Case C-248/07

Trespa International BV

v

Nova Haven- en Vervoerbedrijf NV

(Reference for a preliminary ruling from the hof van beroep te Antwerpen)

(Regulation implementing the Community Customs Code – Articles 291 and 297 – Favourable tariff treatment – End-use – Concept of ‘person importing the goods or having them imported for free circulation’ – Concept of ‘transfer of goods within the Community’ – Concept of ‘transferee’)

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer – Questions not related to the purpose of the main proceedings

(Art. 234 EC)

2. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Person importing the goods or having them imported for free circulation within the meaning of Article 291(1) of Regulation No 2454/93 – Meaning

(Council Regulation No 2913/92, Art. 5(4), second para.; Commission Regulations No 2454/93, Arts 291(1) and (3), second para., and 293, and No 89/97)

3. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Transfer of goods within the Community – Meaning

(Commission Regulations No 2454/93, Arts 291, 297(1), 298(4) and (5), and 300, second para., and No 89/97)

4. Common Customs Tariff – Admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use – Transfer of goods within the Community – Transferee within the meaning of Article 297 of Regulation No 2454/93 – Meaning

(Council Regulation No 2913/92, Art. 5; Commission Regulations No 2454/93, Arts 291 and 297(1), and No 89/97)

1. In the context of the cooperation between the Court of Justice and the national courts laid down by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of Community law bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

(see paras 32-33)

2. Article 291(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers to the person for whom the goods are destined and who intends to assign them to the prescribed end-use, irrespective of whether he makes the customs declaration himself or has that done by a representative within the meaning of Article 5 of Regulation No 2913/92. That concept does not refer to the representative of that person before the customs authorities, disregarding those cases in which that person is deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No 2913/92 and who must therefore be considered an importer.

In that regard, although it is true that Part II, Title I, Chapter 2, of the implementing regulation, which governs the admission of goods with favourable tariff treatment by reason of their end-use, does not define the concept of ‘person importing the goods or having them imported for free circulation’, the fact remains that that legislation places certain obligations on the holder of that authorisation which allow identification of the person referred to in Article 291(1) of that regulation. Thus, both the obligation laid down in the second subparagraph of Article 291(3) of that regulation, which states that the person concerned is to enable the customs authorities to trace the goods to their satisfaction in the establishment or establishments of the undertaking throughout their processing, and the obligations provided for in Article 293 of that regulation, such as the requirement that the goods be assigned to the prescribed end-use, the keeping of records enabling the customs authorities to carry out any checks which they consider necessary to ensure that the goods are actually put to the prescribed end-use, and the retention of such records, show that the person importing the goods or having them imported, that is to say, the person who is required to hold the authorisation referred to in Article 291 of the implementing regulation, is the person for whom the goods are destined and who intends to assign them to the prescribed end-use. Only that person is in a position to fulfil the obligations laid down in Articles 291 and 293 of that regulation.

The fact that Article 291(1) of the implementing regulation uses as alternatives the expressions ‘the person importing … goods’ and ‘[the person] having them imported’ shows that it is possible to import goods which have a particular end-use through a representative before the customs authorities in accordance with Article 5 of Regulation No 2913/92. It follows that the representative who makes customs declarations on behalf of someone else is not the person referred to in Article 291(1) of the implementing regulation and therefore does not have to hold an authorisation within the meaning of that article. It is solely where a customs agent fails to state that he is acting in the name of or on behalf of another person or states that he is acting in the name of or on behalf of another person without being empowered to do so, that that agent is himself considered the importer and must, consequently, hold written authorisation in order to benefit from favourable tariff treatment for the goods imported.

(see paras 46-51, 54, operative part 1)

3. Article 297(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that there has been no transfer of goods within the Community in a situation where goods are imported into a Member State and then transported to another Member State, if the person authorised acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in one Member State and then transported to another Member State is irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods are transferred, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation.

