OPINION OF ADVOCATE GENERAL

BOT

delivered on 14 July 2016 ( 1 )

Case C‑547/15

Interservice d.o.o. Koper

v

Sándor Horváth

(Request for a preliminary ruling from the Kúria (Supreme Court, Hungary))

‛Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Article 96(2) — Obligation to produce goods intact at the customs office of destination with due observance of the measures to ensure identification — Persons concerned — Transport subcontractor’

1. This request for a preliminary ruling concerns the interpretation of Article 96(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. ( 2 )

2. The request has been made in proceedings between Interservice d.o.o. Koper, ( 3 ) a customs agent, and Mr Sándor Horváth, a carrier, relating to the recovery of customs duties paid by Interservice as ‘principal’ following the removal from customs supervision of goods being transported, under a subcontracting agreement, by Mr Horváth under the external Community transit procedure.

3. In the present case, the Court will be called upon to answer the question whether, when performance of the transport is subcontracted by the main carrier designated by the contractor, the obligation to produce goods moving under the external Community transit procedure intact at the customs office of destination is incumbent on the subcontracting carrier. The Court will also, in the event of an affirmative answer, be called upon to clarify the extent of that obligation.

4. In this Opinion, I shall maintain, first, that Article 96(2) of the Customs Code must be interpreted as meaning that the term ‘carrier’ refers to any person who carries out the transport of goods which he accepted knowing that they were moving under the Community transit procedure, whether under a transport agreement concluded with the contractor or under a subcontracting agreement concluded with the main carrier and, secondly, that the obligation laid down in that provision is incumbent on the carrier during the time he is in charge of the goods physically in his possession.

5. I shall demonstrate that, in a situation such as that at issue in the main proceedings, in which the transport subcontractor actually transported the goods to the car park of the customs office of destination and handed over the documents relating to those goods to the representative of the main carrier in order for the latter to carry out the formalities for discharge of the external Community transit procedure, the transport subcontractor was discharged of his obligation when he transferred responsibility for the goods and the accompanying documents to the main carrier.

6. I shall also state that, although the fact that the transport subcontractor subsequently continued the transport of the goods to another Member State does not involve any obligation for him to check, before continuing the transport, that the main carrier had actually produced the goods at the customs office of destination for purposes of discharging the external Community transit procedure, he might nonetheless incur liability if it were established that he continued the transport of the goods being aware of information establishing that that procedure had not been properly completed, which is a matter for the referring court to decide in the light of all the relevant facts.

I – Legal framework

7. Under Article 91(1)(a) of the Customs Code, the external Community transit procedure allows the movement from one point to another within the customs territory of the Community of non-Community goods, without such goods being subject to import duties and other charges or to commercial policy measures.

8. Under Article 96(1) of the Customs Code: ‘The principal shall be the of [sic] under the external Community transit procedure. He shall be responsible for: (a) production of the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification; (b) observance of the provisions relating to the Community transit procedure.’

9. Article 96(2) of the Customs Code provides that ‘notwithstanding the principal’s obligations under paragraph 1, a carrier or recipient of goods who accepts goods knowing that they are moving under Community transit shall also be responsible for production of the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification.’

10. Article 92(1) of the Customs Code provides that the external Community transit procedure ends when the goods and the corresponding documents are produced at the customs office of destination.

11. In the event of the unlawful removal from customs supervision of goods liable to import duties, Article 203 of the Customs Code states that a customs debt will be incurred by four categories of persons: — the person who removed the goods from customs supervision; — any persons who participated in such removal and who were aware or should reasonably have been aware that the goods were being removed from customs supervision; — any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been removed from customs supervision, and, — where appropriate, the person required to fulfil the obligations arising from temporary storage of the goods or from the use of the customs procedure under which those goods are placed.

12. According to Article 213 of the Customs Code, where several persons are liable for payment of one customs debt, they will be jointly and severally liable for such debt.

II – Facts in the main proceedings and questions referred

13. At the request of Friedler Spedition GmbH, IGAZ Trans Kft. was given the task of transporting, under the external Community transit procedure, goods that had arrived from China at the port of Koper (Slovenia).

14. On 8 December 2008, IGAZ Trans instructed Mr Horváth to convey the goods from Koper to Vienna (Austria), and then, once the customs formalities had been completed, to Rome (Italy).

15. On 11 December 2008, at the request of IGAZ Trans, Interservice, a customs agent, initiated the transit procedure with the Koper customs office. After that procedure had been initiated, the goods were due to be produced at the Wiencont Süd customs office, Freilager Wien (Vienna, Austria) no later than 18 December 2008.

