CJ, 06-09-2012, nr. C-262/10

This reference for a preliminary ruling concerns the interpretation of Article 204(1)(a) 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’).

That reference was made in proceedings between Döhler Neuenkirchen GmbH (‘Döhler’) and the Hauptzollamt Oldenburg (Principal Customs Office, City of Oldenburg; the ‘Hauptzollamt’) concerning a customs debt on importation imposed on Döhler on the basis of the fact that a bill of discharge concerning goods placed under the inward processing procedure in the form of a system of suspension had not been supplied to the customs supervising office within the time-limit set.

During the first quarter of 2006, Döhler imported concentrated fruit juice which it processed under the inward processing procedure in the form of the system of suspension, as permitted by the authorisation issued to it. According to that authorisation, the period for discharge of the inward processing procedure expired in the following fourth calendar quarter, that is to say, on 31 March 2007. It is also apparent from the documents before the Court that the authorisation permitted Döhler to release compensating products or goods in the unaltered state for free circulation without customs declaration.

Although the bill of discharge should have been supplied within 30 days of the expiry of the period for discharge, that is, in the main proceedings, no later than 30 April 2007,,Döhler failed to do, and ignored the warning from the Hauptzollamt requiring the bill of discharge to be supplied by 20 June 2007.

In the absence of that bill of discharge, the Hauptzollamt imposed import duty on all the imported goods in respect of which the period for discharge had expired on 31 March 2007, for the full amount, namely EUR 1 403 188.49.

On 10 July 2007, Döhler finally supplied the bill of discharge for the goods at issue in the main proceedings, which showed a lesser amount of import duty, namely EUR 217 338.39, corresponding to a significantly lower quantity of the imported goods which had not been re-exported within the time-limit, that is to say before 31 March 2007.

Döhler challenged the difference between the amount of the import duty determined by the Hauptzollamt and that resulting from its bill of discharge. Following the dismissal of its claim, it brought an action before the Finanzgericht Hamburg (Finance Court, Hamburg) seeking the rebate of those duties which it did not consider to be due.

The Finanzgericht Hamburg dismissed the action before it, holding that, by exceeding the period allowed for submission of the bill of discharge, Döhler had not fulfilled its obligations and had thus incurred a customs debt pursuant to Article 204(1)(a) of the Customs Code. That court also held that the late submission of the bill of discharge could not be considered a failure having no significant effect on the correct operation of the customs procedure within the meaning of Article 859(9) of the Implementing Regulation.

In that connection, the Finanzgericht Hamburg pointed out, first, that the time-limit for submission of the bill of discharge could not have been extended even if an extension had been applied for in time, as there were no special circumstances which warranted such an extension, and secondly, that Döhler had been obviously negligent since it was aware, as an experienced operator under the inward processing procedure, of the obligation to submit bills of discharge within a specified period and, in addition, had had its attention drawn to that requirement by the Hauptzollamt.

Challenging the dismissal of its action, Döhler then brought an appeal on a point of law before the Bundesfinanzhof (Federal Finance Court), claiming that the customs procedure had been discharged on 31 March 2007 and that any non-fulfilment of obligations after that date, such as the late submission of the bill of discharge, could not have an impact on the procedure or, still less, give rise to a customs debt.

The referring court, having analysed the interpretation of the Customs Code put forward by Döhler, examined the issue of the incurrence of a customs debt in circumstances such as those of the present case. Furthermore, it stressed the risk of a double customs debt being incurred by goods which are not re-exported; first, upon the expiry of the time-limit for discharge of the relevant customs procedure and, secondly, on the expiry of the time-limit for submission of the bill of discharge.

It is against that background that the Bundesfinanzhof, taking the view that the resolution of the dispute before it requires the interpretation of the Customs Code, decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling::

By its question, the referring court asks, in essence, whether Article 204(1)(a) of the Customs Code is to be interpreted as meaning that non-fulfilment of the obligation to submit the bill of discharge to the supervising office within 30 days of the expiry of the time-limit for discharging the procedure laid down in the first indent of the first subparagraph of Article 521(1) of the Implementing Regulation, gives rise to a customs debt in respect of the entire quantity of the imported goods covered by the bill of discharge, including those re-exported outside the territory of the European Union, where the conditions set out in Article 859(9) of the Implementing Regulation are not considered to be fulfilled.

Under Article 204(1)(a) of the Customs Code, a customs debt on importation is incurred through non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from the use of the customs procedure under which they are placed, unless it is established that that the failure has no significant effect on the correct operation of the procedure in question. It must be noted that, as the Advocate General points out in point 49 of his Opinion, any circumstance not covered by this exception falls within the sphere of application of Article 204 of the Customs Code.

Döhler claims that, in the main proceedings, the inward processing procedure was discharged, in accordance with Article 89(1) of the Customs Code, by the re-exportation of goods in the manner, and within the period, prescribed, and that the benefit of that procedure cannot be retroactively withdrawn by the incurrence of a customs debt on the ground that the bill of discharge was not submitted within the prescribed period. Hence, according to Döhler, the non-fulfilment of the obligation to submit the bill of discharge, laid down in the first indent of the first subparagraph of Article 521(1), cannot give rise to a customs debt since that obligation arose after the discharge of the relevant customs procedure.