In that regard, in order to determine whether there is a transfer within the Community within the meaning of Article 297(1) of the implementing regulation, it is apparent from the purpose of that regulation that what is important is the transfer to the transferee of obligations relating to the goods transferred. In that regard, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation. Thus, Article 298(4) and (5) and the second paragraph of Article 300 of the implementing regulation provide that, from the date of transfer of the goods, the obligations which follow from Articles 291 to 304 of the implementing regulation pass from the consignor to the consignee and the latter is required to enter the goods transferred in his records. It follows therefrom that a transfer of goods, within the meaning of Article 297(1) of the implementing regulation, can take place only between persons holding an end-use authorisation, that is to say, persons who intend or intended to assign the goods to the end-use prescribed.

(see paras 65-69, operative part 2)

4. Article 297(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘transferee’ contained therein does not refer to a customs agent who carries out customs formalities on behalf of the importer.

The transferee is the person who acquires from the consignor the right or goods transferred. Thus, the term ‘transferee’ within the meaning of Article 297(1) of the implementing regulation refers to the person who acquires from the consignor the goods which benefited from favourable tariff treatment, when entered for free circulation, by reason of their end-use but have not yet been assigned to that use at the date of transfer. A customs agent who clears non-Community goods through customs on behalf of the importer is the latter’s representative for the customs authorities within the meaning of Article 5 of Regulation No 2913/92, whereas the importer is the person who has the goods imported for free circulation within the meaning of Article 291 of the implementing regulation.

(see paras 72-74, operative part 3)

JUDGMENT OF THE COURT (Third Chamber)

6 November 2008 ( )

(Regulation implementing the Community Customs Code – Articles 291 and 297 – Favourable tariff treatment – End-use – Concept of ‘person importing the goods or having them imported for free circulation’ – Concept of ‘transfer of goods within the Community’ – Concept of ‘transferee’)

In Case C‑248/07,

REFERENCE for a preliminary ruling under Article 234 EC from the Hof van beroep te Antwerpen (Belgium), made by decision of 8 May 2007, received at the Court on 23 May 2007, in the proceedings

Trespa International BV

v

Nova Haven- en Vervoerbedrijf NV,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Ó Caoimh, J.N. Cunha Rodrigues, U. Lõhmus (Rapporteur) and A. Arabadjiev, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 8 May 2008,

after considering the observations submitted on behalf of:

– Trespa International BV, by S. D’Hoine, A. Jansen and K. Van den Bosch, advocaten,

– Nova Haven- en Vervoerbedrijf NV, by J. Stevens and B. Delbaere, advocaten,

– the Belgian Government, by L. Van den Broeck and C. Pochet, Agents,

– the Commission of the European Communities, by S. Schønberg and H. van Vliet, 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 Articles 1a, 291 and 297 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation No 89/97 of 20 January 1997 (OJ 1997 L 17, p. 28; ‘the implementing regulation’).

2 The reference was made in proceedings between Trespa International BV (‘Trespa’) and Nova Haven- en Vervoerbedrijf NV (‘Nova’) with regard to an action brought by Trespa seeking damages and reimbursement of administrative costs incurred as a result of errors allegedly committed by Nova.

Legal context

The Community Customs Code

3 In accordance with Article 5 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Customs Code’):

‘1. Under the conditions set out in Article 64(2) and subject to the provisions adopted within the framework of Article 243(2)(b), any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules.

2. Such representation may be:

– direct, in which case the representative shall act in the name of and on behalf of another person, or

– indirect, in which case the representative shall act in his own name but on behalf of another person.

A Member State may restrict the right to make customs declarations:

– by direct representation, or

– by indirect representation,

so that the representative must be a customs agent carrying on his business in that country’s territory.

...

4. A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct or indirect and be empowered to act as a representative.

A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name and on his own behalf.

5. The customs authorities may require any person stating that he is acting in the name of or on behalf of another person to produce evidence of his powers to act as a representative.’

4 Article 21(1) of the Customs Code states as follows:

‘The favourable tariff treatment from which certain goods may benefit by reason of their nature or end-use shall be subject to conditions laid down in accordance with the Committee procedure. Where an authorisation is required Articles 86 and 87 shall apply.’

