1. This reference for a preliminary ruling concerns the interpretation of Articles 213, 233 and 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1) (‘the Customs Code’).
2. The reference has been made in proceedings between Mr Berel, acting as agent of the company Port Angot Développement, the successor to Manutention de Produits Chimiques et Miniers Maprochim SAS (‘Maprochim’), Rijn Schelde Mondia France SA (‘Mondia France’) and Asia Pulp & Paper France EURL (‘Asia P & P’) and the Administration des douanes de Rouen, the Receveur principal des douanes du Havre and the Administration des douanes du Havre (‘the customs authorities’) concerning the recovery of a customs debt which Maprochim, Asia P & P and Mondia France are jointly and severally liable to pay and in respect of which Mondia France has been granted a partial remission. Legal context European Union (‘EU’) law
3. Article 4 of the Customs Code provides: ‘For the purposes of this Code, the following definitions shall apply: … (9) “Customs debt” means the obligation on a person to pay the amount of the import duties (customs debt on importation) … which apply to specific goods under the Community provisions in force. … (12) “Debtor” means any person liable for payment of a customs debt. …’
4. Article 5 of the Customs Code provides: ‘1. … any person may appoint a representative in his dealings with the customs authorities to perform the acts and formalities laid down by customs rules. 2. Such representation may be: - direct, in which case the representative shall act in the name of and on behalf of another person, or - indirect, in which case the representative shall act in his own name but on behalf of another person. … 4. A representative must state that he is acting on behalf of the person represented, specify whether the representation is direct or indirect and be empowered to act as a representative. A person who fails to state that he is acting in the name of or on behalf of another person or who states that he is acting in the name of or on behalf of another person without being empowered to do so shall be deemed to be acting in his own name and on his own behalf. …’
5. In accordance with Article 202 of the Customs Code: ‘1. A customs debt on importation shall be incurred through: (a) the unlawful introduction into the customs territory of the Community of goods liable to import duties … … For the purpose of this Article, unlawful introduction means any introduction in violation of the provisions of Articles 38 to 41 and the second indent of Article 177. 2. The customs debt shall be incurred at the moment when the goods are unlawfully introduced. 3. The debtors shall be: - the person who introduced such goods unlawfully, - any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been aware that such introduction was unlawful, and - any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been introduced unlawfully.’
6. Article 203 of the Customs Code reads as follows: ‘1. A customs debt on importation shall be incurred through: - the unlawful removal from customs supervision of goods liable to import duties. 2. The customs debt shall be incurred at the moment when the goods are removed from customs supervision. 3. The debtors shall be: - the person who removed the goods from customs supervision, - any persons who participated in such removal and who were aware or should reasonably have been aware that the goods were being removed from customs supervision, - any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been removed from customs supervision, and - where appropriate, the person required to fulfil the obligations arising from temporary storage of the goods or from the use of the customs procedure under which those goods are placed.’
7. Article 213 of the Customs Code provides: ‘Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt.’
8. Article 233 of the Customs Code provides: ‘… a customs debt shall be extinguished: (a) by payment of the amount of duty; (b) by remission of the amount of duty; …’
9. Article 236 of the Customs Code provides: ‘1. Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2). Import duties or export duties shall be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2). No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned. 2. Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor. That period shall be extended if the person concerned provides evidence that he was prevented from submitting his application within the said period as a result of unforeseeable circumstances or force majeure. Where the customs authorities themselves discover within this period that one or other of the situations described in the first and second subparagraphs of paragraph 1 exists, they shall repay or remit on their own initiative.’
10. Under Article 239 of the Customs Code: ‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237 and 238: - to be determined in accordance with the procedure of the committee; - resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions. 2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. …’
11. Article 878(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 (OJ 1998 L 212, p. 18), (‘the Implementing Regulation’) provides: ‘Application for repayment or remission of import or export duties, hereinafter referred to as “application for repayment or remission”, shall be made by the person who paid or is liable to pay those duties, or the persons who have taken over his rights and obligations. Application for repayment or remission may also be made by the representative of the person or persons referred in the first subparagraph.’
