Case C-234/09

Skatteministeriet

v

DSV Road A/S

(Reference for a preliminary ruling from the Vestre Landsret)

(Community Customs Code – Regulation (EEC) No 2913/92 – Article 204(1)(a) – Regulation (EEC) No 2454/93 – Article 859 – External transit procedure – Authorised consignor – Creation of a customs debt – Transit document relating to non-existent goods)

Summary of the Judgment

Customs union – External transit procedure

(Council Regulation No 2913/92, Art. 204(1)(a))

Article 204(1)(a) of Council Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 648/2005, is to be interpreted as not applying to a situation where an authorised consignor generated by mistake two external transit procedures for one and the same consignment of goods, because the goods covered by the extra procedure do not exist and, as a consequence, that procedure cannot entail the creation of a customs debt pursuant to the above provision.

In that regard, an error consisting in generating two transit procedures for one and the same consignment of goods is not by nature liable to undermine the objectives pursued by Article 204 of the Customs Code and justify the creation of a customs debt. In the first place, as regards the objective of preventing the risk of non-Community goods being introduced into the economic networks of the European Union, it is clear that, where an external transit customs procedure is generated for non-existent goods, there is no risk that the goods will end up forming part of those economic networks without having been cleared through customs, which might lead to unfair competition and the loss of tax revenue. In the second place, the objective of ensuring that the rules of the customs procedure in question are diligently applied cannot be undermined in the case of an external transit procedure which does not relate to existing goods: it is not possible to implement such a procedure correctly when it is applied to goods which do not exist. This is particularly true in view of the fact that the obligation to present the goods at the customs office of destination, in a case where the goods covered by the mistakenly generated transit procedure do not exist, would amount to imposing on the principal – contrary to the maxim ultra posse nemo obligatur – a duty which it cannot discharge.

(see paras 32-34, 37-38, operative part)

JUDGMENT OF THE COURT (Third Chamber)

15 July 2010 ( )

(Community Customs Code – Regulation (EEC) No 2913/92 – Article 204(1)(a) – Regulation (EEC) No 2454/93 – Article 859 – External transit procedure – Authorised consignor – Creation of a customs debt – Transit document relating to non-existent goods)

In Case C‑234/09,

REFERENCE for a preliminary ruling under Article 234 EC, by the Vestre Landsret (Denmark), made by decision of 24 June 2009, received at the Court on 26 June 2009, in the proceedings

Skatteministeriet

v

DSV Road A/S,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, G. Arestis, J. Malenovský and T. von Danwitz (Rapporteur), Judges,

Advocate General: N. Jääskinen,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 22 April 2010,

after considering the observations submitted on behalf of:

– DSV Road A/S, by A. Hedetoft and L. Kjær, advokater,

– the Danish Government, by R. Holdgaard, acting as Agent, assisted by P. Biering, advokat,

– the Czech Government, by M. Smolek, acting as Agent,

– the European Commission, by C. Hornstrup Bengtsson, B.‑R. Killmann and H. Støvlbæk, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), 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’).

2 The reference was made in the context of proceedings between the Skatteministeriet (Danish Ministry of Taxation) and DSV Road A/S (‘DSV’) concerning the consequences arising from the fact that two external transit procedures were initiated for one and the same consignment of goods.

Legal framework

3 Article 1 of the Customs Code provides:

‘Customs rules shall consist of this Code and the provisions adopted at Community level or nationally to implement them. The Code shall apply, without prejudice to special rules laid down in other fields

– to trade between the Community and third countries,

– to goods covered by the Treaty establishing the European Coal and Steel Community, the Treaty establishing the European Economic Community or the Treaty establishing the European Atomic Energy Community.’

4 Article 4 of the Customs Code provides:

‘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.

(10) “Import duties” means:

– customs duties and charges having an effect equivalent to customs duties payable on the importation of goods,

– import charges introduced under the common agricultural policy or under the specific arrangements applicable to certain goods resulting from the processing of agricultural products; …’

5 Article 91(1) of the Customs Code reads as follows:

‘1. The external transit procedure shall allow the movement from one point to another within the customs territory of the Community of:

(a) non-Community goods, without such goods being subject to import duties and other charges or to commercial policy measures;

…’.

6 Article 92 of the Customs Code provides:

‘1. The external transit procedure shall end and the obligations of the holder shall be met when the goods placed under the procedure and the required documents are produced at the customs office of destination in accordance with the provisions of the procedure in question.

