Veli Elshani v Hauptzollamt Linz.
Date: 2009-04-02
21. The Court has held that an 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 Community must be conveyed without delay to the designated customs office or to a free zone. Secondly, under Article 40 of that code, 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 place designated or approved (Case C‑195/03 Papismedov and Others [2005] ECR I‑1667, paragraph 26).
22. It is clear from the actual wording of Articles 38 to 41 of the Customs Code that, for goods to be regarded as having been lawfully introduced into the customs territory of the Community, 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 ( Papismedov and Others , paragraph 27).
23. In that regard, the Court has held that it is clear from the wording and the broad logic of Articles 4(19), 38(1) and 40 of the Customs Code that all goods introduced into the customs territory of the Community must be presented to customs. The fact that certain goods were concealed in secret compartments in the vehicle in which they were transported does not have the effect of releasing them from that obligation (Joined Cases C‑238/02 and C‑246/02 Viluckas and Jonusas [2004] ECR I‑2141, paragraph 22).
25. It follows, as the Commission of the European Communities correctly contends, that the unlawful introduction of goods is completed at the moment at which those goods go beyond the first customs office situated inside the customs territory of the Community without those goods having been presented there.
26. Consequently, goods are the subject of an ‘unlawful introduction’ into the customs territory of the Community within the meaning of Article 202 of the Customs Code where, having crossed the external land border of the Community, 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 compliance with that obligation.
29. The objective of the extinction of the customs debt, laid down in point (d) of the first paragraph of Article 233 of the Customs Code, is to avoid the imposition of duty in the case where the goods, although introduced unlawfully into the territory of the Community, could not have been placed on the market and therefore do not constitute a threat, in terms of competition, to Community goods.
30. In the context of the Customs Code, the seizure and confiscation of the goods upon their unlawful introduction, laid down in point (d) of the first paragraph of Article 233 of that code, constitutes – in the same way as the situations referred to in points (a) to (c) of the first paragraph of Article 233, namely payment of the amount of the duty, remission of the amount of the duty, the invalid nature of the customs declaration and, before their release, the seizure and confiscation, destruction, abandonment or irretrievable loss of the goods declared – a ground for the extinction of the customs debt which must be narrowly construed.
31. That analysis is confirmed by the case‑law of the Court, which held in Case C‑112/01 SPKR [2002] ECR I‑10655, paragraph 31, that Article 233 of the Customs Code addresses the need to protect the Community’s own resources. That objective may not be prejudiced by creating new grounds for the extinction of a customs debt. That is all the more necessary in relation to the determination of the moment of seizure of goods which is liable to lead to the extinction of the customs debt in relation to those goods.
32. In that regard, it should be pointed out that the presence of unlawfully introduced goods in the customs territory of the Community of unlawfully introduced goods comprises, of itself, a very high risk that those goods will end up forming part of the economic networks of the Member States and that, once those goods have gone beyond the area in which the first customs office is situated inside the customs territory, there is less likelihood that the customs authorities will, fortuitously, discover those goods in the course of spot checks.
36. According to well-established case-law, discrimination is defined as treating differently situations which are identical, or as treating in the same way situations which are different (see Case C‑282/07 Truck Center [2008] ECR I‑0000, paragraph 37 and the case-law cited).
38. In the light of the foregoing, the answer to the first question referred is that Article 202 and point (d) of the first paragraph of Article 233 of the Customs Code must be interpreted as meaning that, in order to lead to the extinction of the customs debt, the seizure of goods unlawfully introduced into the customs territory of the Community must take place before those goods go beyond the first customs office situated inside that territory.
The second question
40. According to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see Case C‑466/04 Acereda Herrera [2006] ECR I‑5341, paragraph 47 and the case‑law cited).
41. Nevertheless, the Court has held that it cannot give a preliminary ruling on a question submitted by a national court where it is quite obvious that the ruling sought by that court on the interpretation or validity of Community law bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see Acereda Herrera , paragraph 48).
42. The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (see Case C‑314/96 Djabali [1998] ECR I‑1149, paragraph 19, and Acereda Herrera , paragraph 49).