Suez II Water Technologies & Solutions Portugal Unipessoal Lda v Fazenda Pública.
Date: 2019-03-07
42


Under Article 37 of that code, goods brought into the customs territory of the European Union are, from the time of their entry, subject to customs supervision. In the course of such supervision they may be subject to checks 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 (judgment of 3 March 2005, Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 21).
44


Several provisions of the Customs Code allow for a limitation of the meaning of ‘unlawful introduction’. Thus, Article 202 of the Customs Code defines ‘unlawful introduction’ as any introduction, in breach 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 European Union, or into another part of that territory, if they are located in a free zone or free warehouse (judgment of 3 March 2005, Papsimedov and Others, C‑195/03, EU:C:2005:131, paragraph 25).
45


In particular, the Court has held that 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 European Union must be conveyed without delay to the designated customs office or to a free zone. Second, 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 designated or approved place (judgments of 3 March 2005, Papsimedov and Others, C‑195/03, EU:C:2005:131, paragraph 26, and of 2 April 2009, Elshani, C‑459/07, EU:C:2009:224, paragraph 21).
46


It is clear from the very wording of all those provisions that, for goods to be regarded as having been lawfully introduced into the customs territory of the European Union, 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 (judgment of 2 April 2009, Elshani, C‑459/07, EU:C:2009:224, paragraph 22 and the case-law cited).
47


In that regard, the Court has held that it is clear from the wording and the broad logic of Article 4(19), Article 38(1) and Article 40 of the Customs Code that all goods introduced into the customs territory of the European Union must be presented to customs (judgments of 4 March 2004, Viluckas and Jonusas, C‑238/02 and C‑246/02, EU:C:2004:126, paragraph 22, and of 2 April 2009, Elshani, C‑459/07, EU:C:2009:224, paragraph 23). The unlawful introduction of goods is completed at the moment at which those goods pass beyond the first customs office situated inside the customs territory of the European Union without those goods having been presented there (judgment of 2 April 2009, Elshani, C‑459/07, EU:C:2009:224, paragraph 25).
48


Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the European Union within the meaning of Article 202 of the Customs Code in the case where, having crossed the external land border of the European Union, the goods are in that territory beyond the first customs office, without having been conveyed to that office and without having been presented to customs, with the result that the customs authorities have not been notified of the fact that those goods have been introduced by the persons responsible for ensuring compliance with that obligation (judgment of 2 April 2009, Elshani, C‑459/07, EU:C:2009:224, paragraph 26).
49


Moreover, the presentation of goods to customs, required by Article 40 of the Customs Code, comprises, in the light 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 to the goods concerned a customs destination, that is to say, if it is requested that they be placed under a customs procedure, to complete a customs declaration. The Court has noted that both operations are, as a general rule, carried out simultaneously (judgment of 3 March 2005, Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 30).