2. The customs authorities shall discharge the procedure when they are in a position to establish, on the basis of a comparison of the data available to the office of departure and those available to the customs office of destination, that the procedure has ended correctly.’

7 Under Article 96(1) of the Customs Code:

‘1. The principal shall be the [holder] 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.

…’

8 Article 204(1) of the Customs Code provides:

‘1. A customs debt on importation shall be incurred through:

(a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, …

…

in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.

…’

9 Article 859 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the application of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 2286/2003 of 18 December 2003 (OJ 2003 L 343, p. 1) (‘the Implementing Regulation’), provides:

‘The following failures shall be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question within the meaning of Article 204(1) of the [Customs] Code, provided:

– they do not constitute an attempt to remove the goods unlawfully from customs supervision,

– they do not imply obvious negligence on the part of the person concerned, and

– all the formalities necessary to regularise the situation of the goods are subsequently carried out:

…

2. in the case of goods placed under a transit procedure, failure to fulfil one of the obligations entailed by the use of that procedure, where the following conditions are fulfilled:

(a) the goods entered for the procedure were actually presented intact at the office of destination;

(b) the office of destination has been able to ensure that the goods were assigned a customs-approved treatment or use or were placed in temporary storage at the end of the transit operation;

(c) where the time limit set under Article 356 has not been complied with and paragraph 3 of that Article does not apply, the goods have nevertheless been presented at the office of destination within a reasonable time.

…’

10 Under Article 860 of the Implementing Regulation, ‘[t]he customs authorities shall consider a customs debt to have been incurred under Article 204(1) of the [Customs] Code unless the person who would be the debtor establishes that the conditions set out in Article 859 are fulfilled’.

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 DSV is a Danish transport and logistics undertaking, with authorised consignor status in accordance with Article 372(1)(e) of the Implementing Regulation.

12 Its authorised consignor status means that DSV can use a simplified procedure for dispatching goods under the external transit procedure. Also, an authorised consignor need not present the goods physically at the customs office of departure. The authorised consignor merely has to notify electronically, before the goods are dispatched, the transit procedure request to the taxation centre via the new computerised transit system (‘the NCTS’), an electronic system for handling data relating to shipments of goods between Member States.

13 According to the explanations provided by the European Commission, the simplified procedure for authorised consignors comprises the following stages: once the authorised consignor’s electronic declaration has been accepted, which leads to release of the goods, the NCTS allocates the consignor a unique registration number, called the movement reference number (MRN). The goods are then placed under the transit procedure. The NCTS prints the accompanying transit document, which must travel with the goods and be presented at all customs offices en route and at the customs office of destination. When it prints out that document, the customs office of departure simultaneously sends the declared customs office of destination an anticipated arrival record, which contains information taken from the declaration, which enables the office of destination to check the goods on their arrival. At that point, the goods must be presented to the customs office of destination together with the accompanying transit document. Once keyed in, the movement reference number automatically triggers a display of the anticipated arrival record corresponding to the operation, on the basis of which a decision will be adopted as to action to be taken or verification to be made, and the system sends an ‘arrival advice’ to the customs office of departure. After carrying out appropriate checks, the customs office of destination informs the customs office of departure of the results of those checks, signalling any irregularities found. This message, concerning the results of the checks, is compulsory if the transit operation is to be discharged.

14 In 2005 DSV dispatched two consignments of goods to Russia under the external transit procedure. By mistake, it generated two transit procedures in the NCTS for each of those consignments. For the first consignment of goods, both transit procedures were generated on 12 August 2005 whilst, for the second consignment, the second transit procedure was generated on 10 October 2005, three days after the first.

15 For shipment of the two actual consignments of goods, it was the later transit document generated by the NCTS which was used in each case. The goods were presented at the customs office of destination in accordance with the rules of the external transit procedure and, accordingly, those two transit procedures were duly discharged.

16 However, the two extra transit procedures which DSV had generated by mistake could not be duly discharged because they did not relate to actual goods which could be presented at the customs office of destination. After requesting DSV to provide other evidence to prove that the transit operation had ended, which DSV failed to do, the Danish authorities adopted decisions finding that DSV owed customs duties and value added tax (VAT) in respect of those transit operations. According to those decisions, a customs debt had arisen under Article 204 of the Customs Code in relation to both the extra procedures.

