Honeywell Aerospace GmbH v Hauptzollamt Gießen.
Date: 2005-01-20
18. Under Article 203(1) of the Customs Code, a customs debt on importation is to be incurred through the unlawful removal from customs supervision of goods liable to import duties (see, to that effect, inter alia Case C-66/99 D. Wandel  [2001] ECR I-873, paragraph 50; C‑371/99 Liberexim  [2002] ECR I-6227, paragraph 52; and Case C‑112/01 SPKR [2002] ECR I-10655, paragraphs 30 and 35). According to the very wording of Article 203(2), the debt is to be incurred at the moment of that removal.
19. As regards more specifically the concept of unlawful removal from customs supervision under Article 203(1) of the Customs Code, it should be borne in mind that, in accordance with the Court’s case-law, that concept must be interpreted as covering 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 carrying out the monitoring required by Article 37(1) of the Customs Code (Case C-222/01 British American Tobacco  [2004] ECR I-0000, paragraph 47 and case-law cited therein).
20. Such is the case where, as in the main proceedings, the office of departure of the disputed consignment placed under the external Community transit procedure has conclu ded that the consignment has not been presented at the office of destination and that the customs procedure has not been discharged for the consignment in question.
21. 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 to be incurred, laid down in Article 215 of the Customs Code, where, as in the main proceedings, 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 to be 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.
23. Although, contrary to the line of argument advanced by Honeywell, failure to notify of the three-month time-limit referred to in Article 379(2) of the implementing regulation does not prevent a customs debt within the meaning of Article 203(1) of the Customs Code from being incurred, since, as stated in paragraph 18 of this judgment, the event from which the customs debt arises is the unlawful removal from the supervision of the customs authority of goods subject to import duties, by reason, inter alia, of the fact that the goods have not been presented at the office of destination, the notification of the said three-month time‑limit to the principal nevertheless constitutes a prerequisite for the recovery of the customs debt by the customs authorities.
24. It follows from the very wording of Articles 378(1) and 379(2) of the implementing regulation that notification by the office of departure to the principal of the time-limit by which the proof requested must be furnished is mandatory and must precede recovery of the customs debt. The time-limit is intended to protect the interests of the principal by allowing him three months 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 (see, to that effect, SPKR , cited above, paragraph 38).
25. In those circumstances, the Member State to which the office of departure belongs may recover import duties only if, in particular, it has indicated to the principal that he has three months in which to furnish the proof requested and such proof has not been provided within that period (see, by analogy, Case C-233/98 Lensing & Brockhausen  [1999] ECR I-7349, paragraph 31). Under Article 221(3) of the Customs Code, the amount of the customs debt must, in any event, have been notified within the limitation period of three years from when the debt was incurred.