1. This reference for a preliminary ruling concerns the interpretation of Article 215 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’), Articles 378 and 379 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) (‘the implementing regulation’) and the application of the principle of proportionality.
2. The reference was made in proceedings between Militzer & Münch GmbH (‘M & M’) and the Ministero delle Finanze (Ministry of Finance) concerning the recovery of customs duties. Legal context
3. Article 96 of the Customs Code provides as follows: ‘1. The principal shall be the [holder] under the external Community transit procedure. He shall be responsible for: (a) production of the goods intact at the customs office of destination by the prescribed time-limit and with due observance of the measures adopted by the customs authorities to ensure identification; (b) observance of the provisions relating to the Community transit procedure. 2. Notwithstanding the principal’s obligations under paragraph 1, a carrier or recipient of goods who accepts goods knowing that they are moving under Community transit shall also be responsible for production of the goods intact at the customs office of destination by the prescribed time-limit and with due observance of the measures adopted by the customs authorities to ensure identification.’
4. Articles 203 and 204 of the Customs Code provide as follows: ‘ Article 203 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. Article 204 1. A customs debt on importation shall be incurred through: (a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or (b) non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods, in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question. 2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled. 3. The debtor shall be the person who is required, according to the circumstances, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they have been placed, or to comply with the conditions governing the placing of the goods under that procedure.’
5. Article 215 of the Customs Code provides as follows: ‘1. A customs debt shall be incurred at the place where the events from which it arises occur. 2. Where it is not possible to determine the place referred to in paragraph 1, the customs debt shall be deemed to have been incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred. 3. Where a customs procedure is not discharged for goods, the customs debt shall be deemed to have been incurred at the place where the goods: - were placed under that procedure, or - enter the Community under that procedure. 4. Where the information available to the customs authorities enables them to establish that the customs debt was already incurred when the goods were in another place at an earlier date, the customs debt shall be deemed to have been incurred at the place which may be established as the location of the goods at the earliest time when existence of the customs debt may be established.’
6. Article 239 of the Customs Code states as follows: ‘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. However, the customs authorities may permit this period to be exceeded in duly justified exceptional cases.’
7. Article 378 of the implementing regulation provides as follows: ‘1. Without prejudice to Article 215 of the Code, where the consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed: - in the Member State to which the office of departure belongs, or - in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2), to be determined, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities. 2. Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State of departure or in the Member State of entry as referred to in the first paragraph, second indent, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or national provisions. …’
8. Under Article 379 of the implementing regulation: ‘1. Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration. 2. The notification referred to in paragraph 1 shall indicate, in particular, the time-limit by which proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed must be furnished to the office of departure to the satisfaction of the customs authorities. That time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of that period, the competent Member State shall take steps to recover the duties and other charges involved. In cases where that Member State is not the one in which the office of departure is located, the latter shall immediately inform the said Member State.’
9. Those provisions in Article 379 of the implementing regulation are essentially the same as those in Article 11a of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1987 L 107, p. 1), as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990 (OJ 1990 L 137, p. 21) (‘Regulation No 1062/87’) and were subsequently repeated in Article 49 of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1992 L 132, p. 1).
10. Article 905 of the implementing regulation states as follows: ‘1. Where the decision-making customs authority to which an application for repayment or remission under Article 239(2) of the Code has been submitted cannot take a decision on the basis of Article 899, but the application is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909. The term “the person concerned” shall be interpreted in the same way as in Article 899. In all other cases, the decision-making customs authority shall refuse the application. 2. The case sent to the Commission shall include all the facts necessary for a full examination of the case presented. As soon as it receives the case the Commission shall inform the Member State concerned accordingly. Should it be found that the information supplied by the Member State is not sufficient to enable a decision to be taken on the case concerned in full knowledge of the facts, the Commission may ask for additional information to be supplied. 3. Without awaiting completion of the procedure laid down in Articles 906 to 909, the decision-making customs authority may, if requested, permit the customs formalities relating to the re-export or destruction of the goods to be carried out before the Commission has given a ruling on the application in question. Such permission shall be entirely without prejudice to the final decision on the application.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
11. M & M is a customs forwarding agent established in Germany. Between 23 April and 16 July 1993, it issued 20 T1 Community transit documents for the transport of butter originating in the Czech Republic from Waidhaus (Germany) to Venice and Milan (Italy).
