Opinion of the Advocate-General



Opinion of the Advocate-General

I – Introduction

1. By this order for reference the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) seeks an interpretation of Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, (2) which provides for relief to be granted where goods of negligible value are dispatched from a third country to the Community. The question is essentially whether and under what conditions that exemption also covers the grouped dispatch and customs declaration of a large number of individual parcels which fall only individually below the maximum limit provided for in the provision.

II – Legal framework

2. The original version of Article 27 of Council Regulation (EEC) No 918/83 (3) provided:

‘Subject to Article 28, any consignment dispatched to its consignee by letter or parcel post containing goods of a total value not exceeding 10 ECU [(4) ] shall be admitted free of import duties.’

3. Commission Regulation (EEC) No 2287/83 (5) imposed a further condition for the grant of relief from customs duties under Article 27 of Regulation No 918/83. It provided:

‘The duty-free admission referred to in Article 27 of Regulation (EEC) No 918/83 shall apply only to consignments dispatched by letter or parcel-post directly from a third country to a natural or legal person in the Community.’

4. The third and fourth recitals in the preamble to Regulation No 2287/83 gave the following reason for this amendment:

‘Whereas commercial undertakings should not be enabled to benefit from these provisions by instigating ad hoc activities or by artificially transferring existing activities, thus giving rise to distortions of competition within the common market; whereas, in order to avoid such distortions, the abovementioned consignments should not be eligible for relief from import duties if, prior to their entry for free circulation, they were placed under another customs procedure.

Whereas, therefore, the relief should apply only where the consignments in question are dispatched directly from a third country to a natural or legal person in the Community.’

5. By Regulation No 3357/91, (6) the restriction laid down in Article 27 of Regulation No 918/83 to consignments dispatched by post was lifted.

6. The first recital in the preamble to Regulation No 3357/91 explained this amendment:

‘Whereas the administrative simplification provided for in Article 27 of Council Regulation No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, as last amended by Regulation (EEC) No 4235/88, must, if it is to be effective, be applied to all imports of consignments made up of goods of negligible value.’

7. Article 27 of Regulation No 918/83, as amended by Regulation No 3357/91, therefore now provides as follows:

‘Subject to Article 28, any consignments made up of goods of negligible value dispatched direct from a third country to a consignee in the Community shall be admitted free of import duties.

Goods of negligible value means goods the intrinsic value of which does not exceed a total of ECU 22 per consignment.’

8. Article 28 of Regulation No 918/83 excludes certain kinds of goods from relief from customs duties.

III – Facts, reference for a preliminary ruling and proceedings before the Court

9. The main proceedings concern the lawfulness of a notice of assessment against the customs agent Har Vaessen Douane Service B.V. (‘Har Vaessen’).

10. On the basis of the information contained in the order for reference and the submissions of the parties, the main features of the Netherlands proceedings appear to be as follows.

11. In the period from 12 November 1998 to 28 October 1999, Har Vaessen made declarations for release for free circulation in respect of compact discs, tape cassettes and videotapes on behalf of ECS Media B.V., established in the Netherlands (‘ECS’). Those goods were ordered by individual customers from ECS’ Netherlands parent company, ECI voor Boeken en Platen B.V. (‘ECI’). There was an agreement between ECI and its subsidiary ECS that ECI would transfer the orders to ECS, which then delivered the goods ordered to customers from a distribution centre in Switzerland.

12. The goods were prepared for dispatch by ECS in Switzerland. The goods ordered by each customer were then packed in a parcel, which was addressed to the customer in question. A remittance form in the name of ECI was added to the parcel, which the customer could use to make payment after receipt of the goods. In addition to the price of the goods, the remittance form referred separately to an amount in respect of the costs of delivery.

13. The individual parcels were then transported together to a PTT Post B.V. (‘PTT’) distribution centre in the Netherlands. PTT subsequently delivered the individual parcels from that distribution centre to individual ECI customers.

14. In the declaration, Har Vaessen claimed relief under Article 27 of Regulation No 918/83, under which consignments of goods the value of which does not exceed EUR 22 are to be admitted free of customs duties. In box 8 of the declaration form, (7) the consignee was named as PTT, in box 9, ECS was named as the person responsible for financial settlement, and, in box 15, Switzerland was stated to be the country of dispatch/export. The declaration form was accompanied by lists of the individual consignees of the individual parcels and of the amount for which they were invoiced. It is common ground that the value of the goods in the individual parcels did not exceed EUR 22.