12. Article 899 of the Implementing Regulation provides: ‘Without prejudice to other situations to be considered case by case in accordance with the procedure laid down in Articles 905 to 909, where the decision-making customs authority establishes that an application for repayment or remission submitted to it under Article 239(2) of the [Customs] Code: - is based on grounds corresponding to one of the circumstances referred to in Articles 900 to 903, and that these do not result from deception or obvious negligence on the part of the person concerned, it shall repay or remit the amount of import duties concerned. “The person concerned” shall mean the person or persons referred to in Article 878(1), or their representatives, and any other person who was involved with the completion of the customs formalities relating to the goods concerned or gave the instructions necessary for the completion of these formalities, - is based on grounds corresponding to one of the circumstances referred to in Article 904, it shall not repay or remit the amount of import duties concerned.’
13. Article 900(1)(o) of the Implementing Regulation provides: ‘Import duties shall be repaid or remitted where: … (o) the customs debt has been incurred otherwise than under Article 201 of the [Customs] Code and the person concerned is able to produce a certificate of origin … or other appropriate document showing that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.’ National law
14. Article 1208 of the Code civil (Civil Code) provides: ‘A jointly and severally liable debtor sued by the creditor may put forward all the defences which follow from the nature of the obligation, all those which are personal to him, and those which are common to all the debtors. He may not put forward defences which are purely personal to some of the other debtors.’
15. In accordance with Article 1285 of the Code civil: ‘A remission or agreed discharge for the benefit of one of the jointly and severally liable debtors releases all the others, unless the creditor has expressly reserved his rights against them. In the latter case, he may recover the debt only after deducting the share of the person to whom he has granted the remission.’ The dispute in the main proceedings and the question referred for a preliminary ruling
16. Mondia France is a company specialising in the import and export of forestry products, in particular paper and woodpulp, and the storage and distribution of those goods. For those purposes it holds a licence to operate warehouses and temporary storage places (MADT) in Rouen and Le Havre.
17. Asia P & P, a customer of Mondia France, entrusted Mondia France with the transport, storage and customs clearance of the goods it markets in the European Union, principally paper of Indonesian origin.
18. Mondia France commissioned Maprochim, a customs agent, to perform on its behalf the customs clearance operations for those goods.
19. In April 2000 the customs authorities carried out an investigation into the imports of those goods during 1998 and 1999 in Le Havre and Rouen.
20. In the course of that investigation it was found that some of the goods stored in Mondia France’s warehouses had been delivered to Asia P & P without the customs clearance formalities having been carried out. For those goods the authorities considered that the offence of importation without declaration had been committed.
21. In respect of another part of the goods, it was found that they had been delivered without the customs clearance formalities having been carried out, those formalities being carried out only after the date on which the goods left Mondia France’s authorised warehouse. For those goods the customs authorities considered that the offence of unlawful removal of goods from customs supervision had been committed.
22. The customs authorities notified Mondia France, Asia P & P and Maprochim of the offences they had found to have been committed, and claimed the duties and charges corresponding to the deliveries of the goods, consisting of customs duties and other charges. They subsequently issued notices of recovery addressed to those three companies, inter alia for the payment of the customs duties.
23. After their objections to the notices had been dismissed by the customs authorities, the three companies in question brought proceedings against the authorities before the Tribunal d’instance du Havre (District Court, Le Havre) and the Tribunal d’instance de Rouen (District Court, Rouen), seeking annulment both of the notices of recovery and of the decisions dismissing their objections. The Tribunal d’instance du Havre subsequently declined jurisdiction in favour of the Tribunal d’instance de Rouen on account of the connection between the cases concerned.
24. On 31 October 2000 Mondia France also applied to the Direction générale des douanes (Directorate-General of Customs) for remission of duty on the basis of Article 239 of the Customs Code and Article 900(1)(o) of the Implementing Regulation, relying on the absence of deceitful or obviously negligent conduct and seeking to be granted a posteriori the preferential tariff treatment applicable to paper of Indonesian origin.
25. At first the application was dismissed, as the Direction générale des douanes had previously asked the Commission of the European Communities for its opinion, and the Commission had expressed the view, in a letter of 7 October 2004, that obvious negligence on the part of Mondia France had to be considered. An action brought against that letter was dismissed as manifestly inadmissible by order of the Court of First Instance of the European Communities of 25 January 2007 in Case T‑55/05 Rijn Schelde Mondia France v Commission .
