CELEX: 62002CJ0238
Language: en
Date: 2004-03-04 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 4 March 2004. # Hauptzollamt Hamburg-Stadt v Kazimieras Viluckas (C-238/02) and Ricardas Jonusas (C-246/02). # Reference for a preliminary ruling: Bundesfinanzhof - Germany. # Community Customs Code - Extent of the obligation as to presentation of goods arriving at customs - National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods at customs - Persons having brought in the goods and being under a duty to declare them - Concept of customs debtor. # Joined cases C-238/02 and C-246/02.

Joined Cases C-238/02 and C-246/02
      Hauptzollamt Hamburg-Stadt
      v
      Kazimieras Viluckas and Ricardas Jonusas
      (References for a preliminary ruling from the Bundesfinanzhof)
      (Community Customs Code – Extent of the obligation as to presentation of goods arriving at customs – National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods
         at customs – Persons having brought in the goods and being under a duty to declare them – Concept of customs debtor)
      
      Summary of the Judgment
      Customs union – Creation of a customs debt following unlawful bringing in of goods – Extent of the obligation to present goods
            to customs – Inclusion of goods hidden in a vehicle without the knowledge even of  its driver – Customs debtor within the
            meaning of the first indent of Article 202(3) of the Customs Code – Concept
      (Council Regulation (EEC) No 2913/92, Article 4(19), Article 40 and the first indent of Article 202(3))
      The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Regulation No 2913/92 establishing
         the Community Customs Code, concerns all goods, including those hidden in a secret compartment specially made for that purpose.
         The obligation to present goods as set out in Article 38 of the Code rests, as provided by Article 40 of the Code, with the
         driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge.
      
      The person who has introduced goods into the customs territory of the Community without mentioning them in the notification
         of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Customs Code,
         even if other persons can be declared debtors in respect of the same goods on the basis of the other provisions of that article.
      
      
      (see paras 24, 29-30, operative part)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Fourth Chamber)4 March 2004(1)
         
         
               (Community Customs Code  –  Extent of the obligation as to presentation of goods arriving at customs  –  National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods
                  at customs  –  Persons having brought in the goods and being under a duty to declare them  –  Concept of customs debtor)
               
               
             In Joined Cases C-238/02 and C-246/02, 
             REFERENCES to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings
            pending before that court between 
            
            
            
            Hauptzollamt Hamburg-Stadt
            
            and
            
            Kazimieras Viluckas (C-238/02),Ricardas Jonusas (C-246/02),
            
             on the interpretation of Article 4(19), Article 40 and the first indent of Article 202(3) of Council Regulation (EEC) No 2913/92
            of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1),
            
            THE COURT (Fourth Chamber),,
            
             composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges, 
            
             Advocate General: A. Tizzano, Registrar: R. Grass, 
            
            
            after considering the written observations submitted on behalf of:
               
               –
                 the Commission of the European Communities by J.-C. Schieferer, acting as Agent, 
               
               
            
            
            
            
            having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
         gives the following
         
         
         Judgment
         1
            
          By orders dated 7 May 2002, received by the Court on 28 June 2002 and 8 July 2002, the Bundesfinanzhof (Federal Finance Court)
         referred to the Court for a preliminary ruling under Article 234 EC three questions on the interpretation of Article 4(19),
         Article 40 and the first indent of Article 202(3) 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’).
         
         
         
         2
            
          These questions have been referred in a dispute between the Hauptzollamt (Principal Customs Office) Hamburg-Stadt (‘the HZA’)
         and Mr Viluckas (C-238/02) and Mr Jonusas (C-246/02) regarding a customs debt which arose as a result of the unlawful entry
         of goods into the Community. 
         
         
            
               Community legislation
            
         
         3
            
          Article 4(19) of the Customs Code provides: 
         ‘For the purposes of this Code, the following definitions shall apply:
         …
         (19) “Presentation of goods to customs” means the notification to the customs authorities, in the manner laid down, of the
         arrival of goods at the customs office or at any other place designated or approved by the customs authorities’.
         