5 Article 29(1) of the Code provides:

‘1. The customs value of imported goods shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 32 and 33, provided:

…

(c) that no part of the proceeds of any subsequent resale, disposal or use of the goods by the buyer will accrue directly or indirectly to the seller, unless an appropriate adjustment can be made in accordance with Article 32…’

6 Pursuant to Article 86 of the Customs Code:

‘Without prejudice to the additional special conditions governing the procedure in question, the authorisation referred to in Article 85 and that referred to in Article 100(1) shall be granted only:

– to persons who offer every guarantee necessary for the proper conduct of the operations;

– where the customs authorities can supervise and monitor the procedure without having to introduce administrative arrangements disproportionate to the economic needs involved.’

The implementing regulation

7 Article 1a of the implementing regulation provides:

‘For the purposes of applying Articles 16 to 34 and 291 to 308, the countries of the Benelux Economic Union shall be considered as a single Member State.’

8 The provisions of the implementing regulation relevant to the main proceedings, that is to say, Articles 291 to 304, are in Part II, entitled ‘Customs-approved treatment or use’, Title I, entitled ‘Release for free circulation’, Chapter 2, entitled ‘Admission of goods with favourable tariff treatment by reason of their end-use’, Section 1, entitled ‘Goods other than horses for slaughter’ of that regulation.

9 Article 291 of the implementing regulation provides:

‘1. The admission of goods entered for free circulation with favourable tariff treatment by reason of their end-use shall be subject to the granting of written authorisation to the person importing the goods or having them imported for free circulation.

2. The said authorisation shall be issued at the written request of the person concerned by the customs authorities of the Member State where the goods are declared for free circulation.

3. …

The person concerned shall enable the customs authorities to trace the goods to their satisfaction in the establishment or establishments of the undertaking throughout their processing.’

10 Article 293 of that regulation states as follows:

‘The holder of the authorisation shall be obliged:

(a) to assign the goods to the prescribed end-use;

(b) to keep records enabling the customs authorities to carry out any checks which they consider necessary to ensure that the goods are actually put to the prescribed end-use, and to retain such records.’

11 Under Article 295(1) of that regulation:

‘Goods shall be considered to have been assigned to the end-use in question:

…

2. in the case of goods which may be put to repeated use, two years after they are first assigned to the prescribed use; the date of such first assignment shall be entered in the records referred to in Article 293(b); however:

…

(c) goods listed in Annex 40, Part 1, intended for certain classes of aircraft for the purposes of their construction, maintenance, conversion or equipping shall be considered to have been assigned to that end-use when the aircraft is transferred to a person other than the holder of the authorisation or again made available to its owner, inter alia following maintenance, repair or conversion;

(d) goods referred to in Annex 40, Part 2, intended for certain classes of vessel or for drilling or production platforms for the purposes of their construction, repair, maintenance, conversion, fitting or equipping shall be considered to have been assigned to that end-use when the vessel or drilling platform is transferred to a person other than the holder of the authorisation or again made available to its owner, inter alia after maintenance, repair or conversion;

…’

12 Article 297(1) of the implementing regulation provides:

‘Where goods are transferred within the Community, the transferee must hold an authorisation issued in accordance with Article 291.’

13 Article 298(4) and (5) of that regulation provides:

‘4. On receiving the goods, the consignee shall enter them in the records provided for in Article 293(b), to which he shall attach the original; the fourth copy shall be sent without delay to the competent customs office of the Member State of destination in the manner prescribed by that Member State with an indication of the date of arrival. The consignee shall immediately notify customs of any excess, shortfall, substitution or other irregularity. In addition, he shall forward the fifth copy to the consignor.

5. The consignor’s obligations under this Chapter shall pass to the consignee on the date referred to in paragraph 4. Until then, these obligations shall be incumbent on the consignor.’

14 Under Article 300 of that regulation:

‘All transfers within a Member State shall be notified to the customs authorities. The form of the notification, the period of time in which it must be made and any other requirements shall be determined by the said authorities. The notification shall state clearly the date of the transfer of the goods.

With effect from this date the transferee shall assume the obligations arising under this Section in respect of the transferred goods.’

