Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd and Caterpillar EPG Ltd (C-431/08) v The Commissioners for Her Majesty's Revenue & Customs.
Date: 2010-01-14
35. According to the case-law of the Court, removal from customs supervision 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 carrying out the monitoring required by Community customs legislation (see Case C-66/99 D. Wandel [2001] ECR I-873, paragraph 47; Case C‑371/99 Liberexim  [2002] ECR I-6227, paragraph 55; Case C-337/01 Hamann International  [2004] ECR I-1791, paragraph 31; and Case C-222/01 British American Tobacco  [2004] ECR I‑4683, paragraph 47).
36. Since that term is not defined by the Community legislation, Article 865 of the Implementing Regulation contains examples of acts which are to be regarded as constituting removal from customs supervision for the purposes of Article 203(1) of the Customs Code (see D. Wandel , paragraph 46).
42. It must be observed, first of all, as the Commission of the European Communities maintains, that the inward processing procedure, which involves the suspension of customs duties, is an exceptional measure intended to facilitate the carrying out of certain economic activities. Since that procedure involves obvious risks to the correct application of the customs legislation and the collection of duties, the beneficiaries of that regime are required to comply strictly with the obligations resulting therefrom. Similarly, the consequences of non-compliance with their obligations must be strictly interpreted.
46. Consequently, the use of customs code 10 00 in the export declarations at issue in the main proceedings erroneously conferred the status of Community goods on the goods concerned and therefore directly affected the ability of the customs authorities to carry out controls pursuant to Article 37(1) of the Customs Code.
47. In these circumstances, the use in the export declarations of customs code 10 00 indicating the export of Community goods instead of code 31 51 used for the re-export of goods under the inward processing procedure must be classified as ‘removal’ of those goods from customs supervision (see, by way of analogy, British American Tobacco , paragraph 53).
48. Furthermore, as regards the possible lack of customs supervision during the period concerned, such a situation is not a factor excluding the application of the concept of removal from customs supervision. According to the case-law, for there to be removal from customs supervision, it is sufficient that the goods in question have been objectively removed from possible controls, whether or not such controls have actually been carried out by the competent authority (see British American Tobacco , paragraph 55).
56. Similarly, the Court rejects the argument that Article 78(3) of the Customs Code cannot remedy the lack of the prior notification required by Article 182(3) of the Customs Code. An interpretation to that effect would run counter to the logic of that article, which is to bring the customs procedure into line with the actual situation. Therefore, Article 78(3) does not make a distinction between errors or omissions which may be corrected and others which may not. The words ‘incorrect or incomplete information’ must be interpreted as covering both technical errors or omissions and errors of interpretation of the applicable law (Case C-468/03 Overland Footwear  [2005] ECR I-8937, paragraphs 63).
58. Article 78(1) of the Customs Code provides that the customs authorities ‘may’, on their own initiative or at the request of the declarant, amend the declaration, that is to say re-examine it. Where the declarant applies for a revision, its application must be examined by the customs authorities, at least in relation to the question whether or not there is cause to carry out such a revision ( Overland Footwear , paragraphs 45 and 46). That provision makes a revision applied for by the declarant subject to the assessment of the customs authorities as regards both its principle and its result (see Overland Footwear , paragraph 66)
59. In making that first assessment, the customs authorities are to take into account, in particular, the possibility of reviewing the statements contained in the declaration to be revised and in the application for revision ( Overland Footwear , paragraph 47).
60. If revision is in principle possible, at the conclusion of their assessment the customs authorities must, subject to the possibility of a subsequent court action, either reject the declarant’s application by reasoned decision or carry out the revision applied for (see Overland Footwear , paragraph 50).
61. In this latte r case, the customs authorities re-examine the declaration and assess whether the declarant’s claims are well founded, in the light of the information notified ( Overland Footwear,  paragraph 51).
62. If the revision indicates that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information and that the objectives of the inward processing procedure are not threatened, in particular in that the goods covered by that customs procedure had actually been re-exported, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them (see, to that effect, Overland Footwear , paragraph 52).
63. Where it is apparent, in the final analysis, that the import duties were not legally owed when they were entered in the accounts, the measure necessary to regularise the situation can consist only in remission of those duties (see, to that effect, Overland Footwear , paragraph 53).
64. That remission is to be made in accordance with Article 236 of the Customs Code if the conditions laid down by that provision are fulfilled, in particular that there has been no manipulation by the declarant and that the application for remission has been submitted within the time-limit, which is in principle three years (see, to that effect, Overland Footwear , paragraph 54).