16. Also on 11 December 2008, Mr Horváth reported to Interservice, which issued the CMR ( 4 ) consignment note and the authorisation needed for retrieval of the goods and sent, electronically, to the Slovenian customs authorities the T1 document for use during the transit procedure. Then, after taking delivery of the goods at the Koper customs office, Mr Horváth transported them to the car park of the Vienna customs office indicated on the CMR consignment note, where he handed over to the representative of IGAZ Trans the documents necessary for carrying out the customs formalities.

17. Mr Horváth then stayed in the car park with the container containing the goods, from 12 to 17 December 2008. On 17 December 2008 he travelled back to Hungary, leaving the container in Vienna, and set off again for Vienna on 18 December 2008.

18. The goods were not produced for the purposes of the customs procedure at the customs office of destination. Mr Horváth continued the transport of those goods with a new consignment note, issued by Friedler Spedition GmbH and received from the representative of IGAZ Trans Kft., and delivered the goods to their final destination in Italy.

19. According to the findings of the Kúria (Supreme Court, Hungary), Mr Horváth accepted the goods clearly knowing that they were moving under the Community transit procedure. Nonetheless, before continuing to transport them from Vienna to Rome he did not ensure in a satisfactory manner that IGAZ Trans or Friedler Spedition had produced the customs goods at the customs office of destination. The referring court also states that it has not been shown in the present proceedings that Mr Horváth was aware that the goods had been removed from customs supervision.

20. Evidence that the external Community transit procedure had been completed was given to the customs office of departure by the production of a transit declaration bearing the seal of a Romanian customs office. The Slovenian customs authorities found, following an investigation, that the seal of the Romanian customs office had been fraudulently placed on the transit declaration.

21. Due to the removal of the goods from customs supervision, Interservice, as the principal, had to pay customs duties, VAT and late payment interest amounting to EUR 11 196.49.

22. Interservice instituted proceedings for recourse against Mr Horváth, on grounds of non-contractual liability, arguing that under Article 96(2) of the Customs Code the carrier is responsible, along with the principal, for the production of the goods, irrespective of the fact that in this particular case the carrier was merely a transport subcontractor.

23. That action having been dismissed both at first instance and on appeal, Interservice lodged an appeal on a point of law before the Kúria (Supreme Court), which decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Article 96(2) of [the Customs Code] be interpreted as meaning that not only the person who enters into a transport agreement with the seller for the transport of the goods (the contractual or main carrier), but also the person who carries out the transport, in full or in part, on the basis of another transport agreement concluded with the contractual or main carrier (the transport subcontractor), is to be regarded as a carrier of the goods? (2) If the first question is answered in the affirmative, must Article 96(2) of [the Customs Code] be interpreted as meaning that, in a case such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed?’

III – My assessment

A – Preliminary observations

24. In order to understand the issues behind this request for a preliminary ruling, it would seem appropriate to give a brief summary of the factual and legal background to the case in the main proceedings.

25. The referring court seeks, first, clarification of the term ‘carrier’, within the meaning of Article 96(2) of the Customs Code, in order to decide whether or not to classify Mr Horváth as such, and, secondly, in the event of an affirmative answer, to determine the extent of the obligation incumbent on the person concerned.

26. Those questions have been raised in proceedings between a customs agent, recognised as the debtor of the customs debt following the removal of the goods from customs supervision, and the subcontractor transporting those goods.

27. That situation calls for two immediate observations.

28. The first concerns the event giving rise to the customs debt.

29. In that regard, I do not share the uncertainty of the European Commission, which contends that, according to the facts set out in the order for reference, there is doubt concerning the origin of the customs debt, which may have been incurred either due to the removal of the goods from customs supervision, within the meaning of Article 203 of the Customs Code, or under Article 204 of that code, due to non-fulfilment of obligations under the external Community transit procedure, which had no effect on customs supervision.

30. In accordance with the Court’s settled case-law, the concept of ‘removal from customs supervision’, as referred to in Article 203(1) of the Customs Code, must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code. ( 5 )

31. In the present case, it is clear from the order for reference that the external Community transit procedure was fraudulently discharged, the arrival of the goods at the customs office of destination having been certified on the basis of documents bearing falsified seals of the Romanian customs authorities. ( 6 ) The failure to produce the goods at the customs office of destination in accordance with the rules prevented the customs authorities, who were deceived by falsified documents, from checking what had happened to the goods at the decisive moment at the end of the procedure, ( 7 ) and that fraudulently obtained discharge clearly created a risk of those goods unlawfully entering the economy of the European Union. I consider therefore that the mere fact that falsified documents were produced in order to establish that the external Community transit procedure had been completed demonstrates unlawful removal from customs supervision, resulting in a customs debt being incurred under Article 203 of the Customs Code.