15 Pursuant to Article 302 of that regulation:

‘1. The customs authorities shall not approve the use of the goods otherwise than as provided for by the favourable tariff treatment referred to in Article 291 unless the holder of the authorisation can establish to their satisfaction that it has been impossible for reasons relating to his circumstances or to the goods themselves for the goods to be put to the prescribed end-use.

…

3. The approval referred to in the preceding paragraphs shall be conditional on the holder of the authorisation paying the amount of import duties established in accordance with Article 208 of the Code.’

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

16 Since 1 January 1995, Trespa has been importing kraft paper from the United States into the Netherlands for use in the manufacture of building materials. Trespa buys those goods from the American company Westvaco in accordance with sales conditions termed ‘delivered duty unpaid’. Under those conditions, the vendor bears the storage costs and Trespa can take goods from the stock as and when it needs them.

17 Until May 1997, the kraft paper was delivered to Moerdijk Marine Services in Moerdijk (Netherlands), where the paper was then warehoused. In May 1997, the European branch of Westvaco, Westvaco Europe NV, informed Trespa that it intended to transfer its stock from Moerdijk to Antwerp (Belgium) and to use Nova’s services for customs clearance, storage and release.

18 At the same time as the transfer of the warehouse of Westvaco Europe NV to Antwerp, Trespa applied to the Commission of the European Communities to place the kraft paper under the duty suspension system in order not to have to pay import duties. That application was based on the fact that the European Union did not produce enough kraft paper to meet Trespa’s needs.

19 On 27 June 1997, the Council adopted Regulation (EC) No 1291/97 amending Regulation (EC) No 2505/96 opening and providing for the administration of Community tariff quotas for certain agricultural and industrial products and amending Regulation (EC) No 3059/95 opening and providing for the administration of Community tariff quotas for certain agricultural and industrial products (first series 1996) (OJ 1997 L 176, p. 17), pursuant to which the applicable customs duty on 8 000 tonnes of kraft paper with CN code 4804 41 91 10 and on 7 000 tonnes of kraft paper with CN code 4804 51 90 10 was to be 0%.

20 Under Regulation No 1291/97, only imports of kraft paper assigned to an end-use, in particular the manufacture of certain products, could benefit from those two tariff quotas.

21 Between the months of July 1997 and January 1998, Nova cleared Trespa’s goods through customs free of import duties without there being any objection from the Antwerp customs authorities. In January 1998, those authorities carried out an external audit of the customs clearance documents and informed Nova that those tariff quotas were not unconditional, but subject to the condition that the goods imported be assigned to the end-use for which authorisation was necessary.

22 Having received that information from Nova, on 26 January 1998 Trespa applied to the Netherlands customs authorities for authorisation within the framework of a continuous end-use authorisation in order to enable it to import kraft paper from the United States free of import duties for the production of its Trespa panels. The requested authorisation was granted by the Netherlands customs authorities on 17 June 1998, with 1 January 1998 indicated as the effective date.

23 Nova made a similar application for authorisation to the Belgian customs authorities and the end-use authorisation was granted to it on 17 February 1998 for goods under CN code 4804 41 99 10. Nova then made an additional application and that authorisation was subsequently extended to CN codes 4804 41 91 10 and 4804 51 90 10 with effect from 11 June 1998.

24 On 2 December 1999 the Belgian customs authorities sent Nova a claim for post-clearance recovery of import duties and value added tax (‘VAT’) relating to the goods imported on behalf of Trespa. Having notified Trespa of the existence of that document and asked it to reimburse the amounts which Nova had to pay, Nova itself paid approximately EUR 508 400 in customs duties and VAT.

25 Trespa also requested the Netherlands customs authorities to carry out an administrative check in order to show that, since 1 January 1998, the goods imported had been put to the end-use prescribed in the description of the respective CN codes.

26 Apart from a small quantity of the goods imported, Trespa was able to show that the goods had indeed been put to the end-use prescribed, so that the Belgian customs authorities reimbursed Nova, between 30 November 2000 and 15 December 2003, almost all of the duties paid by it, that is to say, approximately EUR 507 200.