15. The Netherlands authorities refused Har Vaessen the relief claimed. By notice of 29 December 1999, Har Vaessen was requested to pay customs duties in the total sum of NLG 436 907.60 in respect of the transported goods. In addition, the notice requested Har Vaessen to pay value added tax in the total sum of NLG 4 468 110.70.

16. Following an unsuccessful objection, Har Vaessen brought an action against that decision. The Gerechtshof Amsterdam (Amsterdam Regional Court of Appeal) annulled the demands for payment of value added tax, but dismissed the action in relation to the customs duties as unfounded.

17. Har Vaessen appealed to the Hoge Raad against the judgment. By order of 7 December 2007, the Hoge Raad stayed its proceedings and referred the following two questions to the Court for a preliminary ruling:

‘(1) Is Article 27 of Regulation (EEC) No 918/83 of 28 March 1983, as amended by Regulation (EEC) No 3357/91 of 7 November 1991, to be interpreted as meaning that the relief referred to in that article may be claimed in respect of consignments made up of goods which are individually of negligible value but are dispatched as a grouped consignment with a combined intrinsic value which exceeds the value threshold in Article 27?

(2) Should Article 27 of the regulation referred to be applied on the basis that ‘dispatched direct from a third country to a consignee in the Community’ also covers a situation in which the goods are in a third country before being dispatched to the consignee but the consignee’s contractual partner is established in the Community?’

18. In the proceedings before the Court, Har Vaessen, the Netherlands Government and the Commission of the European Communities submitted written and oral observations.

IV – Assessment

A. The first question

19. By its first question, the referring court is essentially seeking to ascertain whether relief from customs duties under Article 27 of Regulation No 918/83 can also apply to the grouped dispatch and customs declaration of individual consignments which each do not exceed a value of EUR 22, but taken together are greater than that maximum limit.

20. Article 27 of Regulation No 918/83 provides that ‘any consignments made up of goods of negligible value dispatched direct from a third country to a consignee in the Community’ are to be admitted free of import duties.

21. The wording of the exemption laid down in Article 27 is broadly formulated. It does not limit either the group of consignors or of consignees other than by the geographical criterion. The wording of Article 27 thus also covers individual consignments which are transported and declared together with other individual consignments.

22. Nevertheless, the referring court has doubts whether a dispatch like that in the main proceedings is covered by the exemption. In the preliminary ruling proceedings before the Court, the parties discuss two aspects in this respect.

23. First of all, there is the question of who is the ‘consignee’ of such a grouped consignment, whether it is the final addressees indicated on the parcels or, as the Netherlands Government argues, PTT, which received the complete consignment for delivery to the individual addressees.

24. Secondly, it is necessary to consider the argument raised by the referring court as to whether the spirit and purpose of the exemption implies a teleological reduction of its scope.

1. Consignees

25. The Netherlands Government takes the view that PTT is the consignee of the consignments. The shipping agent supplied the individual consignments, which were grouped together for dispatch, after crossing the border to PTT, which thus had the task of delivering them to the individual addressees. PTT is thus the consignee in the Community within the meaning of Article 27. As PTT received a consignment the intrinsic value of which, as a sum of the values of the individual consignments, far exceeds the maximum limit laid down in Article 27, that exemption does not apply in the present case.

26. In contrast, the Commission takes the view that the consignees within the meaning of Article 27 in the present case are the individual addressees of the individual parcels. The Commission thus regards the delivery in question as grouped transportation of separate individual consignments to the individual customers and not as a consignment to PTT which would exceed the maximum limit laid down in Article 27. In its view, a situation like that in the present case falls within the scope of the exemption.

27. The Commission is right to state that the final addressees of the parcels are to be regarded as the consignees. PTT is merely an intermediate station in the logistics chain which begins in Switzerland when the goods are handed over to the shipping agent and ends with the addressees of the individual parcels in the Netherlands as the consignees within the meaning of Article 27.

28. The parcels are packaged for dispatch by ECS in Switzerland and addressed to customers in the Netherlands. The parcels could thus easily be handed over to the Swiss postal service and dispatched to the addressees in the Netherlands in an externally integrated dispatch operation. However, in that case the final delivery to the consignees in the Netherlands would also be likely to be done by the Netherlands postal service and thus constitute a further link in the transportation chain. In such a case, it would probably be regarded as wholly unreasonable to think of the Netherlands postal service as the consignee of the parcels because it makes the delivery in the Netherlands for the Swiss postal service.

