454(3), to consider their spirit and purpose and conclude that, in such cases, the sums recovered should not be repaid.
This would make it possible to prevent the time-bar under Article 221(3) of the Customs Code from precluding, should the situation arise, the recovery of the duties by the State ultimately found to be competent.
114 The Bundesfinanzhof, however, notes its `significant concerns in relation to such a broad interpretation of the provision'.
115 The French Government (Sagpol case) is of the opinion that the inter-State compensation mechanism under the third and fourth subparagraphs of Article 454(3) of the implementing regulation applies in any event, basing its view on Article 217(1) of the Customs Code (`Each and every amount of import duty or export duty resulting from a customs debt ... shall be calculated by the customs authorities as soon as they have the necessary particulars ...') and on the need to ensure `legal certainty for the operators who could find themselves facing claims, within the limitation period, for duties and taxes in one Member State when they had already paid them in another'.
116 The Finnish Government considers that a recovery decision taken under Article 454(2) and (3) by customs authorities subsequently found not to be competent in the particular case concerned is not rendered null and void for illegality since the transfer of duties between Member States occurs pursuant to the compensation procedure laid down in the third and fourth subparagraphs of Article 454(3).
117 In the view of the Netherlands Government, the third and fourth subparagraphs of Article 454(3) should apply, if only by analogy, because, given the time already taken up by the procedure, not applying them would almost always result in it being impossible to recover the duties and charges in question because of the limitation period in Article 221(3) of the Customs Code.
118 The Commission follows the same line of argument.
It considers that the spirit and purpose of the provisions of Article 454(3) appear to require that the third subparagraph be interpreted as meaning that there has been a `subsequent determination' of the actual place of the offence.
119 Met-Trans and Sagpol maintain that once proof is accepted as satisfactory, even if that is long after the time-limit has expired, the tax assessment should be annulled and any sums paid should be refunded.
Opinion
120 It should be noted that the situation in question is not one in which the regularity of the operation is established after the three-month time-limit expires. In that case the debtor (the carrier or guaranteeing association) will have been able to show that it did in fact clear the goods through customs in the country of destination and will be reimbursed for the duties levied for a second time in the country of the office of departure, because proof of regularity could not be furnished within the three-month period (Article 11(3) of the TIR Convention).
121 Nor are we concerned with the situation in which the debtor only produces proof of the place where the offence was committed after the three-month period has expired. In these circumstances, the third subparagraph of Article 454(3) of the implementing regulation provides for the duties and other charges (apart from those levied as own resources of the Community) to which the goods are liable in the State in which the offence was committed to be `returned' to that State by the Member State which originally recovered them. The carrier who originally paid the charges then receives only any overpayment resulting from the difference between the duties and other charges payable in the Member State of departure and the State in which the offence was committed. If the duties in the latter State are higher, he must pay it the difference.
122 Harsh as this may seem, it should not be forgotten that in such a case the carrier has failed to exercise due care and attention and that this justifies according absolute priority to the recovery of duties and taxes.
123 Nevertheless, is it right for a carrier who has furnished, within the prescribed time-limit, evidence rejected as insufficient by the customs authorities and later found to be satisfactory by the courts to receive the same treatment?
124 I think not. First of all, by virtue of a general principle of law, when a decision of an authority or an opinion that has had legal consequences is set aside, the parties revert to their former situation. (This, incidentally, is why limitation periods are interrupted when legal proceedings are instituted.) Proof furnished in due time but only later adjudged to be satisfactory should therefore be deemed to have been furnished satisfactorily within the time-limit, with all that that implies.
125 Secondly, it should not be overlooked that Article 215 of the Customs Code and Article 454(3) of the implementing regulation establish only a presumption of competence in favour of the customs office of the State in which the offence is detected. This presumption is rebuttable. If, within the period laid down, proof is furnished to the satisfaction of the customs authorities, the presumption no longer applies and the State competent to recover the duties and other taxes on the goods is then the State in which the offence was committed.
126 The same should be true when the evidence produced is adjudged to constitute proof of the place of the offence to the satisfaction of the customs authorities only after the time-limit for furnishing evidence imposed on the customs debtor has expired, so long as that assessment is based on evidence submitted during the prescribed period.
127 In such a case, too, it follows from the evidence ultimately accepted as
convincing that the Member State of the office of departure did not have the requisite jurisdiction to recover the duties and other charges and must therefore repay them.
128 If the Bundesfinanzhof, the Member States which have submitted observations and the Commission are reluctant to accept this conclusion, it is because they fear that, in such cases, the authorities of the Member State in which the offence was committed will no longer be in a position to recover the charges because the limitation period has expired.
