Case C-44/06

Gerlach und Co. mbH

v

Hauptzollamt Frankfurt (Oder)

(Reference for a preliminary ruling from the

Finanzgericht des Landes Brandenburg)

(Customs union – Community transit – Proof of the regularity of a transit operation or of the place of the offence – Three-month period – Period granted subsequent to the decision to recover the import duties)

Judgment of the Court (Fifth Chamber), 8 March 2007

Summary of the Judgment

Free movement of goods – Community transit – External Community transit

(Commission Regulation No 1062/87, Art. 11a(2))

Article 11a(2) of Regulation No 1062/87 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, as amended by Regulation No 1429/90, must be interpreted as meaning that the Member State to which the office of departure belongs cannot grant to the principal the three‑month period to enable it to provide proof of the regularity of the transit operation or proof of the place where the offence or irregularity was actually committed after the decision has been taken to proceed to recovery of the import duties, during the proceedings relating to a complaint lodged against that decision.

Such a belated communication of that time-limit is contrary to the provisions of the said Article 11a(2) and infringes the right of the principal which flows from those provisions, effectively to set out its views on the regularity of the transit operation, before the taking of the decision to recover duties which is addressed to it and which materially affects its interests.

(see paras 37, 39, operative part)

JUDGMENT OF THE COURT (Fifth Chamber)

8 March 2007 ( )

(Customs union – Community transit – Proof of the regularity of a transit operation or of the place of the offence – Three-month period – Period granted subsequent to the decision to recover the import duties)

In Case C‑44/06,

REFERENCE for a preliminary ruling under Article 234 EC from the Finanzgericht des Landes Brandenburg (Germany), made by decision of 12 October 2005, received at the Court on 30 January 2006, in the proceedings

Gerlach & Co. mbH

v

Hauptzollamt Frankfurt (Oder),

THE COURT (Fifth Chamber),

composed of R. Schintgen, President of the Chamber, A. Tizzano (Rapporteur) and A. Borg Barthet, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Gerlach & Co. mbH, by G. Schemmann, Steuerberater, and by T. Krüger, Rechtsanwalt,

– the Commission of the European Communities, by J. Hottiaux, acting as Agent, and by B. Wägenbaur, avocat,

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

gives the following

Judgment

1 The request for a preliminary ruling concerns the interpretation of Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1987 L 107, p. 1), as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990 (OJ 1990 L 137, p. 21) (‘Regulation No 1062/87’).

2 This request for a preliminary ruling has been made in the context of a dispute between the company Gerlach & Co. mbH (‘Gerlach’) and the Hauptzollamt Frankfurt (Oder) (Principal Customs Office, Frankfurt (Oder)) (‘the Hauptzollamt’) relating to the recovery of import duties.

The Community legislation

3 At the time of the events in the main proceedings, the Community transit procedure was governed, on the one hand, by Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (OJ 1977 L 38, p. 1), as amended by Council Regulation (EEC) No 474/90 of 22 February 1990 (OJ 1990 L 51, p. 1) (‘Regulation No 222/77’), and, on the other hand, by Regulation No 1062/87.

4 Article 36(1) of Regulation No 222/77 provides:

‘When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings.’

5 For cases in which the place of the offence or irregularity cannot be established, Article 36(2) and (3) sets out a series of presumptions which enable conflicts of jurisdiction to be avoided.

6 More specifically, Article 36(3) of Regulation No 222/77 declares:

‘When the consignment has not been produced at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed:

– in the Member State to which the office of departure belongs, or

– in the Member State to which the office of transit at the point of entry into the Community belongs and to which a transit advice note has been given,

unless, within a period to be determined, proof is furnished, to the satisfaction of the competent authorities, of the regularity of the transit operation or of the place where the offence or irregularity has actually been committed.

If, in the absence of such proof, the said offence or irregularity remains deemed to have been committed in the Member State of departure or in the Member State of point of entry as referred to in the second indent, the duties and other taxes relating to the goods concerned shall be levied by that Member State in accordance with its laws, regulations and administrative provisions.

…’

7 Article 11a of Regulation No 1062/87 provides:

‘1. Where a consignment has not been produced at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.

2. The notification referred to in paragraph 1 must indicate, in particular, the time-limit by which the proof of the regularity of the transit operation or the place where the offence or irregularity has actually been committed must be furnished to the office of departure to the satisfaction of the competent authorities.

This time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of this period, the competent Member State shall take steps to recover the duties and other charges involved. In cases where this Member State is not the one in which the office of departure is located, the latter shall immediately inform that Member State.’

The dispute in the main proceedings and the question referred for preliminary ruling

8 It is apparent from the decision to refer that on 6 and 13 July 1990 the Hauptzollamt, at the request of Gerlach, applied the Community transit procedure to two consignments of live calves from Poland with the customs office in Barcelona (Spain) as the office of destination.

9 Having received the receipts stamped by the customs authorities of La Jonquera (Spain) and Barcelona establishing that the consignments had been produced at the office of destination, the Hauptzollamt approved application of the Community transit procedure.

