1. This reference for a preliminary ruling concerns the interpretation of Article 561(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1, ‘the implementing regulation’).
2. The reference has been made in proceedings between Mr Fekete and the Nemzeti Adó- és Vámhivatal Közép-dunántúli Regionális Vám- és Pénzügyőri Főigazgatósága (Central Danube regional customs and finance directorate-general of the national tax and customs authority) concerning the customs status of a vehicle registered in Guinea-Bissau, brought into the territory of the European Union and used privately by Mr Fekete in Hungary. Legal context
3. Article 137 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’), provides: ‘The temporary importation procedure shall allow the use in the customs territory of the Community, with total or partial relief from import duties and without their being subject to commercial policy measures, of non-Community goods intended for re-export without having undergone any change except normal depreciation due to the use made of them.’
4. Article 232 of the implementing regulation, concerning the temporary importation procedure, provides: ‘1. The following, where not declared to customs in writing or orally, shall be considered to have been declared for temporary importation by the act referred to in Article 233, subject to Article 579: ... (b) the means of transport referred to in Articles 556 to 561; ...’
5. Article 234(2) of that regulation provides: ‘Where a check reveals that the act referred to in Article 233 has been carried out but the goods imported or taken out do not fulfil the conditions in Articles 230 to 232, the goods concerned shall be considered to have been imported or exported unlawfully.’
6. Pursuant to the first subparagraph of Article 560(1) of that regulation, ‘… persons established in the customs territory of the Community shall benefit from total relief from import duties where they privately use means of transport occasionally, on the instructions of the registration holder, this holder being in the customs territory at the time of use’.
7. Article 561(2) of the implementing regulation states: ‘Total relief from import duties shall be granted where means of transport are used commercially or privately by a natural person established in the customs territory of the Community and employed by the owner of the means of transport established outside that territory or otherwise authorised by the owner. Private use must have been provided for in the contract of employment. Customs authorities may restrict the temporary importation of means of transport under this provision in the case of systematic use.’ The facts of the main proceedings and the question referred
8. Mr Fekete, a resident of Hungary with dual Hungarian and Guinea-Bissau nationality, states that he is the founder and chairman of the board of the ‘Együtt Afrikáért’ (united for Africa) foundation, established in Guinea-Bissau. That foundation is the proprietor of a private vehicle, a Cadillac Escalade, which it imported into the territory of the European Union without a customs declaration under the temporary importation scheme with total relief from import duties.
9. That vehicle was used privately by Mr Fekete within the customs territory of the Union.
10. According to the information provided by the referring court and the Hungarian Government, while he was driving that vehicle, Mr Fekete was stopped by the Székesféhérvár police (Hungary), on 13 April 2011. On being questioned by the police, Mr Fekete stated that he did not have an authorisation to use the vehicle because he was the founder and chairman of the board of the abovementioned foundation. As Mr Fekete was unable to provide evidence of the customs status of the vehicle, the customs authority commenced proceedings ex officio for that purpose on 14 April 2011.
11. It also appears from the order for reference and the observations of the Hungarian Government that, on 13 May 2011, in the course of those proceedings, Mr Fekete produced a typed document in Hungarian, dated 1 September 2008, which, he alleged, was drawn up in Senegal by Mr Toure Mourdje, in his capacity as chairman of the board of the Együtt Afrikáért foundation. That document allegedly authorised Mr Fekete to use and drive the vehicle at issue. In that connection, the Hungarian Government pointed out that, whereas the authorisation in question was signed in 2008 and was not signed by two witnesses as required by Hungarian law, the registration certificate of that vehicle in Guinea-Bissau, itself, dated from 30 March 2011, in other words one month before the police check in Hungary. Moreover, the certificate contained inaccurate or incomplete data, or even gave rise to doubt, in the light of certain Portuguese expressions used, as to whether the document could be classified as a registration certificate.
12. By decision of 18 May 2011 the customs authority at first instance found that the temporary importation of the vehicle breached the rules of European Union law because Mr Fekete did not have an employment contract providing for the private use of the vehicle, within the meaning of Article 561(2) of the implementing regulation. That authority therefore decided that a customs debt had arisen in respect of that vehicle under Article 202 of the Customs Code and ordered the payment of a sum of HUF 729 355 (approximately EUR 2 500) by way of customs duties and of HUF 2 005 727 (or approximately EUR 7000) by way of value added tax.
13. Mr Fekete brought an administrative appeal against that decision before the second instance customs authority, arguing that as the vehicle in question belonged to a foundation it entered the territory of the European Union without formalities pursuant to the convention known as the ‘Istambul Convention’ approved by Council Decision 93/329/EEC of 15 March 1993 concerning the conclusion of the Convention on Temporary Admission and accepting its annexes (OJ 1993 L 130, p. 1). Moreover, he maintains that the customs authority was wrong to base its refusal to grant total relief from import duties on the lack of a contract of employment within the meaning of Article 561(2) of the implementing regulation. As he did not have a contract of employment, the authority only had to verify whether the private use of the vehicle had been ‘otherwise authorised by the owner’ within the meaning of that provision. In that connection, Mr Fekete produced an authorisation from the chairman of the board of the Együtt Afrikáért foundation authorising him to use and drive the vehicle belonging to that foundation. In any event, Mr Fekete took the view that he should have been considered to be an employee of that foundation on the basis of the work he did within it, even if he could not be classified as such according to the rules of national law.
