19 October 2017 (*1)

(Reference for a preliminary ruling — Customs union and Common Customs Tariff — Regulation (EEC) No 2913/92 — Second subparagraph of Article 201(3) and Article 221(3) and (4) — Regulation (EEC) No 2777/75 — Regulation (EC) No 1484/95 — Additional import duties — Artificial arrangement intended to avoid the additional duties due — Customs declaration based on false information — Persons capable of being held liable for the customs debt — Limitation period)

In Case C‑522/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 30 September 2016, received at the Court on 7 October 2016, in the proceedings

Staatssecretaris van Finaciën,

THE COURT (Third Chamber),

composed of L. Bay Larsen, President of the Chamber, J. Malenovský, M. Safjan D. Šváby and M. Vilaras (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–A, by C.H. Bouwmeester, acting as tax advisor,

–the Netherlands Government, by M. Bulterman and H. Stergiou, acting as Agents,

–the Belgian Government, by M. Jacobs and J. Van Holm, advocaten,

–the European Commission, by A. Caeiros and F. Wilman, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

This request for a preliminary ruling concerns the interpretation of Article 62, of the second subparagraph of Article 201(3), and of Article 221(3) and (4) 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 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’), read together, first, with Regulation (EEC) No 2777/75 of the Council of 29 October 1975 on the common organisation of the market in poultrymeat (OJ 1975 L 282, p. 77), as amended by Council Regulation (EC) No 806/2003 of 14 April 2003 (OJ 2003 L 122, p. 1) (‘Regulation No 2777/75’), and, second, with Commission Regulation (EC) No 1484/95 of 28 June 1995 laying down detailed rules for implementing the system of additional import duties and fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and repealing Regulation No 163/67/EEC (OJ 1995 L 145, p. 47), as amended by Commission Regulation (EC) No 684/1999 of 29 March 1999 (OJ 1999 L 86, p. 6) (‘Regulation No 1484/95’).

The request has been made in proceedings between A and the Staatssecretaris van Financiën (Secretary of State for Finance, Netherlands), concerning several requests for payment of additional import duties and turnover tax.

Legal context

EU law

The Customs Code

Article 4 of the Customs Code provides as follows:

‘For the purposes of this Code, the following definitions shall apply:

…

“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.

“Import duties” means:

customs duties and charges having an effect equivalent to customs duties payable on the importation of goods,

import charges introduced under the common agricultural policy or under the specific arrangements applicable to certain goods resulting from the processing of agricultural products.

…

“Customs procedure” means:

release for free circulation;

According to Article 62 of the Customs Code:

‘1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

Article 79 of the Customs Code was worded as follows:

‘Release for free circulation shall confer on non-Community goods the customs status of Community goods.

It shall entail application of commercial policy measures, completion of the other formalities laid down in respect of the importation of goods and the charging of any duties legally due.’

Article 201 of the Customs Code provided:

‘1. A customs debt on importation shall be incurred through:

the release for free circulation of goods liable to import duties, or

the placing of such goods under the temporary importation procedure with partial relief from import duties.

Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up on the basis of information which leads to all or part of the duties legally owed not being collected, the persons who provided the information required to draw up the declaration and who knew or ought reasonably to have known that such information was false, may also be considered debtors in accordance with the national provisions in force.’

Article 221 of the Customs Code provided:

‘1. 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.

Where the customs debt is the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three-year period referred to in paragraph 3.’

Regulation No 2777/75

Article 1(1) of Regulation No 2777/75 lists the goods governed by the common organisation of the market in poultrymeat.

Article 5 of that regulation provides:

‘1. In order to prevent or counteract adverse effects on the market in the Community which may result from imports of certain products listed in Article 1, imports of one or more of such products at the rate of duty laid down in Article 10 shall be subject to payment of an additional import duty if the conditions set out in Article 5 of the Agreement on Agriculture concluded in accordance with Article 228 of the Treaty in the framework of the Uruguay Round of multilateral trade negotiations have been fulfilled unless the imports are unlikely to disturb the Community market, or where the effects would be disproportionate to the intended objective.

The trigger volumes to be exceeded in order to have the additional import duty imposed shall be determined particularly on the basis of imports into the Community in the three years preceding the year in which the adverse effects referred to in paragraph 1 arise or are likely to arise.

The import prices to be taken into consideration for imposing an additional import duty shall be determined on the basis of the cif import prices of the consignment under consideration.

Cif import prices shall be checked to that end against the representative prices for the product on the world market or on the Community import market for that product.

