Minister van Financiën v X BV.
Date: 2014-05-15
31. For the purposes of answering the first question, reformulated accordingly, it should be noted at the outset that Articles 203 and 204 of the Customs Code have different spheres of application. Whilst the first provision covers conduct leading to the goods being removed from customs supervision, the second covers failure to fulfil obligations and non-compliance with the conditions of the various customs schemes which have no effect on customs supervision (Case C‑337/01 Hamann International  EU:C:2004:90, paragraph 28).
32. It is clear from the wording of Article 204 of the Customs Code that it applies only to situations which do not fall within the scope of Article 203 of the same code ( Hamann International  EU:C:2004:90, paragraph 29).
33. It follows that, in order to determine which of those two articles forms the basis on which a customs debt on importation is incurred, it is necessary, first of all, to consider whether in the factual situation in question there was an unlawful removal from customs supervision within the meaning of Article 203(1) of the Customs Code. Only if that question has been answered in the negative is it possible that Article 204 of the Customs Code may apply ( Hamann International EU:C:2004:90, paragraph 30).
34. As regards, more specifically, the concept of unlawful removal from customs supervision, referred to in 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‑66/99 D. Wandel  EU:C:2001:69, paragraph 47; Case C‑371/99 Liberexim  EU:C:2002:433, paragraph 55; and Hamann International  EU:C:2004:90, paragraph 31).
35. In the light of that interpretation, it is clear that, as the Advocate General observed at points 42 and 43 of his Opinion, even though the location of the goods at issue in the main proceedings remained unknown for more than two weeks, which may mean that the inability to give access to those goods is more than merely temporary, nonetheless, according to case-law, the application of Article 203 of the Customs Code is justified where the disappearance of the goods entailed a risk of entry into the economic networks of the European Union (see, to that effect, Liberexim  EU:C:2002:433, paragraph 56, and Case C‑300/03 Honeywell Aerospace  EU:C:2005:43, paragraph 20).
36. The presence, on the customs territory of the European Union, of non-Community goods carries the risk that those goods will end up forming part of the economic networks of the Member States without having been cleared through customs, a risk which Article 203 of the Customs Code contributes to preventing (see, by analogy, Case C‑234/09 DSV Road  EU:C:2010:435, paragraph 31).
39. Under Article 204(1)(a) of the Customs Code, a customs debt on importation is incurred through non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from the use of the customs procedure under which they are placed, unless it is established that the failure has no significant effect on the correct operation of the procedure in question. Any circumstance not covered by this exception falls within the sphere of application of Article 204 of the Customs Code (see Case C‑262/10 Döhler Neuenkirchen  EU:C:2012:559, paragraph 35).
45. In the light of the foregoing, the answer to the first question is that Articles 203 and 204 of the Customs Code, read in conjunction with Article 859(2)(c) of the Implementing Regulation, must be interpreted as meaning that merely exceeding the time‑limit for presentation, set under Article 356(1) of the Implementing Regulation, does not lead to a customs debt being incurred for removal from customs supervision of the goods in question within the meaning of Article 203 of the Customs Code, but to a customs debt being incurred on the basis of Article 204 of the Customs Code and that it is not necessary, for a customs debt to be incurred under Article 204 thereof, that the interested parties supply to the customs authorities information on the reasons for exceeding the time-limit set under Article 356 of the Implementing Regulation or on the location of the goods in question during the time which elapsed between that time‑limit and the time at which they were actually presented at the customs office of destination.
The second question
48. It needs to be verified, first, whether goods such as those at issue in the main proceedings have been subject to importation within the meaning of Article 2(2) of the Sixth Directive (Case C‑165/11 Profitube  EU:C:2012:692, paragraph 41).