Liberexim BV v Staatssecretaris van Financiën.
Date: 2002-07-11
52 Second, it follows from the provisions of Regulation No 2726/90, in particular Articles 21, 22 and 34, and from Article 2(1)(c) and (d) and Article 3 of Regulation No 2144/87 that the first operation carried out in contravention of the external Community transit arrangements does not necessarily cause the goods to cease to be covered by those arrangements, and that an irregularity which constitutes a removal of the goods from customs supervision always gives rise to a customs debt and, thus, to the goods ceasing to be covered by those arrangements.
53 Accordingly, in a situation such as is at issue in the main proceedings, the time and place at which the goods cease to be covered by the external Community transit arrangements is necessarily the time and place at which the first irregularity which can be regarded as a removal of the goods from customs supervision was committed.
55 According to paragraph 47 of the judgment in D. Wandel that `removal' 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 by the Community customs rules.
56 In circumstances such as those in the main proceedings, irregularities committed in a Member State in breach of the provisions of Regulation No 2726/90, consisting of breaking the seals, unloading the goods and placing them on the market, constitute a removal of the goods from customs supervision and therefore cause the goods to cease to be covered by the external Community transit arrangements.  On the other hand, as the Advocate General pointed out in point 81 of his Opinion, the fact that the original tractor was previously replaced by a new tractor in another Member State, without the seals being broken and without unloading or transhipment of the goods, would not have prevented the competent customs authority from carrying out, where appropriate, its supervisory function.
57 In view of the foregoing considerations, the reply to the national court on this point must be that where goods, transported by road under the external Community transit arrangements, are placed on the Community market after a number of irregularities have been committed in respect of those goods in various Member States, the goods cease to be covered by those arrangements, within the meaning of Article 7(3) of the Sixth Directive, on the territory of the Member State where the first operation which can be regarded as a removal of the goods from customs supervision was carried out.
Any act or omission which prevents, 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 by the Community customs rules must be regarded as a removal of the goods from customs supervision.
The relevance of intent
60 Bearing in mind the observations made in paragraph 54 of this judgment, it need simply be noted that at paragraph 48 of the judgment in D. Wandel the Court held that removal of goods from customs supervision does not require intent, but only that certain objective conditions be met.