26. However, in the light of further evidence brought to their attention, the customs authorities subsequently, by letters of 6 February and 3 March 2006, granted Mondia France a partial remission of duty.
27. By judgment of 11 April 2008, the Tribunal d’instance de Rouen, taking note of the remission, dismissed the applications by Mondia France, Asia P & P and Maprochim for annulment of the notices of recovery of the duties concerning those companies.
28. As regards the remission of duty claimed by Asia P & P and Maprochim, the court held that it followed from Article 1208 of the Code civil that, since each jointly and severally liable debtor had to be regarded as necessarily representing the other debtors, a determination in respect of one could be relied on against the others, even if they had taken no part in the proceedings.
29. It concluded that when Mondia France had made an application for remission of duty, it had to be regarded as acting not only on its own behalf but also as the representative of the other joint debtor, namely Asia P & P.
30. It therefore reduced the amount of the customs debt owed by Asia P & P by the amount of the partial remission of duty granted to Mondia France, so that the amount of that debt should be the same as that owed by Mondia France. Asia P & P’s debt of EUR 980 058.65 was thus reduced to EUR 224 390.73.
31. As regards Maprochim, the court found that that company owed a customs debt of EUR 49 284 pursuant to Article 203(3) of the Customs Code for having participated in the unlawful removal of the goods from customs supervision, where it knew or ought reasonably to have known that the removal was unlawful.
32. It further held that Maprochim could not claim a remission of duty on the basis of Article 236 of the Customs Code, since that provision does not apply in the case of a customs debt arising not from the release of the goods into free circulation but from their unlawful removal from customs supervision.
33. Mondia France, Asia P & P and Maprochim and also the customs authorities appealed against that judgment to the Cour d’appel de Rouen (Court of Appeal, Rouen).
34. The Cour d’appel de Rouen took the view, first, that since the notices of recovery served on Asia P & P were regular, that company could no longer make an application to that court for remission of the debt, as the period of 12 months laid down in Article 239(2) of the Customs Code had expired.
35. Next, the court rejected Asia P & P’s argument that it should have the benefit of the remission granted to Mondia France, since Mondia France had a general power of representation and had thus submitted the claim for remission on behalf also of Asia P & P. On this point, the court held that the conditions laid down in Article 5(4) of the Customs Code are of general application, and none of them was satisfied in this case.
36. Finally, still with respect to Asia P & P, the court considered that the decision to grant remission of duty to Mondia France was a defence that was purely personal to that company within the meaning of Article 1208 of the Code civil, which Asia P & P could not rely on as such, in the same way as it could not put forward that defence because it was not common to all the other jointly and severally liable debtors.
37. The court raised the question, however, whether Articles 213, 233 and 239 of the Customs Code preclude the application of the principle of the mutual representation of jointly and severally liable debtors which follows, in certain circumstances, from Article 1200 et seq. of the Code civil, thereby allowing Asia P & P, which had commissioned Mondia France to carry out the customs clearance operations, to benefit from the remission granted to Mondia France on the basis of Article 239 of the Customs Code and Article 900(1)(o) of the Implementing Regulation.
38. The court raised the same question with respect to Port Angot Développement, the successor to Maprochim and the subject of a judicial liquidation procedure, since that company had applied to that court to benefit from the remission granted to Mondia France, the benefit of which had been extended to Asia P & P by the Tribunal d’instance de Rouen by virtue of that principle of the mutual representation of jointly and severally liable debtors.
39. In those circumstances, the Cour d’appel de Rouen decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Do Articles 213, 233 and 239 of the … Customs Code prevent a jointly and severally liable debtor of a customs debt who is not the beneficiary of a decision to remit that debt from relying, against the administration responsible for collection, on a decision to remit based on Article 239 of the … Code which that administration notified to another jointly and severally liable debtor, in order to be released from payment of the customs debt?’ Consideration of the question referred
40. By its question the referring court asks essentially whether Articles 213, 233 and 239 of the Customs Code must be interpreted as precluding the application, in the context of joint and several liability for a customs debt within the meaning of Article 213 such as that at issue in the main proceedings, of a principle of national law which has the effect that a partial remission of duty granted on the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so that the extinction of the debt provided for in point (b) of Article 233 of the Code relates to the debt as such and thus releases all the jointly and severally liable debtors from payment of the debt to the extent of the amount remitted.