29. However, whether the Swiss postal service now transports the parcels into the Netherlands, where they are then delivered to the addressees by PTT, or whether the first stage of the shipping route is taken over by a shipping agent cannot affect the answer to the question of who is to be regarded as the consignee of the parcels within the meaning of Article 27. The consignee can only be the addressee of each parcel who is designated at the beginning of the shipping chain and not the Netherlands company PTT, which is merely an intermediate station of a multi-link shipping chain.

30. However, it cannot be consistent with the spirit and purpose of the regulation to favour certain methods of transportation over others, by allowing only a single-link dispatch method to be covered by the exemption, but not a multi-link transportation chain.

31. None of the transportation undertakings involved as links in the transportation chain ‘receives’ the goods for its own purposes, but only for the purposes of (onward) transportation.

32. The drafting history of the exemption also confirms this interpretation of the provision. Until the entry into force of amending Regulation No 3357/91, Article 27 covered only consignments dispatched by post. In an effort to extend the administrative simplification connected with the exemption, that restriction of scope was lifted by Regulation No 3357/91. If the exemption therefore applies irrespective of the method of transportation, it is not possible to draw distinctions according to whether the goods are dispatched solely by a private undertaking or through a combination of private transportation and transportation by the postal service. In the case of a multi-link transportation chain, none of the shipping agents can be regarded as the consignee within the meaning of Article 27.

33. Lastly, it is clear from the method of declaration in the main proceedings that the individual customers – and not PTT – are to be regarded as the consignees of the individual consignments.

34. It is true that PTT – and not ‘various’, for instance – was entered as the consignee in box 8 of the declaration form. However, as the Commission argues, this is irrelevant. (8) An overall examination of the circumstances of the declaration only permits the conclusion that the delivery in question was declared as grouped transportation of various individual consignments to the different customers. For example, a list of individuals who were the consignees of the individual parcels was attached to the declaration form.

35. Furthermore, the attached list indicates the value of the goods in each individual parcel. Providing that information makes sense only in connection with the declaration of a number of individual consignments sent to individual addressees.

36. Lastly, it is necessary to consider a possible argument which was not raised by the parties to the present case, but which should nevertheless be examined briefly. It concerns the requirement that under Article 27 the goods must be dispatched direct from a third country to a consignee in the Community. The argument could be made that in the present case the goods were not dispatched direct to the consignee because they were first delivered to PTT. However, the aim of the criterion of ‘direct dispatch’ in the regulation is slightly different, as will be explained below.

37. The requirement that the consignment must be dispatched ‘directly from a third country’ was added to Article 27 by amending Regulation No 2287/83. According to the third and fourth recitals in the preamble to that regulation, commercial undertakings should not be enabled to give rise to distortions of competition within the common market by instigating ad hoc activities or by artificially transferring existing activities. In order to avoid such distortions of competition, such consignments should be excluded from the scope of Article 27 of Regulation No 918/83 if, prior to their entry for free circulation, they were placed under another customs procedure.

38. With the criterion of direct dispatch, as the Commission rightly argues, the intention was therefore that relief from customs duties should be precluded only if the goods were previously placed under another customs procedure. As the Commission has explained, this covers, for example, the case where the goods were previously placed in a bonded warehouse. It is for the referring court to establish whether the goods were previously placed under another customs procedure in the present case. In any case, as the Commission also explains, it cannot be inferred from the information contained in the order for reference that the goods in question were previously placed under another customs procedure.

39. Even if the criterion of ‘direct dispatch’ were given a different interpretation, this would still produce the same conclusion in a case like the present. If PTT cannot be regarded as the consignee, because it is merely a neutral link in the transportation chain, this cannot interrupt the direct nature of the dispatch from the consignor to the consignee either.

40. In summary, it must be stated that the contested consignment constitutes grouped transportation of various individual consignments to the different customers and that PTT, for example, is not the consignee of a complete consignment the value of which exceeds the maximum limit laid down in Article 27.

2. Spirit and purpose of the exemption

41. Referring to the first recital of the preamble to Regulation No 3357/91, which mentions ‘administrative simplification’ as the purpose of the exemption, the national court considers that Article 27 of Regulation No 918/83 might cover only situations where the administrative costs of declaration are higher than the amount owed in customs duty. Because that imbalance between the administrative costs and the amount due in customs duty does not necessarily exist in the case of a joint customs declaration, it is uncertain whether such consignments are also covered by the exemption.

