SPKR 4 nr. 3482 ApS v Skatteministeriet, Told- og Skattestyrelsen, Aktieselskabet af 11/9 1996 and Arden Transport & Spedition ved Søren Lauritsen og Lene Lauritsen I/S (ATS).
Date: 2002-11-14
27 Under Article 379(1) of the implementing regulation, where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure is to notify the principal of this fact `as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration' (hereinafter `the time-limit of 11 months').
28 It must be noted, first, that neither Article 379 of the implementing regulation nor any other provision of that regulation sets out the effects of non-compliance, by the customs authorities, with the time-limit of 11 months.
29 It should be noted, also, that the implementing regulation must be given, if possible, an interpretation consistent with the provisions of the basic regulation. Therefore, the effects of the failure to observe the time-limit of 11 months must be determined taking account of the provisions of the Customs Code (see, in particular, Case C-90/92 Dr Tretter [1993] ECR I-3569, paragraph 11).
30 No provision of the Customs Code suggests that failure to observe the time-limit of 11 months results in the extinction of the customs debt incurred by the principal. Article 221(3) of the Code gives the customs authorities a period of three years from the date on which the customs debt was incurred to notify the debtor of the amount thereof, whilst Article 233 of the Code, which contains a list of various causes of extinction of the customs debt, does not include, among them, failure to observe the time-limit of 11 months.
31 As the Commission has correctly pointed out, Articles 221(3) and 233 of the Customs Code establishes a balance between, on the one hand, the need to protect the Community's own resources and, on the other hand, the concern to protect the interests of customs agents and transport operators, which the implementing regulation cannot be deemed to undermine by creating new causes of extinction.
32 Therefore, Article 379(1) of the implementing regulation must be construed as meaning that the customs authorities' failure to observe the time-limit of 11 months does not exonerate the principal from the obligation to pay the customs debt resulting from the failure to comply with the obligations connected to the external Community transit procedure, since, in particular, under Article 221(3) of the Customs Code, the amount of that debt was notified within the limitation period of three years from the date on which the debt was incurred and the person concerned was unable to produce the evidence provided for by Article 378(1) of the implementing regulation.
33 In those circumstances, the failure to observe the time-limit of 11 months has no effect either on the recoverability of the customs debt or on the liability of the principal and does not affect the entitlement of the competent customs authorities to recover that debt.
34 As the Danish, German and French Governments have correctly observed, the time-limit of 11 months is a procedural rule which is directed only at the administrative authorities and the objective of which is to ensure diligent uniform application, by those authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community's own resources.
35 The interpretation advocated by SPKR, to the effect that failure to observe the time-limit of 11 months would make the rule as to the burden of proof stated in Article 378 of the implementing regulation inapplicable and require the office of departure therefore to show, in order to recover the customs debt, both the existence of an irregularity and the place where it was committed, cannot be upheld. That interpretation would have the practical effect of adding a new cause of extinction of the customs debt to those prescribed by the Customs Code, since the initiation of the procedure laid down in Article 379(1) of the implementing regulation assumes that the place of the offence or irregularity cannot be established by the customs authorities.
38 Nor is the lack of effect of disregarding the time-limit of 11 months on the application of the detailed rules for the recovery of customs debts laid down in Articles 378 and 379 of the implementing regulation inconsistent with the judgment in Lensing & Brockhausen, cited above.  In that regard, it suffices to observe that the time-limit mentioned in Article 379(2) of the implementing regulation, which was the subject of that judgment, serves to protect the interests of the principal by allowing him a period of three months to produce, where appropriate, evidence of the absence of an irregularity or offence, whereas, as is clear from paragraph 34 of this judgment, the time-limit of 11 months is only a procedural rule intended to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community's own resources.
40 In those circumstances, the reply to the questions referred for a preliminary ruling must be that Article 379(1) of the implementing regulation, read in conjunction with the Community Customs Code, should be interpreted as meaning that a customs debt arising by reason of an offence or irregularity committed in connection with a consignment placed under the external Community transit procedure can be recovered from the principal by the office of departure even if it did not notify the principal before the end of the 11th month following the date of registration of the Community transit declaration that the consignment had not been presented at the office of destination and that the place of the offence or irregularity could not be established. The same applies if the office of departure did not follow an administrative procedure for the transmission of information, such as the early warning system, or if the failure to comply with the time-limit was due to error or negligence on the part of that office.