27 Nevertheless, on 18 January 2000, Nova invoiced Trespa for an amount corresponding to the customs duties and VAT which it had paid. On 7 November 2001, Nova brought an action before the Rechtbank van koophandel te Antwerpen (Antwerp Commercial Court) seeking an order that Trespa pay it approximately EUR 203 100 plus interest and a lump sum of 10% of the amount of that invoice for administration costs. Following the subsequent reimbursement which it received from the Belgian customs authorities, Nova amended that application, but did not fully withdraw it. In turn, Trespa brought counterclaims seeking indemnities and reimbursement of the administrative costs which it had incurred.

28 The Rechtbank van koophandel te Antwerpen gave its decision on 26 November 2004. That court held that it had not been shown that Nova had committed an error justifying the claim for post-clearance recovery from the Belgian customs authorities and that it had not been shown either that Nova itself was required to hold an end-use authorisation. Finally, Trespa and Nova were each ordered to pay certain sums to the other. Trespa appealed against that judgment on 1 February 2005.

29 According to Trespa, the claim for post-clearance recovery of import duties is exclusively the result of errors made by Nova which, when declaring the goods to the Belgian customs and excise authorities, should have held an end-use authorisation which it did not have. According to Nova, however, such authorisation ought only to have been held by its principal, Trespa.

30 In those circumstances, the Hof van beroep te Antwerpen decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

‘1. Under Article 291 of [the implementing regulation], who is “the person importing the goods or having them imported for free circulation”?: does this term include the customs agent which makes the customs declaration in its own name and for its own account or does it cover only the importer for which the goods are intended?

2. Is there a transfer of goods within the Community for the purposes of Articles 297 and 1a of [the implementing regulation] in the case where goods are imported into the … Union at Antwerp and then transported to the Netherlands and/or should the person referred to in Article 291 of [the implementing regulation], in such a case hold the authorisation referred to in that article?

3. Does the term “transferee” in Article 297 of [the implementing regulation], refer to the customs agent which clears the goods inwards from outside the Community to a Member State of the European Union on behalf of the ultimate importer?’



The questions referred for a preliminary ruling

Admissibility

31 The Commission is doubtful as to the admissibility of the reference for a preliminary ruling. It submits that the dispute in the main proceedings concerns the private law relationship between the parties to the main proceedings, which is governed by the Belgian Civil Code, and that the relevance of the questions to the resolution of that dispute is not obvious. Although it accepts that those questions may have a certain importance in the context of the main proceedings, the Commission is not convinced that the answer to be given to those questions is sufficient to resolve that dispute.

32 In that regard, it is necessary to recall that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C‑144/04 Mangold [2005] ECR I‑9981, paragraph 34; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 16; and Case C‑119/05 Lucchini [2007] ECR I‑6199, paragraph 43).

33 It follows that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court is responsible for defining and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see Case C‑300/01 Salzmann [2003] ECR I‑4899, paragraph 31, and Joined Cases C‑94/04 and C‑202/04 Cipolla and Others [2006] ECR I‑11421, paragraph 25). The presumption that questions referred by national courts for a preliminary ruling are relevant may be rebutted only in exceptional cases, where it is quite obvious that the interpretation which is sought of Community law bears no relation to the actual facts of the main action or to its purpose or where the problem is hypothetical or the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 30, and Case C‑467/05 Dell’Orto [2007] ECR I‑5557, paragraph 40).

34 In the present case, interpretation of the Community customs legislation will enable it to be known whether a customs agent must, in the circumstances of the main proceedings, hold an end-use authorisation. It is apparent from the documents that that information is necessary in order to decide whether Nova committed an error in its relationship with Trespa and in order to know who is to bear the costs incurred because of the post-clearance recovery of the customs duties at issue. The question is therefore neither hypothetical nor one which bears no relation to the actual facts or purpose of the dispute in the main proceedings.

35 It is true that the decision for reference does not indicate with any certainty whether the customs agent, that is to say Nova, made the customs declarations on its own behalf or on behalf of Trespa. The first and third questions referred give rise to uncertainty in that regard, and the opposing arguments put forward by the parties to the main proceedings in their written and oral observations add to that uncertainty.

