1 This request for a preliminary ruling concerns the interpretation of Articles 195, 217 and 221 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 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13) (‘the Customs Code’).
2 The request has been made in proceedings between, on the one hand, Bolloré Logistics SA and, on the other hand, the Direction interrégionale des douanes et droits indirects de Caen (Interregional Customs and Excise Directorate, Caen, France) and the Recette régionale des douanes et droits indirects de Caen (Regional Customs and Excise Revenue, Caen, France) (together, ‘the customs authorities’) and Bolloré Ports de Cherbourg SAS (‘BPC’), concerning the payment of a customs debt which the applicant in the main proceedings was called on to pay in its capacity as guarantor for BPC.
3 The Customs Code was repealed and replaced by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1 and corrigendum OJ 2013 L 287, p. 90). However, pursuant to Article 286(2) of that regulation, in conjunction with Article 288(2) thereof, the Customs Code remained applicable until 30 April 2016.
4 Article 4 of the Customs Code states: ‘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) or export duties (customs debt on exportation) which apply to specific goods under the Community provisions in force; … (12) “debtor” means any person liable for payment of a customs debt; …’
5 Article 88 of the Customs Code states: ‘The customs authorities may make the placing of goods under a suspensive arrangement conditional upon the provision of security in order to ensure that any customs debt which may be incurred in respect of those goods will be paid. Special provisions concerning the provision of security may be laid down in the context of a specific suspensive arrangement.’
6 Article 104 of the Customs Code states: ‘Without prejudice to Article 88, the customs authorities may demand that the warehousekeeper provide a guarantee in connection with the responsibilities specified in Article 101.’
7 Article 189 of the Customs Code states: ‘1. Where, in accordance with customs rules, the customs authorities require security to be provided in order to ensure payment of a customs debt, such security shall be provided by the person who is liable or who may become liable for that debt. … 3. The customs authorities may authorise the security to be provided by a person other than the person from whom it is required. …’
8 Article 190 of the Customs Code states: ‘1. Where customs legislation provides that the provision of security is optional, such security shall be required at the discretion of the customs authorities in so far as they consider that a customs debt which has been or may be incurred is not certain to be paid within the prescribed period. …’
9 Article 193 of the Customs Code states: ‘Security may be provided by either: - a cash deposit, or - a guarantor.’
10 Article 195 of the Customs Code provides: ‘The guarantor shall undertake in writing to pay jointly and severally with the debtor the secured amount of a customs debt which falls to be paid. …’
11 The first subparagraph of Article 217(1) of the Customs Code, which is contained in Section 1, headed ‘Entry in the accounts and communication of the amount of duty to the debtor’, of Chapter 3, headed ‘Recovery of the amount of the customs debt’, of Title VII of that code, provides: ‘Each and every amount of import duty or export duty resulting from a customs debt, hereinafter called “amount of duty”, shall be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities in the accounting records or on any other equivalent medium (entry in the accounts).’
12 Article 221(1) of the Customs Code provides: ‘As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.’
13 Chapter V, headed ‘Procedure before a decision is taken: the right to be heard’, of Title II of the French Customs Code, headed ‘Organisation and functioning of the customs service’, contains Articles 67A to 67D.
14 Article 67A of the French Customs Code, as amended by Article 25 of Law No 2009-1674 of 30 December 2009 (JORF No 303 of 31 December 2009, text No 2), provides: ‘Subject to the provisions of Article 67B, before any decision is taken pursuant to the [Customs Code] and its implementing provisions, where it is unfavourable or where it gives notification of a customs debt as defined in Article 4(9) of the [Customs Code], a document shall be sent or delivered to the person concerned by which the customs administration communicates the proposed decision, the grounds for the decision, a reference to the documents and information on which it will be based and the possibility for the person concerned to present his or her observations within a period of 30 days from service or delivery of that document.’
15 Article 67(D)(e) of the French Customs Code, as amended by Law No 2009-1674, provides: ‘This Chapter shall not apply to: … (e) Recovery notices served in accordance with Article 345 of this Code for the purpose of recovering debts outstanding on the due date, with the exception of those established as a result of an infringement of this Code’.
16 Article 345 of the French Customs Code, as amended by Article 44 of the Amending Finance Law for 2002 No 2002-1576 of 30 December 2002 (JORF No 304 of 31 December 2002, text No 2), provides: ‘Claims of any nature established and recovered by the customs administration shall be the object of a recovery notice, subject, where necessary, to the referral of the case to the ordinary courts. …’
17 Article 405 of the French Customs Code, as amended by Article 44 of Law No 2002-1576, provides: ‘Guarantors shall be required, in the same way as principals, to pay the duties and charges, monetary penalties and other sums owed by the persons liable for whom they are acting as guarantor.’
18 On 25 August 2011, Alpha Commodities imported and unloaded 46000 tonnes of salt from Australia in the port of Cherbourg (France). Pending the re-exportation of those goods, it concluded a warehousing contract with BPC, a transport and logistics operator.