10 Enquiries subsequently carried out by the Commission of the European Communities and by the customs services of Potsdam and Hanover nevertheless revealed that the Spanish stamps placed on the receipts were forged and that there had been irregularities in the transportation of the cattle. The exact place of these irregularities could not be determined.

11 Consequently on 30 January and 4 February 1992, the Hauptzollamt sent two tax notices to Gerlach, as the principal contracting party in the transit procedure, retroactively claiming import duties on the two consignments at issue.

12 Gerlach lodged a complaint against those notices and at the same time applied for suspension of enforcement.

13 By letter of 2 April 1992 the Hauptzollamt informed Gerlach that the goods dispatched had not been produced at the office of destination and that it could furnish proof of the regularity of the operation or of the place where the offences or irregularities had actually occurred by no later than 7 July 1992. Enforcement of the tax notices was suspended until the expiry of this period.

14 When that period had expired, without Gerlach having provided the proof requested, the Hauptzollamt, by decision of 28 July 1998, rejected the complaint as being without foundation.

15 Gerlach thereupon brought proceedings before the Finanzgericht des Landes Brandenburg (Finance Court of the Land of Brandenburg) requesting annulment of the tax notices and of the decision on its complaint.

16 In its action, Gerlach complained that the Hauptzollamt accorded it the three‑month period set out in Article 11a(2) of Regulation No 1062/87 only after deciding to proceed to recovery of the import duties. On this point, Gerlach relies on the judgment of the Court in Case C‑233/98 Lensing & Brockhausen [1999] ECR I-7349 to the effect that, in the case of non‑compliance with transit procedures, the Member State of departure may recover duties from the principal only if it has first informed him that he may, within a three-month period, furnish proof of the place where the offence or irregularity was actually committed.

17 The Hauptzollamt contested this argument of Gerlach and responded that the latter had in any event been granted the three‑month period in question during the complaint proceedings. Consequently, any procedural defect relating to the setting of that period had been remedied.

18 In those circumstances, the Finanzgericht des Landes Brandenburg decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is a national customs administration entitled to enter duties in its accounts before granting the period to establish the place of the infringement or the irregularity provided for in Article 11a(2) of [Regulation No 1062/87] and to make that period legally binding for the first time during appeal proceedings?’

19 The referring court proposes that this question be answered in the affirmative, and considers that the Member State to which the office of departure belongs can enter duties in its accounts before granting the three-month period provided for by Article 11a(2) of Regulation No 1062/87, on condition that the principal has been granted this period during complaint proceedings.

20 The Finanzgericht takes the view that the customs administration should normally first grant to the principal the period in question and only when this period has expired should the recovery of duties begin. However, reversing the order of this process should not be prohibited. Indeed, according to the Finanzgericht, what matters is that a three‑month period is in fact granted to the principal and that the latter is actually allowed the opportunity of providing the required proof before conclusion of the recovery proceedings. A tax notice which is the subject of a complaint is not yet final in character, and consequently if the national authority were to grant the period at issue in the context of complaint proceedings, the principal would still be capable of providing the necessary proof and thereby obtaining the annulment of the contested notice. Even in such a case, the principal’s rights would be respected.

21 While the Finanzgericht recognises that in Lensing & Brockhausen, and also in Case C‑300/03 Honeywell Aerospace [2005] ECR I‑689, the Court has held that the Member State of departure cannot proceed to recovery of duties unless it has informed the principal that it has available the three‑month period in question, the Finanzgericht nonetheless takes the view that the solution adapted in those judgments is not applicable in the present case.

22 Indeed, the Finanzgericht finds that, in the cases which gave rise to those judgments, no period had been granted to the principals, whereas in the present case, a period was fixed after the tax notice has been issued, but before that notice had become definitive in character. Furthermore, in Honeywell Aerospace, the Court did not interpret Article 11a(2) of Regulation No 1062/87, which is at issue in the present case, but rather the provision which succeeded it, namely Article 379(2) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1)

The question referred for preliminary ruling

23 The essence of the question put by the referring court is whether Article 11a(2) of Regulation No 1062/87 must be interpreted as meaning that the Member State to which the office of departure belongs can grant to the principal the three‑month period to enable it to provide proof of the regularity of the transit operation or proof of the place where the offence or irregularity was actually committed, after the decision has been taken to proceed to recovery of import duties, during the proceedings relating to a complaint lodged against that decision.

Arguments of the parties

24 Gerlach and the Commission consider that the Member State of departure can fix and recover import duties only when the three‑month period in issue in the main proceedings has expired without proof of the regularity of the operation having been produced or if the proof provided by the principal is insufficient.

25 This interpretation, they argue, is supported by the judgements in Lensing & Brockhausen and Honeywell Aerospace, in which the Court has already addressed the question posed by the Finanzgericht in the main proceedings in the present case. The text of those judgments is unambiguous and their operative parts could be fully applied by analogy to the present proceedings.