129 However, the risk of the Community and the competent Member State suffering such financial loss cannot be regarded as sufficient reason to defeat the general principle of law evoked above and the principle enshrined in Article 454(2), which reads as follows:
`Where it is found that, in the course of or in connection with a transport operation carried out under cover of a TIR carnet ... an offence or irregularity has been committed in a particular Member State, the recovery of duties and other charges which may be payable shall be effected by that Member State in accordance with Community or national provisions, without prejudice to the institution of criminal proceedings.'
130 As the third question presupposes that such a finding has been made, Article 454(2) should be applied.
131 Finally, in its judgment in Case C-233/98, (11) the Court was likewise faced with the question whether the risk of duties and taxes not being recovered constituted sufficient grounds for dismissing the objection that the authority which recovered them lacked jurisdiction.
132 On that occasion, the measure concerned was the old Council regulation on external Community transit which, like Article 379 of the implementing regulation at issue here, required the office of departure to set the principal a time-limit of three months to furnish proof of the place where the offence was actually committed.
133 In paragraph 36 of that judgment the Court ruled as follows:
`It is implicit from the wording of the third subparagraph of Article 36(3) of Regulation No 222/77 that application of that provision presupposes that the authorities of the Member State to which the office of departure belongs are authorised to recover the duty and other taxes. From the answer to Question 1 it follows that as the principal had not been notified of the three-month period referred to in Article 11a(2) of Regulation No 1062/87 those authorities could not validly have acquired jurisdiction to levy the duty on the entry of the goods. They cannot therefore oppose the refund of sums which they were not authorised to recover and, as the Advocate General observes in points 70 and 71 of his Opinion, no distinction should be drawn between duty levied as own resources of the Community and other duties and taxes.'
134 For all these reasons, I propose that the Court should reply to this question that the third and fourth subparagraphs of Article 454 of the implementing regulation should be interpreted as meaning that they do not apply in cases where the duties and other charges were recovered in the Member State in which the offence was detected and where evidence furnished within the period prescribed is only accepted as proving the place of the offence to the satisfaction of the competent authorities after the time-limit for adducing evidence imposed on the carrier has expired.
IV - Conclusion
135 In the light of all the foregoing arguments, I propose that the Court should reply to the questions raised by the Bundesfinanzhof as follows:
(1) It is compatible with the first subparagraph of Article 454(3) and with Article 455(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down certain provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, if, where a consignment which has been cleared for the external transit procedure under a TIR carnet is not produced at the office of destination, the customs authorities set the TIR carnet holder a preclusive period of three months in which to provide satisfactory proof of the actual place where the offence was committed, with the consequence that proof which is produced later does not affect the competence of the Member State of dispatch to recover the duties.
(2) In order to satisfy the customs authorities of a Member State, within the meaning of the first subparagraph of Article 454(3) of the abovementioned Regulation No 2454/93, proof of the place where an offence was actually committed in the course of a transport operation carried out under cover of a TIR carnet need not necessarily consist of documents which clearly show that the competent authorities in the other Member State reached the conclusion that the offence was committed in their territory.
(3) The third and fourth subparagraphs of Article 454 of the abovementioned Regulation No 2454/93 should be interpreted as meaning that they do not apply in cases where the duties and other charges were recovered in the Member State in which the offence was detected and where evidence furnished within the period prescribed is only accepted as proving the place of the offence to the satisfaction of the competent authorities after the time-limit for adducing evidence imposed on the carrier has expired.
(1) - OJ 1993 L 253, p. 1.
Regulation (EEC) No 2913/92 establishing the Community Customs Code is dated 12 October 1992. It was published in OJ 1992 L 302, p. 1.
(2) - OJ 1978 L 252, p. 1.
(3) - Customs Convention on the ATA carnet for the Temporary Admission of Goods (ATA Convention) done at Brussels on 6 December 1961.
(4) - In the meantime, Article 215 has been amended to make this explicit. See Regulation (EC) No 955/1999 of the European Parliament and of the Council of 13 April 1999 amending Council Regulation (EEC) No 2913/92 with regard to the external transit procedure (OJ 1999 L 119, p. 1).
(5) - Clearly, this derogation from the basic regulation implicit in the implementing regulation is highly questionable. However, that has no practical implications so far as the present case is concerned and the problem has since been solved by the amendment of Article 215 pursuant to the regulation cited in footnote 5.
(6) - With regard to the argument by analogy, see, in particular, the judgments in Case 180/78 Brouwer-Kaune [1979] ECR 2111, and Case 165/84 Krohn [1985] ECR 3997.
(7) - OJ 1979 L 179, p. 31.
(8) - Judgment in Cooperativa Agricola Zootecnica S. Antonio and Others [1996] ECR I-4373.
(9) - See Regulation (EC) No 12/97 of the Commission of 18 December 1996 amending Regulation No 2454/93 (OJ 1997 L 9, p. 1).
(10) - Article 213 of the Customs Code: `Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt'.
(11) - Lensing and Brockhausen [1999] ECR I-7349.