Bundesverband Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik Deutschland.
Date: 2003-09-23
5. For those facilities to be applied, the TIR Convention requires that the goods be accompanied throughout the transport operation by a standard document, the TIR carnet, which serves to check the regularity of the operation. It also requires that the transport operations be guaranteed by associations approved by the contracting parties, in accordance with the provisions of Article 6 of the Convention.
45. BGL ' s rights and obligations are governed simultaneously by the TIR Convention, Community law and the guarantee contract, subject to German law, which it concluded with the Federal Republic of Germany.
47. No provision of the TIR Convention expressly regulates the question whether the guaranteeing association may furnish proof of the place where an offence or irregularity was committed. Article 8(1) of the Convention merely sets out certain obligations towards the contracting parties to the Convention which the guaranteeing associations must enter into when they apply for authorisation to issue TIR carnets. Moreover, Article 11(3) of the Convention refers only to proof that there were no irregularities during a transport operation.
50. With respect to the right to furnish proof of the place where the offence or irregularity was committed, it must be observed that Articles 454 and 455 of the implementing regulation do not specify the person who must or may furnish that proof, and in any event do not exclude the possibility of that proof being furnished by the guaranteeing association.
51. Moreover, Article 455 of that regulation refers to Article 11 of the TIR Convention, which deals exclusively with the guaranteeing association in each of its three paragraphs. It follows that Article 455 must be interpreted as not precluding the guaranteeing association from being able to furnish such proof.
52. Furthermore, respect for the right to a fair hearing in any procedure brought against a person which may lead to an act adversely affecting him, in particular a procedure which may lead to penalties being imposed, constitutes a fundamental principle of Community law. That principle requires that any person on whom a penalty may be imposed must be placed in a position in which he can effectively make known his view of the matters on the basis of which the penalty is imposed and can produce any evidence relevant to his defence (see, to that effect, Case C-135/92  Fiskano  v  Commission  [1994] ECR I-2885, paragraphs 39 and 40, and Case C-142/87  Belgium  v  Commission  ( " Tubemeuse " ) [1990] ECR I-959, paragraphs 46 and 47).
53. It follows from the above that the first subparagraph of Article 454(3) of the implementing regulation must be interpreted as not precluding a guaranteeing association from furnishing proof of the place where the offence or irregularity was committed.
54. With respect to the period within which such proof must be furnished, it must be noted that the purpose of that proof is to contest the jurisdiction of the Member State which recovers the customs duties while identifying the Member State which will have jurisdiction to recover those duties where the presumption as to the place of the offence or irregularity is considered to be rebutted.
55. That other Member State must be determined speedily, so that it can take the necessary measures to recover the amounts due. The full effectiveness of Community law would therefore be affected if the question of the period for furnishing proof depended exclusively on national law, which might prescribe a period that was too long to make it legally and materially possible to recover amounts due in another Member State.
64. As Advocate General Mischo observed in point 43 of his Opinion in the  Met-Trans and Sagpol  case, it may be considered that it was by inadvertence that the legislature inserted a reference to Article 455(1) in the first subparagraph of Article 454(3) of the implementing regulation, and that the reference should have been to Article 455(2) of that regulation.
65. Article 455(1) makes no mention anywhere of a period relating to proof of the place where the offence or irregularity was committed, but refers to the period within which the customs authorities must notify the holder of the TIR carnet and the guaranteeing association of the existence of such an offence or irregularity. By contrast, paragraph 2 of that article deals with the period for proof of the regularity of the operation carried out under cover of the TIR carnet, and a reference to that provision would appear more consistent with regard to proof of the place where an offence or irregularity has been committed.
66. Moreover, if the first subparagraph of Article 454(3) of the implementing regulation were to be read and interpreted as referring in fact to Article 455(1) of that regulation, the period for proof of the place of the offence or irregularity would be the same as that prescribed for notification of the offence or irregularity and would run from the same date; it would thus be one year from the acceptance of the TIR carnet. It would suffice in that case for the customs authorities to notify the existence of an irregularity on the last day of that period for it to be materially impossible for the guaranteeing association to furnish that proof.
70. Moreover, Article 11(3) of the TIR Convention contains two separate sentences referring to periods of different length. The first period mentioned, a period of three months, is a period for payment, while the second period mentioned, a period of two years from the claim for payment by the customs authorities to the guaranteeing association, relates to proof that there was no irregularity in connection with the transport operation in question. It is not therefore certain that the reference to that provision relates only to the first period mentioned.
71. Since the provisions applicable to the case in the main proceedings are manifestly erroneous and provide for several periods which could be taken into consideration, it should be recalled that the principle of legal certainty constitutes a general principle of Community law, requiring in particular that rules imposing charges on a taxpayer be clear and precise so that he may be able to ascertain unequivocally what his rights and obligations are and take steps accordingly (Case 169/80  Gondrand Frères and Garancini  [1981] ECR 1931, paragraph 17; Joined Cases 92/87 and 93/87  Commission  v  France and United Kingdom  [1989] ECR 405, paragraph 22; and Case C-143/93  Van Es Douane Agenten  [1996] ECR I-431, paragraph 27).
73. The answer to part (b)(i) of Question 1 must therefore be that the first paragraph of Article 454(3) and Article 455 of the implementing regulation must be interpreted as meaning that the guaranteeing association has available, to furnish proof of the place where the offence or irregularity was actually committed, a period of two years running from the date of the claim for payment made to it.
Question 2(a) on the existence of an obligation on the Member State to investigate