The Commission shall adopt detailed rules for the application of this Article in accordance with the procedure laid down in Article 17. Such detailed rules shall specify in particular:

the products to which additional import duties shall be applied under the terms of Article 5 of the Agreement on Agriculture;

the other criteria necessary to ensure the application of paragraph 1 in accordance with Article 5 of the Agreement on Agriculture.’

Regulation No 1484/95

Regulation No 1484/95, in its initial version, has been adopted on the basis, inter alia, of Article 5(4) of Regulation No 2777/75.

Article 1 of Regulation No 1484/95 states:

‘The additional import duties referred to in Article 5(1) [of Regulation] [...] No 2777/75 [...], hereinafter referred to as ‘additional duties’ shall apply to the products listed in Annex I and originating in the countries indicated therein.

The corresponding trigger prices referred to in Article 5(2) [of Regulation] [...] No 2777/75 … are shown in Annex II. ’

Article 3 of that regulation provides:

‘1. The additional duty shall be established on the basis of the cif import price of the consignment in question in accordance with the provisions of Article 4.

the purchasing contract, or any other equivalent document,

the insurance contract,

the invoice,

the certificate of origin (where applicable),

the transport contract,

and, in the case of sea transport, the bill of lading.

The security lodged shall be released to the extent that proof of the conditions of disposal is provided to the satisfaction of the customs authorities.

Otherwise, the security shall be forfeit by way of payment of the additional duties.

Article 4 of Regulation 1484/95 provides:

‘1. If the difference between the trigger price in question referred to in Article 1(2) and the cif import price of the consignment in question:

(a)does not exceed 10% of the trigger price, the additional duty shall be zero;

(b)is more than 10% but not more than 40% of the trigger price, the additional duty shall be 30% of the amount exceeding 10%;

(c)is greater than 40% but less than or equal to 60% of the trigger price, the additional duty shall equal 50% of the amount by which the difference exceeds 40%, plus the additional duty allowed under (b);

(d)is more than 60% but not more than 75% of the trigger price, the additional duty shall be 70% of the amount exceeding 60%, plus the additional duties referred to in (b) and (c);

(e)is more than 75% of the trigger price, the additional duty shall be 90% of the amount exceeding 75%, plus the additional duties referred to in (b), (c), and (d).’

The trigger price and the representative price for each product covered by Regulation No 1484/95 were indicated, respectively, in Annex II and Annex I to that regulation.

Netherlands law

The AWR

Article 22e of the Algemene wet inzake rijksbelastingen (General Law on State Taxes) of 2 July 1959 (Stb. 1959, No 301, in the version applicable until 1 February 2008 (‘the AWR’), states:

‘1. Where the exact amount of import duties legally due could not be determined by reason of an act liable to criminal court proceedings, the request for payment may be issued within five years from the date of the creation of the customs debt.

Law on Customs

Article 48(1) of the Douanewet (Law on Customs) of 2 November 1995 (Stb. 1995, No 553), in the version applicable until 1 August 2008, states:

‘1. Whosoever:

(a)lodges an incorrect or incomplete statutory declaration;

(b)is legally bound to:

1.provide information, data or indications, and does not provide them or provides them incorrectly or incompletely,

…

shall be liable to a maximum of six months’ imprisonment or a third-category fine.’

Decree on Customs

Article 54 of the Douanebesluit (Decree on Customs) of 4 March 1996 (Stb. 1996, No 166), reads as follows:

‘Where a customs declaration referred to in the second subparagraph of Article 201(3) of the Customs Code … is drawn up on the basis of information which leads to all or part of the import duties owed not being fully collected, the person who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false may also be considered a debtor in relation to import duties in accordance with the national provisions in force.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

In 2005 and 2006, company F, whose registered office is located in Germany, has made several declarations for the release for free circulation in the Netherlands of consignments of frozen raw chicken meat originating in particular in Brazil and Argentina.

During that period, all shares in company F belonged to company D, also established in Germany. A, his son B and a third person X were all shareholders of company D and were on that company’s board of directors. Until February 2005, A was the director of company F and was then replaced in that function by X.

Company F had bought the goods concerned by the declarations for release for free circulation referred to in paragraph 18 of the present judgment from company K, established in Uruguay. Those declarations were accompanied by the invoices drawn up by company K and the price indicated on the declarations was that invoiced by company K to company F. The price paid by company F, converted into the cif import price in accordance with Article 5(3) of Regulation No 2777/75, was in each case higher than the trigger price, which meant that no additional import duties covered by Regulations No 2777/75 and No 1484/95 were due.