12. After receiving copies of the transit documents bearing the stamps and serial numbers of the Venice and Milan customs offices, the Waidhaus customs office discharged those consignments.
13. Subsequently, the Customs Fraud Prevention Service of the Guardia di Finanza ascertained that the goods had not arrived at their destination due to a forgery in which M & M was not implicated and which, to all appearances, had been carried out with the collusion of members of the Italian customs authorities.
14. On 17 November 1995, the Italian customs authorities ordered M & M to pay the sum of LIT 4 601 255 310 by way of customs duty on the goods dispatched.
15. The Italian customs authorities rejected the application for remission of duties submitted by M & M pursuant to Article 239 of the Customs Code. The Tribunale (District Court) and then t he Corte d’Appello di Trento (Court of Appeal, Trento) rejected the appeal lodged by M & M, which subsequently lodged an appeal in cassation.
16. By judgment delivered on 27 September 2002 in the main proceedings, the Combined Chambers of the Corte Suprema di Cassazione (Supreme Court of Cassation) held that the Italian authorities’ decision not to allow M & M’s application for remission of duties under Article 239 of the Customs Code was not open to review by the courts, since it ‘entailed choices and decisions of a political nature’. As to the remainder, the case was remitted to the tax chamber of that court for a ruling on the other grounds of the appeal.
17. It was in those circumstances that the Corte Suprema di Cassazione decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) \tIs Article 11a(1) of Regulation No 1062/87, as amended by [the implementing regulation], to be interpreted as meaning that the 11-month time-limit within which the customs office of departure must communicate the fact that goods moving under the Community transit procedure have not been discharged is applicable in a case where discharge by the customs office of destination is evidenced by forged documents and the forgery is not easily discernible? For the purposes of the interpretation of that provision, are the principles established … by the Court of Justice [Case C-395/00 Cipriani [2002] ECR I-11877 and Case C-222/01 British American Tobacco [2004] ECR I-4683] applicable? In circumstances such as those under consideration, is it contrary to the principle of proportionality for a customs clearance agent to be held liable for all of the consequences of an incorrect Community transit operation? (2) In circumstances such as those set out in Question 1, is Article 11a(2) applicable? (3) In circumstances such as those set out in Question 1, is the question of whether the customs authorities have jurisdiction to be determined according to the criteria laid down by the second or third indent of Article 215(1) of [the Customs Code]?’ The questions referred for a preliminary ruling Preliminary observations
18. M & M, the Italian Government and the Commission agree in acknowledging that the Corte Suprema di Cassazione has referred to Community rules which are inapplicable ratione temporis but disagree as to what the applicable rules are. According to the Italian Government, reference should be made to the provisions in force in 1993, when the forgery was perpetrated. The determination of the competent Member State would thus be governed by Article 34(2) of Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit (OJ 1990 L 262, p. 1), which was repealed with effect from 1 January 1994. The Italian Government submits that the question of compliance with the previously applicable time-limits for recovery of the customs debt must be examined in the light of the provisions of Article 49 of Regulation No 1214/92. It considers that the fact that reference was made to Article 11a of Regulation No 1062/87, whereas that regulation was repealed on 1 January 1993, must render the reference for a preliminary ruling inadmissible in part.
19. In order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case C-315/88 Bagli Pennacchiotti [1990] ECR I‑1323, paragraph 10, and Case C‑107/98 Teckal [1999] ECR I-8121, paragraph 39).
20. In the present case, M & M and the Commission are correct in considering that the relevant provisions are those in force at the time when the notice of recovery, the lawfulness of which is disputed in the main proceedings, was issued by the Italian authorities on 17 November 1995.