19 On 21 October 2011, BPC concluded a temporary occupation agreement in respect of that warehousing with the port of Cherbourg. That temporary occupation agreement, which was extended several times, remained in force until 30 June 2015.
20 On 8 December 2011, BPC obtained authorisation from the customs authorities for the customs warehousing procedure, allowing for the suspension of customs duties and charges, for the same period of validity as the temporary occupation agreement. On 9 December 2011, BPC placed the goods under the customs warehousing procedure.
21 On 8 February 2016, the customs authorities, taking the view that BPC no longer had a valid temporary occupation agreement, informed BPC that the authorisation for the customs warehousing procedure had been cancelled with immediate effect and that it would be notifying it of the customs debt resulting from the ineffectiveness of that procedure.
22 On 9 March 2016, the customs authorities served on BPC a final decision establishing a customs debt and a payment notice.
23 On 21 March 2016, the customs authorities entered the amount of that debt in the accounts and sent BPC a recovery notice in the amount of EUR 454807, comprising EUR 104265 by way of customs duty and EUR 350542 in value added tax (VAT).
24 On 21 March and 21 June 2016, the customs authorities served on the applicant in the main proceedings, in its capacity as guarantor for BPC, two recovery notices for a total amount of EUR 104265 corresponding to the customs duty secured.
25 By decision of 1 October 2018, the tribunal de grande instance de Caen (Regional Court, Caen, France) dismissed the applications brought by BPC and the applicant in the main proceedings for annulment of the recovery notices issued against them and of the decisions, notified by the customs authorities, rejecting the challenges they had brought against the recovery notices.
26 By judgment of 10 September 2019, the cour d’appel de Caen (Court of Appeal, Caen, France), partially setting aside that decision with regard to BPC, annulled the recovery notice that had been served on BPC on 21 March 2016 and dismissed all of the customs authorities’ claims against BPC. That court pointed out in particular that, pursuant to Articles 217 and 221 of the Customs Code and Article 345 of the French Customs Code, in order to be lawful, the communication of the amount of duty must have been preceded by its entry in the accounts and that, in order to be recovered through a recovery notice, the duty must have been lawfully communicated to the person liable for the customs debt, which presupposes that the duty has been established. Since that was not the case here, the duty had not been lawfully communicated to BPC.
27 As regards the applicant in the main proceedings, the cour d’appel de Caen (Court of Appeal, Caen), in the same judgment, upheld the decision ordering it to pay to the customs authorities, pursuant to its undertaking as guarantor, the customs duty claimed from BPC. According to that court, neither Article 221 of the Customs Code nor Article 67A of the French Customs Code applies to the guarantor; they apply only to the person liable for the customs debt.
28 The referring court, the Cour de cassation (Court of Cassation, France), notes that, on the date on which the recovery notices were served on the applicant in the main proceedings, the duty at issue had been entered in the accounts for the purposes of Article 217 of the Customs Code, but had not been lawfully communicated to BPC, the person liable for the customs debt, for the purposes of Article 221 of that code. It states that what is at issue is therefore ‘whether a customs debt had fallen due’ and asks whether the failure lawfully to communicate the duty to the debtor, in the absence of a prior entry in the accounts, which precludes its recovery from the debtor, constitutes a personal exception for that debtor on which the guarantor cannot rely, or whether the customs debt is payable by the guarantor only if it is payable by the debtor.
29 In addition, the Cour de cassation (Court of Cassation) is uncertain whether the rights of defence of the guarantor are affected by the fact that, under Article 67D of the French Customs Code, there is no inter partes phase before the service of a recovery notice pursuant to Article 345 of that code.
30 In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 195, 217 and 221 of the Customs Code be interpreted as meaning that the customs administration may not demand payment of a customs debt from the joint and several guarantor when the duties have not been lawfully communicated to the debtor? (2) (a) Does observance of the rights of defence, including the right to present observations before any measure adversely affecting a person, which is a fundamental principle of EU law, mean that where, in the case of non-payment of the customs debt by the debtor within the prescribed period, its recovery is sought from the guarantor, the customs administration must first place the guarantor in a position in which it can effectively make known its views as regards the information on which the customs administration intends to base its decision to enforce payment? (b) Is the fact that the debtor of the customs debt has itself been placed in a position in which it can effectively make known its views before the communication of the duties relevant to the answer to Question 2(a)? (c) If Question 2(a) is answered in the affirmative, what is the decision adversely affecting the guarantor before which there must be an inter partes phase: the decision of the customs administration to enter the duties in the accounts and to notify them to the debtor of the customs debt or the decision to enforce payment from the guarantor?’
31 By its first question, the referring court asks, in essence, whether Article 195, Article 217(1) and Article 221(1) of the Customs Code must be interpreted as meaning that the customs authorities may not demand payment of a customs debt from the guarantor referred to in Article 195 when the amount of duty has not been lawfully communicated to the debtor.
