British American Tobacco Manufacturing BV v Hauptzollamt Krefeld.
Date: 2004-04-29
40. It is sufficient to recall in that respect that, where the Court has dealt in the past with cases in which the Community rules to be interpreted applied only by virtue of a reference made by domestic law, the Court has consistently held that where, in relation to purely internal situations, domestic legislation adopts solutions which are consistent with those adopted in Community law in order, in particular, to ensure a single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply (see, to that effect, Joined Cases C-297/88 and C-197/89 Dzodzi  [1990] ECR I-3763, paragraph 37; Case C-130/95 Giloy  [1997] ECR I-4291, paragraph 28; and Case C-300/01 Salzmann  [2003] ECR I-4899, paragraph 34).
47. When dealing with cases concerning goods placed under the Community external transit system, on the one hand, or goods placed under the customs warehousing system, on the other, the Court has held that that concept of removal from customs supervision should be interpreted as covering 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 carrying out the monitoring required by Community customs legislation ( Wandel , paragraph 47; Case C-371/99 Liberexim  [2002] ECR I-6227, paragraph 55; Case C-337/01 Hamann International [2004] ECR I-0000, paragraph 31).
52. In the light of those provisions – and of the wording of Article 13(a) of Regulation No 222/77, whereby the principal is required, amongst other things, to present the goods once again, intact, at the office of destination – the T 1 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 that document, even if only temporary, is likely to undermine the very objectives of that system since, contrary to the requirements of Article 20 of Regulation No 222/77, it prevents the presentation of that document on any possible requisition 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.
53. In such circumstances, the temporary removal of the T 1 transit document from the goods to which it relates 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 Wandel , Liberexim  and Hamann International , 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 Community customs legislation.
54. Concerning, moreover, the observation of the referring court that, in this case, the removal of the transit document did not have any material consequence on the ability of the customs authorities to identify the goods, since they did not actually demand presentation of that document at any time or establish that it could not have been presented to them without considerable delay, it is sufficient to note that, in accordance with consistent Community case-law, removal of goods from customs supervision presupposes only that certain objective conditions are met, such as 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 ( Wandel , paragraph 48; Liberexim , paragraph 60).
55. As the Advocate General has pointed out in point 30 of his Opinion, 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.
62. As the Court has emphasised a number of times, Article 13(1) of Regulation No 1430/79 constitutes a general equitable provision designed to cover situations other than those which arose most often in practice and for which special provision could be made when the regulation was adopted (see, in particular, Joined Cases 244/85 and 245/85 Cerealmangimi and Italgrani  v Commission  [1987] ECR 1303, paragraph 10, and Case C-446/93 SEIM  [1996] ECR I-73, paragraph 41).
63. The Court has held that that article is intended to apply where the circumstances characterising the relationship between a trader and the administration are such that it would be inequitable to require the trader to bear a loss which he normally would not have incurred (Case 58/86 Coopérative agricole d’approvisionnement des Avirons  [1987] ECR 1525, paragraph 22).
64. In a case concerning the omission of customs authorities to inform a principal of the existence of a risk of fraud in which the latter was not involved, but which was capable of causing him to incur a customs debt, the Court held that, whilst Community law does not impose on customs authorities which have been informed of a possible fraud in connection with external transit arrangements any obligation to warn a principal that he could incur liability for customs duty as a result of the fraud, the demands of an investigation conducted by the customs authorities or the police may nevertheless constitute, in the absence of any deception or negligence on the part of the person liable, and where that person has not been informed that the investigation is being carried out, a special situation within the meaning of Article 13(1) of Regulation No 1430/79. Although it may be legitimate for the national authorities, in order better to dismantle a network, identify perpetrators of fraud and obtain or consolidate evidence, deliberately to allow offences or irregularities to be committed, to place on the person liable the burden of the customs debt arising from the choices made in connection with the prosecution of offences is inimical to the objective of fairness which underlies the relevant Community rules in that it puts that person in an exceptional situation in comparison with other operators engaged in the same business (see, to that effect, De Haan , paragraphs 36 and 53).
72. In that context, particular attention should also be given to the nature of the goods transported, since, as the Court has already held, the cigarette market particularly lends itself to the development of unlawful trade (see Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco  [2002] ECR I-11453, paragraph 87).