17 DSV challenged those decisions before the Landsskatteret (National Tax Tribunal) (Denmark). By decisions of 11 June 2007, the Landsskatteret upheld the decisions on the ground that there was no legal basis in the customs legislation for a transit document to be cancelled and that, as a consequence, the customs debt had arisen under Article 204(1)(a) of the Customs Code.

18 DSV challenged those decisions before the Byret i Horsens (Horsens District Court) (Denmark). By judgment of 9 May 2008, that court ordered reimbursement of the customs duties and VAT. It held that no customs debt had arisen under Article 204 of the Customs Code since, in the aforementioned circumstances, no transit of goods had taken place as contemplated in that code.

19 The Skatteministeriet appealed to the Vestre Landsret (Western Regional Court) (Denmark), which decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Must Article 204(1)(a) [of the Customs Code], read in conjunction with Articles 92 and 96 thereof and with Article 1 and points (9) and (10) of Article 4 thereof, be interpreted as meaning that

(a) a customs debt arises if a transit procedure for goods which do not physically exist is initiated by mistake in the NCTS by an authorised consignor and, as a consequence, the transit procedure cannot subsequently be discharged in accordance with the rules, or that

(b) a customs debt does not arise, since the transit procedure is presumed to apply solely to physically existing goods, so that the mistaken generation of a transit in the NCTS for goods which do not physically exist does not lead to the imposition of customs duties?

2. If Question 1(a) is answered in the affirmative, must the concept of the “importation of goods” in point (10) of Article 4 of [the Customs Code] and the concept of “goods” in Article 204(1)(a) thereof be interpreted as meaning that the concept covers both physically existing goods and goods which do not physically exist?’

The questions referred for a preliminary ruling

20 By its two questions, which it is appropriate to examine together, the national court asks, essentially, whether Article 204(1)(a) of the Customs Code is to be interpreted as meaning that where an authorised consignor has generated, by mistake, two external transit procedures for one and the same consignment of goods, a customs debt arises pursuant to that provision in the case of the extra transit procedure, which relates to goods which do not exist.

21 Under Article 204(1)(a) of the Customs Code, a customs debt on importation arises through the non-fulfilment of one of the obligations arising from the use of the customs procedure under which the goods liable to import duties have been placed, unless it is established that those failures have no significant effect on the correct operation of the customs procedure in question.

22 The Danish customs authorities maintain that, in the present case, a customs debt has arisen under Article 204.

23 In their submission, first of all, the condition triggering the creation of a customs debt – non-fulfilment of one of the obligations under the external transit procedure – is fulfilled, since DSV did not present the goods covered by that transit procedure at the customs office of destination and, accordingly, failed to fulfil its obligations under Article 96(1)(a) of the Customs Code.

24 Nor, secondly, is the negative condition, as laid down in Article 859 of the Implementing Regulation, in accordance with which a customs debt does not arise where it is established that the failure has no significant effect on the correct operation of the external transit procedure, fulfilled in the circumstances of the case before the referring court.

25 Although it should first be noted that a situation such as that at issue before the referring court is covered by the rules of the Customs Code, it should be borne in mind, as regards the interpretation of those provisions by the Danish customs authorities, that Article 859 of the Implementing Regulation, read in conjunction with Article 860 thereof, established an exhaustive set of rules governing 10 ‘failures’, within the meaning of Article 204(1)(a) of the Customs Code, which are to be regarded as having ‘no significant effect on the correct operation of the temporary storage or customs procedure in question’ (Case C-48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraph 43).

26 It is common ground, however, that the circumstances of the case before the referring court are not covered by any of those 10 ‘failures’ listed in Article 859 of the Implementing Regulation. Point (2)(a) of Article 859 provides, in relation to ‘failures’ relating to use of a transit procedure, that goods entered for the procedure must actually have been presented at the customs office of destination. That provision thus imposes a condition equivalent to the obligation under Article 96(1)(a) of the Customs Code which DSV was unable to satisfy. It follows from the very nature of the mistake made by DSV that, in the case of one of the two transit procedures generated for the same consignment, no goods existed which could be presented at the customs office of destination.