Company F then sold all of those products to company G, established in Switzerland, and, in order to comply with its obligation under Article 3(4) of Regulation No 1484/95, submitted to the Dutch customs authorities the invoices corresponding to those sales. The price invoiced by company F to company G was consistently higher than that invoiced by company K to company F. Ninety-nine per cent of the shares of company G belonged to A’s son, B, who was also the administrator of company G.

The Netherlands customs authorities requested information on the subsequent resale of products imported by company F. In the absence of satisfactory replies, they considered that the documents submitted by company F did not enable it to be determined whether the cif import price invoiced to that company was higher than the trigger price. In those circumstances, on 10 September 2008, the Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality, ‘the Minister’), acting as the customs authority, issued a series of payment notices (‘tax notices I’) sent, inter alia, to A, to claim, pursuant to Article 3(5) and Article 4 of Regulation No 1484/95, the payment of additional duties in respect of the imports covered by the declarations for release for free circulation at issue, and, for part of the products at issue, payment of the turnover tax.

Following a supplementary inspection, the Netherlands customs authorities established that the purchases and sales of the products imported by company F were always carried out according to a specific scheme. Company G bought the products concerned from South American suppliers, at prices below the trigger price, and resold them to company K at prices well above the trigger price. The latter company sold the products at a price slightly higher than that which it had itself bought them from company F, which then imported those products with a view to their release for free circulation in the European Union. Company F then sold them to company G at an even higher price. Company G then sold them to company D at a price lower than both the price at which it had purchased them and the trigger price. Finally, company D sold the products to a customer at a price above the price at which it had bought them from company G, but was less than the price than company G had paid to company F, and less than the price paid by company F to company K on importing the products, and less than the trigger price.

In view of those findings and the close links between companies D, F and G, the Netherlands customs authorities took the view that A had set up a chain of transactions with other operators whereby the initial price of the products covered by Regulation No 2777/75, purchased from South American independent suppliers, was artificially increased in subsequent transactions, so that the cif import price of the products in question was higher than the trigger price, in order to avoid payment of the additional duties referred to in Regulations No 2777/75 and No 1484/95. The Minister therefore was of the opinion that the purchase and sale agreements concluded between companies G and K, as well as between companies K and F, as well as the contracts concluded between the related companies D, F and G, involved fictitious transactions. Consequently, the Minister took the view that the price invoiced to G by the original South American suppliers was to be the basis for the calculation of the cif import price and any additional duties due.

Where the cif import prices thus calculated were lower than the representative price taken into consideration when the tax notices I were issued, an additional amount of duties higher than that claimed in those notices was due for each of declarations submitted by company F. Taking the view that the customs debts at issue were incurred as a result of an incorrect declaration being lodged, within the meaning of Article 48(1) of the Customs Law, the Minister took the view that the additional duties due under Article 221(4) of the Customs Code, read in conjunction with Article 22e(1) of the AWR, could be claimed from the debtor after the expiry of the three years referred to in Article 221(3) of the Customs Code.

Consequently, on 7 and 10 May, 2010, the Minister sent notice, in particular to A, of payment of additional duties due (‘tax notice II’). Those notices, together with the tax notices I, were adopted on the basis of the second subparagraph of Article 201(3) of the Customs Code, read in conjunction with Article 54 of the Customs Decree, on the ground that the prices indicated in the declarations for release for free circulation submitted by company F came from invoices drawn up at A’s request, whereas the latter had or ought reasonably to have known that the invoices were based on artificial transactions.

On 22 September 2008 and 19 May 2010, A brought proceedings before the competent customs authority of the Netherlands against tax notices I and tax notices II, respectively. Those actions were dismissed by decisions of 16 January 2012, which A challenged before the Rechtbank Noord-Holland (District Court of the province of North Holland, Netherlands). A’s action to the latter court having been dismissed as unfounded, A appealed against the latter’s decision to the Gerechtshof Amsterdam (Amsterdam Court of Appeal, Netherlands), which dismissed the appeal as unfounded and confirmed the judgment of first instance. A therefore appealed on a point of law against the judgment of the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) before the referring court.

The referring court shares the assessment of the Gerechtshof Amsterdam that the chain transactions in the main proceedings constituted abusive practices within the meaning of the judgment of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 69 and the case-law cited), namely transactions which were carried out not in the ordinary course of trade but solely for the purpose of advantages provided for by Union law, in particular Regulations Nos 2777/75 and 1484/95.

In the light of that assessment, the referring court takes the view that, in order to comply with the obligation under the second indent of Article 3(2) of Regulation No 1484/95, company F should have submitted to the Netherlands customs authorities the invoices drawn up by the South American suppliers and sent to company G. The referring court, however, has doubts as to whether the failure by F to present those invoices amounts to providing the information ‘required to draw up the declaration … false’ within the meaning of the second subparagraph of Article 201(3) of the Customs Code.

