Case C-222/01

British American Tobacco Manufacturing BV

v

Hauptzollamt Krefeld

(Reference for a preliminary ruling from the Bundesfinanzhof)

(Free movement of goods – External Community transit – Temporary removal of transit and transport documents – Breaking of seals and partial unloading of the goods – Removal of goods from customs supervision – Incurring of a customs debt on importation – Unsuspected presence of undercover customs agents – Special circumstances justifying the remission or repayment of import duties – Responsibility of the principal in the case of deception or obvious negligence on the part of persons engaged by him)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – Interpretation sought owing to the applicability of provisions of Community law to an internal situation as a result of a reference made by national law – Admissibility

(Art. 234 EC)

2. Customs union – Incurrence of a customs debt on importation following removal from customs supervision of goods liable to import duty – Meaning of removal – Temporary removal of T 1 transit document preventing its presentation at any possible requisition, even if not actually demanded – Included

(Council Regulations Nos 222/77, Arts 12, 13, 19(1) and 20, and 2144/87, Art. 2(1)(c))

3. Own resources of the European Communities – Repayment or remission of import or export duties – ‘Special situation’ – Meaning – Infringement of Community transit system originating in the conduct of an undercover customs agent – Included – Conditions – Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations – Fact not in itself excluding repayment

(Council Regulations Nos 222/77, Art. 13(a) and 1430/79, Art. 13(1))

1. Questions referred for a preliminary ruling are not inadmissible where referred in a context in which the Community rules to be interpreted apply only by virtue of a reference made by domestic law, since, where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to ensure a single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.

(see para. 40)

2. In so far as the temporary removal of the T 1 transit document from the goods to which it relates prevents the presentation of that document at any possible requisition by the customs service, such a removal constitutes a removal of those goods from customs supervision within the meaning of Article 2(1)(c) of Regulation No 2144/87, which provides that a customs debt is incurred in such a case, even if the customs authorities have not demanded presentation of the document or established that it could not have been presented to them without considerable delay.

(see para. 56, operative part 1)

3. The fact that infringements of the Community transit system originate in the conduct of an undercover agent belonging to the customs services constitutes a special situation within the meaning of Article 13(1) of Regulation No 1430/79, which may, in appropriate cases, justify the remission or repayment of duties paid by the principal, provided no deception or obvious negligence may be attributed to him.

Deception or obvious negligence on the part of persons whom the principal has engaged to carry out obligations contracted under that system does not, in itself, exclude repayment to the principal of duties incurred as a result of the removal of goods placed under that system from customs supervision, provided no deception or obvious negligence is attributable to the principal.

(see paras 66, 73, operative part 2-3)