OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 10 May 2005 1( )

Case C-247/04

Transport Maatschappij Traffic BV

v

Staatssecretaris van Economische Zaken

(Request for a preliminary reference from College van Beroep voor het bedrijfsleven (Netherlands))

(Customs Code – Repayment or remittance of import or export duties – Conditions – Meaning of ‘legally owed’ – Payment demand from an authority which is not authorised according to national law)

I – Introduction

1. By decision dated 28 May 2004 the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry, hereinafter ‘the College’) has referred a question on the interpretation of the Community Customs Code to the Court of Justice for a preliminary ruling. Essentially, the issue for the referring court is whether a duty is ‘legally owed’ within the meaning of Article 236 of Council Regulation (EEC) No 2913/92 ( ) even if the communication provided for under the CCC contains a formal error, the latter in the main proceedings here being the lack of competence on the part of the authority issuing the communication.

II – Legal framework

A – Community law

2. Article 4 of the CCC contains the following definitions:

‘For the purposes of this Code, the following definitions shall apply:

…

(9) “Customs debt” means the obligation on a person to pay the amount of the import duties (customs debt on importation) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force;

…

(23) “Provisions in force” means Community or national provisions.’

3. Article 20(1) of the CCC, which features in Title II (‘Factors on the basis of which import duties or export duties and the other measures prescribed in respect of trade in goods are applied’), provides that:

‘Duties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities.’

4. Title VII, Chapter 2, of the CCC regulates how a customs debt is incurred. In particular, the provisions contained therein relate to the circumstances leading to a customs debt being incurred and when and where it is incurred.

5. In Title VII, Chapter 3, of the CCC, under the heading ‘Recovery of the amount of the customs debt’, Article 221 provides in part as follows:

‘(1) As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

(2) Where the amount of duty payable has been entered, for guidance, in the customs declaration, the customs authorities may specify that it shall not be communicated in accordance with paragraph 1 unless the amount of duty indicated does not correspond to the amount determined by the authorities …

…’

6. Article 236(1) of the CCC, which is in Title VII, Chapter 5, entitled ‘Repayment and remission of duty’, reads:

‘Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).’

7. Articles 243 to 246 comprise Title VIII of the CCC, which is entitled ‘Appeals’. The first subparagraph of Article 243(1) of the CCC specifies that:

‘Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.’

B – National law

8. Article 22a(1) and Article 22a(2) of the Algemene Wet inzake Rijksbelastingen (General Law on State Taxes, hereinafter: AWR) provide:

‘(1) Communication as to the amount of import duties as provided for in Article 221(1) of the CCC shall be effected by means of a demand for payment issued by the (Customs) Inspector.

(2) Notwithstanding paragraph 1, a demand for payment in respect of antidumping duties and countervailing duties shall be issued by the Minister for Economic Affairs.’

III – Facts and proceedings before the national court

9. By payment demand issued on 18 December 1997 the Inspecteur Belastingdienst/Douane district Roosendaal (Roosendaal district customs authorities, hereinafter the ‘Inspector’) notified the appellant in the main proceedings, Transport Maatschappij Traffic BV (hereinafter: TMT), that it owed HFL 62 045.20 (EUR 28 154.88) in respect of antidumping duties. On 19 February 1998, TMT filed an objection to that demand. It withdrew that objection by letter of 18 May 1998, as it was inadmissible due to being lodged too late.

10. At the same time TMT requested a refund on the basis of Article 236 CCC. TMT alleged that since on the basis of Article 22a(2) of the AWR the Inspector was not authorised to act, the antidumping duties imposed were not legally owed. This request for a refund was refused in a decision dated 12 April 2000. TMT’s subsequent challenge to that decision was dismissed by the respondent in the main proceedings on 9 October 2000.

11. By its judgment of 13 February 2002, the College allowed the appeal against that decision and set the decision aside. The respondent in the main proceedings issued a new decision on 19 November 2002 in which it again dismissed TMT’s challenge to the refusal of its request for a refund of the antidumping duty. TMT challenged the latter decision by bringing another claim before the College on 24 December 2002.

