Schenker Nemzetközi Szállítmányozási és Logisztikai Kft. v Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága.
Date: 2016-09-08
69


In those circumstances, the Debreceni Közigazgatási és Munkaügyi Bíróság (Administrative and Labour Court, Debrecen) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:





‘(1)


Must the description of goods as “light air-cured tobacco” in accordance with heading CN 2401 10 35 of Chapter 24 (“Tobacco and manufactured tobacco substitutes”) in Regulation (EU) No 861/2010 be interpreted as meaning that it includes only air cured tobacco, not stemmed/stripped





—


which contains the whole leaves of the tobacco plant,








—


which is not cut, pressed or compacted,








—


which is not permitted, as light air cured tobacco not stemmed/stripped under heading CN 2401 10 35, to undergo any other form of processing (for example, removal of stems, cutting or compacting of leaves) apart from processing consisting in air curing,








—


which is not for smoking?











(2)


Must the concept of “customs suspensive procedure or arrangement” in Article 4(6) of Directive 2008/118 be interpreted as meaning that it also covers the case of customs goods (excise goods) in external transit, in temporary storage or in customs storage under accompanying documents in which the tariff heading is incorrectly stated (CN 2401 10 35 instead of CN 2403 10 9000), but the relevant chapter of the CN (Chapter 24 — Tobacco) and all the other data in those documents (container number, quantity, net weight) are correct and the seals are not broken?
(In other words, it must be determined whether particular products can be under a customs suspensive procedure when the Chapter of the Common Customs Code is indicated correctly in its accompanying documents but the specific tariff heading is incorrect?)








(3)


Must the concept of “importation” in Article 2(b) of Directive 2008/118 and the concept of “importation of excise goods” in Article 4(8) of that directive be interpreted as meaning that they also cover the case where the tariff heading of the actual goods in external transit and the tariff heading stated in the accompanying documents is different, while, apart from that disparity, both the indication of the Chapter (in the present case, Chapter 24 — Tobacco) and the quantity and net weight of the actual goods correspond to the data given in the accompanying documents?








(4)


Do the irregularities referred to in Article 38 of Directive 2008/118 include a situation where goods are under a customs suspensive arrangement and there is an incorrect CN code under Annex I to Regulation No 2658/87 in the accompanying documents?’
71


Therefore, it is for the national court to classify the goods at issue in the main proceedings in the light of the answers given by the Court to the questions referred to it.
74


Thus, it must be held that by that question the referring court asks essentially whether Regulation No 2658/87 must be interpreted as meaning that goods, such as those at issue in the main proceedings, are classified under heading 2401 of the CN, and more specifically subheadings 2401 10 35 or 2401 30 00 thereof, or heading 2403 of the CN and, in the present case, subheading 2403 10 90 thereof.
75


In order to answer that question it must be stated, first, that the general rules for the interpretation of the CN provide that the classification of goods is to be determined according to the terms of the headings and any section or chapter notes, the titles of sections, chapters and sub-chapters being provided for ease of reference only (judgment of 11 June 2015, Baby Dan, C‑272/14, EU:C:2015:388, paragraph 25).
76


Second, it must be recalled that, in the interests of legal certainty and ease of verification, the decisive criterion for the classification of goods for customs purposes is in general to be sought in their objective characteristics and properties as defined in the wording of the relevant heading of the CN and in the section or chapter notes (see, inter alia, judgments of 16 September 2004, DFDS, C‑396/02, EU:C:2004:536, paragraph 27; of 15 September 2005, Intermodal Transports, C‑495/03, EU:C:2005:552, paragraph 47, and of 15 February 2007, RUMA, C‑183/06, EU:C:2007:110, paragraph 27).
77


As regards the Explanatory Notes to the HS, it must be added that, in spite of the fact that they lack binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (judgments of 18 June 2009, Kloosterboer Services, C‑173/08
EU:C:2009:382, paragraph 25, and of 20 June 2013, Agroferm, C‑568/11, EU:C:2013:407, paragraph 28). The same applies to the Explanatory Notes to the CN (see judgments of 16 June 1994, Develop Dr. Eisbein, C‑35/93, EU:C:1994:252, paragraph 21, and of 14 April 2011, British Sky Broadcasting Group and Pace, C‑288/09 and C‑289/09, EU:C:2011:248, paragraph 92).
83


As regards ‘tobacco refuse’, point 2 of the Explanatory Notes to the HS relating to heading 2401 of the CN states that that definition includes waste resulting from the manipulation of tobacco leaves, or from the manufacture of tobacco products.
101


In the present case, it must be examined whether the indication of an incorrect tariff heading in a summary declaration for temporary storage leads to the release of those goods from the customs suspensive procedure or arrangement concerned, giving rise, where appropriate, to customs debts under Articles 202 and 204 of the Customs Code and the chargeability of excise duty.
102


As far as concerns Article 202 of the Customs Code, it defines ‘unlawful introduction’ as any introduction, in violation of the provisions of Articles 38 to 41 and the second indent of the first paragraph of Article 177 of that code, of goods liable to import duties, either into the customs territory of the European Union, or into another part of that territory, if they are located in a free zone or free warehouse (judgment of 3 March 2005, Papsimedov and Others, C‑195/03, EU:C:2005:131, paragraph 25).
103


Thus, an importation of goods constitutes an unlawful introduction if it does not comply with the following stages laid down by the Customs Code. First, under Article 38(1) of that code, goods brought into the customs territory of the European Union must be conveyed without delay to the designated customs office or to a free zone. Secondly, under Article 40, when the goods arrive at the customs office they must be presented to customs. Presentation of goods to customs is defined in Article 4(19) of that code as the notification to the customs authorities, in the manner laid down, of the arrival of goods at that customs office or at any other place designated or approved (judgment of 3 March 2005, Papsimedov and Others, C‑195/03, EU:C:2005:131, paragraph 26).
104


Interpreting Articles 40 and 43 to 45 of the Customs Code, the Court held that the presentation of goods to customs comprised, in effect, a collateral obligation to lodge without delay a summary declaration or to comply without delay with the formalities to assign the goods concerned a customs destination, that is to say, if it was requested that they be placed under a customs regime, to complete a customs declaration. In particular, it was clear from the wording of the second paragraph of Article 43 of that code that both operations were carried out, as a general rule, simultaneously, because the period which the customs authorities could allow for that lodgement was not to extend beyond the first working day following the day on which the goods were presented to customs. In addition, under Article 44(1) of that code, the summary declaration had to contain the particulars necessary for identification of the goods (see, to that effect, judgment of 3 March 2005, Papsimedov and Others, C‑195/03, EU:C:2005:131, paragraph 30).
113


Under Article 204(1)(a) of the Customs Code, a customs debt on importation arises through the non-fulfilment of one of the obligations arising from the use of the customs procedure under which the goods liable to import duties have been placed, unless it is established that those failures have no significant effect on the correct operation of the customs procedure in question.