36 It must also be recalled that, in the context of proceedings under Article 234 EC, the Court cannot resolve a dispute concerning the facts. Such a dispute, like any other assessment of the facts involved, is within the province of the national court (see Case C‑279/06 CEPSA [2008] ECR I‑0000, paragraph 30, and the case-law cited).

37 In the present case, however, the Court has sufficient information to interpret the Community rules concerned and to give useful answers distinguishing, as necessary, the different hypothetical situations.

38 The reference for a preliminary ruling is therefore admissible.

Substance

The first question

39 By its first question, the national court essentially asks whether Article 291(1) of the implementing regulation is to be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers not only to the importer for whom the goods are destined but also to the customs agent who makes the customs declaration.

40 As a preliminary point, it is clear that neither the Customs Code nor the implementing regulation defines the concept of ‘customs agent’. Article 5 of the Customs Code refers to a ‘customs agent’ as a representative before the customs authorities.

41 In addition, Article 5 of the Customs Code provides that any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules. That representation may be direct or indirect according to whether the representative acts in the name of and on behalf of another person or whether he acts in his own name but on behalf of another person.

42 As has been pointed out in paragraph 35 of this judgment, the Court is not in a position to determine in what capacity Nova, acting as customs agent, made the customs declarations at issue in the main proceedings. It is for the national court to clarify that fact.

43 Assuming that Nova acted as a representative within the meaning of Article 5 of the Customs Code, it is probable that it made those declarations on behalf of Trespa under the indirect form of representation given that, according to the explanations provided to the Court by Nova and the Belgian Government, Belgian customs legislation does not provide for direct representation.

44 Nevertheless, the possibility cannot be excluded that Nova did not state that it acted on behalf of Trespa or that it was not empowered to represent Trespa. It follows from the second subparagraph of Article 5(4) of the Customs Code that, in such a case, the person who made the customs declarations is deemed to act in his own name and on his own behalf. It is then appropriate to regard that person as an importer and not as a representative.

45 In addition, it must be determined whether, in those two hypothetical situations, a customs agent such as Nova must hold written authorisation within the meaning of Article 291 of the implementing regulation.

46 Although it is true that Part II, Title I, Chapter 2 of the implementing regulation, which governs the admission of goods with favourable tariff treatment by reason of their end-use, does not define the concept of ‘person importing the goods or having them imported for free circulation’, the fact remains that that legislation places certain obligations on the holder of that authorisation which allow identification of the person referred to in Article 291(1) of that regulation.

47 Thus, the second subparagraph of Article 291(3) of the implementing regulation states that the person concerned is to enable the customs authorities to trace the goods to their satisfaction in the establishment or establishments of the undertaking throughout their processing. It also follows from Article 293 of that regulation that the holder of the authorisation is to be obliged to assign the goods to the prescribed end-use, to keep records enabling the customs authorities to carry out any checks which they consider necessary to ensure that the goods are actually put to the prescribed end-use, and to retain such records.

48 Those obligations show, as the Commission rightly submits, that the person importing the goods or having them imported, that is to say, the person who is required to hold the authorisation referred to in Article 291 of the implementing regulation, is the person for whom the goods are destined and who intends to assign them to the prescribed end-use. Only that person is in a position to fulfil the obligations laid down in Articles 291 and 293 of that regulation.

49 The fact that Article 291(1) of the implementing regulation uses as alternatives the expressions ‘the person importing … goods’ and ‘[the person] having them imported’ shows that it is possible to import goods which have a particular end-use through a representative before the customs authorities in accordance with Article 5 of the Customs Code.

50 It follows that the representative who makes customs declarations on behalf of someone else is not the person referred to in Article 291(1) of the implementing regulation and therefore does not have to hold an authorisation within the meaning of that article.

51 It is solely in the hypothetical situation referred to in paragraph 44 of the present judgment, that is to say where a customs agent fails to state that he is acting in the name of or on behalf of another person or states that he is acting in the name of or on behalf of another person without being empowered to do so, that that agent is himself considered the importer and must, consequently, hold written authorisation in order to benefit from favourable tariff treatment for the goods imported.

