Società Italiana Commercio e Servizi srl (SICES) and Others v Agenzia Dogane Ufficio delle Dogane di Venezia.
Date: 2014-03-13
22. It should be recalled that, in proceedings under Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C‑138/10 DP grup  [2011] ECR I‑8369, paragraph 28).
23. However, it is for the Court, as part of those proceedings, to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. Moreover, the Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (see, inter alia, DP grup , paragraph 29).
29. According to settled case-law, EU law cannot be relied on for abusive or fraudulent ends (see, inter alia, Case C‑367/96 Kefalas and Others  [1998] ECR I‑2843, paragraph 20; Case C‑373/97 Diamantis  [2000] ECR I‑1705, paragraph 33; and Case C‑255/02 Halifax and Others  [2006] ECR I‑1609, paragraph 68).
30. The application of EU legislation cannot be extended to cover abusive practices by economic operators, that is to say transactions carried out not in the context of normal commercial operations, but solely for the purpose of wrongfully obtaining advantages under EU law (see, in particular, Halifax and Others , paragraph 69).
31. A finding of abusive practices requires a combination of objective and subjective elements.
32. With regard to the objective element, it must be apparent from a combination of objective circumstances that, despite formal observance of the conditions laid down by EU rules, the purpose of those rules has not been achieved (see, inter alia, Case C‑110/99 Emsland-Stärke  [2000] ECR I‑11569, paragraph 52, and Case C‑515/03 Eichsfelder Schlachtbetrieb  [2005] ECR I‑7355, paragraph 39).
33. Such a finding requires also a subjective element to the effect that it must be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain an undue advantage. The prohibition of abuse is not relevant where the economic activity carried out may have some explanation other than the mere attainment of an advantage ( Halifax and Others , paragraph 75). The existence of such an element relating to the intention of operators may be established, in particular, by proof of the purely artificial nature of the transactions (see, to that effect, Emsland-Stärke , paragraph 53, and Case C‑425/06 Part Service  [2008] ECR I‑897, paragraph 62).
34. Although the Court, when giving a preliminary ruling, may, where appropriate, provide clarification designed to give the national court guidance in its interpretation ( Halifax and Others , paragraph 77), it is however for the national court to verify whether the factors constituting such an abuse are present in the case before it (see, inter alia, Eichsfelder Schlachtbetrieb , paragraph 40, and Case C‑279/05 Vonk Dairy Products  [2007] ECR I‑239, paragraph 34). In that context, it should be stated that checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.
37. In the second place, with regard to the subjective element referred to in paragraph 33 of the present judgment, it should be noted that, in circumstances such as those at issue in the main proceedings, for it to be possible to regard the transactions at issue as being designed to confer an undue advantage on the purchaser in the European Union, it is necessary that the importers intended to confer such an advantage on that purchaser and that the transactions be devoid of any economic and commercial justification for those importers, which it is for the referring court to establish. The latter’s finding that such transactions are not devoid of economic and commercial justification could, for example, be based on the fact that the sale price of the goods was fixed at a level which allowed importers to derive a significant profit from the sales concerned. Likewise, account may also be taken of the fact that it follows from Article 35 of Regulation No 1291/2000, read in conjunction with Article 6(2) of Regulation No 341/2007, that the importers are obliged to use the ‘A’ licences which were issued to them subject to penalties and they therefore have a genuine interest in carrying out imports, including in the context of transactions such as those at issue in the main proceedings.
38. In that context, even if such transactions are based on the desire of the purchaser to benefit from the preferential rate of duty and even if the importers concerned are aware of that, those transactions may not a priori be regarded as being devoid of economic and commercial justification for the latter.
39. It cannot, however, be excluded that, in certain circumstances, transactions such as those at issue in the main proceedings were artificially created with the essential aim of benefiting from the preferential rate of duty. Thus, amongst the factors which could allow the artificial nature of the transactions to be established are, as the European Commission states in its observations, the fact that the importer holding ‘A’ licences did not accept any commercial risk, since that risk was in reality covered by its purchaser, which is also a traditional importer. Such an artificial nature could also appear from the fact that the importers’ profit margin is insignificant or that the prices of the garlic sold by the importers to the purchaser in the European Union are lower than the market price.
40. Having regard to the foregoing, the answer to the question referred is that Article 6(4) of Regulation No 341/2007 must be interpreted as not precluding, in principle, transactions by which an importer, holding reduced rate import licences, purchases goods outside the European Union from an operator, itself a traditional importer within the meaning of Article 4(2) of that regulation, but having exhausted its own reduced rate import licences, then resells them to that operator after having imported them into the European Union. However, such transactions constitute an abuse of rights where they are artificially created with the essential aim of benefiting from the preferential rate of duty. The checking for abuse requires the referring court to take into account all the facts and circumstances of the case, including the commercial transactions preceding and following the import at issue.
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