26 Moreover, according to Gerlach and the Commission, such an interpretation flows from the very wording of Article 11a(2) of Regulation No 1062/87, which requires, in the first place, the fixing of the three‑month period in the proceedings and, in the second place, if the proof required is not provided within this period, steps to recover the duties and other charges.

27 The Commission adds that this interpretation is also supported by the purpose of that provision, which aims to secure rapid recovery of duties by encouraging the principal to cooperate actively in clarifying the situation. Were the Member State of departure to grant that period to the principal after the duties have been levied, this would conflict with that objective.

28 Indeed, if, after the decision to proceed to recovery of the import duties, the principal were to succeed in establishing within the prescribed period that the irregularities had been committed in another Member State, to which recovery would then fall, the Member State of departure would have to withdraw the decision already made and pass the file to the competent Member State. This interpretation would have the disadvantage of slowing the procedure, and would run counter to the effectiveness of fixing such a period.

29 The Commission points out, in conclusion, that the proposed solution conforms to the general principles of Community law. Indeed, it is settled law that if an administrative procedure provides for the right of the party concerned to be heard, the legal measure at the conclusion of that procedure can be taken only after the party concerned has been heard.

Response of the Court

30 Under Article 36(3) of Regulation No 222/77, when, in a situation such as the present proceedings, a consignment has not been produced at the office of destination, and when the place of the offence or irregularity cannot be established, that offence or irregularity is deemed to have been committed in the Member State to which the office of departure belongs, unless, within a period to be determined, proof is provided of the regularity of the transit operation or of the place where the offence or irregularity was actually committed.

31 Article 11a(1) of Regulation No 1062/87 specifies that, when a consignment has not been produced at the office of destination and when the place of the offence or irregularity cannot be established, the office of departure must give notice of this to the principal as soon as possible and in any case before the end of the 11th month after the date of registration of the Community transit declaration.

32 Article 11a(2) provides that such notification must in particular indicate the time-limit by which proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is to be furnished to the office of departure, to the satisfaction of the competent authorities. This time-limit is three months counting from the date of notification referred to in paragraph 1. On the expiry of this period, if such proof has not been provided, the competent Member State can proceed to recovery of the duties and other charges concerned.

33 However, the Court has already held that it follows from the very wording of Article 11a(2) of Regulation No 1062/87, as well as from the substantially identical provisions which succeeded it, namely Article 49(2) of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provision for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1992 L 132, p. 1) and Article 379(2) of Regulation No 2454/93, that notification by the office of departure to the principal of the time-limit by which the proof requested must be furnished is mandatory and must precede recovery of the customs debt (see, to that effect, Case C‑460/01 Commission v Netherlands [2005] ECR I‑2613, paragraphs 62 and 80).

34 The Court, moreover, has emphasised that this time-limit is intended to protect the interests of the principal by allowing it three months in which to furnish, where appropriate, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed (see Case C‑112/01 SPKR [2002] ECR I-10655, paragraph 38, and Honeywell Aerospace, paragraph 24).

35 It follows that the Member State to which the office of departure belongs can proceed to recovery of import duties only if it has first informed the principal that it has available a period of three months to provide the requested proof and if such proof has not been provided within that period (see to that effect Lensing & Brockhausen, paragraph 29, and Honeywell Aerospace, paragraph 23).

36 In those circumstances, such a period cannot be granted for the first time after the decision of the competent authorities to proceed to recovery of the import duties and during the proceedings dealing with the complaint lodged against that decision. That must, a fortiori, be the position in a case such as that of the present proceedings, in which that decision is immediately enforceable.

37 Such a belated communication of the time-limit is contrary to the provisions of Article 11a(2) of Regulation No 1062/87 and infringes the right of the principal which flows from those provisions, effectively to set out its views on the regularity of the transit operation, before the taking of the decision to recover duties which is addressed to it and which materially affects its interests.

38 Respect for this right is a fundamental principle of the Community legal order which must be maintained in all proceedings, including those of Community transit, which are commenced against a person and which are likely to lead to a measure adversely affecting that person (see, to that effect, C‑32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraphs 21 and 30; Case C‑462/98 P Mediocurso v Commission [2000] ECR I-7183, paragraph 36; and Case C‑287/02 Spain v Commission [2005] ECR I-5093, paragraph 37).

39 The answer to the question referred must therefore be that Article 11a(2) of Regulation No 1062/87 must be interpreted as meaning that the Member State to which the office of departure belongs cannot grant to the principal the three‑month period to enable it to provide proof of the regularity of the transit operation or proof of the place where the offence or irregularity was actually committed after the decision has been taken to proceed to recovery of the import duties, during the proceedings relating to a complaint lodged against that decision.

Costs

40 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 (Fifth Chamber) hereby rules:

Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990, must be interpreted as meaning that the Member State to which the office of departure belongs cannot grant to the principal the three‑month period to enable it to provide proof of the regularity of the transit operation or proof of the place where the offence or irregularity was actually committed after the decision has been taken to proceed to recovery of the import duties, during the proceedings relating to a complaint lodged against that decision.

[Signatures]