21. Since the Customs Code and the implementing regulation were applicable with effect from 1 January 1994, it follows that the Corte Suprema di Cassazione is asking the Court, by the first part of its first question and by its second question, to interpret the conditions under which the time-limits laid down in Article 379 of the implementing regulation apply, by its third question, to interpret the criteria set out in Article 215 of the Customs Code in order to determine the Member State having jurisdiction to recover the customs debt and, by the second part of its first question, to give a ruling on the application of the rules governing the liability of the principal in the light of the principle of proportionality.
22. It is appropriate to examine first of all the third question concerning the determination of the Member State having jurisdiction to recover the customs debt. Question 3
23. M & M and the Commission take the view that the Member State having jurisdiction to recover the customs debt must be determined not pursuant to Article 215 of the Customs Code but in accordance with Article 378(1) of the implementing regulation, which constitutes a lex specialis for assigning jurisdiction for the recovery of customs duties under the external Community transit procedure. The Member State to which the office of departure belongs is, in principle, competent, since Article 378(1) of the implementing regulation creates such a presumption where, first, the consignment has not been presented at the office of destination and, secondly, the place of the offence or irregularity cannot be established. In the action in the main proceedings, those conditions are met, since the place in which the goods were unlawfully removed from customs supervision has not been established and it is not disputed that those goods were not presented at the office of destination.
24. The Italian Government considers that it has jurisdiction pursuant to Article 215(2) of the Customs Code since the offence was committed or, at the very least, came to light in Italy.
25. It follows from Article 215(1) of the Customs Code and Articles 378 and 379 of the implementing regulation that the determination of the place where the customs debt was incurred allows the Member State with jurisdiction to recover customs duties to be identified (see, to that effect, Case C-526/06 Road Air Logistics Customs [2007] ECR I-0000, paragraph 26). In the case of forgery, which is characterised by the Commission as an offence or irregularity, the place where the customs debt arises is the place in which the goods were unlawfully removed from customs supervision, as is apparent from a reading of Article 203(2) in conjunction with Article 215(1) of the Customs Code (see, to that effect, in particular, Case C-66/99 D. Wandel [2001] ECR I-873, paragraph 50, and Case C‑371/99 Liberexim [2002] ECR I-6227, paragraph 52).
26. According to the case-law of the Court, removal from customs supervision must be understood as encompassing any act or omission the result of which is to prevent, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from monitoring them as provided for in Article 37(1) of the Customs Code ( D. Wandel , paragraph 47; Liberexim , paragraph 55; and Case C-337/01 Hamann International [2004] ECR I-1791, paragraph 31).
27. Removal from customs supervision simply requires certain objective conditions to be met including, for example, the absence of the goods from the approved place of storage at the time when the customs authorities intend to carry out an examination of them ( D. Wandel , paragraph 48, and Liberexim , paragraph 60) or the temporary removal of the T1 transit document from the goods to which it relates ( British American Tobacco , paragraph 53).
28. Where a number of offences or irregularities have occurred in various Member States, the Member State having jurisdiction to recover the customs duties is the State in which the first offence or irregularity was committed (see, by analogy, Liberexim , paragraph 57).
29. As M & M and the Commission correctly pointed out, Article 378 of the implementing regulation specifically governs the determination of the Member State with jurisdiction to recover customs duties under the external Community transit procedure and establishes a presumption of competence in favour of the Member State to which the office of departure belongs (Case C-104/02 Commission v Germany [2005] ECR I-2689, paragraph 86).
30. Article 378(1) of the implementing regulation provides that, without prejudice to the rules on the determination of the place where a customs debt is incurred, laid down in Article 215 of the Customs Code, where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity is deemed to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given, unless within the period laid down in Article 379(2) of the implementing regulation, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished (Case C-300/03 Honeywell Aerospace [2005] ECR I-689, paragraph 21).
31. The initiation of the procedure laid down in Article 379 of the implementing regulation therefore assumes that the place of the offence or irregularity cannot be established by the customs authorities (Case C‑112/01 SPKR [2002] ECR I‑10655, paragraph 35).
