1. This reference for a preliminary ruling concerns the interpretation of the second indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the Customs Code’).
2. The reference has been made in proceedings between Mr Jestel and the Hauptzollamt Aachen (Principal Customs Office, Aachen, ‘the Hauptzollamt’) regarding the payment of a customs debt arising from the unlawful introduction of goods into the customs territory of the European Union. Legal context
3. Article 202 of the Customs Code provides: ‘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.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
4. According to the decision to refer and the documents lodged with the Court, between April 2004 and May 2006, Mr Jestel auctioned goods originating in China on the internet platform eBay, where he operated two online shops. He acted as intermediary in the conclusion of the contracts of sale of those goods and collected the sale price. The setting of prices and the procuring of the goods was the responsibility of the Chinese supplier. The supplier delivered the goods directly to the purchasers based in Germany by post.
5. The goods at issue in the main proceedings were shipped to the purchasers without the goods first being presented to customs and without import duties being levied, apparently on the strength of inaccurate declarations by the supplier as to the contents and value of the shipment.
6. The Hauptzollamt issued a notice of assessment to tax against Mr Jestel for customs duties of approximately EUR 10 000 and value added tax on importation of approximately EUR 21 000. It claimed, in particular, that Mr Jestel participated in the unlawful introduction of goods into the customs territory of the European Union, within the meaning of the second indent of Article 202(3) of the Customs Code. The administrative complaint brought against that notice was not upheld.
7. The Finanzgericht Düsseldorf (Düsseldorf Finance Court) dismissed the appeal brought by Mr Jestel against the decision of the Hauptzollamt. It is apparent from the documents before the Court that the Finanzgericht Düsseldorf held that, first, the introduction of the goods concerned was unlawful under Article 202 of the Customs Code in that it was carried out in breach of certain provisions in Articles 38 to 41 of the code and in that the exemption, as regards postal consignments, from the obligation to present goods to customs did not apply to goods which had an actual value exceeding EUR 22. Second, Mr Jestel was the debtor liable to pay the customs debt pursuant, inter alia, to the second indent of Article 202(3) of the code.
8. The national court, ruling on the appeal on a point of law against that judgment, notes that, according to Mr Jestel, the conclusion of the contracts of sale on eBay and the transmission of the purchasers’ names and addresses to the Chinese supplier, acts which significantly pre-dated the shipping of the goods and which are relevant only as the legal cause of that shipping, do not represent participation in the unlawful introduction of goods within the meaning of the second indent of Article 202(3) of the Customs Code.
9. The national court notes that the question whether Mr Jestel expected that the imports at issue in the main proceedings would be unlawful or whether, as he says, he had assumed that they would be carried out in a lawful manner despite some doubts he had entertained in that regard, has not yet been decided. However, that court considers it doubtful that, in circumstances such as those in the main proceedings, a person becomes a debtor liable to pay a customs debt under that provision, even where that person envisages, or indeed expects, that the seller will proceed to introduce the goods concerned unlawfully into the customs territory of the European Union.
10. In those circumstances, the Bundesfinanzhof decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does a person become a debtor liable to pay customs duties because of “participation” in the unlawful introduction of goods into the customs territory of the European Union according to the second indent of Article 202(3) of [the Customs Code] where that person, without being directly involved in the introduction of goods, arranges the conclusion of the contracts to purchase the goods concerned and therefore envisages that the seller will possibly deliver the goods or part of the goods in such a way as to evade import duties? (2) If appropriate, is it sufficient that he considers this to be conceivable, or does he only become a debtor if he fully expects that this will happen?’ Consideration of the questions referred
11. By its questions, which fall to be examined together, the national court asks, in essence, whether the second indent of Article 202(3) of the Customs Code must be interpreted as meaning that a person who, without being directly involved in the introduction of goods, acted as intermediary in the conclusion of contracts of sale relating to the goods, must be considered to have participated in the unlawful introduction of goods into the customs territory of the European Union. If so, that court raises the question whether such a person only becomes a debtor of a customs debt under that provision if he expects the goods concerned to be unlawfully introduced or whether it is sufficient for him merely to consider such an introduction conceivable.
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).
17. In that regard, as the Advocate General pointed out at point 39 of his opinion, the legislature did not specify that the persons covered by the second indent of Article 202(3) are solely those who directly contributed to the unlawful introduction. They may also be those involved in acts related to the introduction.
18. As regards the circumstances of the case in the main proceedings, it should be noted that both the conclusion of the contracts of sale at issue and the delivery of the goods which are the subject of those contracts are elements of a single transaction, namely the sale of such goods. Therefore, a person, such as Mr Jestel in the main proceedings, who, without being directly involved in the unlawful introduction of the goods into the customs territory of the European Union, acted as intermediary in the conclusion of contracts of sale relating to those goods must be considered to have participated in that introduction within the meaning of the second indent of Article 202(3) of the Customs Code.
19. Second, as regards the subjective condition in that provision, the national court asks whether, in order for that condition to be fulfilled, it is necessary for the participants covered by the provision to expect the introduction of goods to be unlawful or whether it is sufficient for them to consider such an introduction to be conceivable. That question related to the particular circumstances of the case in the main proceedings where the unlawful introduction took place after the act of participation.
20. However, the subjective condition set out in the second indent of Article 202(3) of the Customs Code is based on the requirement that the persons who participated in that introduction were aware or should reasonably have been aware that it was unlawful, which suggests they had, or should reasonably have had, knowledge of the existence of one or several breaches.
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).
22. In that regard, first, it should be noted that the phrase ‘should reasonably have been aware’ in the second indent of Article 202(3) of the Customs Code relates to the conduct of a reasonably circumspect and diligent trader.
23. Second, it is for the national court to carry out an overall assessment of the circumstances of the case in the main proceedings.
24. Thus, in particular, is must be held that a person acting as intermediary in the conclusion of contracts of sale must know that the delivery of goods from a third State into the European Union gives rise to an obligation to pay import duties. It is therefore relevant to ask whether the intermediary undertook all the steps which could reasonably be expected of him to ensure that the goods concerned would not be unlawfully introduced, in particular whether he informed the supplier of its obligation to declare the goods to customs.
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.
26. In addition, the period during which the intermediary provided his services to the seller of the goods concerned may be taken into account. If the intermediary provided his services over a long period it may appear unlikely that he did not have the opportunity to become aware of the practices of the seller concerning the delivery of those goods.
27. In the light of the foregoing, the answer to the questions referred is that the second indent of Article 202(3) of the Customs Code must be interpreted as meaning that a person who, without being directly involved in the introduction of goods, participated in the introduction as intermediary in the conclusion of contracts of sale relating to those goods must be c onsidered to be a debtor of a customs debt incurred through the unlawful introduction of goods into the customs territory of the European Union where that person was aware, or should reasonably have been aware, that that introduction was unlawful, which is a matter for the national court to determine. Costs
28. 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.