52 In that regard, it follows from Articles 21 and 86 of the Customs Code that authorisation is to be granted only to persons who offer every guarantee necessary for the proper conduct of the operations. If authorisation is nevertheless granted, but if its holder cannot later prove that the entirety of the goods were put to the prescribed end-use, that holder is obliged, in accordance with Article 302 of the implementing regulation, to pay the amount of import duties established in accordance with the Customs Code.

53 The Court must reject the argument of the Belgian Government that the customs agent must also hold an end-use authorisation when he stores the goods in his own warehouses on behalf of his principal in order to ensure customs supervision. It does not follow from Articles 291 to 304 of the implementing regulation that goods with a specific end-use must remain constantly under customs supervision. However, those goods are entered for free circulation and the customs authorities must be able to carry out checks, either in the importing company’s premises during the processing of those goods or on the basis of the importer’s records, in order to ascertain, a posteriori, that the goods in question have been put to the end-use prescribed.

54 Accordingly, the answer to the first question must be that Article 291(1) of the implementing regulation is to be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers to the person for whom the goods are destined and who intends to assign them to the prescribed end-use, irrespective of whether he makes the customs declaration himself or has that done by a representative within the meaning of Article 5 of the Customs Code. That concept does not refer to the representative of that person before the customs authorities, disregarding those cases in which that person is deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Article 5(4) of that code and who must therefore be considered an importer.

The second question

55 By its second question, the national court essentially asks whether Article 297(1) of the implementing regulation, read in conjunction with Article 1a of that regulation, is to be interpreted as meaning that in the case where goods are imported into Belgium and then transported to the Netherlands, there is a transfer of goods within the Community. In addition, it wishes to know whether, in such a case, the person referred to in Article 291 of the implementing regulation must hold the authorisation referred to in that article.

56 It must be stated at the outset that Articles 291 and 297 of the implementing regulation govern different transactions. The first deals with the import of goods benefiting from favourable tariff treatment by reason of their end-use, while the second governs transfer of those goods within the Community which takes place after their import and before they are put to the end-use prescribed.

57 It follows that there is no need for the Court to give consideration to an answer to the second part of the second question since, if there is an import, the answer is already apparent from paragraph 54 of the present judgment. However, if there is a transfer, the person who must hold an authorisation, that is to say, the transferee, is stated in Article 297(1) of the implementing regulation.

58 Article 297 of the implementing regulation provides that where goods are transferred within the Community the transferee must hold an authorisation issued in accordance with Article 291 of that regulation. Article 1a of the Regulation provides that, for the purposes of application, inter alia, of Articles 291 to 308 of that regulation, the countries of the Benelux Economic Union are to be regarded as a single Member State.

59 Trespa submits, in its observations to the Court, that there is a transfer within the meaning of Article 297 of the implementing regulation each time there is a transfer of control of the goods imported.

60 However, the Commission takes the view that such a transfer can take place only where there is transfer of ownership of the goods concerned.

61 Nova suggests that there is no transfer within the Community since the Kingdom of Belgium and the Kingdom of the Netherlands must be regarded as a single Member State within the meaning of Article 1a of the implementing regulation.

62 The latter suggestion cannot be accepted. It is clear from the case-law of the Court relating to the interpretation of the provision which preceded Article 297 of the implementing regulation but which used identical terms that transfer of goods within the Community refers to a transfer both between one Member State and another and within the same Member State (see, to that effect, Joined Cases 248/88, 254/88 to 258/88, 309/88 and 316/88 Chimica del Friuli and Others [1989] ECR 2837, operative part). Accordingly, Article 1a of the implementing regulation is irrelevant to the definition of the concept of ‘transfer’.

63 With regard to the question whether the concept of ‘transfer’ referred to in Article 297(1) of the implementing regulation concerns transfer of ownership of goods or transfer of control thereof, the answer is not clear from the text of that regulation or from that of the Customs Code. Thus, that concept is listed together with ‘resale’ and ‘use’ in Article 29(1)(c) of the Customs Code and mentioned as an alternative to their being ‘again made available to [their] owner’ in Article 295(1)(2)(c) and (d) of the implementing regulation.

