Asotsiatsia na balgarskite predpriyatia za mezhdunarodni prevozi i patishtata (Aebtri) v Nachalnik na Mitnitsa Burgas.
Date: 2017-11-22
50


As is apparent from the Court’s settled case-law, an international agreement concluded by the European Union constitutes an act of the institutions of the European Union within the meaning of point (b) of the first paragraph of Article 267 TFEU and the provisions of the agreement form an integral part of the legal order of the European Union, from the time it enters into force, with the result that the Court has jurisdiction to give a preliminary ruling on the interpretation of such an agreement (see, inter alia, judgment of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraphs 3 to 6, and of 4 May 2010, TNT Express Nederland, C‑533/08, EU:C:2010:243, paragraph 60 and the case-law cited).
53


In the light of the foregoing, the Court has jurisdiction to interpret Articles 8 and 11 of the TIR Convention, provisions concerning customs on whose scope it has, moreover, previously given a preliminary ruling (see, inter alia, judgments of 23 September 2003, BGL, C‑78/01, EU:C:2003:490, paragraphs 47 and 70; of 5 October 2006, Commission v Germany, C‑105/02, EU:C:2006:637, paragraphs 80 and 82; of 5 October 2006, Commission v Belgium, C‑377/03, EU:C:2006:638, paragraphs 67 to 70, 86 and 88; and of 14 May 2009, Internationaal Verhuis- en Transportbedrijf Jan de Lely, C‑161/08, EU:C:2009:308, paragraphs 34 to 36).
56


It should be noted, first, that the rights and obligations of a guaranteeing association are governed by the TIR Convention, EU law, and the guarantee contract, subject to national law, which that association concluded with the Member State concerned (see, to that effect, judgment of 5 October 2006, Commission v Belgium, C‑377/03, EU:C:2006:638, paragraph 84 and the case-law cited).
62


As regards the interpretation of that provision, it must be noted that, in accordance with the Court’s settled case-law, an international treaty must be interpreted by reference to the terms in which it is worded and in the light of its objectives. Article 31 of the Vienna Convention of 23 May 1969 on the Law of Treaties and Article 31 of the Vienna Convention of 21 March 1986 on the Law of Treaties between States and International Organisations or between International Organisations, which express to this effect general customary international law, state that a treaty is to be interpreted in good faith, in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (judgment of 10 January 2006, IATA and ELFAA, C‑344/04, EU:C:2006:10, paragraph 40 and the case-law cited).
70


As regards, next, the context surrounding that provision, it is necessary, for the purposes of interpreting it, to examine it in the light of the general structure of the convention of which it forms part and of the totality of the provisions contained therein (see, to that effect, judgment of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraph 10).
72


As the Court has previously observed, for those facilities to be applied, the TIR Convention requires, inter alia, that transport operations be guaranteed by associations approved by the contracting parties, in accordance with the provisions of Article 6 of the convention (see, to that effect, judgment of 23 September 2003, BGL, C‑78/01, EU:C:2003:490, paragraph 5).
79


In the second place, it follows from Article 8(1) of the TIR Convention that, under the guarantee contract, guaranteeing associations undertake to pay the customs duties due from the persons directly liable and are, in that regard, jointly and severally liable with those persons for the payment of such sums, even though, under Article 8(7) of that convention, the competent authorities must so far as possible, require payment from the person directly liable before making a claim against the guaranteeing association (see, to that effect, judgment of 5 October 2006, Commission v Belgium, C‑377/03, EU:C:2006:638, paragraph 86).
80


As the Advocate General observes, in essence, in point 44 of his Opinion, the existence of such liability means that the guaranteeing association is itself a debtor, together with the persons directly liable, in respect of the sums in question. It follows, furthermore, from the very nature of joint and several liability that each debtor is liable for the full amount of the debt and the creditor is, in principle, free to claim payment of that debt from one or more of the debtors as he chooses (see, to that effect, judgment of 18 May 2017, Latvijas dzelzceļš, C‑154/16, EU:C:2017:392, paragraph 85).
92


