Ministerie van Financiën v Merabi Papismedov and Others.
Date: 2005-03-03
21. ‘Supervision by the customs authorities’ is defined in Article 4(13) of the Customs Code as meaning ‘action taken in general by those authorities with a view to ensuring that customs rules and, where appropriate, other provisions applicable to goods subject to customs supervision are observed’. Under Article 37 of that code, goods brought into the customs territory of the Community are, from the time of their entry, subject to customs supervision. In the course of such supervision they may be subject to control by those authorities in accordance with the provisions in force, and remain under such supervision for as long as necessary to determine their customs status, and, in the case of non-Community goods, until their customs status is changed, they enter a free zone or free warehouse or they are re-exported or destroyed in accordance with Article 182.
25. Several provisions of the Customs Code may limit the meaning of unlawful introduction. That is the case, as the Belgian Government correctly observed, of Article 202 of that code, which defines it 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 Community, or into another part of that territory, if they are located in a free zone or free warehouse.
26. 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 Community 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.
27. It is clear from the wording of those provisions as a whole that, for goods to be regarded as having been lawfully introduced into the customs territory of the Community, they must, on their arrival, be taken to a customs office or to a free zone and be presented to customs. The aim of the latter obligation, which falls on the person responsible for the introduction or on the person who assumes responsibility for the transport, is to ensure that the customs authorities are informed not only of the fact that the goods have arrived, but also of all relevant information about the type of article or product concerned and the quantity of those goods. It is that information which will enable the goods to be correctly identified, for the purposes of their tariff classification and, if appropriate, for the calculation of import duties.
28. In a case concerning the introduction, into the customs territory of the Community, of cigarettes concealed in a vehicle and discovered by the customs authorities of a Member State during an inspection, the Court has held that, since the true nature of the goods presented to customs did not appear on the documents provided and the customs authorities had not been informed of that nature by the persons concerned, those goods had to be regarded as not having been presented to customs in accordance with Article 40 of the Customs Code (see Joined Cases C-238/02 and C‑246/02 Viluckas and Jonusas  [2004] ECR I-0000, paragraph 28).
30. The latter point of view cannot be accepted. The presentation of goods to customs, required by Article 40 of the Customs Code, comprises in effect, taking account of Articles 43 and 45 of that code, 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 is requested that they be placed under a customs regime, to complete a customs declaration. It is clear from the wording of the second paragraph of Article 43 of that code that both operations are carried out, as a general rule, simultaneously, because the period which the customs authorities can allow for that lodgement is not to extend beyond the first working day following the day on which the goods are presented to customs. In addition, under Article 44(1) of that code, the summary declaration must contain the particulars necessary for identification of the goods.
31. Consequently, when the presentation of goods to customs required by Article 40 of the Customs Code is accompanied by the lodging of a summary declaration or of a customs declaration which gives a description of the type of goods which bears no relation to reality, the notification to the customs authorities of the arrival of the goods, within the meaning of Article 4(19) of that code, is lacking. It cannot, in those circumstances, be considered that the information necessary for identification of the goods has been provided to those authorities by the mere production of certain documents. It is also necessary that the statements contained in the documents which accompanied the presentation to customs are correct. Where those statements make no mention of the presence of a significant part of the goods presented to customs, those goods must be regarded as having been introduced unlawfully.
38. According to the Court’s case-law, it is clear from the wording of that provision 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 (Case C-414/02 Spedition Ulustrans  [2004] ECR I-0000, paragraph 25). The legislature also intended to lay down exhaustively the conditions for determining who are the debtors of the customs debt ( Spedition Ulustrans , cited above, paragraph 39).
39. The Court has, in addition, already noted that the first indent of Article 202(3) of the Customs Code refers to the ‘person’ who introduced the goods, without specifying whether that means a natural person or a legal person. Any ‘person’ may, therefore, be regarded as the debtor of the customs debt for the purposes of that provision, that is to say if he can be regarded as having been by his actions responsible for the unlawful introduction of the goods ( Spedition Ulustrans , paragraph 26). As regards the interpretation of that provision, the Court has also held that, even if other persons can be declared debtors in respect of the same goods on the basis of the other provisions of Article 202(3), the person who in practical terms introduced the goods without declaring them remains the debtor by virtue of the provisions of the first indent of Article 202(3) ( Viluckas and Jonusas , cited above, paragraph 29).
40. On the other hand, the meaning of debtor for the purposes of the second and third indents of Article 202(3) of the Customs Code is subject to conditions which rest on matters of subjective assessment, namely that the natural or legal persons participated knowingly in the unlawful introduction of goods or in acquiring or holding unlawfully introduced goods. Such factors are likely to exclude, in certain cases, treatment as a debtor ( Spedition Ulustrans , paragraphs 27 and 28).
41. Having regard to the foregoing considerations, the answer to the second part of the fourth question must be that it is for the national court to establish, in the light of the circumstances of the main proceedings, whether the person who lodged the summary declaration or the customs declaration was, because he stated an incorrect designation, responsible for the unlawful introduction of the goods. If such is not the case, it is for that court to consider whether, by that action, the person participated in the introduction of the goods whilst he was or should reasonably have been aware that it was unlawful.