         
         
         4
            
          Article 38(1) of the Code states:
         ‘Goods brought into the customs territory of the Community shall be conveyed by the person bringing them into the Community
         without delay, by the route specified by the customs authorities and in accordance with their instructions, if any:
         (a) to the customs office designated by the customs authorities or to any other place designated or approved by those authorities;
         …’.
         
         
         
         5
            
          Article 40 of that Code provides as follows:
         ‘Goods which, pursuant to Article 38(1)(a), arrive at the customs office or other place designated or approved by the customs
         authorities shall be presented to customs by the person who brought the goods into the customs territory of the Community
         or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry’.
         
         
         
         6
            
          Article 202 of the Code provides:
         ‘1. A customs debt on importation shall be incurred through:
         (a) the unlawful introduction into the customs territory of the Community of goods liable to import duties, or
         (b) the unlawful introduction into another part of that territory of such goods located in a free zone or free warehouse.
          For the purpose of this Article, unlawful introduction means any introduction in violation of the provisions of Articles 38
         to 41 and the second indent of Article 177.
          2. The customs debt shall be incurred at the moment when the goods are unlawfully introduced.
          3. The debtors shall be:
         ­— the person who introduced such goods unlawfully,
         — any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been
         aware that such introduction was unlawful, and
         — any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time
         of acquiring or receiving the goods that they had been introduced unlawfully’.
         
         National legislation
         
         7
            
          Paragraph 21 of the Tabaksteuergesetz (Law on tobacco tax) of 21 December 1992 (BGBl 1992 I, 2150, in the version in Paragraph
         1(13) of the Gesetz zur Änderung von Verbrauchsteuergesetzen und des EG-Amtshilfe-Gesetzes (Law amending the laws on consumer
         taxes and the Law on EU administrative assistance) of 12 July 1996 (BGBl 1996 I, 962), provides:
         ‘Where tobacco products are imported from a third country directly into the customs territory ... , the customs provisions
         shall apply by analogy to the incidence and extinguishment (other than by way of collection) of tax, and at the relevant time
         for assessment, to the identity of the tax debtor, to the tax proceedings and, as the case may be ... , to any remission,
         repayment or additional tax’.
         
         
         
         8
            
          Paragraph 8 of the Zollverordnung (German customs regulations) of 23 December 1993 (BGBl 1993 I, 2449) states:
         ‘Notification under Article 4(19) of the Customs Code may be made in any manner.  Express notification must be given of any
         goods hidden or concealed in secret compartments’.
         
         The main proceedings and the reference for a preliminary ruling
         
         9
            
          The defendants in the main proceedings, Mr Viluckas and Mr Jonusas, are Lithuanian nationals.  They travelled to Germany on
         3 August 1998 by ferry from Klaipeda to Travemünde in a lorry registered in Lithuania. 
         
         
         
         10
            
          Mr Viluckas, the owner of the lorry, was acting as co-driver, and Mr Jonusas was driving the vehicle.  The lorry was attached
         to a refrigerated trailer belonging to a third party.  That trailer was laden with wooden pallets which had been cleared in
         Travemünde for external Community transit operations. 
         
         
         
         11
            
          When the lorry was subsequently inspected at the Hamburg-Stillhorn West motorway service area and thereafter examined at a
         container inspection facility,  2 901 cartons of cigarettes (580 200 cigarettes) on which duty had not been paid were found
         in the ceiling of the refrigerated trailer, in a secret compartment specially made for the purpose.
         
         
         
         12
            
          By a tax notice dated 12 August 1998, amended by a tax amendment notice dated 14 December 1998, the HZA claimed from the defendants
         in the main proceedings, on the basis of the Customs Code, payment of tobacco tax in the sum of DEM 85 347.42. 
         