32. Consequently, in order to verify whether the Member State which recovered customs duties has jurisdiction, it is necessary to determine whether, at the time when it was established that the consignment had not been presented at the office of destination, it was possible to establish the place where the offence or irregularity occurred. If that is the case, the Member State in which the first offence or irregularity capable of being classified as a removal from customs surveillance was committed can be identified as the State with jurisdiction to recover the customs debt, pursuant Articles 203(1) and 215(1) of the Customs Code.
33. On the other hand, if the place where the offence or irregularity was committed cannot be thus established, the Member State to which the office of departure belongs has jurisdiction to recover customs duties, in accordance with Articles 378 and 379 of the implementing regulation.
34. In order to determine whether, in the case in the main proceedings, the Italian authorities had jurisdiction to recover the duties in question, it is for the referring court to verify whether, having regard to all the relevant information available at the time when it came to light that the consignments had not been presented at the office of destination, it was possible to establish the place in which the first offence or irregularity capable of being classified as a removal from customs surveillance was committed. If that is not the case, the effect of the presumption of competence in favour of the Member State to which the office of departure belongs, established by Article 378(1) of the implementing regulation, is that the Federal Republic of Germany is the Member State with jurisdiction to recover the customs duties.
35. That presumption can be rebutted in favour of the jurisdiction of another Member State only if it is established that the first offence or irregularity was actually committed in the territory of that State. Nevertheless, proof to that effect must be furnished to the satisfaction of the authorities of the Member State to which the office of departure belongs, in accordance with the procedure laid down in Article 379 of the implementing regulation, which entails, inter alia, compliance with the time-limits laid down in that provision.
36. The answer to the third question must therefore be that, in order to verify whether the Member State which recovered customs duties has jurisdiction, it is for the referring court to determine whether, at the time when it came to light that the consignment had not been presented at the office of destination, it was possible to establish the place where the offence or irregularity occurred. If that is the case, the Member State in which the first offence or irregularity capable of being classified as a removal from customs surveillance was committed can be identified as the State with jurisdiction to recover the customs debt, pursuant to Articles 203(1) and 215(1) of the Customs Code. On the other hand, if the place where the offence or irregularity was committed cannot be thus established, the Member State to which the office of departure belongs has jurisdiction to recover the customs duties, in accordance with Articles 378 and 379 of the implementing regulation. The first part of the first question and the second question
37. The Corte Suprema di Cassazione asks, in essence, whether the Italian authorities’ failure to comply with the time-limits of 11 months and 3 months, imposed for the benefit of the principal by the first and second paragraphs of Article 379 of the implementing regulation respectively, precludes the recovery of customs duties.
38. As the Italian Government and the Commission correctly observed, non-compliance with the 11-month time-limit does not by itself prevent recovery of the customs debt from the principal ( SPKR , paragraphs 27 to 33, and Commission v Germany , paragraph 69).
39. On the other hand, notification to the principal of the three-month time-limit laid down in Article 379(2) of the implementing regulation is mandatory and must precede recovery of the customs debt by the customs authorities ( SPKR , paragraph 32; Honeywell Aerospace , paragraphs 23 and 24; Commission v Germany , paragraph 71; order of 6 April 2006 in Case C-407/05 Reyniers & Sogama , not published in the ECR, paragraph 22; and Case C-44/06 Gerlach [2007] ECR I‑2071, paragraph 33).
40. It should be noted that the purpose of those 11‑month and 3‑month time-limits is to ensure diligent and uniform application, by the administrative authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community’s own resources ( SPKR , paragraph 34, and Commission v Germany , paragraphs 69 and 78). Moreover, the three-month time-limit is also intended to protect the interests of the principal by allowing him sufficient time in which to furnish, where appropriate, proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed ( SPKR , paragraph 38, and Honeywell Aerospace , paragraph 24). Finally, that three-month time-limit is intended to encourage the principal to produce the evidence available to him within a mandatory time-limit, with a view to determining without delay the State with jurisdiction to recover duty (Case C‑233/98 Lensing & Brockhausen [1999] ECR I-7349, paragraph 30).