32. My second observation concerns the consequences of the existence of removal from customs supervision within the meaning of Article 203 of the Customs Code.

33. In the event of the removal from customs supervision of goods liable to import duties, the persons who may be recognised as debtors of customs debts are defined in Article 203(3) of the Customs Code, which singles out four categories of persons liable for the duties.

34. The first three indents of that provision list: the persons who removed the goods from customs supervision; those who participated in such removal and who were aware or should reasonably have been aware that the goods were being removed from customs supervision; and those who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been removed from customs supervision. The common denominator linking those three categories of persons is that they all took part in one way or another in the offence or at least in some way benefited from it; to borrow terms used in criminal law, they are the perpetrators of that offence, or their accomplices, or the receivers of goods that have entered the EU economy without clearing customs.

35. The fourth indent of that provision refers on the other hand to persons who did not take part in the removal of the goods, but who, inter alia, were required to fulfil the obligations arising from the use of the customs procedure under which those goods were placed. As the Court has consistently held, under the external Community transit procedure, it is the holder of that procedure who — as the ‘principal’ for the purposes of Article 96(1) of the Customs Code — is required to fulfil the obligations arising from the use of that procedure and who is liable for payment of the customs debt in accordance with the fourth indent of Article 203(3) of that code. ( 8 )

36. However, Article 96(2) of the Customs Code also permits the carrier or the recipient of goods to become the debtor of the customs debt under the fourth subparagraph of Article 203(3) of that code, since it imposes on that carrier or that recipient an obligation to produce the goods intact at the customs office of destination.

37. In the case in point, it is clear from the information supplied by the referring court, which starts from the premiss that Mr Horváth is not involved in the removal of the goods from customs supervision, that the transport subcontractor cannot be held liable on grounds of any of the events listed in the first three indents of Article 203(3) of the Customs Code. However, the referring court wonders whether he should not be considered to be a joint debtor of the customs debt under the fourth indent of Article 203(3) of that code, which means that he would be required to fulfil the obligation laid down in Article 96(2) of that code.

38. We are therefore in a situation in which it seems that the liability of the carrier or the recipient of the goods can be incurred only because Article 96(2) of the Customs Code imposes on him a specific obligation to produce those goods at the customs office of destination with due observance of the measures to ensure identification. ( 9 )

39. The interpretation sought by the referring court, in order to obtain clarification regarding the persons subject to that obligation and the extent of the obligation, is therefore needed in order to resolve the dispute in the main proceedings.

B – First question

40. By its first question, the referring court asks, in essence, whether the term ‘carrier’, within the meaning of Article 96(2) of the Customs Code, means exclusively the main carrier who has been directly entrusted with the transport of the goods moving under the external Community transit procedure or includes also the transport subcontractor to whom the main carrier has sub-contracted performance of the transport agreement.

41. In my view, Article 96(2) of the Customs Code concerns, without distinction, any person who undertakes the transport of goods moving under the external Community transit procedure, whether he is a main carrier or a subcontracting carrier.

42. That interpretation seems to be confirmed simply by the wording of that provision.

43. As is clear from its wording, that provision lays down as the only condition for the existence of the obligation on the carrier or the recipient of the goods the fact that the goods were accepted in the knowledge of the legal procedure applying to them. In the absence of any differentiation by the EU legislature as to whether the transport is carried out directly by the main carrier or is subcontracted to another carrier, the obligation to produce the goods intact at the customs office of destination is incumbent without distinction on any person responsible for transporting goods where it is demonstrated that that person is actually aware of the external Community transit procedure. If the awareness condition is met by the transport subcontractor he is therefore subject to the obligation laid down in Article 96(2) of the Customs Code.

44. That conclusion appears, moreover, to be supported by a teleological interpretation.

45. The obligation placed on the carrier or the recipient of the goods is limited by its purpose, which is to produce the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification.

46. As the Commission correctly maintained in its written observations, it is in order to take into account the fact that only the person who physically holds the goods is in a position to actually produce them at the customs office of destination that the EU legislature introduced joint liability of the carrier or the recipient of the goods.

47. In that regard, it should be noted that the limited obligation incumbent on the carrier or the recipient of the goods under Article 96(2) of the Customs Code is different from the general obligation incumbent on the principal under Article 96(1) of that code.

