Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v Finanzlandesdirektion für Oberösterreich.
Date: 2004-09-23
23. It is not for the Court, in proceedings brought under Article 234 EC, to rule on the compatibility of national legislation with Community law. On the other hand, the Court does have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to rule on such compatibility (Case 30/70 Scheer  [1970] ECR 1197, paragraph 4; Case 97/83 Melkunie  [1984] ECR 2367, paragraph 7, and Case C‑17/00 De Coster [2001] ECR I‑9445, paragraph 23).
25. In the first place, it is clear from the wording of Article 202(3) of the Customs Code that the Community legislature intended to give a broad definition of the persons capable of being regarded as debtors of the customs debt, in cases of unlawful introduction of goods subject to import duties, without thereby rendering the employer automatically a co-debtor of the employee’s customs debt.
26. First, the first indent of Article 202(3) of the Customs Code refers to the ‘person’ who thus introduced the goods, without specifying whether that means a physical person, such as an employee of an undertaking, or a legal person, such as the company responsible for the unlawful introduction of the goods. Accordingly, while that provision can apply in any event to an employee who performs the actual operations of introduction, an employer can also be regarded as a ‘debtor’ of the customs debt, if it is a ‘person’ within the meaning of that provision, that is to say if it can be regarded as having been by its actions responsible for the unlawful introduction of the goods.
27. Next, the second indent of Article 202(3) refers to ‘persons’ in the plural, without further specifying whether that means physical or legal persons, who have ‘participated’ in the unlawful introduction of the goods, that is to say those who have taken some part in such introduction. Treatment as a ‘debtor’ within the meaning of that provision is therefore subject to the condition that those persons who participated in that introduction ‘were aware of or should reasonably have been aware that such introduction was unlawful’. Such a condition rests therefore on matters of subjective assessment which are such as to exclude, in certain cases, treatment as a debtor.
28. Finally, the third indent of Article 202(3) of the Customs Code also envisages treating as ‘debtors’ persons, again without specifying whether they be natural or legal persons, who, after the unlawful introduction of the goods, that is to say after the operation which has given rise to the customs debt, acquired or held the goods and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been introduced unlawfully. The extension of the meaning of ‘debtor’ is therefore in that case, as for the application of the second indent of Article 202(3), subordinate to a subjective condition.
29. It follows from the examination of the first, second and third indents of Article 202(3) of the Customs Code that the Community legislature has distinguished between cases covered by the first indent and those set out in the second and third indents. In the circumstances provided for by the first indent, the employer can be regarded as having itself unlawfully introduced the goods and as becoming, as a result, liable for the customs debt, either solely or jointly with its employee. In the circumstances covered by the second and third indents, the employer has only ‘participated’ in such introduction and can be regarded as a joint debtor only if certain subjective conditions are met.
38. Admittedly, all those regulatory amendments were not intended to and did not even have the effect of depriving the Member States of the possibility of adopting measures to contribute effectively to the implementation of the objectives of the customs regulations, in particular the recovery of the customs debt. Nor did they prevent the Member States from prescribing, if appropriate, rules specifying, in compliance with those objectives and in accordance with the principle of proportionality, the conditions for applying the Community texts (with regard to a national provision increasing customs duties in the event of infringement of the Community customs regulations, see Case C‑91/02 Hannl + Hofstetter  [2003] ECR I‑0000, paragraphs 18 to 20).
39. However, examination of the abovementioned texts shows clearly that the Community legislature intended, since the entry into force of the Customs Code, to lay down exhaustively the conditions for determining who are the debtors of the customs debt.
40. The provisions of a national law contradict that clearly manifested intention of the Community legislature and the very letter and purpose of Article 202(3) of the Customs Code, as described in this judgment, if, disregarding the subjective conditions set out in the second and third indents of Article 202(3), they automatically extend to the employer the employee’s status as debtor, without it being established that the employer has taken part in the introduction of the goods, in particular when it knew or ought reasonably to have known that the said introduction was unlawful.
42. First, if Paragraph 79(2) of the ZollR-DG were interpreted as meaning that it establishes an irrebutable presumption that the employer is co‑debtor of the employee’s debt, that paragraph would be incompatible with Article 202(3) of the Customs Code. It is likewise if that provision applied only in cases in which the employee acts in the conduct of his employer’s affairs. In such circumstances, the employer may not be responsible for the unlawful introduction of the goods and could therefore claim that he did not know or ought not reasonably to have known that such introduction was unlawful.