The referring court also has doubts as to the precise scope of the concept of ‘persons who provided the [false] information’ within the meaning of the second subparagraph of Article 201(3) of the Customs Code. In particular, it asks whether that concept applies also to a natural person, such as A, who has not himself supplied the information necessary for drawing up the customs declaration and is not additionally to be held responsible for that supply as body or official of a legal person but who was closely and knowingly involved in the design and artificial set-up of a structure of companies and commercial transactions in which others persons provided such information.

Moreover, since, in the Netherlands courts, A argued that he did so only after he had obtained confirmation from customs experts of the compliance of that structure with the applicable legal rules, in particular the tax rules, the referring court asks whether that fact is relevant to the assessment of the condition, laid down in the second subparagraph of Article 201(3) of the Customs Code, that persons having provided information ought reasonably to have known that such information was false.

The referring court also raises the question of the interpretation of Article 221(4) of the Customs Code, as regards, more specifically, the question whether the Minister was entitled to issue the tax notices II more than three years after the importation of the products concerned. In that regard, the referring court observes that Article 221(4) of the Customs Code seems to apply only to situations in which the goods have been improperly introduced into the territory of the Union, as in the case of contraband, and not to situations such as that at issue in the main proceedings. In its view, it follows from that article, in a situation such as that at issue in the case in the main proceedings, that the customs debt is incurred when the customs declaration is lodged which is not an act liable to criminal prosecution.

Finally, the referring court states that if the Court were to interpret Article 221(4) of the Customs Code in the sense that the extension of the limitation period under that article is not to be invoked where customs debts are incurred on the basis of Article 201 of the Customs Code, the question arises whether the issue of the tax notices II was lawful, since the three-year period from the date on which the customs debt was incurred had been suspended, pursuant to Article 221(3), following A’s appeal being brought against the tax notices I. However, the referring court takes the view that it is necessary to determine whether, in accordance with that article, bringing an appeal allows the customs authorities, as long as the appeal is pending, to claim amounts additional to those claimed by the tax notice which is the subject of the appeal.

In those circumstances the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)‘(1) Should Article 62 of the Customs Code, read in conjunction with … the provisions of Regulations No 2777/75 and No 1484/95, be interpreted as meaning that the information referred to in the second subparagraph of Article 201(3) of the Customs Code, on the basis of which a customs declaration is drawn up, should include the documents referred to in Article 3(2) of Regulation No 1484/95 which must be submitted to the customs authorities?

(2)Should the second subparagraph of Article 201(3) of the Customs Code be interpreted as meaning that the persons who should be held liable must include the natural person who has not personally actually performed the act described in that paragraph (‘provided the information required to draw up the declaration’) and who can also not be held liable as a body or in an official capacity for performing that act, but who was closely and consciously involved in devising and then artificially setting up a structure of companies and patterns of trade in the context of which (others) subsequently ‘provided the information required to draw up the declaration’?

(3)Should the condition ‘who knew, or who ought reasonably to have known that the information required to draw up the declaration was false’ in the second subparagraph of Article 201(3) of the Customs Code be interpreted as meaning that legal persons and natural persons, who are experienced traders, cannot be held liable for additional duties which are due as a result of an abuse of law, if they only proceeded to set up a transaction structure intended to avoid the payment of additional duties after reputable specialists in the field of customs law had confirmed that such a structure was legally and fiscally acceptable?

(4)Should the second subparagraph of Article 201(3) of the Customs Code be interpreted as meaning that the persons who should be held liable must include the natural person who has not personally actually performed the act described in that paragraph (‘provided the information required to draw up the declaration’) and who can also not be held liable as a body or in an official capacity for performing that act, but who was closely and consciously involved in devising and then artificially setting up a structure of companies and patterns of trade in the context of which (others) subsequently ‘provided the information required to draw up the declaration’?

Similar Documents

We Found Similar Cases for You

ECLI:EU:C:2017:778

62016CJ0522

19 October 2017 (*1)

Legal context

EU law

The Customs Code

Regulation No 2777/75

Regulation No 1484/95

Netherlands law

Netherlands law

The AWR

The AWR

Law on Customs

Law on Customs

Decree on Customs

Decree on Customs

The dispute in the main proceedings and the questions referred for a preliminary ruling

The dispute in the main proceedings and the questions referred for a preliminary ruling

AI-Powered Case Law Search

Get Instant Answers to Your Legal Questions

Links

Contact Us