41. It should be observed that, unlike the second paragraph of Article 3 and the second subparagraph of Article 4(1) of Council Regulation (EEC) No 1031/88 of 18 April 1988 determining the persons liable for payment of a customs debt (OJ 1988 L 102, p. 5), which, where several debtors were liable for the same customs debt, prescribed that ‘[u]nder the provisions in force in Member States’ they were to be ‘jointly and severally liable’, Article 213 of the Customs Code, which replaced those provisions, no longer makes reference to national law.
42. Article 213 confines itself to stating the principle of joint and several liability where there are several debtors liable for the same customs debt. It does not lay down any more specific rule on the implementation of that liability, in particular as regards the possible effect of a remission granted to one of the debtors on the liability of the others.
43. Nor, moreover, is such a rule expressly laid down elsewhere in the Customs Code or in the Implementing Regulation.
44. Thus, while point (b) of Article 233 of the Customs Code provides that the customs debt is extinguished in the event of the remission of the amount of duty, that provision does not specify whether, where there are several debtors, the extinction relates solely to the person applying for the remission or whether it necessarily extends also to the other persons liable for the debt.
45. However, an interpretation of that provision which limits the extinction of the customs debt solely to the person applying for the remission appears to be justified in the light of a number of concordant factors.
46. In the first place, since in accordance with point (b) of Article 233 of the Customs Code the remission of duty extinguishes the customs debt, it must be interpreted strictly. That article addresses the need to protect the EU’s own resources (see, to that effect, inter alia, Case C‑230/08 Dansk Transport og Logistik [2010] ECR I‑0000, paragraph 51 and the case-law cited).
47. In the second place, it also follows from the Court’s case-law that the Member States retain the possibility of adopting measures to contribute effectively to the implementation of the objectives of the customs legislation, in particular the objective of ensuring that the customs debt is actually recovered, and may thus, in compliance with those objectives and in accordance with the principle of proportionality, prescribe if appropriate rules specifying the conditions of application of the provisions laid down in that legislation (see, to that effect, Case C‑414/02 Spedition Ulustrans [2004] ECR I‑8633, paragraph 38 and the case-law cited).
48. It should be added that the aim of Article 213 of the Customs Code is precisely to achieve that objective of actual recovery of the customs debt, and hence to ensure the protection of the EU’s own resources. Joint and several liability 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.
49. The application, in the context of joint and several liability to pay a customs debt within the meaning of Article 213 of the Customs Code, of a principle of national law such as that of the mutual representation of jointly and severally liable debtors mentioned by the referring court, the result of which is that a remission of duty granted to one of the debtors on the basis of Article 239 of the Code may be relied on by all the other debtors to oppose a claim for payment of the debt, so that the extinction of the debt as provided for in point (b) of Article 233 of the Code necessarily relates to the entirety of the debt, would not contribute to the implementation of that objective, which is of essential importance in the context of the customs legislation.
50. In the third place, the application of that principle of national law and the radical consequences it would have for customs debts also do not appear to be justified in view of the character of a decision to remit duty on the basis of Article 239 of the Customs Code such as that at issue in the main proceedings.
51. In the present case, the joint and several liability of the three companies for the customs debt does not proceed from the same origin. Some of them are obliged to pay the debt because they committed the act which gave rise to the customs debt, in this case either the unlawful introduction of goods into the customs territory of the European Union within the meaning of Article 202 of the Customs Code or the unlawful removal of goods from customs supervision within the meaning of Article 203 of the Code. The joint and several liability of other companies derives either from their participation in the introduction or removal or from the fact that they acquired or held the goods.
52. In such a situation the absence of deception or obvious negligence on the part of the person concerned, which under Article 239 of the Customs Code is a condition for the grant of a remission of import duty, must be examined in the light of the particular relevant circumstances in relation to the fact which gave rise to the customs debt on the part of each debtor and of that person’s professional experience and diligence in relation to the acts of which he is accused and which are the basis of his joint and several liability.