48. The principal, in his capacity as holder under the external Community transit procedure, is required not only to produce the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification, ( 10 ) but also, and more generally, ‘[to observe] the provisions relating to the Community transit procedure’. ( 11 ) Under Article 96(1), the fourth indent of Article 203(3) and Article 204(1) of the Customs Code, he becomes the debtor of the customs debt merely through failure to observe the provisions governing that procedure, even though that debt is not directly attributable to him, the liability thus imposed on him being intended ‘to ensure the diligent and uniform application of the provisions relating to the recovery of customs debts in order to protect the financial interests of the Community and its Member States’. ( 12 ) Being required to ensure that transit procedures are properly carried out, the principal remains the debtor of the customs debt even if he acted in good faith and the breach of the external Community transit procedure was the result of a forgery in which he had no part. ( 13 ) The objective liability of the principal therefore makes him liable for any infringement of the rules relating to the external Community transit procedure, even when committed by another party.

49. The liability of the carrier or the recipient of the goods is more limited. Unlike the principal, he is not required to observe all of the provisions relating to the external Community transit procedure. Although Article 96(2) of the Customs Code must be regarded as imposing on him an obligation to achieve a specific result, in so far as he is required to ensure that the goods are produced intact at the customs office of destination, the carrier or the recipient of those goods is in a position to do so only during the time when he has those goods physically in his possession. In other words, although the obligation laid down in Article 96(1) of that code is based on the actual status of being the principal, who must accept the consequences of any infringement or irregularity which has been committed, the liability of the carrier or the recipient of the goods has both its basis and its limitation in the physical control of those goods.

50. I infer from this therefore that, although the transport subcontractor is bound by the obligation to produce the goods intact at the customs office of destination, that obligation is incumbent on him only during the time when he is actually engaged in the activity of transport and is in charge of the goods.

51. The use of several carriers is a common practice in the international carriage of goods. In my view, in a situation where several carriers were each responsible for a section of the journey, the obligation laid down in Article 96(2) of the Customs Code would be incumbent on each of them in turn, since it is during the time when they are in charge of the goods that they can ensure that the goods remain intact, by preventing inter alia any breaking of seals or any unlawful transhipment.

52. In a situation such as that at issue in the main proceedings, in which the transport subcontractor actually transported the goods to the car park of the customs office of destination and handed over the documents relating to those goods to the representative of the main carrier in order for the latter to carry out the formalities for discharge of the external Community transit procedure, I consider that the transport subcontractor was discharged of his obligation when he transferred responsibility for the goods and the accompanying documents to the main carrier, who therefore became the ‘carrier’ within the meaning of Article 96(2) of the Customs Code.

53. For the above reasons, I suggest that the answer the Court should give to the first question, should be, first, that Article 96(2) of the Customs Code must be interpreted as meaning that the term ‘carrier’ refers to any person who carries out the transport of goods which he accepted knowing that they were moving under the Community transit procedure, whether under a transport agreement concluded with the contractor or under a subcontracting agreement concluded with the main carrier and, secondly, that the obligation laid down in that provision is incumbent on the carrier during the time he is in charge of the goods physically in his possession, so that, in a situation such as that at issue in the main proceedings, in which the transport subcontractor actually transported the goods to the car park of the customs office of destination and handed over the documents relating to those goods to the representative of the main carrier in order for the latter to carry out the formalities for discharge of the external Community transit procedure, the transport subcontractor was discharged of his obligation when he transferred responsibility for the goods and the accompanying documents to the main carrier.

54. However, it is still necessary to consider whether the fact that Mr Horváth continued the transport of the goods from Vienna to Rome did not again make him the debtor of the customs debt.

55. That is precisely the issue raised by the second question.

C – Second question

56. By its second question, the referring court asks, in essence, whether, in a situation such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods to another Member State, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed.

57. It seems to me that the answer to be given results fairly naturally from my earlier considerations relating to the first question.

58. Unlike the principal, who is required to ensure that transit procedures are properly carried out, the only obligation on the carrier under the external Community transit procedure is to produce the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification.

59. In circumstances such as those in the main proceedings, where the transport subcontractor handed over the transit documents to the main carrier in order for the latter to carry out the formalities for discharge of the customs procedure, I consider that from the time those documents were handed over the main carrier became the person subject to the obligation incumbent on the transport subcontractor under Article 96(2) of the Customs Code.

60. Discharged of that obligation, the transport subcontractor was no longer required to check, before continuing the transport, that the main carrier had actually produced the goods at the customs office of destination for purposes of discharging the external Community transit procedure.