27 However, Article 204(1)(a) of the Customs Code makes the creation of a customs debt conditional upon a failure relating to ‘goods liable to import duties’. It is necessary, therefore, to consider whether that provision allows account to be taken of the factors which characterise the particular situation at issue before the referring court, that is to say, where two transit procedures have mistakenly been generated for one and the same consignment of goods.

28 In that regard, it should first be observed that it is clear from the very wording of Article 204 of the Customs Code that that provision contemplates a situation where ‘goods’ have been placed under a customs procedure and an obligation under that procedure has not been fulfilled.

29 Yet in the dispute before the referring court, in which it is common ground that two transit procedures were generated by mistake for one and the same consignment of goods, in the case of one of the two transit procedures generated by DSV, no actual ‘goods’ existed in relation to which the obligations under the external transit procedure could have been fulfilled.

30 Secondly, it should be observed that Article 204 of the Customs Code is intended to ensure that the customs rules are correctly applied. Under Articles 96(1) and 204(1) of that code, the principal – in his capacity as holder in relation to the external Community transit procedure – is the debtor vis-à-vis the customs debt arising from the failure to observe the provisions governing that procedure. The liability thus imposed upon the principal is intended to ensure the diligent and uniform application of the provisions relating to that procedure and the proper functioning of transit operations in order to protect the financial interests of the European Union and its Member States (see, to that effect, Case C-230/06 Militzer & Münch [2008] ECR I‑1895, paragraph 48).

31 Moreover, the presence, on the customs territory of the European Union, of non-Community goods carries the risk that those goods will end up forming part of the economic networks of the Member States without having been cleared through customs (see, by analogy, Case C‑459/07 Elshani [2009] ECR I‑2759, paragraph 32), a risk which Article 204 of the Customs Code helps to prevent, as was pointed out by the Commission.

32 However, in circumstances such as those of the case before the referring court, in which it is common ground that on two occasions two transit procedures were generated by mistake for one and the same consignment of goods, it is clear that those two objectives underlying Article 204 of the Customs Code and justifying the creation of a customs debt are not affected.

33 In the first place, as regards the objective of preventing the risk of non-Community goods being introduced into the economic networks of the European Union, it is clear that, where an external transit customs procedure is generated for non-existent goods, there is no risk that the goods will end up forming part of those economic networks without having been cleared through customs, which might lead to unfair competition and the loss of tax revenue.

34 In the second place, the objective of ensuring that the rules of the customs procedure in question are diligently applied cannot be undermined in the case of an external transit procedure which does not relate to existing goods: it is not possible to implement such a procedure correctly when it is applied to goods which do not exist. This is particularly true in view of the fact that the obligation to present the goods at the customs office of destination, in a case where the goods covered by the mistakenly generated transit procedure do not exist, would amount to imposing on the principal – contrary to the maxim ultra posse nemo obligatur – a duty which it cannot discharge.

35 Accordingly, if an interpretation such as that argued for by the Danish Government were to be accepted, all that would be achieved through the application of Article 204 of the Customs Code would be that the principal would be penalised for the mistake it had made in generating the external transit procedures and not for failure to fulfil its obligations under that procedure.

36 It follows from the foregoing considerations that the mistake consisting in generating two external transit procedures for one and the same consignment of goods is not, by its nature, such as to undermine the objectives pursued by Article 204 of the Customs Code and thus to warrant the creation of a customs debt. It is not necessary, either, to penalise such a mistake by establishing a customs debt which is then charged to the principal. As was pointed out by the Commission, although such a mistake could be a relevant factor if it came to revoking authorised consignor status, it cannot have the effect of making the principal liable for customs duties.

37 Consequently, Article 204 of the Customs Code is not designed to be applied to circumstances such as those of the case before the referring court.

38 In the light of the foregoing, the answer to the questions referred is that Article 204(1)(a) of the Customs Code is to be interpreted as not applying to a situation such as that of the case before the referring court, where an authorised consignor generated by mistake two external transit procedures for one and the same consignment of goods, because the goods covered by the extra procedure do not exist and, as a consequence, that procedure cannot entail the creation of a customs debt pursuant to the above provision.

Costs

39 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 204(1)(a) 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, is to be interpreted as not applying to a situation such as that of the case before the referring court, where an authorised consignor generated by mistake two external transit procedures for one and the same consignment of goods, because the goods covered by the extra procedure do not exist and, as a consequence, that procedure cannot entail the creation of a customs debt pursuant to the above provision.

[Signatures]