32 First of all, it should be borne in mind that it follows from the wording of Article 221(1) of the Customs Code that ‘entry in the accounts’, which, pursuant to Article 217(1) of that code, consists in the entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import duty or export duty (judgment of 28 January 2010, Direct Parcel Distribution Belgium, C‑264/08, EU:C:2010:43, paragraph 26 and the case-law cited).
33 The Court has held that such a chronological order in the procedure for entry in the accounts and communication of the amount of duty, which is affirmed in the very heading of Section 1 of Chapter 3 of Title VII of the Customs Code, namely ‘Entry in the accounts and communication of the amount of duty to the debtor’, must be observed if there are not to be differences in treatment as between the persons liable and if, moreover, the smooth operation of the customs union is not to be prejudiced (judgment of 28 January 2010, Direct Parcel Distribution Belgium, C‑264/08, EU:C:2010:43, paragraph 27 and the case-law cited).
34 The Court’s conclusion was thus that Article 221(1) of the Customs Code must be interpreted as meaning that the amount of import or export duty due can be validly communicated to the debtor by the customs authorities, in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities (judgment of 28 January 2010, Direct Parcel Distribution Belgium, C‑264/08, EU:C:2010:43, paragraph 28 and the case-law cited).
35 It follows that, where the amount of duty has not been lawfully communicated to the debtor because it was not entered in the accounts beforehand - a situation which corresponds to the facts of the case in the main proceedings, since it is apparent from the request for a preliminary ruling that the entry in the accounts was subsequent to the communication to BPC of the amount of duty - the customs debt does not fall to be paid by the debtor.
36 As is apparent from the request for a preliminary ruling, that is why, in the main proceedings, the customs authorities had their claims against BPC dismissed.
37 Next, as regards whether payment of a customs debt that has not become payable by the debtor may nevertheless be claimed from the guarantor, it should be observed, in the first place, that, although EU law does not govern the contract of guarantee, the Court has held that it is only where a debt is payable by the debtor that the creditor may enforce the security against the guarantor.
38 The Court has held, in essence, that, according to the general principles which stem from the legal systems of the Member States, a contract of guarantee represents a triangular process, by which the guarantor gives an undertaking to the creditor that he will fulfil the obligations assumed by the debtor if that debtor fails to fulfil them himself (see, to that effect, judgment of 15 May 2003, Préservatrice foncière TIARD, C‑266/01, EU:C:2003:282, paragraph 27).
39 The Court has observed that such a contract creates a new obligation, assumed by the guarantor, to guarantee the performance of the principal obligation imposed on the debtor, and that the guarantor does not take the place of the debtor, but guarantees only to pay his debt, according to the conditions specified in the guarantee contract or laid down by legislation (judgment of 15 May 2003, Préservatrice foncière TIARD, C‑266/01, EU:C:2003:282, paragraph 28).
40 The obligation thus created is accessory, in the sense that, first, the creditor cannot bring proceedings against the guarantor unless the debt covered by the guarantor is payable and, second, the obligation assumed by the guarantor cannot be more extensive than that of the debtor (see, to that effect, judgment of 15 May 2003, Préservatrice foncière TIARD, C‑266/01, EU:C:2003:282, paragraph 29 and the case-law cited).
41 More recently, the Court has reiterated that a contract of guarantee is a separate contract from that which binds the creditor and the debtor, by which the guarantor, who is a third party to that contractual relationship, has the role of guaranteeing to the creditor payment of what the debtor may have to pay to the latter under the guaranteed obligation, which consists of the debt owed by the debtor to the creditor (judgment of 2 September 2021, CRCAM, C‑337/20, EU:C:2021:671, paragraph 58).
42 In the second place, it should be borne in mind that, consistently with the Court’s findings concerning the contract of guarantee, Article 195 of the Customs Code states that the guarantor is to undertake in writing to pay jointly and severally with the debtor the secured amount of a customs debt ‘which falls to be paid’.
43 It therefore follows from the foregoing considerations, first, that the customs debt does not fall to be paid by the debtor in the absence of a prior entry in the accounts of the amount of customs duty without which the communication of that amount to the debtor is not lawful and, secondly, that the guarantor cannot be required to guarantee payment of that debt when it has not become payable by the debtor.
44 In those circumstances, the answer to the first question is that Article 195, Article 217(1) and Article 221(1) of the Customs Code must be interpreted as meaning that the customs authorities may not demand payment of a customs debt from the guarantor referred to in Article 195 when the amount of duty has not been lawfully communicated to the debtor.
45 In view of the answer to the first question and the fact that, according to the order for reference, all of the customs authorities’ claims against BPC were dismissed and BPC is therefore not in default of payment of any customs debt which the customs authorities could seek to recover from the applicant in the main proceedings in its capacity as guarantor, the second question, in its various elements, is quite obviously hypothetical. The Court cannot rule on a question referred for a preliminary ruling where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or where the problem raised is hypothetical (judgment of 19 January 2023, Unilever Italia Mkt. Operations, C‑680/20, EU:C:2023:33, paragraph 19 and the case-law cited). It follows that the second question is inadmissible.
46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.