That argument cannot be accepted.

No provision of the Customs Code or its Implementing Regulation, in the versions in force at the relevant time, supports the notion that it is necessary, as regards the effect of a failure on the incurrence of a customs debt, pursuant to Article 204 of the Customs Code, to distinguish between an obligation which must be carried out before the discharge of the relevant customs procedure and an obligation which must be carried out after such discharge, or between a ‘principal’ and ‘secondary’ obligation.

Furthermore, Article 204 of the Customs Code states, in its first paragraph, that a customs debt is incurred through ‘non-fulfilment of one of the obligations arising … from the use of the customs procedure under which they are placed’, therefore applying to all obligations arising from the relevant customs procedure. In addition, it must be pointed out that Article 859(9) of the Implementing Regulation expressly provides that exceeding the time-limit allowed for submission of the bill of discharge is not a failure which gives rise to a customs debt where certain conditions, set out in that article, are fulfilled.

It must be observed that the inward processing procedure in the form of a system of suspension constitutes an exceptional measure intended to facilitate the carrying out of certain economic activities. That procedure involves the presence, on the customs territory of the European Union, of non-Community goods, which carries the risk that those goods will end up forming part of the economic networks of the Member States without having been cleared through customs (see Case C-234/09 DSV Road [2009] ECR I-7333, paragraph 31).

Since that procedure involves obvious risks to the correct application of the customs legislation and the collection of duties, the beneficiaries of that regime are required to comply strictly with the obligations resulting therefrom. Similarly, the consequences of non-compliance with their obligations must be strictly interpreted (see Joined Cases C-430/08 and 431/08 Terex Equipment and Others [2010] ECR I-321, paragraph 42).

Hence, as pointed out by the Advocate General in point 50 of his Opinion, it is through the discharge of the inward processing procedure based on the corresponding bill of discharge that the final fate of the imported goods is established, by way of derogation from the general arrangement. The bill of discharge is therefore a central document in the operation of the inward processing procedure in the form of a system of suspension, as shown also by the detailed wording which must appear on it in accordance with Article 521(2) of the Implementing Regulation, and the obligation to submit that bill of discharge within 30 days of the expiration of the period for discharge, as laid down in the first subparagraph of Article 521(1), first indent, of the Implementing Regulation, is of particular importance for customs supervision in the context of that customs procedure.

Consequently, the incurrence of a customs debt does not, in circumstances such as those in the main proceedings, have the nature of a penalty, but must rather be regarded as the consequence of the finding that the conditions required to obtain the advantage derived from the application of the inward processing procedure in the form of a system of suspension have not been fulfilled. The procedure implies the granting of a conditional advantage, which cannot be granted if the applicable conditions are not respected, thereby making the suspension inapplicable and consequently justifying the imposition of customs duties.

Moreover, the Court has held that Article 859 of the Implementing Regulation contains a validly constituted and exhaustive set of rules on failures, within the meaning of Article 204(1)(a) of the Customs Code, which ‘have no significant effect on the correct operation of the temporary storage or customs procedure in question’ (Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 43). In the main proceedings, the referring court formulated the question referred on the assumption that the conditions set out in Article 859 were not fulfilled.

Therefore, it must be held that the non-fulfilment of an obligation, linked to the benefit of an inward processing procedure in the form of a system of suspension, which must be carried out after the discharge of that customs procedure — in the present case the obligation to submit the bill of discharge within the period of 30 days prescribed in the first indent of the first subparagraph of Article 521(1) of the Implementing Regulation — gives rise, in respect of the entire quantity of the goods covered by the bill of discharge, to a customs debt pursuant to Article 204(1)(a) of the Customs Code, where the conditions set out in Article 859(9) of the Implementing Regulation are not met.

As regards the risk, mentioned by the referring court and by Döhler, of the incurrence of a double customs debt in the main proceedings for the goods which were not re-exported, it must be pointed out that the customs union precludes the double taxation of the same goods (Case 252/87 Kiwall [1988] ECR I-4753, paragraph 11).

It is therefore for the referring court to ensure that the custom authorities do not impose a second customs debt for goods in respect of which a customs debt has already been incurred on the basis of an earlier chargeable event.

In the light of the above, the answer to the question referred is that Article 204(1)(a) of the Customs Code must be interpreted as meaning that the non-fulfilment of the obligation to submit the bill of discharge to the supervising office within 30 days of the expiry of the period for discharging the relevant procedure set down in the first indent of the first subparagraph of Article 521(1) gives rise to a customs debt in respect of the entire quantity of the imported goods covered by the bill of discharge, including goods re-exported outside the territory of the European Union, where the conditions set out in Article 859(9) of the Implementing Regulation are not considered to be fulfilled.

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.

On those grounds, the Court (Third Chamber) hereby rules:

Article 204(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that the non-fulfilment of the obligation to submit the bill of discharge to the supervising office within 30 days of the expiry of the period for discharging the relevant procedure set down in the first indent of the first subparagraph of Article 521(1) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, gives rise to a customs debt in respect of the entire quantity of the imported goods covered by the bill of discharge, including goods re-exported outside the territory of the European Union, where the conditions set out in Article 859(9) of Regulation No 2452/93 are not considered to be fulfilled.

[Signatures]