IV – The question referred

12. On 28 May 2004 the College decided to refer the following question to the Court for a preliminary ruling:

Must the term ‘legally owed’ in Article 236 of the Community Customs Code (the CCC) be understood as referring exclusively to the question whether the conditions for a customs debt to be incurred, as set out in Chapter 2 of Title VII of the CCC, are fulfilled or can legal indebtedness arise only if there are no grounds, including grounds under the national provisions in force as specified in Article 4(23) of the CCC, for challenging the communication that duties are owed?

13. By means of the question referred, the referring court is essentially seeking to ascertain whether the amount of import duty payable was not ‘legally owed’ at the time of payment within the meaning of Article 236 of the CCC if the communication is not ‘in accordance with appropriate procedures’ and therefore takes place in breach of Article 221(1) of the CCC.

V – Legal assessment

A – The wording of the first sentence of Article 236(1) of the CCC

14. The first sentence of Article 236(1) of the CCC provides that import duties or export duties are to be repaid in so far as it is established that, when they were paid, the amount of such duties was not legally owed. The meaning of ‘legally owed’ is not more precisely defined either in Article 236 itself or in other provisions of the CCC. It is also impossible to derive any clear interpretation from natural language usage. ‘Legally’ can equally refer only to Community law or to the entirety of the applicable legal provisions.

15. Article 4(23) of the CCC does refer to ‘Community or national provisions’. However, this reference relates to the definition of the phrase ‘provisions in force’ in so far as it is used in the CCC. No conclusion can be drawn from this as to the meaning of the phrase ‘legally’ or ‘legally owed’.

16. Even the formulation that the amount must be ‘owed’ refers merely to the fact that the circumstances required for the duty to be incurred must be fulfilled. The details of these circumstances and whether they include in particular the communication of the amount of the duty in accordance with appropriate procedures – in a manner corresponding to national procedural provisions – are not given here.

17. The interpretation of a provision of Community law involves a comparison of all of the different language versions thereof, as Community law provisions are equally binding in all the different language versions. ( ) The need for uniform interpretation for the purposes of uniform application makes it impossible to consider one version of the text in isolation but requires that it be interpreted in the light of all the other language versions. ( ) However, in the case of the first sentence of Article 236(1) of the CCC no further indication of the scope of the term ‘legally owed’ emerges from the other language versions. ( )

18. TMT argues that, since according to the text of Article 236(1) of the CCC the duty was not legally owed ‘when it was paid’, all the circumstances which took place up to that point in time must be taken into account. It is true that the existence of a debt is judged as at the time of payment; however, the elements upon which the existence of a debt depends cannot be derived from the abovementioned text.

19. Accordingly, there is no indication from the mere text of the provision as to the interpretation which is put forward.

B – Schematic interpretation

1. The meaning of communication in accordance with Article 221(1) of the CCC within the scheme of the CCC

20. Both TMT as the appellant in the main proceedings and the Netherlands Government have relied on the schematic integration of communication in the CCC and on the function of communication in their submissions.

21. The Netherlands Government takes the view that, since it is possible to dispense entirely with communication where Article 221(2) of the CCC applies, the lack of communication has no bearing on the fact that the duty is legally owed. However, this argument is not convincing. As a substitute, as it were, for the omitted communication, Article 221(2) of the CCC provides for the amount of duty payable to be entered, for guidance, in the customs declaration. Consequently, this provision could also be understood as meaning that such entry for guidance in the customs declaration also assumes the function of communication with regard to the concept ‘legally owed’.

22. TMT asserts that Article 4(9) of the CCC defines customs debt as the obligation on a person to pay the amount of the import duties (customs debt on importation) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force. It submits, however, that the payment obligation arises only on communication in accordance with Article 221(1) of the CCC. This is correct only to the extent that in the normal case (Article 222(1)(a) of the CCC) the time period for payment begins to run only from the time of the communication. However, nothing is said here about the question as to the point in time from which the customs debt as such is actually owed, as the existence and the maturity of a claim for payment are separate concepts and must be judged separately as regards the time at which they arise. Consequently it does not follow from Article 4(9) of the CCC, which refers to the payment obligation, that this obligation arises only when the claim for payment falls due, namely after communication has occurred.

23. On the contrary, the formulation of Article 221(3) of the CCC possibly points in favour of the interpretation presented above, which strictly separates when the customs debt is incurred and when it becomes due. The first sentence of Article 221(3) of the CCC fixes a time period from the date at which the customs debt was incurred for communication and consequently makes clear that at the point in time at which the communication is made the circumstances required for the duty to be incurred have already taken place. The wording of the second sentence of Article 221(3) of the CCC, which permits the customs authorities – subject to the conditions described there – to make the communication even after the expiry of this time period, in so far as they were unable to determine the exact amount which was legally due (hence already due at this point in time prior to communication), also points in favour of this interpretation.

