Directeur général des douanes et droits indirects and Chef de l'agence de poursuites de la Direction nationale du renseignement et des enquêtes douanières v Harry Winston SARL.
Date: 2013-07-11
24. First of all, even though, formally, the referring court has limited its question to the interpretation of Article 206 of the Customs Code, that does not prevent the Court from providing the referring court with all the elements of interpretation of European Union law which may be of assistance in adjudicating on the case before it, whether or not that court has specifically referred to them in those questions. The questions referred must be resolved in the light of all the provisions of the EC Treaty and of secondary legislation which may be relevant to the problem (see, to that effect, Joined Cases C‑578/10 to C‑580/10 van Putten and Others  [2012] ECR I‑0000, paragraphs 23 and 24 and the case-law cited).
28. In order to determine which of those two articles forms the basis on which a customs debt on importation is incurred, it is necessary first of all to consider whether in the factual situation in question there was an unlawful removal from customs supervision within the terms of Article 203(1) of the Customs Code. Only if that question has been answered in the negative is it possible that Article 204 of the Customs Code may apply (see Case C‑337/01 Hamann International  [2004] ECR I‑1791, paragraph 30).
29. As regards, more specifically, the concept of unlawful removal from customs supervision, referred to in Article 203(1) of the Customs Code, it should be borne in mind that, in accordance with the Court’s case-law, that concept must 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 the customs regulations (Case C‑371/99 Liberexim  [2002] ECR I‑6227, paragraph 55 and the case-law cited; Case C‑222/01 British American Tobacco [2004] ECR I‑4683, paragraph 47 and the case-law cited; and Case C‑300/03 Honeywell Aerospace  [2005] ECR I‑689, paragraph 19).
30. Such is the case where, in a situation such as that in the main proceedings, goods, placed under a suspensive procedure, have been stolen (see Case C‑140/04 United Antwerp Maritime Agencies and Seaport Terminals  [2005] ECR I‑8245, paragraph 31).
33. It follows from the foregoing that the theft of goods, which took place in circumstances such as those of the main proceedings, gives rise to a customs debt on importation pursuant to Article 203(1) of the Customs Code and that, as a result of what was stated in paragraph 28 of the present judgment, the theft of goods placed, as in the main proceedings, under customs warehousing arrangements does not come within the scope of Article 204(1)(a) of that code.
40. Article 70 of the VAT directive lays down the principle that the chargeable event occurs and the tax becomes chargeable at the moment when the goods are imported. Thus, Article 71(1) of the VAT directive provides, in particular in its first subparagraph, that, where, on entry into the European Union, goods are placed under customs warehousing arrangements, the chargeable event occurs and the tax becomes chargeable only when the goods cease to be covered by those arrangements. However, the second subparagraph of Article 71(1) covers the specific situation in which, for imported goods subject to customs duties, to agricultural levies or to charges having equivalent effect established under a common policy, the chargeable event occurs and the tax becomes chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.
41. In this regard, it should be noted that import VAT and customs duties display comparable essential features since they arise from the fact of importation of goods into the European Union and the subsequent distribution of those goods through the economic channels of the Member States. This parallel nature is, moreover, confirmed by the fact that the second subparagraph of Article 71(1) of the VAT directive authorises Member States to link the chargeable event and the date on which the VAT on importation becomes chargeable with those laid down for customs duties (see, inter alia, Case C‑343/89 Witzemann [1990] ECR I‑4477, paragraph 18, and Case C‑230/08 Dansk Transport og Logistik  [2010] ECR I‑3799, paragraphs 90 and 91).