Oliver Jestel v Hauptzollamt Aachen.
Date: 2011-11-17
12. It should be noted to begin with that the European Union legislature intended, since the entry into force of the Customs Code, to lay down exhaustively the conditions for determining who are the debtors of customs debt (see Case C‑414/02 Spedition Ulustrans [2004] ECR I‑8633, paragraph 39; Case C‑195/03 Papismedov and Others  [2005] ECR I‑1667, paragraph 38; and Case C‑140/04 United Antwerp Maritime Agencies and Seaport Terminals [2005] ECR I‑8245, paragraph 30). In the case of a customs debt incurred through the unlawful introduction of goods into the customs territory of the European Union, as referred to in Article 202 of the code, the persons capable of being debtors are listed in paragraph 3 of that article.
13. According to the case-law of the Court of Justice, it is clear from the wording of Article 202(3) that the European Union legislature intended to give a broad definition of the persons capable of being regarded as debtors of the customs debt, in cases of unlawful introduction of goods subject to import duties (see Spedition Ulustrans , paragraph 25, and Papismedov and Others , paragraph 38).
14. It must be stated next that a person such as Mr Jestel, in so far as his activity was limited to involvement in the conclusion of contracts of sale of the goods, collecting the sale price and communicating the names and addresses of the purchasers to the supplier of those goods, is not capable of being a debtor of the customs debt pursuant to the first and third indents of Article 202(3). Those indents concern, respectively, the person who in practical terms introduced the goods without declaring them (see Joined Cases C‑238/02 and C‑246/02 Viluckas and Jonusas [2004] ECR I‑2141, paragraph 29, and Papismedov and Others , paragraph 39) and the persons who acquired or held the goods after their introduction.
15. Under the second indent of Article 202(3) of the Customs Code, any persons who participated in the unlawful introduction of goods into the territory of the European Union who were aware, or should reasonably have been aware, that such introduction was unlawful are debtors. Consequently, treatment as a debtor under that provision is subject to two conditions the first of which is objective, namely participation in that introduction, and the second subjective, namely that the persons participated with a certain degree of knowledge in the unlawful introduction (see, to that effect, Papismedov and Others , paragraph 40).
16. As regards, first, the objective condition in that provision, the Court has held that those persons who have taken some part in an unlawful introduction have participated in such an introduction ( Spedition Ulustrans , paragraph 27).
21. Since that condition concerns considerations of a factual nature, in the light of the division of powers between the Courts of the European Union and the national courts, it is for the national court to determine whether that condition is satisfied in the main proceedings (see, to that effect, Papismedov and Others , paragraph 41). When giving a preliminary ruling on a reference, however, the Court may, in appropriate cases, give clarifications to guide the national court in its decision (see, to that effect, Case C‑446/07 Severi  [2009] ECR I‑8041, paragraph 60, and Case C‑232/09 Danosa  [2010] ECR I‑0000, paragraph 34).
23. Second, it is for the national court to carry out an overall assessment of the circumstances of the case in the main proceedings.
25. The information that was available to the intermediary or of which he should reasonably have been aware must also be taken into account, particularly because of his contractual obligations. In that respect, it is also important to know whether the import duties to be paid were indicated on the contracts of sale or on other documentation available to the intermediary, which would suggest that the introduction of the goods into the territory of the European Union would be carried out in a lawful manner.