24. The Netherlands Government has also pointed out that the second sentence of Article 236(1) of the CCC provides for import duties or export duties to be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed, which does not point in favour of the communication having a conclusive effect. Since in accordance with Article 221(1) of the CCC communication always takes place after the duties are entered in the accounts, if the communication had a conclusive effect in determining when duties were ‘legally owed’, then at the time the amount was entered in the accounts it would in fact never be ‘legally owed’, so that a remittance would always apply. The respective amount must for that reason already be legally owed before it is entered in the books and before communication takes place.

25. Consequently, the schematic position and function of the communication in the structure of the CCC suggest that communication is not conclusive in determining when the duty is ‘legally owed’.

2. The use of the term ‘legally owed’ in other provisions of the CCC

26. The use of the term ‘legally owed’ in other provisions of the CCC may provide some guidance as to the meaning of the term.

27. In its submissions the Commission put forward the view that the reference to ‘legally owed’ duties in Article 220 and Article 228 of the CCC relates to their calculation on the basis of the European Community’s Customs Tariff, which, it argues, demonstrates that the use of this term in the CCC refers exclusively to the calculation of the amount of the customs duty. However, this conclusion is not convincing for the very reason that it is clearly discernible from the wording of both Article 220 and the second sentence of Article 228(2) of the CCC that they refer (only) to the calculation of the customs debt. However, in Article 236(1) of the CCC this is precisely not the case.

28. Article 217 of the CCC, which deals with entry in the accounts and refers in paragraph (1)(2)(b) to the ‘amount of duty legally due’, was relied on by the Commission with the same argumentation. This in turn suggests that the requirements for an amount to be ‘legally owed’ must exist before it is entered in the accounts.

29. The third sentence of Article 201(3) of the CCC, on which the Commission also relied, is similarly formulated: ‘... all or part of the duties legally owed not being collected’, and implies that it is concerned with duties which are (already) legally owed, which thereafter will or will not be collected.

30. In addition, the Commission asserted that it follows from Article 20(1) of the CCC that the Customs Tariff of the European Communities was the sole basis for the duty to be paid: the term ‘legally owed’ consequently merely referred to the calculation of the duties. In accordance with Article 20(1) duties legally owed where a customs debt is incurred are to be based on the Customs Tariff of the European Communities. Viewed in isolation, this formulation in fact suggests that the question whether a duty is ‘legally owed’ depends solely on the correct calculation of the customs duty.

31. Furthermore, however, it follows from Article 20(1) of the CCC that duties are already legally owed ‘where a customs debt is incurred’. Title VII, Chapter 2, of the CCC regulates how a customs debt is incurred: according to this it is incurred on the release or introduction for free circulation of goods at the time of acceptance of the customs declaration in question. In contrast, the need to communicate the customs debt calculated by the customs authorities (Article 221), as well as that communication’s function of causing the customs debt to become due, and at the same time starting the period for payment in Article 222 of the CCC, are included in the separate Chapter 3 of Title VII of the CCC, which is entitled ‘Recovery of the amount of the customs debt’. This separation between the existence of the claim and its recovery in turn suggests that the customs debt is incurred independently of the communication (which follows subsequently) and that the communication is also not intended to have any further influence on the existence of the customs debt.

32. The Commission also supports its argument by reference to Article 79 of the CCC. The second sentence of this provision also uses the term ‘legally due’ in relation to the ‘charging of any duties legally due’.

33. Since communication is part of recovery of the duty which is regulated by Title VII, Chapter 3, it also consequently follows from this formulation that the duty is already legally owed for the purposes of the CCC before recovery, which begins with entry into the accounts in accordance with Article 217 of the CCC.

34. The use of the term ‘legally owed’ in other provisions of the CCC thus supports an interpretation pursuant to which communication does not have any influence on the question as to whether a sum is ‘legally owed’.