41. It follows from the wording itself of Articles 378 and 379 of the implementing regulation that it is for the office of departure alone to make the notification required within those 11‑month and 3‑month time-limits where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established.
42. The answer to the first part of the first question and to the second question must therefore be that, where a consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, it is for the office of departure alone to make the notification required within the 11‑month and 3‑month time-limits laid down by Article 379(1) and (2) of the implementing regulation. The second part of the first question
43. The Corte Suprema di Cassazione is uncertain whether it is compatible with the principle of proportionality for a customs clearance agent, in his capacity as principal, to be held liable for the consequences of an external Community transit operation which is vitiated by a forgery that is not attributable to him, in so far as the customs debt may, as in the case in the main proceedings, be considerably in excess of the remuneration received by the principal for his services.
44. The Commission questions the relevance of that question in so far as customs legislation does not provide for any limitations on the liability of the principal. It suggests that the question should be understood as referring to a situation in which it might be inequitable to hold the principal liable for a forgery in which he had no part and in the commission of which the customs employees of the office of destination were in all likelihood involved. It therefore proposes that the Court should widen the terms of the question referred for a preliminary ruling and take account of the criteria which permit duties to be remitted on equitable grounds, in accordance with the procedure laid down in Article 239 of the Customs Code and Articles 899 to 999 of the implementing regulation. It therefore submits that, faced with a ‘special situation’, the Italian authorities should have referred the application for remission of duties to the Commission, pursuant to Article 905 of the implementing regulation.
45. M & M and the Commission add that the uniform application and interpretation of Community law requires that the decisions by which customs authorities refuse to allow such an application should be subject to effective judicial review and call upon the Court in that regard to adopt a position on the judgment of the Corte Suprema di Cassazione of 27 September 2002.
46. The Italian Government is of the view that it is not contrary to the principle of proportionality to hold the principal liable (Case C-97/95 Pascoal & Filhos [1997] ECR I-4209, and Case C-293/04 Beemsterboer Coldstore Services [2006] ECR I‑2263). It submits that the task of the Court is not to adopt a position on the judgment of the Corte Suprema di Cassazione of 27 September 2002, since no question requiring a preliminary ruling has been submitted to it in that regard.
47. According to settled case-law, the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Case C-210/03 Swedish Match [2004] ECR I‑11839, paragraph 47, and Case C-479/04 Laserdisken [2006] ECR I‑8089, paragraph 53).
48. The principal, in his capacity as holder under the external Community transit procedure, is the debtor of the customs debt arising from the failure to observe the provisions governing that procedure. The liability thus imposed upon the principal is intended to ensure the diligent and uniform application of the provisions relating to the recovery of customs debts in order to protect the financial interests of the Community and its Member States. The fact that the principal is thus made liable for the payment of the customs debt, regardless of the extent of that debt in relation to the fees he receives when acting, as in the case in the main proceedings, as customs clearance agent, is not contrary to the principle of proportionality.
49. Nor is the fact that the principal acted in good faith and that the breach of the external Community transit procedure was the result of a forgery in which he had no part capable of constituting an infringement of the principle of proportionality. If that were the case, the principal would no longer have so great an incentive to ensure that transit operations were properly conducted (see, by analogy, Pascoal & Filhos , paragraphs 51 to 55).
50. It must, nevertheless, be borne in mind that, where the customs debt arises as a result of circumstances in which neither deception nor obvious negligence may be attributed to the principal, Article 239 of the Customs Code, which is a general equitable provision, permits the principal to apply for the remission of duties. To that end, Articles 899 to 905 of the implementing regulation provide for a procedure for administrative cooperation between the customs authorities and the Commission.
51. The answer to the second part of the first question must therefore be that it is not contrary to the principle of proportionality to hold a customs clearance agent, in his capacity as principal, liable for a customs debt. Costs
52. 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.