64 Moreover, nor does a comparison of the different language versions of the implementing regulation show that the legislature wished to state precisely whether the transfer is of ownership or of control of goods. Thus, that concept is expressed in that regulation, for example, by the word ‘cesión’ in Spanish, ‘Übertragung’ in German, ‘transfer’ in English, ‘cessione’ in Italian and ‘overdracht’ in Dutch.

65 In any event, the question whether the transfer is one of ownership or of control is not decisive for the determination of whether there is a transfer within the Community within the meaning of Article 297(1) of the implementing regulation. However, it is apparent from the purpose of that regulation that what is important is the transfer to the transferee of obligations relating to the goods transferred. In that regard, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation.

66 Thus, Article 298(4) and (5) and the second paragraph of Article 300 of the implementing regulation provide that, from the date of transfer of the goods, the obligations which follow from Articles 291 to 304 of the implementing regulation pass from the consignor to the consignee and the latter is required to enter the goods transferred in his records.

67 It follows therefrom that a transfer of goods, within the meaning of Article 297(1) of the implementing regulation, can take place only between persons holding an end-use authorisation, that is to say, persons who intend or intended to assign the goods to the end-use prescribed.

68 In a situation such as that at issue in the main proceedings, that is to say, where the customs formalities are carried out in Belgium and the goods are subsequently transported to the Netherlands, the view cannot be taken that there has been a transfer of goods within the Community within the meaning of Article 297(1) of the implementing regulation in a case where the authorised person acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in Belgium then transported to the Netherlands is irrelevant to the establishment of the existence of a transfer within the meaning of that provision.

69 Having regard to the foregoing, the answer to the second question must be that Article 297(1) of the implementing regulation must be interpreted as meaning that there has been no transfer of goods within the Community in a situation where goods are imported into Belgium then transported to the Netherlands, if the person authorised acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in Belgium then transported to the Netherlands is irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods are transferred, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation.

The third question

70 By its third question, the national court asks whether the term ‘transferee’ in Article 297(1) of the implementing regulation refers to a customs agent who carries out customs formalities on behalf of the ultimate importer.

71 As the parties to the main proceedings, the Belgian Government and the Commission rightly submit, the answer to this question must be negative.

72 The transferee is the person who acquires from the consignor the right or goods transferred. Thus, the term ‘transferee’ within the meaning of Article 297(1) of the implementing regulation refers to the person who acquires from the consignor the goods which benefited from favourable tariff treatment, when entered for free circulation, by reason of their end-use but have not yet been assigned to that use at the date of transfer.

73 A customs agent, such as that at issue in the main proceedings, who clears non-Community goods through customs on behalf of the importer is the latter’s representative for the customs authorities within the meaning of Article 5 of the Customs Code, whereas the importer is the person who has the goods imported for free circulation within the meaning of Article 291 of the implementing regulation.

74 Having regard to the foregoing, the answer to the third question must be that Article 297(1) of the implementing regulation must be interpreted as meaning that the concept of ‘transferee’ contained therein does not refer to a customs agent who carries out customs formalities on behalf of the importer.

Costs

75 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:

1. Article 291(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation No 89/97 of 20 January 1997, must be interpreted as meaning that the concept of ‘person importing the goods or having them imported for free circulation’ contained therein refers to the person for whom the goods are destined and who intends to assign them to the prescribed end-use, irrespective of whether he makes the customs declaration himself or has that done by a representative within the meaning of Article 5 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. That concept does not refer to the representative of that person before the customs authorities, disregarding those cases in which that person is deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No 2913/92 and who must therefore be considered an importer.

2. Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be interpreted as meaning that there has been no transfer of goods within the Community in a situation where goods are imported into Belgium then transported to the Netherlands, if the person authorised acts on behalf of the ultimate importer, which is for the national court to ascertain. The mere fact that the goods were imported into and cleared through customs in Belgium then transported to the Netherlands is irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods are transferred, the transferee must hold an authorisation issued in accordance with Article 291 of that regulation.

3. Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be interpreted as meaning that the concept of ‘transferee’ contained therein does not refer to a customs agent who carries out customs formalities on behalf of the importer.

[Signatures]