OPINION OF ADVOCATE GENERAL

delivered on 26 April 2005 1

(Reference for a preliminary ruling from the Hof van beroep te Antwerpen)

(Free movement of goods – Customs union – Goods of non-Community origin stolen after being unloaded in the territory of a Member State and before receiving a customs designation – Determination of the person required to pay the corresponding duties – Interpretation of Article 203(3), final indent, first phrase, of the Community Customs Code)

I – Facts and main proceedings

3. On 9 June 1996 NV United Antwerp Maritime Agencies (hereinafter ‘Unamar’) presented to the Antwerp office, together with the appropriate summary declaration, a container of 901 boxes of ‘L&M’ cigarettes which it had shipped from the Brazilian town of Paranagua on board MS Cap Trafalgar, a vessel belonging to the company Hamburg Süd. (3)

7. Each of the companies raised an objection to the summons taken out against it. Their claims were dismissed by the Rechtbank van eerste aanleg (Court of First Instance), Antwerp, by judgment of 9 September 2002, against which they have appealed before the Hof van beroep.

II – Legal framework

A – The legislation to be interpreted

8. A customs debt on importation into the Community is incurred in various circumstances, listed in Articles 201 to 205 of the Code, amongst them the removal of the goods from customs supervision, as provided in Article 203. (4) According to Article 203(3), the debtor (5) is to be – as well as the person who removes the goods from customs supervision and any persons who participate in such removal or who acquire or hold the goods in question and who were aware of the unlawful origin of the goods – ‘where appropriate, the person required to fulfil the obligations arising from temporary storage of the goods (6) or from the use of the customs procedure under which those goods are placed’.

B – Presentation to customs, the summary declaration and temporary storage

9. An importer of goods into the Community must convey and present them to customs; the second task is also to be carried out by the person who assumes responsibility for carriage of the goods following such entry (Articles 38(1)(a) and 40 of the Community Customs Code).

10. They must also lodge a summary declaration, a procedure which, where appropriate, is carried out by the person in whose name they act (Articles 43 and 44(2) of the aforementioned Code). The aim of this document, which is signed by the person making the declaration, is to verify that the goods to which it relates are assigned a customs-approved treatment or use within the periods laid down in Article 49 of the Code (Article 183(1) and (2) of Regulation (EEC) No 2454/93, (7) hereinafter ‘the implementing regulation’).

11. Once these procedures have been completed, the goods acquire the status of ‘goods in temporary storage’ and are stored in places and under conditions laid down by the authorities, which may require the person holding the goods to provide security with a view to ensuring payment of the debt in the event that the goods registered are removed from customs supervision (Articles 50, 51 and 53(2) of the Code, in conjunction with Article 203 thereof).

12. Until the goods listed in the declaration leave for their customs-approved destination and before they have been unloaded, the importer of the goods, the person who assumes responsibility for carriage of the goods following entry into the territory, or the person in whose name they act is responsible for the goods vis-à-vis the authorities. After the goods have been unloaded any person who holds them in order to move or store them assumes that responsibility (Articles 183 and 184 of the implementing regulation, in conjunction with Article 44(2) of the Code).

III – The questions referred for a preliminary ruling

13. In the light of the above circumstances, the Hof van beroep, Antwerp, has referred the following questions to the Court of Justice:

‘1. May the person who must present the goods to customs (Article 40 of the Customs Code …) be deemed to be the person required to fulfil the obligations arising from temporary storage of the goods (final indent of Article 203(3) of the Customs Code), in which connection he or his representative must lodge the summary declaration (Article 44(2)) and must sign it (Article 183(1) of the Implementing Regulation), and must present the goods to the customs authorities so long as they have not been unloaded from the means of transport carrying them at the time when they are brought into the Community and until they have been assigned a customs-approved treatment or use?

3. If the first and second questions are answered affirmatively, may the persons referred to in those questions consequently be deemed to be joint and several customs debtors, it being understood that the persons mentioned in the first and second questions are different persons (in this case the representative of the shipping line by which the goods were brought into the Community and the freight forwarder responsible for the storage and removal of the goods at the unloading place or quayside indicated by the customs authorities)?

IV – Procedure before the Court of Justice

15. At the hearing held on 7 April 2005, the representatives of the parties which took part in the written stage presented oral argument.

