SEK Zollagentur GmbH v Hauptzollamt Gießen.
Date: 2014-06-12
25. In that regard, it should be noted that Article 50 of the Customs Code must be interpreted as meaning that the point at which non-Community goods, covered by a customs declaration accepted by the customs authorities for placing under the external Community transit procedure and having the status of goods in temporary storage, are placed under that customs procedure and thereby assigned a customs‑approved treatment or use is the moment at which they are released (Case C‑542/11 Codirex Expeditie  EU:C:2013:429, paragraph 55).
28. In that regard, it should be noted that, in accordance with the Court’s case-law, the concept of unlawful removal from customs supervision, as referred to in Article 203(1) of the Customs Code, must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code (Cases C‑66/99 D. Wandel  EU:C:2001:69, paragraph 47; C‑371/99 Liberexim  EU:C:2002:433, paragraph 55, and C‑337/01 Hamann International  EU:C:2004:90, point 31).
29. Under Article 96 of the Customs Code, since the principal is required, amongst other things, to present the goods once again, intact, at the customs office at the place of destination — the transit document under cover of which carriage of goods under the Community external transit system is effected undeniably plays an essential role in the proper functioning of that system. Thus a removal of those goods, even if only temporary, is likely to undermine the very objectives of that system where, contrary to the requirements of Article 37 of the Customs Code, it prevents any possible requisition of those goods by the customs service. Such removal also complicates the identification both of the goods which are subject to the transit procedure and of the customs regime applicable to them (see, by analogy, Case C‑222/01 British American Tobacco  EU:C:2004:250, paragraph 52).
30. In such circumstances, the temporary removal of the transit document from the goods listed therein must be characterised as a removal of those goods from customs supervision. In accordance with the interpretation given by the Court in its judgments in D. Wandel EU:C:2001:69, Liberexim EU:C:2002:433 and Hamann International EU:C:2004:90, such removal does constitute an act which has the effect of preventing the competent customs authority, even if only temporarily, from having access to goods under customs supervision and carrying out the controls prescribed by European Union customs legislation (see, to that effect, British American Tobacco  EU:C:2004:250, point 53).
31. Similarly, it must be borne in mind that, according to settled case-law, removal of goods from customs supervision requires only that certain objective conditions be met, such as the absence of the goods from the approved place of storage at the time when the customs authorities intend to carry out an examination of them (see D. Wandel  EU:C:2001:69, paragraph 48, and Liberexim  EU:C:2002:433, paragraph 60).
32. It is therefore sufficient, for there to be ‘removal from customs supervision’, for the goods in question to have been objectively removed from possible controls, whether or not such controls have actually been carried out by the competent authority ( British American Tobacco  EU:C:2004:250, paragraph 55).
33. In the light of the foregoing considerations, the answer to the first question is that Articles 50 and 203 of the Customs Code must be interpreted as meaning that an article left for temporary storage must be deemed to have been removed from customs supervision if it is declared for an external Community transit procedure, but it does not in fact leave the storage facility and is not presented to the customs office at the place of destination, although the transit documents have been presented there.
Consideration of the second question
35. It should be borne in mind that, according to the Court’s case-law, if, at the time when goods are removed from customs supervision, they have already been placed under the external Community transit procedure, it is the holder of that procedure who — as the ‘principal’ for the purposes of Article 96(1) of the Customs Code — is required to fulfil the obligations arising from the use of that procedure and who is liable for payment of the customs debt in accordance with the fourth indent of Article 203(3) of that code, if the first three indents of paragraph 3 do not apply ( Codirex Expeditie  EU:C:2013:429, paragraph 33).
36. On the other hand, if, at the time of that removal, the goods have not yet been placed under the external Community transit procedure, but are still in temporary storage, the person liable for payment of the customs debt — if the first three indents of Article 203(3) of the Customs Code do not apply — is the person who, being responsible for fulfilling the obligations arising from temporary storage, holds the goods, after they have been unloaded, in order to move or store them (see, to that effect, Case  C‑140/04 United Antwerp Maritime Agencies and Seaport Terminals EU:C:2005:556, paragraph 39 and Codirex Expeditie  EU:C:2013:429, paragraph 34).