3. Regulation (EEC, Euratom) No 1552/89

35. The Netherlands Government referred in its submissions to the fact that one of the functions of the communication under Article 221(1) of the CCC arises from Regulation No 1552/89, ( ) the first sentence of Article 2(1) of which stipulates that the Community’s entitlement to own resources is to be established ‘as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor’. However, in contrast to the earlier version, which read ‘… as soon as the debtor is known and the amount of entitlement can be calculated by the competent administrative authorities, in compliance with all the relevant Community provisions’ (emphasis added), the wording of the latest amended version does not allow any inference to be drawn as to whether the ‘customs regulations’ referred to also mean those of national law or only Community law provisions.

36. Consequently, having regard to the question of interpretation a review of those rules alongside those of the CCC proves to be unproductive.

4. Regulations preceding Article 236 and Article 221 of the CCC

37. In its submissions TMT expressed the view that the correct interpretation of the provisions in force today could emerge from the earlier rules which Articles 236 and 221 of the CCC replaced.

38. TMT relies on the wording of the provision preceding Article 236(1) of the CCC, namely Article 2(1) of Council Regulation (EEC) No 1430/79, ( ) arguing that this provision envisaged repayment as soon as the amount entered in the accounts exceeded the amount which was legally owed, for whatever reason, and that the subsequent provision had not intended to change this in any way.

39. It is irrelevant whether the CCC was not actually intended to introduce any amendments. ( ) Although the earlier provision in fact envisaged that it does not depend on the reason why the amount was not owed, the question as to whether the amount is ‘legally owed’ at all for the purposes of Article 236(1) of the CCC in spite of a breach of national provisions as to competency must indeed be the very issue to be clarified here. TMT reaches the conclusion that this is not the case only because it assumes that the relevant amount is owed only if the communication has been effected lawfully. That, however, is precisely the issue here in question.

40. In any case as a consequence of the above provision of Article 2(1) of Regulation (EEC) No 1430/79 ‘import duties shall be repaid or remitted in so far as the competent authorities are satisfied that the amount of such duties entered in the accounts … exceeds for any reason the amount lawfully payable’. This also points in favour of the possibility of the repayment of excess amounts of duty which are not owed being limited to cases in which the basis for calculating the amount of duty was erroneous and as a result of this the customs debt was incorrectly calculated. ( ) This is also expressed in the recitals of the preamble to Regulation No 1430/79, in which reference is made in particular to errors of calculation or transcription and inaccurate or incomplete tax criteria. Further, reference may be made to Article 1(1) of Regulation (EEC) No 3040/83, ( ) which states more precisely, by way of a legal definition, that for the purposes of Article 2(1) of Regulation No 1430/79 ‘the amount lawfully payable’ means the amount of the import duties which, ‘under the rules in force at the time of acceptance of the entry for release for free circulation, including provisions relating to the grant of a reduced or zero rate of duty, would have been payable in respect of the goods concerned if all the particulars and documents necessary for the implementation of such rules had been duly declared and produced and had in fact been taken into account by the competent authorities in the calculation of the duties’. ( )

41. It is apparent from all of this that the argument based on Article 2(1) of Regulation (EEC) No 1430/79 is unconvincing.

42. TMT also relies on the provision preceding Article 221(1) of the CCC, namely Article 6(1) of Regulation (EEC) No 1854/89. ( ) This envisaged, as with the current Article 221(1) of the CCC – which provides similarly in this regard – a communication ‘in accordance with the appropriate procedures’. TMT takes the view that the breach of national provisions relating to this ( ) would also have been a breach of this provision while Article 6(1) of Regulation (EEC) No 1854/89 ( ) was valid: it submits that Article 221(1) of the CCC, the subsequent provision, did not intend to change anything in that regard.

43. No case-law of relevance here exists as to the interpretation of Article 6(1) of Regulation No 1854/89. The only decision relating to that regulation ( ) is concerned solely with the time-limit set out in this provision and does not address the meaning of the requirement for a communication ‘in accordance with appropriate procedures’. Even if the interpretation put forward by TMT is correct, however, the provision does not go so far as to state that a breach of the requirement that communication be effected ‘in accordance with appropriate procedures’ has any bearing on the definition of the term ‘legally owed’.

44. It must therefore be held that a consideration of the earlier provisions mentioned above is not capable of supporting TMT’s interpretation of Article 236(1) of the CCC.

C – Teleological interpretation

45. Finally, indications as to the interpretation proposed for the term ‘legally owed’ may be derived from the meaning and purpose of the provision.