42. This idea is certainly not supported by the wording of Article 27. That provision does not require an imbalance between the administrative expenditure for the collection of customs duties and the customs duties to be collected in respect of the individual consignment. Article 27 mentions only the value of the individual consignment and does not distinguish according to the method of customs declaration either. According to its wording, exemption from customs duties is not limited solely to consignments of negligible value which are declared individually and thus give rise to relatively high administrative expenditure. In fact, the wording of Article 27 automatically also covers consignments of negligible value which are simultaneously dispatched together in bulk by a commercial consignor and therefore give rise to much lower administrative expenditure in the event of possible joint customs declaration. According to the wording of Article 27, the ratio between the customs duties to be collected in principle and the associated administrative expenditure is irrelevant.

43. Nor can it be inferred from the first recital that relief from customs duties is to be granted only where there is an imbalance between the administrative costs of collecting duties and the amount due in a specific case. The first recital merely expresses the aim pursued by Article 27, which is to simplify administration in connection with the collection of customs duties.

44. Lastly, however, joint declaration also brings about an administrative simplification for the customs authorities. The information which would otherwise be filed separately with each individual consignment is brought together in one application. If a grouped consignment were generally excluded from the scope of the exemption, and duty would therefore have to be paid on consignments of negligible value solely because they are declared jointly in one application, the aim of administrative simplification would certainly not be served. The consequence would be that the declarant would instead declare a large number of individual consignments in order to benefit from relief. This would entail considerable additional expenditure for the customs authorities without any return. For commercial consignors, on the other hand, such individual declaration would probably be easy to manage by automated means.

45. There is therefore no scope for the proposed teleological reduction of the broad terms of Article 27.

3. Interim conclusion:

46. The answer to the first question must therefore be that Article 27 of Regulation No 918/83 is to be interpreted as meaning that the relief referred to in that article may be claimed in respect of the grouped dispatch of individual consignments, the value of which does not exceed EUR 22, if the individual consignments are dispatched to individual consignees in the Community and the goods in question were not previously placed under another customs procedure.

B. The second question

47. By the second question, the referring court is seeking to ascertain whether the exemption laid down in Article 27 of Regulation No 918/83 also applies where the contractual partner of the consignee of the consignment in question is established in the Community or whether it is relevant only where the consignee’s contractual partner is established in the third country from which the goods in question are dispatched. In the main proceedings the contract of sale relating to the consignment is not between the consignee and the consignor in Switzerland, but between the consignee and an undertaking in the Netherlands. That undertaking then has the goods dispatched from its warehouse in Switzerland to the consignee in the Netherlands.

48. It does not follow from the wording of Article 27 of Regulation No 918/83 that relief from customs duties applies only where there are contractual relations between the consignor and the consignee of the goods. Article 27 of the regulation applies the purely factual test of a dispatch and merely refers to the goods being dispatched direct from a third country to a consignee in the Community. There is no reference to the place in which the contractual partner of the consignee of the goods is established or the existence of legal relations between the consigner and the consignee. The terms chosen were not purchaser and seller, but consignor and consignee.

49. By the criterion of ‘direct dispatch’, as has already been explained above, (9) the intention is to exclude from relief only consignments which were previously placed under another customs procedure. It cannot therefore be inferred from that criterion that there must be contractual relations between the consignor and the consignee.

50. It can therefore be stated, as an interim conclusion, that Article 27 of Regulation No 918/83 does not make relief from customs duties contingent on the consignor being the contractual partner of the consignee.

51. Finally, it must be considered whether grounds relating to prevention of abuse suggest that a different understanding of the regulation should be adopted.

52. The Netherlands Government takes the view that ECI’s behaviour constitutes abuse in so far as from the very beginning it aimed to pay no value added tax on the goods in question. Under Article 101 of the Netherlands Customs Code ( Douaneregeling ) goods which are covered by the customs exemption laid down in Article 27 of Regulation No 918/83 are not chargeable to value added tax either.

53. The Netherlands Government submits that in order to benefit from relief from value added tax ECI first transported the goods from the Netherlands into Switzerland, with a view to having them delivered from there to its customers in the Netherlands. This behaviour results in distortions of competition, as consignors which dispatch their goods to their Dutch customers directly from the Netherlands are required to pay value added tax. In order to prevent such abuse, Article 27 of Regulation No 918/83 must be given a narrow interpretation in such a way that no relief from customs duties is granted in situations like the present case.

54. The Netherlands Government does not therefore argue that the undertaking in question is abusively benefitting from relief from customs duties . According to the description of facts by the Netherlands Government, it is likewise not apparent that the undertaking chooses its dispatch model in order to benefit abusively from relief from customs duties. Even if the goods were dispatched direct from the Netherlands, no customs duties would be incurred from the outset and dispatching the goods from Switzerland does not therefore give the shipment undertaking any customs advantage.