61. Although Article 96(2) of the Customs Code does not place an active duty of care on the transport subcontractor, I consider nonetheless that the transport subcontractor might incur liability if it were established that he continued the transport being aware of information establishing that the external Community transit procedure had not been properly completed, which is a matter for the referring court to decide in the light of all the relevant facts. In that case, the transport subcontractor should be regarded as having accepted to continue the transport of the goods knowing that they were still moving under the Community transit procedure, the consequence of which would be again to make him the person subject to the obligation laid down in Article 96(2) of the Customs Code.

IV – Conclusion

62. In the light of the above considerations, I propose that the Court should answer the questions referred by the Kúria (Supreme Court, Hungary) as follows:

Article 96(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the term ‘carrier’ refers to any person who carries out the transport of goods which he accepted knowing that they were moving under the Community transit procedure, whether under a transport agreement concluded with the contractor or under a subcontracting agreement concluded with the main carrier, and that the obligation laid down in that provision is incumbent on the carrier during the time he is in charge of the goods physically in his possession.

In a situation such as that at issue in the main proceedings, in which the transport subcontractor actually transported the goods to the car park of the customs office of destination and handed over the documents relating to those goods to the representative of the main carrier in order for the latter to carry out the procedure for discharge of the external Community transit procedure, the transport subcontractor was discharged of his obligation when he transferred responsibility for the goods and the accompanying documents to the main carrier.

Furthermore, the fact that the transport subcontractor subsequently continued the transport of the goods to another Member State does not involve any obligation for him to check, before continuing the transport, that the main carrier had actually produced the goods at the customs office of destination for purposes of discharging the external Community transit procedure. He might nonetheless incur liability if it were established that he continued the transport of the goods being aware of information establishing that that procedure had not been properly completed, which is a matter for the referring court to decide in the light of all the relevant facts.

( 1 ) Original language: French.

( 2 ) OJ 1992 L 302, p. 1. Regulation as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13, ‘the Customs Code’).

( 3 ) ‘Interservice’.

( 4 ) Consignment note issued on the basis of the Convention on the contract for the international carriage of goods by road, signed at Geneva on 19 May 1956, as amended by the protocol signed at Geneva on 5 July 1978.

( 5 ) See, inter alia, judgments of 12 June 2014 in SEK Zollagentur (C‑75/13, EU:C:2014:1759, paragraph 28 and case-law cited), and of 29 October 2015 in B & S Global Transit Center (C‑319/14, EU:C:2015:734, paragraph 28 and the case-law cited).

( 6 ) It is clear from Article 361(5) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1192/2008 of 17 November 2008 (OJ 2008 L 329, p. 1), that a transit operation may end at an office other than the one entered in the transit declaration, that office then becoming the office of destination.

( 7 ) As regards the crucial aspect of inspection at the end of the external Community transit procedure, I refer to points 25 and 26 of the Opinion of Advocate General Szpunar in B & S Global Transit Center (C‑319/14, EU:C:2015:500).

( 8 ) See judgments of 27 June 2013 in Codirex Expeditie (C‑542/11, EU:C:2013:429, paragraph 33) and of 12 June 2014 in SEK Zollagentur (C‑75/13, EU:C:2014:1759, paragraph 35).

( 9 ) To illustrate the value of that specific obligation, the case in the main proceedings raises questions as to why the Commission, in its proposal for a European Parliament and Council Regulation (EC) amending Regulation (EEC) No 2913/92 establishing the Community customs code (COM(97) 472 final) suggested removing that provisions on the ground, according to recital 5 of the proposal, that it ‘adds nothing to the relevant code provisions on the incurrence of and liability for customs debt’. Following an amendment by the Parliament, accepted by the Commission, the proposal for a regulation was adopted without amendment of Article 96 (see amended proposal for a European Parliament and Council Regulation (EC) amending Regulation (EEC) No. 2913/92 establishing the Community Customs Code (COM(1998) 428 final) and 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)).

( 10 ) Article 96(1)(a) of the Customs Code.

( 11 ) Article 96(1)(b) of that code.

( 12 ) See judgment of 3 April 2008 in Militzer & Münch (C‑230/06, EU:C:2008:186, paragraph 48). See also, to that effect, judgment of 15 July 2010 in DSV Road (C‑234/09, EU:C:2010:435, paragraph 30).

( 13 ) See, to that effect, judgment of 3 April 2008 in Militzer & Münch (C‑230/06, EU:C:2008:186, paragraph 49).