14. Following the rejection of his appeal, Mr Fekete brought an application for judicial review before the referring court seeking the re-examination of the decision of the second instance customs authority. He argued, essentially, that, for the purposes of total relief from customs duties under Article 561(2) of the implementing regulation, there was no need for an employment contract insofar as he was using the vehicle privately, as he was authorised to do by the authorisation of 1 September 2008. On the basis of the minutes of the meeting of the Customs Code Committee of 6 July 2010 (TAXUD/A3/0039/2010-EN), the Hungarian customs authority, however, argued that, for the purposes of the application of the relief provided for by that provision, the private use of the vehicle must be provided for in a contract of employment between the owner of the vehicle established outside the European Union and the private person established in the Union. There is no such contract in the present case.
15. The referring court observes, however, that, although Article 561(2) of the implementing regulation does indeed state that, where the private person using the vehicle is employed by the owner of the means of transport, the private use of the vehicle must have been provided for in the contract of employment, the wording of that provision also seems to envisage total relief from import duty where the use of the vehicle by the private person is ‘otherwise authorised by the owner’ of that vehicle.
16. It was in those circumstances that the Székesfehérvári Törvényszék (Székesfehérvár local court) (Hungary) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Under Article 561(2) of [the implementing regulation] is authorisation granted by the owner of the means of transport established outside the (customs) territory sufficient to establish private use of the means of transport or is private use of the means of transport only possible in the framework of an employment relationship, and thus where provided for (by the owner) in the contract of employment?’ The question referred for a preliminary ruling
17. By its question, the referring court seeks to know whether Article 561(2) of the implementing regulation must be interpreted as meaning that total relief from import duties for a means of transport used privately by a person established in the customs territory of the European Union may be granted only if such private use was provided for in a contract of employment between that person and the owner of the vehicle established outside that territory or, rather, as meaning that such relief may also be granted where the person, regardless of the existence of an employment relationship, is otherwise authorised by the owner of the vehicle to use it privately.
18. Mr Fekete argues that a person using the vehicle privately can be granted total relief from import duties even where he is not formally bound to the owner of the vehicle by a contract of employment or where such use is not provided for by the contract of employment between the parties. According to Mr Fekete, it is sufficient for such a person to be ‘otherwise authorised by the owner’, within the meaning of Article 561(2) of the implementing regulation, in order for him to be granted total relief from import duties.
19. However, the Hungarian Government and the European Commission take the view that, for the purposes of the grant of total relief of import duties provided for by Article 561(2) of the implementing regulation, although commercial use of the vehicle may be otherwise authorised by the owner of the vehicle, private use of that vehicle must be provided for in a contract of employment between the user and the owner of that vehicle.
20. In that regard, it must be pointed out that the first subparagraph of Article 561(2) of the implementing regulation provides that total relief from import duties on a means of transport is to be granted where such means of transport are used either privately or commercially by a natural person established in the customs territory of the Union.
21. In the case in the main proceedings it is common ground that the vehicle at issue was used only privately.
22. It appears from the wording of the first subparagraph of Article 561(2) of the implementing regulation that, in the context of that provision, the grant of total relief from import duties is subject to the condition that that natural person is employed by the owner of the means of transport established outside that territory or is ‘otherwise authorised’ by the owner of that means of transport. However, in the case of the private use of the vehicle, the second subparagraph of that article makes clear that private use must be provided for in the contract of employment.
23. Thus, it appears from those two subparagraphs read in conjunction that, while it is true that commercial use may be ‘otherwise authorised by the owner’ for the purposes of obtaining total relief from import duties under Article 561(2) of the implementing regulation, that is not the case with regard to private use, which may only happen in the context of an employment relationship and must necessarily be provided for in a contract of employment.
24. It must also be observed that, as the Hungarian Government rightly pointed out, the current wording of Article 561(2) of the implementing regulation is the result of Regulation No 993/2001, which, as is apparent from recital 9 of its preamble, merely simplified and rationalised the provisions under Title III of Part II of Regulation (EEC) No 2454/93, concerning, inter alia, temporary importation. Thus, Article 1(28) of Regulation No 993/2001 replaced Title III of Regulation No 2454/93, entitled ‘Customs procedures with economic impact’, in which Articles 496 to 787 of that regulation appeared, by a new Title III, also entitled ‘Customs procedures with economic impact’, in which, since the entry into force of Regulation No 993/2001, Articles 496 to 592 of the implementing regulation appeared.
25. In that connection, the articles corresponding to Article 561(2) of the implementing regulation, as set out in the version of that regulation prior to the entry into force of Regulation No 993/2001, namely Articles 718(1), (3)(a) and (b), (6) and (7)(b), second indent, and 719(4)(b) also make the grant of total relief from import duties for an imported vehicle, in the case of private use by a person established in the Union other than its owner, subject to the condition that there is a contract of employment between that person and the owner and that private use is provided for in that contract of employment.
26. Having regard to the foregoing considerations, the answer to the question referred is that Article 561(2) of the implementing regulation must be interpreted as meaning that the total relief from import duties provided for by that provision for a means of transport used privately by a person established in the customs territory of the Union may be granted only if such use is provided for in a contract of employment between that person and the owner of the vehicle established outside that territory. Costs
27. 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.