55. However, the Netherlands Government claims that the undertaking abusively obtains relief from value added tax .

56. Article 22 of Council Directive 83/181/EEC of 28 March 1983 determining the scope of Article 14(1)(d) of Directive 77/388/EEC as regards exemption from value added tax on the final importation of certain goods (10) provides that Member States may grant exemption for imported goods of a total value of more than EUR 10 but not exceeding EUR 22. (11) The Netherlands has exercised that option and exempts the importation of goods of negligible value from value added tax. Netherlands law thus links exemption from value added tax to the relief from customs duties to be granted under Article 27 of Regulation No 918/83.

57. The argument that relief from customs duties should be narrowly interpreted in order to prevent abuse with regard to value added tax is not persuasive. The connection between relief from customs duties and a potentially abusive exemption from value added tax follows only from the link established in this regard by Netherlands law.

58. Inasmuch as the first sentence of the first paragraph of Article 22 of Directive 83/181 provides for an obligatory exemption from tax for goods of a value below EUR 10, as the Commission also has pointed out, the second paragraph of Article 22 gives the Member States the option to exclude goods which have been imported on mail order from this exemption.

59. Potential abuse with regard to exemption from value added tax must therefore also be combated in the context of exemption from value added tax. This does not mean that, in the context of relief from customs duties, there must be a restrictive interpretation of Article 27 of Regulation No 918/83.

60. With regard to value added tax, the Court has held that refusal of a tax advantage is lawful where the transactions concerned result in the accrual of a tax advantage, the grant of which would be contrary to the purpose of those provisions, and it is apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage. (12) The Court thus found that obtaining tax advantages in a manner which constitutes an abuse of rights may be countered.

61. The argument of a potential abuse in connection with exemption from value added tax, which is linked to relief from customs duties in national law, must therefore be taken into consideration in the context of exemption from value added tax and cannot result in a restrictive interpretation of Article 27 of Regulation No 918/83, contrary to its broad wording.

V – Conclusion

62. In the light of the above arguments, I suggest that the Court answer the questions referred by the Hoge Raad der Nederlanden as follows:

(1) Article 27 of Regulation (EEC) No 918/83, as amended by Regulation No 3357/91, is to be interpreted as meaning that the relief referred to in that article may be claimed in respect of the grouped dispatch of individual consignments, the value of which does not exceed EUR 22, if the individual consignments are dispatched to individual consignees in the Community and the goods in question were not previously placed under another customs procedure.

(2) When interpreting Article 27 of that regulation, the words ‘dispatched direct from a third country to a consignee in the Community’ must be assumed to cover also a situation in which the goods are in a third country before being dispatched to the consignee but the consignee’s contractual partner is established in the Community.

(1) .

(2) – OJ 1983 L 105, p. 1, as amended by Council Regulation (EEC) No 3357/91 of 7 November 1991 amending Regulation No 918/83 setting up a Community system of reliefs from customs duty (OJ 1991 L 318, p. 3).

(3) – Regulation of 28 March 1983 setting up a Community system of reliefs from customs duty (OJ 1983 L 105, p. 1).

(4) – Article 2(1) of Council Regulation (EC) No 1103/97 of 17 June 1997 on certain provisions relating to the introduction of the euro (OJ 1997 L 162, p. 1 et seq.) provides that every reference to the ECU was replaced by a reference to the euro at a rate of one euro to one ECU. Hereinafter ‘ECU’ is thus replaced by ‘euro’. See also Case C‑294/02 Commission v AMI Semiconductor Belgium and Others [2005] ECR I‑2175, paragraph 32.

(5) – Regulation of 29 June 1983 laying down provisions for the implementation of Article 127 of Regulation No 918/83 setting up a Community system of reliefs from customs duty (OJ 1983 L 220, p. 12).

(6) – Regulation No 3357/91 (cited in footnote 2).

(7) – Title II of Annex 37 to Regulation No 2454/93 establishing the Community customs code.

(8) – See, in that regard, the views set out in point 4.3.18 of the Opinion of Advocaat General W. de Wit of 13 July 2006, which forms part of the Hoge Raad’s order for reference.

(9) – See point 38 et seq. of this Opinion.

(10) – Directive 83/181/EEC, as amended by Council Directive 88/331/EEC of 13 June 1988 (OJ 1983 L 151, p. 79).

(11) – For goods the value of which is less than EUR 10 the directive provides for a mandatory exemption from VAT.

(12) – Case C‑255/02 Halifax and Others [2006] ECR I‑1609, paragraphs 74 and 75, and Case C‑425/06 Part Service [2008] ECR I‑897, paragraph 42.