Case C-506/09 P

Portuguese Republic

v

Transnáutica — Transportes e Navegação SA

‛Appeal — Customs union — Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 — Remission of import duties — Consignments of tobacco and ethyl alcohol for third countries — Fraud committed by an employee of the company liable’

Summary of the Judgment

Own resources of the European Union — Repayment or remission of import or export duties — Existence of ‘special situation’ — Meaning

(Council Regulation No 2913/92, Arts 198 and 239)

Action and supervision on the part of the competent national customs authorities are essential, not only at the time of the setting up of the guarantee certificate, but also every time a comprehensive guarantee, intended to cover several transit operations, is used to effect and cover those operations. In that connection, although Article 198 of Regulation No 2913/92, establishing the Community Customs Code, does not create a formal obligation to monitor the adequacy of the comprehensive guarantee, the fact remains that it is for the competent customs authorities to take all the necessary measures when they realise that there is a discrepancy between the amount of the guarantee provided and the total amount of the duties payable for a particular group of transit operations. In addition, it must be stated that, whatever the proportion required by the applicable legislation, the duty of diligence required of the customs authorities remains unchanged. It is essential that the guarantee provided is for an amount sufficient to cover the amount of customs debt which may be incurred, according to a 30, 50, or 100% rate, which is fixed on the basis of the nature of the goods transported. An error in the monitoring of the guarantee, at the time when the T1 declaration is issued, will have a definite impact on the capacity of the principal to ensure payment of the customs debt that may be incurred.

The causal link between the error made by the customs authorities in the setting of the comprehensive guarantee and the creation of a customs debt, demonstrated by the General Court, is not between the incorrect calculation of the comprehensive guarantee and the incurring of the customs debt, but between the customs authorities’ lack of vigilance, on the one hand, which resulted in the transit operations not being subject to any of the monitoring measures laid down by the legislation applicable, and the existence of a special situation, on the other. In addition, had the customs authorities calculated an adequate comprehensive guarantee and monitored the provision of that guarantee, the internal procedures adopted by the company liable would have made it possible to avoid the fraudulent operation and, consequently, to prevent the customs debt from being incurred.

In the light of all the foregoing, the General Court was justified in finding that the lack of diligence on the part of the customs authorities, which rendered the monitoring procedures ineffective, gave rise to a special situation for the purposes of Article 239 of the Customs Code.

(see paras 68, 71, 73, 74, 76, 77, 81)

Case C-506/09 P

Portuguese Republic

v

Transnáutica — Transportes e Navegação SA

‛Appeal — Customs union — Regulation (EEC) No 2913/92 and Regulation (EEC) No 2454/93 — Remission of import duties — Consignments of tobacco and ethyl alcohol for third countries — Fraud committed by an employee of the company liable’

Summary of the Judgment

Own resources of the European Union — Repayment or remission of import or export duties — Existence of ‘special situation’ — Meaning

(Council Regulation No 2913/92, Arts 198 and 239)

Action and supervision on the part of the competent national customs authorities are essential, not only at the time of the setting up of the guarantee certificate, but also every time a comprehensive guarantee, intended to cover several transit operations, is used to effect and cover those operations. In that connection, although Article 198 of Regulation No 2913/92, establishing the Community Customs Code, does not create a formal obligation to monitor the adequacy of the comprehensive guarantee, the fact remains that it is for the competent customs authorities to take all the necessary measures when they realise that there is a discrepancy between the amount of the guarantee provided and the total amount of the duties payable for a particular group of transit operations. In addition, it must be stated that, whatever the proportion required by the applicable legislation, the duty of diligence required of the customs authorities remains unchanged. It is essential that the guarantee provided is for an amount sufficient to cover the amount of customs debt which may be incurred, according to a 30, 50, or 100% rate, which is fixed on the basis of the nature of the goods transported. An error in the monitoring of the guarantee, at the time when the T1 declaration is issued, will have a definite impact on the capacity of the principal to ensure payment of the customs debt that may be incurred.

The causal link between the error made by the customs authorities in the setting of the comprehensive guarantee and the creation of a customs debt, demonstrated by the General Court, is not between the incorrect calculation of the comprehensive guarantee and the incurring of the customs debt, but between the customs authorities’ lack of vigilance, on the one hand, which resulted in the transit operations not being subject to any of the monitoring measures laid down by the legislation applicable, and the existence of a special situation, on the other. In addition, had the customs authorities calculated an adequate comprehensive guarantee and monitored the provision of that guarantee, the internal procedures adopted by the company liable would have made it possible to avoid the fraudulent operation and, consequently, to prevent the customs debt from being incurred.

In the light of all the foregoing, the General Court was justified in finding that the lack of diligence on the part of the customs authorities, which rendered the monitoring procedures ineffective, gave rise to a special situation for the purposes of Article 239 of the Customs Code.

(see paras 68, 71, 73, 74, 76, 77, 81)