         
         
         13
            
          By order dated 22 January 1999, the Amtsgericht (Local Court) Hamburg (Germany) refused to allow criminal proceedings to be
         instigated against the driver and the owner of the lorry on the ground of insufficient evidence of tax evasion.  Mr Viluckas
         and Mr Jonusas maintained that the cigarettes had, unnoticed by them, been ‘slipped in’ by a third party before the trailer
         had been delivered for loading.  The type of compartment was not such as to arouse suspicion. 
         
         
         
         14
            
          The claims of the defendants in the main proceedings against the tax notice were rejected by two decisions of 25 March and
         21 May 1999.  By contrast, their legal action resulted in the setting aside of those administrative decisions.  The Finanzgericht
         (Finance Court) held that neither Article 202 nor Article 203 of the Customs Code provided a basis for the HZA’s tax notice.
         
         
         
         
         15
            
          The HZA lodged an appeal on a point of law on an alleged breach of Federal law, namely an incorrect application of the second
         sentence of Paragraph 8 of the Zollverordnung. 
         
         
         
         16
            
          The Bundesfinanzhof considered that its decision depended on whether the Lithuanian nationals were, in terms of Article 202
         of the Customs Code, the persons who had unlawfully introduced the goods into the customs territory of the Community and who
         thereby became the customs debtor. 
         
         
         
         17
            
          Since doubts subsist concerning the interpretation of Article 202(1)(a) and the first indent of Article 202(3), in conjunction
         with Article 4(19) and Article 40 of the Customs Code, the Bundesfinanzhof decided to stay the proceedings and to refer the
         following questions to the Court of Justice for a preliminary ruling:
         ‘1.     Is Article 4(19) of the Customs Code to be interpreted as meaning that the notification to the customs authorities of the
         arrival at a particular place of goods introduced into the Community customs territory must refer expressly to goods which
         are hidden or concealed in secret compartments? [Cases C-238/02 and C-246/02]
          2.       If Question 1 is answered affirmatively:
          Is Article 40 of the Customs Code to be interpreted as meaning that such notification must also be made by the driver of a
         lorry who was not aware and had no reason to be aware of the goods hidden or concealed in the lorry? [Case C-246/02]
          or:
                    If Question 1 is answered affirmatively:
          Is Article 40 of the Customs Code to be interpreted as meaning that such notification must also be made by the driver of a
         lorry, or a co-driver also entitled to drive it, who was not aware and had no reason to be aware of the goods hidden or concealed
         in the lorry? [Case C-238/02]
          3.       If Question 2 is answered affirmatively:
          Is the identity of the person who actually gave the (incomplete) notification a material factor in determining who is the
         customs debtor under the first indent of Article 202(3) of the Customs Code? [Case C-238/02]’
         
         The questions
         
         18
            
          By its first two questions, which may be answered together, the Bundesfinanzhof asks essentially whether the presentation
         to customs of goods introduced into  the Community, in terms of Article 4(19) of the Customs Code, concerns goods hidden in
         a secret compartment specially made for that purpose and whether the obligation to present goods as set out in Article 38
         of the Code rests, as provided by Article 40 of the Code, with the drivers of a lorry who introduced the goods, although the
         goods were hidden in the vehicle without their knowledge.
         
         
         
         19
            
          The Commission states that Article 38 of the Customs Code specifies that goods brought into the customs territory of the Community
         must be conveyed without delay by the person bringing them into the Community to the customs office or to any other place
         designated or approved by those authorities and that it does not make any distinction between goods hidden or concealed and
         goods not hidden or concealed.
         
         
         
         20
            
          It considers, furthermore, that one of the aims of Article 4(19), Article 40 and Article 202 of the Customs Code is to impose
         individual responsibility on persons introducing into the customs territory of the Community a means of transport capable
         of carrying goods.  As a result, Article 4(19) of the Customs Code should be interpreted as meaning that, in the notification
         to the customs authorities, all goods introduced into that territory are to be declared, including therefore hidden or concealed
         goods.  Thus, the hidden cigarettes should have been declared to the customs authorities.
         
