(Reference for a preliminary ruling from the Hoge Raad der Nederlanden)

(Relief from import duties – Regulation (EEC) No 918/83 – Article 27 – Goods of a negligible individual value dispatched as a grouped consignment – Consignments dispatched direct from a third country to a consignee in the Community)

Summary of the Judgment

Common Customs Tariff – Importation free of customs duties

(Council Regulations No 918/83, Art. 27, and No 3357/91)

Article 27 of Regulation No 918/83 setting up a Community system of reliefs from customs duty, as amended by Regulation No 3357/91, does not preclude grouped consignments of goods, with a combined intrinsic value which exceeds the value threshold laid down in Article 27, but which are individually of negligible value, from being admitted free of import duties, provided that each parcel of the grouped consignment is addressed individually to a consignee within the European Community.

For the purposes of being granted relief, it is irrelevant that the parcels at issue, of an individual value less than the value threshold laid down in Article 27, are presented to customs as a group for the purpose of their dispatch in the Community, since, as soon as they leave the third country of dispatch, the consignee of each of those parcels is identified. It is also irrelevant that the contractual partner of those consignees is itself established in the European Community where the goods are dispatched directly from a third country to those consignees. The mere fact that the contractual partner is established in the Community does not make it possible, in itself, to find that the consignments of goods were placed under another customs procedure prior to their entry for free circulation in the Community, a circumstance which would allow them to be excluded from relief from customs duties in order to avoid any abuse thereof.

(see paras 38, 42-43, 49, operative part)

2 July 2009 (*)

(Relief from import duties – Regulation (EEC) No 918/83 – Article 27 – Goods of a negligible individual value dispatched as a grouped consignment – Consignments dispatched direct from a third country to a consignee in the Community)

In Case C‑7/08,

REFERENCE for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Netherlands), made by decision of 7 December 2007, received at the Court on 9 January 2008, in the proceedings

Staatssecretaris van Financiën,

THE COURT (First Chamber),

composed of P. Jann, President of the Chamber, M. Ilešič, A. Tizzano, E. Levits (Rapporteur) and J.-J. Kasel, Judges,

Advocate General: J. Kokott,

Registrar: R. Şereş, Administrator,

having regard to the written procedure and further to the hearing on 5 March 2009,

after considering the observations submitted on behalf of:

– Har Vaessen Douane Service BV, by R.N. van der Paardt and C. Bouwmeester, advocaten,

– the Netherlands Government, by C. Wissels and M. de Mol, acting as Agents,

– the Commission of the European Communities, by S. Schønberg and M. van Beek, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 23 April 2009,

gives the following

This reference for a preliminary ruling concerns the interpretation of Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (OJ 1983 L 105, p. 1), as amended by Regulation (EEC) No 3357/91 of 7 November 1991 (OJ 1991 L 318, p. 3) (‘Regulation No 918/83 as amended’).

The reference was made in the context of proceedings between Har Vaessen Douane Service BV (‘Har Vaessen’), a Dutch company incorporated under Netherlands law, and the Staatssecretaris van Financiën concerning its refusal to grant Har Vaessen the relief provided for in Article 27 of Regulation No 918/83 as amended with regard to the importation of compact discs and magnetic tapes.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

First of all, provisions granting relief from customs duties are to be interpreted according to their terms (see, by analogy, Joined Cases C-47/95 to C-50/95, C‑60/95, C-81/95, C-92/95 and C-148/95 Olasagasti and Others [1996] ECR I‑6579, paragraph 20).

22In the present case, Article 27 of Regulation No 918/83 as amended lays down that consignments made up of goods of a negligible value, that is to say below EUR 22, dispatched direct from a third country to a consignee within the Community are to be admitted free of import duties.

23One of the conditions to be fulfilled for the grant of relief concerns, therefore, under that provision, the value of the goods dispatched, which must be less than EUR 22.

24It is apparent from the order for reference that the consignments at issue in the main proceedings, for which relief was refused by the Dutch authorities on the ground that their total value exceeded EUR 22, were made up of parcels of an individual value of less than EUR 22, dispatched as a group for their release for free circulation in the Community. Those parcels, initially dispatched as a group to a PTT distribution centre, were to be distributed subsequently by PTT to ECI’s customers.