46. Import duties are the Community’s own resources, and their regulation is within the exclusive competence of the Community. ( ) A particular interest in a standardised Community-wide interpretation is a consequence of this – as the Netherlands Government correctly pointed out – and therefore potential peculiarities of national law are limited strictly by the Customs Code. ( )

47. If one was to follow TMT’s view and demand a proper communication as a condition for an amount to be designated as being legally owed, the repayment of duty in accordance with Article 236(1) of the CCC would then depend crucially on compliance with national procedural provisions. These provisions could vary considerably, even and precisely with regard to the proper nature of the required communication. Consequently, taking this view as a basis would not guarantee a standardised application of the CCC. This would not only have effects on the EC budget, but would also lead to distortions in competition because of the potential for variations in national procedural practice from one Member State to another. The term ‘legally owed’ must therefore be understood as referring only to the circumstances in which the customs debt is incurred (under Community law).

48. For the same reason the argument based on Article 221(3) of the CCC also fails to convince. In relation to this TMT asserts that the three-year period there laid down would be meaningless if its expiry did not have any consequences in regard to the designation ‘legally owed’. TMT does refer correctly to the fact that in accordance with the opposing view – which is represented here – expiry of the period does not result in the customs debt being no longer legally owed for the purposes of Article 236(1) of the CCC. However, the expiry of the period does prevent the later communication and thus the enforcement of the customs debt, and therefore has an effect in those cases in which the customs debt has not yet been paid. In those cases it leads to the customs debt (which has been incurred) never becoming due. ( ) Any different interpretation would, moreover, lead in turn to the repayment of Community law revenue, which import duties represent, being dependent on compliance with national legal provisions, to which Article 221(1) of the CCC refers by the wording ‘in accordance with appropriate procedures’. For the purposes of a standardised Community-wide application of the CCC and the associated equal treatment of all customs debtors, this cannot be the content of the rules in issue. ( )

49. TMT’s submissions in relation to Article 243 of the CCC do not lead to any other conclusion. TMT asserts in this connection that the communication under Article 221(1) of the CCC does not constitute a decision within the terms of Article 243 of the CCC. First of all, TMT substantiates this view with the assertion that otherwise two extensively analogous and overlapping legal remedies would exist: on the one hand, Article 243 of the CCC and, on the other hand, an application for repayment under Article 236 of the CCC. TMT advances the further argument that the communication is governed by national law so that – if one did not take this view – it would be necessary to review national law in the context of the legal remedy under Article 243 of the CCC and consequently the decision would be dependent on national law. Accordingly, the person affected by the communication would only be able to demand a repayment or a remission in accordance with Article 236 of the CCC: only the decision on this would represent a decision for the purposes of Article 243 of the CCC. However, in TMT’s view, as a consequence of this there would be a gap in the legal redress available with regard to the communication, if its erroneous nature could not be asserted in the context of the legal remedy under Article 236(1) of the CCC.

50. However, the abovementioned gap in the legal redress available arises only from the assumption that the communication cannot be challenged with the legal remedy under Article 243 of the CCC. The correctness of this assumption need not, however, detain us here here: in any case this line of argument, which is ostensibly supposed precisely to avoid a dependence on national provisions, leads to the decision on the application for repayment also being dependent on the erroneous nature of the communication judged in accordance with national procedural provisions, with the result that national variations do still ultimately have an effect on the Community law regulation of customs duty.

51. It is therefore also apparent from the teleological interpretation that the amount of the duty is ‘legally owed’ regardless of possible errors in the communication which arise from a consideration of national procedural provisions.

VI – Conclusion

52. It is therefore proposed that the question referred by the College van Beroep voor het bedrijfsleven should be answered as follows:

The term ‘legally owed’ in Article 236 of the Community Customs Code (Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code) must be construed as referring to the conditions under which a customs debt may be incurred, as set out in Chapter 2 of Title VII of the Community Customs Code, but not to national provisions from which the erroneous nature of the communication envisaged in Article 221(1) of the Community Customs Code arises or can arise, with the result that the amount of duty to be paid is also ‘legally owed’ for the purposes of Article 236 of the Community Customs Code at the time of payment if the communication of the amount is not ‘in accordance with appropriate procedures’ and therefore has taken place in breach of Article 221(1) of the Community Customs Code.