         
         
         21
            
          The Commission submits, finally, that not only the person driving the vehicle when it crossed the Community’s external border
         should be considered as a person having introduced goods, but also any person on board the vehicle who is also acting as co-driver.
         
         
         
         
         22
            
          It is clear from the wording and the broad logic of Articles 4(19), 38(1) and 40 of the Customs Code that all goods introduced
         into the customs territory of the Community must be presented to customs.  The fact that certain goods were concealed in secret
         compartments in the vehicle in which they were transported does not have the effect of releasing them from that obligation.
          
         
         
         
         23
            
          Furthermore, it follows from the actual wording of Article 40 of the Customs Code that if the goods are introduced in a vehicle,
         the persons required to declare them are those in charge thereof at the time of entry and, in particular, the drivers, both
         the person driving and, if present in the vehicle, his co-driver or his replacement.  The obligation to declare goods which
         is placed on the drivers would be imposed on another person present in the vehicle if it was found that the latter bore responsibility
         for introducing the goods.
         
         
         
         24
            
          The answer to the first two questions should therefore be that the presentation to customs of goods introduced into the Community,
         in terms of Article 4(19) of the Customs Code, concerns all goods, including those hidden in a secret compartment specially
         made for that purpose, and that the obligation to present goods as set out in Article 38 of the Code rests, as provided by
         Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden
         in the vehicle without their knowledge.
         
         
         
         25
            
          By its third question the Bundesfinanzhof essentially asks whether the person who introduced the goods into the customs territory
         of the Community without  mentioning them in the notification of presentation to customs can be classed as a customs debtor
         within the meaning of the first indent of Article 202(3) of the Customs Code.
         
         
         
         26
            
          The Commission takes the view that the customs debtor, as defined by the above provision, is normally the person who introduces
         the goods and lodges an incomplete notification of presentation of the goods to customs, except where that person is, as in
         the main proceedings here, under the direction of another person on board the same vehicle.
         
         
         
         27
            
          The first indent of Article 202(3) of the Customs Code defines the customs debtor as the person who introduced the goods unlawfully.
         
         
         
         28
            
          As discussed in the reply to the first two questions, an introduction is considered unlawful when goods, including those concealed
         in a vehicle without its driver’s knowledge, were not declared by that driver upon presentation to customs. 
         
         
         
         29
            
          Consequently, even if other persons can be declared debtors in respect of the same goods on the basis of the other provisions
         of Article 202(3) of the Customs Code, the person who in practical terms introduced the goods without declaring them remains
         the debtor by virtue of the provisions of the first indent of Article 202(3).
         
         
         
         30
            
          The answer to the third question must therefore be that the person who has introduced goods into the customs territory of
         the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning
         of the first indent of Article 202(3) of the Customs Code. 
         
         
         Costs
         31
            
          The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. 
         
         
         On those grounds, 
         
         
         
            
            THE COURT (Fourth Chamber),
         
         
          in answer to the questions referred to it by the Bundesfinanzhof by orders of 7 May 2002, hereby rules: 
         
               (1)
                  The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Council Regulation (EEC)
                     No 2913/92 of 12 October 1992 establishing the Community Customs Code concerns all goods, including those hidden in a secret
                     compartment specially made for that purpose.  The obligation to present goods as set out in Article 38 of that Code rests,
                     as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the
                     goods were hidden in the vehicle without their knowledge.
                  
               
               (2)
                  The person who has introduced goods into the customs territory of the Community without mentioning them in the notification
                     of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Community Customs
                     Code.
                  
               
            
                  Cunha Rodrigues
               
               
                  Puissochet 
               
               
                  Macken 
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 4 March 2004.
         
         
         
         
                  R. Grass
               
               
                  J.N. Cunha Rodrigues
               
            
         
         
         
                  Registrar
               
               
                  President of the Fourth Chamber
               
            
      
      
          1 –
            
            Language of the case: German.