25As the referring court points out, in those circumstances, it is on the basis of the identity of the consignee of the goods, namely the customers of ECI or PTT, that the value of the consignments as presented in the main proceedings must be taken into account when applying Article 27 of Regulation No 918/83 as amended.

26In the present case, it is not disputed that each parcel contains, from the moment it is received by Har Vaessen, the address of ECI’s customer.

27The Netherlands Government states, however, that the customs declaration form at issue in the main proceedings refers to PTT, in box 8 thereof, as the consignee.

28That argument is not in itself relevant. Apart from the fact that it could be an error, it is apparent from the documents on the Court’s file, and as the Advocate General stated in point 34 of her Opinion, that the list of ECI’s customers who were the consignees of the individual parcels was attached to the declaration form at issue in the main proceedings.

29Furthermore, the goods contained in a parcel are intended to be used ultimately by ECI’s customer who is the individual consignee. Indeed, the goods were ordered individually from ECI by customers who can, therefore, be considered to be the users thereof, unlike Har Vaessen and PTT which are, as transporters, merely a link in the shipping chain connecting ECI with its customers, the final consignees of the goods.

30It follows that the consignments at issue in the main proceedings must be regarded as a group of different parcels of a respective value of less than EUR 22 whose consignees are ECI’s customers and, therefore, eligible for relief under Article 27 of Regulation No 918/83 as amended.

31That interpretation is confirmed by the wording of Article 27 of Regulation No 918/83 as amended, which makes no distinction between the modes of transport of the goods for the purposes of relief, so that it cannot be considered that, in the main proceedings, ECI’s customers are not the consignees of the goods once those goods leave the third country or that those goods cannot be admitted free of duty.

32Although the original wording of Article 27 of Regulation No 918/83 restricted relief to consignments of goods of a value not exceeding EUR 10 dispatched by post, Article 1 of Regulation No 3357/91 removed the condition relating to the method of dispatch, so that other modes of transport can result in the grant of the relief referred to in Article 27 of Regulation No 918/83 as amended. Thus, the transport of goods by a consignor such as Var Haessen, which, for logistical reasons, groups individual parcels before their presentation to customs cannot result in those goods being denied admission free of duty, where they were not dispatched by post, but fulfil the conditions of Article 27 of Regulation No 918/83 as amended.

33That interpretation is, moreover, in accordance with the objective of Article 27 as it is set out in the first recital in the preamble to Regulation No 3357/91, namely that the relief provided for in that provision aims at administrative simplification of customs procedures.

34It should be pointed out that when adopting provisions granting relief from customs duties, the Council of the European Union must take account, amongst other things, of the difficulties confronting national customs administrations (see, by analogy, Case C-247/97 Schoonbroodt [1998] ECR I-8095, paragraph 23).

35Although such an objective of administrative simplification can cover, as the Netherlands Government argues in its observations, situations in which the collection costs of customs duties are greater than the duties themselves, that objective may also cover other situations.

36Thus, the refusal to grant the relief provided for in Article 27 of Regulation No 918/83 as amended to consignments such as those at issue in the main proceedings, even though the parcels taken individually are of a value not exceeding EUR 22, could lead to the consignor presenting each parcel individually to customs in order to be able to obtain relief. However, such an increase of procedures is not compatible with the objective of administrative simplification.

37Likewise, in the absence of the application of the relief to the consignments at issue in the main proceedings, it would be for the national customs authorities to determine the total customs value of a consignment consisting of a large number of goods. Such a situation could also not be compatible with the Community legislature’s objective of administrative simplification.

38Therefore, the fact that the parcels at issue in the main proceedings, of an individual value not exceeding EUR 22, are presented to customs as a group for the purpose of their dispatch in the Community does not preclude their being granted relief, since, as soon as they leave the third country of dispatch, the consignee of each of those parcels is identified.

39It is apparent, however, from the third recital in the preamble to Regulation No 2287/83 that such relief must be refused where it constitutes an abuse of rights.