53. It also follows that in a situation such as that at issue in the main proceedings the conclusions drawn from the examination of the specific situation of one debtor cannot in principle be extended to other debtors.
54. Nor, moreover, contrary to Asia P & P’s submissions, can such an extension be justified in the present case on the ground that Mondia France, which made the application for the remission of duty, made that application as the agent, with general authority in customs matters, of Asia P & P, another debtor liable for the customs debt.
55. As the referring court points out, such a representation in connection with the remission of duty is subject to compliance with the conditions set out in Article 5(4) of the Customs Code. Moreover, it suffices to note that the referring court, which has sole jurisdiction to apply EU law to the facts of the main proceedings, found that none of those conditions was satisfied in the case of the application for remission of duty made by Mondia France.
56. As regards Maprochim, it is clear that that company, which itself acted as the representative of Mondia France for the purposes of Article 5 of the Customs Code with respect to performing on its behalf the formalities in connection with the customs clearance of the goods, cannot claim to have been represented by Mondia France when that company applied for remission of duty.
57. Maprochim also cannot rely on the finding that there was no obvious negligence on the part of Mondia France, the economic operator represented by it.
58. In that regard, the Court has held that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned, and that he cannot avoid liability by relying on mistakes made by the agent (see Case C‑38/07 P Heuschen & Schrouff Oriëntal Foods Trading v Commission [2008] ECR I‑8599, paragraph 52).
59. Similarly, the Court has held that information concerning possible negligence on the part of a customs agent, including the level of his professional experience, must be taken into account for the purposes of assessing the negligence of the importer represented, since it cannot be accepted that operators may, by using the services of a customs agent, be able to avoid post-clearance recovery of customs debts by relying on their inexperience in customs matters (see, to that effect, Heuschen & Schrouff Oriëntal Foods Trading v Commission , paragraphs 53 and 54).
60. However, it does not follow that, conversely, a customs agent whose services are usually sought because of his professional experience in customs matters should be able to benefit from the inexperience in those matters of the economic operator he represents.
61. It must be concluded that it follows from the system of Article 239 of the Customs Code that a decision to remit duty on the basis of that provision, such as that at issue in the main proceedings, can be relied on solely in favour of the person making the application for remission.
62. That conclusion is borne out, moreover, by the principle that the repayment or remission of import or export duties, which may be made only under certain conditions and in cases specifically provided for, constitutes an exception to the normal import and export procedure and, consequently, the provisions which provide for repayment or remission are to be interpreted strictly (see, inter alia, Case C‑48/98 Söhl & Söhlke [1999] ECR I‑7877, paragraph 52).
63. Finally, in a situation such as that at issue in the main proceedings, if the principle of national law which provides for the mutual representation of jointly and severally liable debtors could be applied, the result in all cases would be that the customs debt could no longer be recovered, even if there were a likelihood that the debtors other than the person applying for remission did not satisfy the condition of absence of deception and obvious negligence, having regard both to the particular circumstances of the fact giving rise to their joint and several liability for the customs debt and to their professional experience and diligence.
64. That consequence would be disproportionate and would therefore, as noted in paragraph 47 above, exceed the limits of the discretion enjoyed by the Member States in specifying the conditions of application of the provisions laid down in the customs legislation.
65. Consequently, in a situation of joint and several liability for a customs debt such as that at issue in the main proceedings, the extinction of that debt in the case of the remission of the amount of duty referred to in point (b) of Article 233 of the Customs Code concerns solely the person applying for the remission of duty and does not extend to the other debtors.
66. Having regard to all the foregoing, the answer to the referring court’s question is that Articles 213, 233 and 239 of the Customs Code must be interpreted as precluding the application, in the context of joint and several liability for a customs debt within the meaning of Article 213 such as that at issue in the main proceedings, of a principle of national law which has the effect that a partial remission of duty granted on the basis of Article 239 to one of the debtors may be relied on by all the other debtors, so that the extinction of the debt provided for in point (b) of Article 233 of the Code relates to the debt as such and thus releases all the jointly and severally liable debtors from payment of the debt to the extent of the amount remitted. Costs
67. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.