„Latvijas Dzelzceļš” VAS v Valsts ieņēmumu dienests.
Date: 2017-05-18
41


In accordance with the Court’s case-law, the concept of ‘unlawful removal from customs supervision’, appearing in Article 203(1) of the Customs Code, 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 monitoring them as provided for in Article 37(1) of the Customs Code (see judgments of 1 February 2001, D. Wandel, C‑66/99, EU:C:2001:69, paragraph 47, and of 12 June 2014, SEK Zollagentur, C‑75/13, EU:C:2014:1759, paragraph 28 and the case-law cited).
42


Hence, any withdrawal from authorised storage of goods subject to customs supervision — whether intentional or not intentional, such as a theft — without the authorisation of the customs authority constitutes unlawful removal from customs supervision for the purposes of Article 203(1) of the Customs Code and thus gives rise under that provision to a customs debt on importation (see, to that effect, the judgments of 1 February 2001, D. Wandel, C‑66/99, EU:C:2001:69, paragraphs 48 and 50; of 12 February 2004, Hamann International, C‑337/01, EU:C:2004:90, paragraph 36; and of 11 July 2013, Harry Winston, C‑273/12, EU:C:2013:466, paragraphs 30 and 33). Similarly, the Court has held that an article left for temporary storage must be deemed to have been removed from customs supervision if it is declared for an external Community transit procedure, but it does not in fact leave the storage facility and is not presented to the customs office at the place of destination, although the transit documents have been presented there (judgment of 12 June 2014, SEK Zollagentur, C‑75/13, EU:C:2014:1759, paragraph 33).
48


However, the application of Article 203(1) of the Customs Code is justified where the disappearance of the goods presents a risk that they have entered the economic networks of the European Union without clearing customs (see, to that effect, the judgments of 20 January 2005, Honeywell Aerospace, C‑300/03, EU:C:2005:43, paragraph 20, and of 15 May 2014, X, C‑480/12, EU:C:2014:329, paragraphs 35 and 36).
52


In that regard, it is appropriate to observe, as a preliminary point, that Articles 203 and 204 of the Customs Code have different spheres of application. 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, the applicability of which to the situation in question must be examined first (judgments of 12 February 2004, Hamann International, C‑337/01, EU:C:2004:90, paragraphs 28 to 30, and of 29 October 2015, B & S Global Transit Center, C‑319/14, EU:C:2015:734, paragraphs 25 to 27).
60


In that regard, it should be recalled that the Court has consistently held that, since the concept of ‘force majeure’ does not have the same scope in the various spheres of application of EU law, its meaning must be determined by reference to the legal context in which it is to operate (see judgments of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 25, and of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 26).
61


In the context of customs legislation, the concepts of ‘force majeure’ and ‘unforeseeable circumstances’ both contain an objective element relating to abnormal circumstances extraneous to the trader and a subjective element involving the obligation, on that person’s part, to guard against the consequences of an abnormal event by taking appropriate steps without making unreasonable sacrifices (see, to that effect, the judgments of 18 December 2007, Société Pipeline Méditerranée et Rhône, C‑314/06, EU:C:2007:817, paragraph 24; of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 28; the order of 21 September 2012, Noscira v OHIM, C‑69/12 P, not published, EU:C:2012:589, paragraph 39; the order of the President of the Court of 30 September 2014, Faktor B. i W. Gęsina v Commission, C‑138/14 P, not published, EU:C:2014:2256, paragraph 19; and the judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 192).
62


Furthermore, since Article 206(1) of the Customs Code is a derogation from the rule laid down in Article 204(1)(a) thereof, the concepts of ‘force majeure’ and ‘unforeseeable circumstances’, within the meaning of the first of those provisions, must be interpreted strictly (see, by analogy, the judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 24; of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 190 and 191; and of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 56).
67


Under Article 2(1)(d) of the VAT Directive, the importation of goods is subject to VAT. Article 70 of the VAT Directive lays down the principle that the chargeable event occurs and the tax becomes chargeable at the moment when the goods are imported. Thus, Article 71(1) of the VAT Directive provides, in its first subparagraph, that, where, on entry into the European Union, goods are placed under the external Community transit procedure, the chargeable event occurs and the tax becomes chargeable only when the goods cease to be covered by that procedure (see, to that effect, the judgment of 11 July 2013, Harry Winston, C‑273/12, EU:C:2013:466, paragraph 40).
69


In that regard, it must be held that, VAT being a tax on consumption, it applies to goods and services that enter the economic network of the European Union and may be the object of consumption (see, to that effect, the judgments of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 35, and of 2 June 2016, Eurogate Distribution and DHL Hub Leipzig, C‑226/14 and C‑228/14, EU:C:2016:405, paragraph 65).
70


Therefore, the exit of goods from the external Community transit procedure, which gives rise to the chargeable event and causes VAT to become chargeable, must be regarded as referring to the integration of those goods into the economic network of the European Union, which is excluded for goods that are non-existent or unusable by any person (see, to that effect, the judgment of 29 April 2010, Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraphs 93 and 96).
76


In that regard, the Court has previously held that Article 204 of the code is intended to ensure that the customs legislation is correctly applied. Under Articles 96(1) and 204(1) of that code, the principal — in his capacity as holder in the external Community transit procedure — is the debtor of the customs debt incurred due to the failure to observe the provisions governing that procedure. The liability thus imposed upon the principal is intended to ensure the diligent and uniform application of the provisions relating to that procedure and the proper functioning of transit operations in order to protect the financial interests of the European Union and its Member States (judgment of 15 July 2010, DSV Road, C‑234/09, EU:C:2010:435, paragraph 30 and the case-law cited).
77


Similarly, that liability is independent of the principal’s good faith and the fact that the breach of the external Community transit procedure was extraneous to him (see, to that effect, the judgment of 3 April 2008, Militzer & Münch, C‑230/06, EU:C:2008:186, paragraph 49 and the case-law cited).
84


In that regard, it must be noted that Article 213 of the Customs Code confirms the principle of joint and several liability in cases where there are several debtors in respect of the same customs debt, without a more specific rule for the implementation of that liability being laid down in other provisions of the code or the provisions for its implementation (see, to that effect, the judgment of 17 February 2011, Berel and Others, C‑78/10, EU:C:2011:93, paragraphs 42 and 43).
85


However, it follows from the very nature of joint and several liability that each debtor is liable for the total amount of the debt and the creditor remains, in principle, free to request the payment of that debt by one or several debtors as he chooses.
87


It follows that the Customs Code, by imposing that objective liability upon the principal establishes a basic legal mechanism that facilitates, in particular, the proper functioning of transit operations in order to protect the financial interests of the European Union and its Member States (judgment of 15 July 2010, DSV Road, C‑234/09, EU:C:2010:435, paragraph 30 and the case-law cited).
88


In that regard, the Court has stated that the mechanism of joint and several liability provided for in Article 213 of the code constitutes an additional legal device made available to the national authorities to strengthen the effectiveness of the action they take for the recovery of customs debts and the protection of the EU’s own resources (judgment of 17 February 2011, Berel and Others, C‑78/10, EU:C:2011:93, paragraph 48).