40This is, in essence, what the referring court puts forward by way of its second question for a preliminary ruling, pointing out that, in the case before it, the contractual partner of the consignees of the goods entered for free circulation, namely ECI, is established in the Community and not in the third country of dispatch.

41First, it must be noted that the wording itself of Article 27 of Regulation No 918/83 as amended does not make the establishment outside the Community of the contractual partner of the consignees of goods a condition for the grant of relief for those goods.

42Secondly, it must be recalled that, according to the third recital of the preamble to Regulation No 2287/83, in order to avoid any abuse of the customs relief and the distortions of competition resulting therefrom, the consignments of goods should not be eligible for relief from import duties if, prior to their entry for free circulation, they were placed under another customs procedure. Consequently, the relief only applies to consignments dispatched directly from a third country to a natural or legal person in the Community.

43However, the mere fact that ECI is established in the Community does not make it possible, in itself, to find that the consignments of goods at issue in the main proceedings were placed under another customs procedure prior to their entry for free circulation in the Community. In any event, and without prejudice to the national court’s investigations to that effect, it is not apparent from the documents before the Court that that was the case with regard to those consignments.

44The Netherlands Government, however, contends that, in the circumstances of the action in the main proceedings, the abuse of rights lies not so much in the grant of relief from customs duties as in ECI’s attempt to be exempted from turnover tax. As Article 101 of the Dutch customs code sets out that the goods granted the relief provided for in Article 27 of Regulation No 918/83 as amended are also exempted from turnover tax, ECI resorted to a distribution centre outside the Community in order to benefit, initially, from the relief from customs duties, then, from the related exemption from turnover tax. That undertaking would thus derive a financial advantage leading to a distortion of competition with respect to undertakings operating in the same field and dispatching their goods to their customers from within the territory of the Community.

45In this regard, it should be noted that the interpretation of Article 27 of Regulation No 918/83 as amended proposed by the Netherlands Government aims to prevent abuse in obtaining the exemption from turnover tax and not the relief provided for in that provision.

46However, as the Advocate General noted in points 56 to 60 of her Opinion, the Kingdom of the Netherlands itself opted for a method of exemption from turnover tax linked to the grant of the relief provided for in Article 27 of Regulation No 918/83 as amended. Moreover, the Community case-law cited by the Netherlands Government in its observations provides a framework for Member States to refuse the grant of a fiscal advantage in the field of turnover tax where obtaining it amounts to abuse. Therefore, combatting abuse in obtaining exemption from turnover tax cannot be relied upon in support of the interpretation of Article 27 of Regulation No 918/83 as amended.

47Furthermore, concerning the alleged distortions of competition which would benefit ECI in the main proceedings, it should be noted that the choice made by such an undertaking to dispatch its goods from a third country necessarily involves costs related to the transport of the goods and to the customs import procedures which are not necessarily incurred by undertakings operating in the same sector which dispatch their goods from within the customs territory of the Community.

48Therefore, and without prejudice to the investigation to be undertaken by the referring court, the relief provided for in Article 27 of Regulation No 918/83 as amended cannot be refused, in the circumstances of the main proceedings, solely by virtue of the fact that ECI is established within the Community.

49It follows from all those considerations that Article 27 of Regulation No 918/83 as amended must be interpreted as meaning that it does not preclude grouped consignments of goods, with a combined intrinsic value which exceeds the value threshold laid down in that Article 27, but which are individually of negligible value, from being admitted free of import duties, provided that each parcel of the grouped consignment is addressed individually to a consignee within the European Community. In that respect, the fact that the contractual partner of those consignees is itself established in the European Community is not relevant where the goods are dispatched directly from a third country to those consignees.

Costs

50Since 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 (First Chamber) hereby rules:

Article 27 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, as amended by Regulation (EEC) No 3357/91 of 7 November 1991, does not preclude grouped consignments of goods, with a combined intrinsic value which exceeds the value threshold laid down in Article 27, but which are individually of negligible value, from being admitted free of import duties, provided that each parcel of the grouped consignment is addressed individually to a consignee within the European Community. In that respect, the fact that the contractual partner of those consignees is itself established in the European Community is not relevant where the goods are dispatched directly from a third country to those consignees.

[Signatures]

* * *

(*1) Language of the case: Dutch.