As regards EU law, it must be noted, in particular, that, under Article 203(1) of the Customs Code a customs debt on importation is incurred on the unlawful removal from customs supervision of goods liable to import duties (judgment of 20 January 2005, Honeywell Aerospace, C‑300/03, EU:C:2005:43, paragraph 18 and the case-law cited).
93


As is apparent from the Court’s case-law, the concept of ‘unlawful removal from customs supervision’, in that provision, 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 (judgment of 20 January 2005, Honeywell Aerospace, C‑300/03, EU:C:2005:43, paragraph 19 and the case-law cited).
94


Such is the case where, as in the main proceedings, the office of departure of the consignment concerned which has been cleared for the external transit procedure under a TIR carnet, has concluded that the consignment has not been presented at the office of destination and that the TIR procedure has not been discharged for the consignment in question (see, by analogy, judgment of 20 January 2005, Honeywell Aerospace, C‑300/03, EU:C:2005:43, paragraph 20).
95


As regards the persons liable, it should be noted to begin with that the EU legislature intended, since the entry into force of the Customs Code, to lay down exhaustively the conditions for determining who are the debtors responsible for a customs debt (judgment of 17 November 2011, Jestel, C‑454/10, EU:C:2011:752, paragraph 12 and the case-law cited).
105


As observed in paragraph 97 above, according to the wording of that provision, a person has that status if it has been established, first that the recipient of the goods actually acquired or held them and, secondly, that he was aware or should reasonably have been aware, at the time of acquiring or receiving the goods, that they had been removed from customs supervision. The third indent of Article 203(3) of the Customs Code covers any person who, although not responsible for the unlawful removal of the goods from customs supervision from which the customs debt arose, and not himself required to clear the goods through customs, has nevertheless been involved in the unlawful removal either before or after that removal as a result of having acquired or held the goods (see, by analogy, judgment of 25 January 2017, Ultra-Brag, C‑679/15, EU:C:2017:40, paragraph 22).
106


The second of the conditions laid down in the third indent of Article 203(3) of the Customs Code specifically covers the situation in which, at the time when he acquired or received the goods at issue, the recipient was aware or should reasonably have been aware that those goods had not been presented to the customs office of destination and that, consequently, any customs duties and taxes due had not been paid. Accordingly, the status of ‘debtor’ for the purposes of the third indent of Article 203(3) of the Customs Code is subject to conditions based on subjective criteria, namely whether natural or legal persons participated knowingly in acquiring or holding goods removed from customs supervision (see, by analogy, judgment of 3 March 2005, Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 40 and the case-law cited).
107


Since that condition concerns considerations of a factual nature, in the light of the division of powers between the Courts of the European Union and the national courts, it is for the national courts to determine whether that condition is satisfied in a specific case (see, by analogy, judgment of 17 November 2011, Jestel, C‑454/10, EU:C:2011:752, paragraph 21 and the case-law cited).
108


In order to do so, those courts must, in essence, carry out an overall assessment of the circumstances of the case before them (see, by analogy, judgment of 17 November 2011, Jestel, C‑454/10, EU:C:2011:752, paragraph 23), taking into account in particular all the information which was available to the recipient or of which he should have reasonably been aware, particularly because of his contractual obligations (see by analogy, judgment of 17 November 2011, Jestel, C‑454/10, EU:C:2011:752, paragraph 25) and, where appropriate, the experience of that recipient, as an economic operator, in importing goods transported under cover of TIR carnets.
111


Such an interpretation, which failed to take account of the subjective conditions laid down in the third indent of Article 203(3) of the Customs Code, is not consistent either with the intention of the EU legislature, referred to in paragraph 95 above, to lay down exhaustively the conditions for determining who are the debtors responsible for the customs debt, or with the very letter and purpose of that provision (see, by analogy, judgment of 23 September 2004, Spedition Ulustrans, C‑414/02, EU:C:2004:551, paragraphs 39, 40 and 42).