Skatteministeriet v DSV Road A/S.
Date: 2015-06-25
22. 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 (judgment in X , C‑480/12, EU:C:2014:329, paragraph 31).
23. 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 that code (judgment in X , C‑480/12, EU:C:2014:329, paragraph 32).
24. It follows therefrom 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 terms of Article 203(1) of the Customs Code. Only if that question is answered in the negative is it possible that Article 204 of the Customs Code may apply (judgment in X , C‑480/12, EU:C:2014:329, paragraph 33).
25. With regard more particularly to the concept of removal from customs supervision provided for in Article 203(1) of the Customs Code, it must be borne in mind, in accordance with the Court’s case-law, that that concept is to be interpreted as covering any act or omission the result of which is to prevent the competent customs authority, if only for a short time, from gaining access to goods under customs supervision and from carrying out the monitoring required under Article 37(1) of the Customs Code (judgment in X , C‑480/12, EU:C:2014:329, paragraph 34).
31. Nor can the fact that DSV finally presented the goods at the customs office of destination outside the time‑limit for presentation set under the first transit procedure be regarded as meaning that the goods were removed from customs supervision. The Court has previously held that merely exceeding the time-limit for presentation of the goods in question set under Article 356(1) of the Implementing Regulation does not lead to a customs debt being incurred for removal from customs supervision within the meaning of that article (see, to that effect, judgment in X , C‑480/12, EU:C:2014:329, paragraph 45).
36. Firstly, as regards whether, in such a situation, the condition for a customs debt to be incurred on the basis of Article 204(1)(a) of the Customs Code, that is to say, failing to perform one of the obligations under the transit procedure, is met, the Court has previously held that exceeding the time‑limit for presentation, set under Article 356(1) of the Implementing Regulation, leads to a customs debt being incurred on the basis of Article 204 of the Customs Code (see, to that effect, judgment in X , C‑480/12, EU:C:2014:329, paragraph 45). Accordingly, in principle, that condition is met in the main proceedings.
40. Secondly, as regards whether the negative conditions laid down in Article 204 of the Customs Code, which excludes a customs debt being incurred where the ‘failures have no significant effect on the correct operation of the temporary storage or customs procedure in question’ is satisfied, it must be borne in mind that Article 859 of the Implementing Regulation gives an exhaustive list of the situations likely to satisfy that condition (see, to that effect, judgment in Söhl & Söhlke (C‑48/98, EU:C:1999:548, paragraph 43).
46. With regard, thirdly, to the second indent of Article 859 of the Implementing Regulation, which lays down the condition that the failures under consideration must not imply obvious negligence by the person concerned, it is apparent from the case-law of the Court that the concept of ‘obvious negligence’ must be assessed taking account in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader (see, to that effect, judgment in Söhl & Söhlke , C‑48/98, EU:C:1999:548, paragraphs 50 and 56). It is for the referring court to assess, on the basis of those criteria and having regard to the facts of the main proceedings, whether or not there is obvious negligence on the part of DSV.
49. In that regard, it must be noted that, under the wording of Article 168(e) of the VAT Directive, a right to deduct exists only in so far as the goods imported are used for the purposes of the taxed transactions of a taxable person. In accordance with the settled case-law of the Court concerning the right to deduct VAT on the acquisition of goods or services, that condition is satisfied only where the cost of the input services is incorporated either in the cost of particular output transactions or in the cost of goods or services supplied by the taxable person as part of his economic activities (see judgments in SKF , C‑29/08, EU:C:2009:665, paragraph 60, and Eon Aset Menidjmunt , C‑118/11, EU:C:2012:97, paragraph 48).