Militzer & Münch GmbH v Ministero delle Finanze.
Date: 2008-04-03
17. It was in those circumstances that the Corte Suprema di Cassazione decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)  Is Article 11a(1) of Regulation No 1062/87, as amended by [the implementing regulation], to be interpreted as meaning that the 11-month time-limit within which the customs office of departure must communicate the fact that goods moving under the Community transit procedure have not been discharged is applicable in a case where discharge by the customs office of destination is evidenced by forged documents and the forgery is not easily discernible? For the purposes of the interpretation of that provision, are the principles established … by the Court of Justice [Case C-395/00 Cipriani [2002] ECR I-11877 and Case C-222/01 British American Tobacco [2004] ECR I-4683] applicable? In circumstances such as those under consideration, is it contrary to the principle of proportionality for a customs clearance agent to be held liable for all of the consequences of an incorrect Community transit operation?
(2) In circumstances such as those set out in Question 1, is Article 11a(2) applicable?
(3) In circumstances such as those set out in Question 1, is the question of whether the customs authorities have jurisdiction to be determined according to the criteria laid down by the second or third indent of Article 215(1) of [the Customs Code]?’
The questions referred for a preliminary ruling
Preliminary observations
19. In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case C-315/88 Bagli Pennacchiotti  [1990] ECR I‑1323, paragraph 10, and Case C‑107/98 Teckal [1999] ECR I-8121, paragraph 39).
25. It follows from Article 215(1) of the Customs Code and Articles 378 and 379 of the implementing regulation 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 (see, to that effect, Case C-526/06 Road Air Logistics Customs  [2007] ECR I-0000, paragraph 26). In the case of forgery, which is characterised by the Commission as an offence or irregularity, the place where the customs debt arises is the place in which the goods were unlawfully removed from customs supervision, as is apparent from a reading of Article 203(2) in conjunction with Article 215(1) of the Customs Code (see, to that effect, in particular, Case C-66/99 D. Wandel  [2001] ECR I-873, paragraph 50, and Case C‑371/99 Liberexim  [2002] ECR I-6227, paragraph 52).
26. According to the case-law of the Court, removal from customs supervision must be understood as encompassing 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 monitoring them as provided for in Article 37(1) of the Customs Code ( D. Wandel , paragraph 47; Liberexim , paragraph 55; and Case C-337/01 Hamann International  [2004] ECR I-1791, paragraph 31).
27. Removal from customs supervision simply requires certain objective conditions to be met including, for example, the absence of the goods from the approved place of storage at the time when the customs authorities intend to carry out an examination of them ( D. Wandel , paragraph 48, and Liberexim , paragraph 60) or the temporary removal of the T1 transit document from the goods to which it relates ( British American Tobacco , paragraph 53).
28. Where a number of offences or irregularities have occurred in various Member States, the Member State having jurisdiction to recover the customs duties is the State in which the first offence or irregularity was committed (see, by analogy, Liberexim , paragraph 57).
29. As M & M and the Commission correctly pointed out, Article 378 of the implementing regulation specifically governs the determination of the Member State with jurisdiction to recover customs duties under the external Community transit procedure and establishes a presumption of competence in favour of the Member State to which the office of departure belongs (Case C-104/02 Commission v Germany  [2005] ECR I-2689, paragraph 86).
30. Article 378(1) of the implementing regulation provides that, without prejudice to the rules on the determination of the place where a customs debt is incurred, laid down in Article 215 of the Customs Code, where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity is deemed to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2) of the implementing regulation, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished (Case C-300/03 Honeywell Aerospace  [2005] ECR I-689, paragraph 21).
31. The initiation of the procedure laid down in Article 379 of the implementing regulation therefore assumes that the place of the offence or irregularity cannot be established by the customs authorities (Case C‑112/01 SPKR  [2002] ECR I‑10655, paragraph 35).
38. As the Italian Government and the Commission correctly observed, non-compliance with the 11-month time-limit does not by itself prevent recovery of the customs debt from the principal ( SPKR , paragraphs 27 to 33, and Commission v Germany , paragraph 69).
39. On the other hand, notification to the principal of the three-month time-limit laid down in Article 379(2) of the implementing regulation is mandatory and must precede recovery of the customs debt by the customs authorities ( SPKR , paragraph 32; Honeywell Aerospace , paragraphs 23 and 24; Commission  v Germany , paragraph 71; order of 6 April 2006 in Case C-407/05 Reyniers & Sogama , not published in the ECR, paragraph 22; and Case C-44/06 Gerlach  [2007] ECR I‑2071, paragraph 33).
40. It should be noted that the purpose of those 11‑month and 3‑month time-limits is to ensure diligent and uniform application, by the administrative authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community’s own resources ( SPKR , paragraph 34, and Commission  v Germany , paragraphs 69 and 78). Moreover, the three-month time-limit is also intended to protect the interests of the principal by allowing him sufficient time in which to furnish, where appropriate, proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed ( SPKR , paragraph 38, and Honeywell Aerospace , paragraph 24). Finally, that three-month time-limit is intended to encourage the principal to produce the evidence available to him within a mandatory time-limit, with a view to determining without delay the State with jurisdiction to recover duty (Case C‑233/98 Lensing & Brockhausen  [1999] ECR I-7349, paragraph 30).
47. According to settled case-law, the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Case C-210/03 Swedish Match [2004] ECR I‑11839, paragraph 47, and Case C-479/04 Laserdisken  [2006] ECR I‑8089, paragraph 53).
48. The principal, in his capacity as holder under the external Community transit procedure, is the debtor of the customs debt arising from the failure to observe the provisions governing that procedure. The liability thus imposed upon the principal is intended to ensure the diligent and uniform application of the provisions relating to the recovery of customs debts in order to protect the financial interests of the Community and its Member States. The fact that the principal is thus made liable for the payment of the customs debt, regardless of the extent of that debt in relation to the fees he receives when acting, as in the case in the main proceedings, as customs clearance agent, is not contrary to the principle of proportionality.
49. Nor is the fact that the principal acted in good faith and that the breach of the external Community transit procedure was the result of a forgery in which he had no part capable of constituting an infringement of the principle of proportionality. If that were the case, the principal would no longer have so great an incentive to ensure that transit operations were properly conducted (see, by analogy, Pascoal & Filhos , paragraphs 51 to 55).
50. It must, nevertheless, be borne in mind that, where the customs debt arises as a result of circumstances in which neither deception nor obvious negligence may be attributed to the principal, Article 239 of the Customs Code, which is a general equitable provision, permits the principal to apply for the remission of duties. To that end, Articles 899 to 905 of the implementing regulation provide for a procedure for administrative cooperation between the customs authorities and the Commission.