Dansk Transport og Logistik v Skatteministeriet.
Date: 2010-04-29
48. First, as regards the interpretation of t he expression ‘on unlawful introduction’ of goods into the customs territory of the Community, in Article 202 and point (d) of the first paragraph of Article 233 of the Customs Code, it should be noted, first of all, that the unlawful introduction is completed at the moment at which the goods go beyond the first customs office situated inside that territory without those goods having been presented there (Case C‑459/07 Elshani [2009] ECR I‑0000, paragraph 25).
49. Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the Community within the meaning of Article 202 of the Customs Code where, having crossed the external land border of the Community, the goods are in that territory beyond the first customs office, without having been conveyed to that office and without having been presented to customs, with the result that the customs authorities have not been notified of the fact that those goods have been introduced by the persons responsible for compliance with that obligation ( Elshani , paragraph 26).
50. Next, the Court has held that Article 202 and point (d) of the first paragraph of Article 233 of the Customs Code must be interpreted as meaning that, in order to lead to the extinction of the customs debt, the seizure of goods unlawfully introduced into the customs territory of the Community must take place before those goods go beyond the first customs office situated inside that territory (see, to that effect, Elshani , paragraph 38).
51. That analysis is justified, in the first place, by the fact that the seizure and confiscation of goods upon their unlawful introduction, laid down in point (d) of the first paragraph of Article 233 of the Customs Code, constitutes a ground for the extinction of the customs debt which must be narrowly construed (see Elshani , paragraph 30). That article addresses the need to protect the Community’s own resources and that objective may not be prejudiced by creating new grounds for the extinction of a customs debt (see, to that effect, Case C‑112/01 SPKR  [2002] ECR I‑10655, paragraph 31, and Elshani , paragraph 31).
52. In the second place, the presence of unlawfully introduced goods in the customs territory of the Community comprises, of itself, a very high risk that those goods will end up forming part of the economic networks of the Member States and that, once those goods have gone beyond the area in which the first customs office is situated inside the customs territory, there is less likelihood that the customs authorities will, fortuitously, discover those goods in the course of spot checks ( Elshani , paragraph 32).
72. Accordingly, goods subject to excise duty must be regarded as having entered the territory of the Community for the purposes of Article 5(1) of the Excise Duty Directive as of the moment they go beyond the area in which the first customs office is situated inside the customs territory of the Community (see, by analogy, Elshani , paragraph 25).
78. In that regard, it should be noted that the suspension arrangement defined in Article 4(c) of the Excise Duty Directive is the tax arrangement applied to the production, processing, holding and movement of products, excise duty being suspended. It is a feature of that arrangement that the excise duty on the products covered by it is not yet payable, although the chargeable event for taxation purposes has already taken place (Case C‑395/00 Cipriani  [2002] ECR I‑11877, paragraph 42). Consequently, as regards the products subject to excise duty, that arrangement postpones the chargeability of excise duty until one of the conditions of chargeability is met.
80. However, it is apparent from paragraphs 75 and 76 above that, in the cases in the main proceedings, the duty became chargeable as soon as the goods went beyond the area in which the first customs office inside the customs territory of the Community is situated.
81. Accordingly, smuggled goods which were imported unlawfully in that way are to be regarded as having been released for consumption, with the result that the fact that they were subsequently entered for a customs warehousing procedure in accordance with Article 867a of the Implementing Regulation, following their seizure and confiscation, has no effect on the chargeability of the excise duty.
90. Next, the second subparagraph of Article 10(3) of the Sixth Directive states that, where imported goods are subject inter alia, to customs duties, ‘the chargeable event shall occur and the tax shall become chargeable when the chargeable event for those … duties occurs and those duties become chargeable’.
91. In addition, according to the Court’s case-law on the applicability of the Sixth Directive to the unlawful importation of drugs, the chargeable event for customs duties and the chargeability of VAT are essentially the same in such cases. The two charges display comparable essential features since they arise from the importation of goods into the Community and their subsequent distribution through the economic channels of the Member States (see, to that effect, Case 294/82 Einberger  [1984] ECR 1177, paragraph 18, and Case C‑343/89 Witzemann [1990] ECR I‑4477, paragraph 18).
93. Consequently, where the imported goods are seized and simultaneously or subsequently destroyed by the competent authorities before going beyond the first customs office situated inside the customs territory of the Community, it must be found that neither the chargeable event for VAT has occurred nor has that VAT become chargeable for the purposes of that article. That appears to be the situation in the two cases in the main proceedings in which the goods were transported by sea.
96. In that respect, as regards the situation in which ‘goods are placed under one of the arrangements referred to in Article 7(3)’, a situation which is referred to in the second sentence of the first subparagraph of Article 10(3) of the Sixth Directive, the words ‘on entry’ must be understood as meaning that the goods have not gone beyond the first customs office and have, thus, not been imported into the territory of the Community. Consequently, where goods are seized and confiscated on their entry at an external border of the Community, the chargeable event does not occur and the tax does not become chargeable and there is no need to seek to determine the possible effect of the second subparagraph of Article 10(3) and Article 16(1)(B) of the Sixth Directive or of Article 867a of the Implementing Regulation, and this was the case in relation to the goods imported by sea in two of the cases in the main proceedings.
104. In that regard, it is apparent from the Court’s case-law that the determination of the place where the customs debt was incurred allows the Member State with jurisdiction to recover customs duties to be identified. Therefore, the purpose of that provision is to determine territorial jurisdiction to recover the amount of the customs debt (see, to that effect, Case C‑526/06 Road Air Logistics Customs  [2007] ECR I‑11337, paragraph 26).
114. If that is the case, it is apparent from Article 6(1) in conjunction with Article 7(1) of the Excise Duty Directive that the authorities in the Member State in which the goods which are unlawfully introduced into the Community were discovered and seized are competent to recover excise duty. In the case in the main proceedings at issue, those are the Danish authorities.
115. If that is not the case, the first Member State into which the goods were imported, the Federal Republic of Germany in this case, remains competent to recover the excise duty pursuant to Article 6 of the Excise Duty Directive, even if the unlawfully introduced goods were only discovered subsequently by the authorities in another Member State.