V – Analysis of the questions referred for a preliminary ruling

A – Preliminary observations

16. It is necessary to make two preliminary points, one factual and the other legal.

17. The first refers to Unamar’s categorical refusal to concede that it had submitted and signed the bill of lading, which, in this case, acts as summary declaration. This is a fact provided in the order for reference; it is for the national court to ascertain, and the Court of Justice must remain apart from the matter. It is therefore not appropriate to enter into a debate in that respect, but to find the answer regardless of who carried out the procedure in the case.

18. The second point, which has been noted by the Commission, relates to the fact that the Belgian authorities brought the proceedings against Unamar and Seaport Terminals pursuant to Article 202 of the Community Customs Code, on the ground that the debt was payable because the tobacco was brought into the Community unlawfully, whereas the Hof van beroep, Antwerp, considers that the relevant provision is Article 203, which refers to the withdrawal of the goods from customs supervision as the event giving rise to the charge. The Court of Justice must adhere to the latter approach, and provide an interpretation for the court which, in order to decide the case, has jurisdiction to select and apply the provision. (8)

B – The first two questions

19. The elements of the dispute in the main proceedings are clear. It is necessary to determine who, when the goods have been removed, is responsible for the customs debt, apart the person who removed them, any person who participated in that removal and any person who receives them knowing of their unlawful origin. The provision identifies him as ‘the person required to fulfil the obligations arising from temporary storage of the goods’ (Article 203(3), final indent, first phrase, of the aforementioned Code), and the Hof van beroep has doubts as to who that person is.

21. At the initial stage the duty is payable by the importer, the person responsible for the carriage of the goods after crossing the border or the person in whose name they act. At the second stage it is necessary to differentiate between two situations: if the goods are still in the same means of transport, the same persons are liable as at the first stage; if the goods have been discharged, the duty is payable by the person who has them in his possession in order to move them and store them. Not for nothing does Article 101(a) of the Customs Code provide that the warehousekeeper is to be responsible for ensuring that while the goods are in the customs warehouse they are not removed from customs supervision.

22. Therefore, if the goods, before being allocated a customs-approved treatment or use, avoid the supervision of the authorities, the duty is payable – as well as by the person who removed them from that supervision, any person who participated in that removal and the recipients of the goods – by the importer, the carrier or the person they represent, if the goods have not yet been discharged; otherwise, it is payable by any person who has them in his possession in order to move them or store them.

23. This interpretation, which reflects the literal meaning of the rules involved, is also based, as the Commission points out, on their purpose: since this is to prevent illegal imports, until the goods are given a specific Customs status and are subject to payment of duty or exempt from it, either temporarily or definitively, (9) the person in possession of the goods has to show the imported items as many times as he is required to do so, and is answerable for their loss. (10) For the same reasons, Article 51(2) of the aforementioned Code empowers the authorities, when goods are in temporary storage, to require the person holding the goods to provide security with a view to ensuring payment of the customs debt, if they avoid the relevant control.

24. The above considerations lead me to suggest that the Court of Justice answer the first two questions referred for a preliminary ruling by stating that Article 203(3), final indent, first phrase, of the Community Customs Code, when it refers to the person required to fulfil the obligations arising from temporary storage, means:

– if the goods are still in the means of transport in which they entered the Community, (a) the person who brought the goods into the customs territory of the Community, (b) the person who, before and after presentation, assumes responsibility for carriage of the goods, or (c) the person in whose name either of the above persons acts;

– if the goods have been unloaded, the person who has them in his possession in order to move them or store them.

Questions 3 to 6

25. By these four questions, the Belgian court wishes to clarify whether, in the two circumstances described above, the responsibility is simultaneous and joint and several or if it is incurred consecutively, and, in the latter case, to ascertain the precise moment at which the changeover occurs. The answer is implicit in the above line of reasoning and in the suggested reply to the first two questions.

27. Bearing in mind the purpose of the provision, with which I have already dealt, the crucial element is who holds the goods and, consequently, has physical control of them: the person who has them in his possession, and is therefore responsible for their safety, has to fulfil the customs obligations if, while he has control of them, they are removed from customs supervision. This can be inferred from Article 51(2) of the Code itself, which, during temporary possession, encourages the requirement for security to be provided with a view to ensuring payment of the customs duties if the goods avoid that control.

28. Under Article 213 of the Code, where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt. However, this rule presupposes that the obligation is concurrent, which is not the position in this case, since, as I have already suggested, Article 184 of the implementing regulation rules out the possibility of concurrence, by making the liability consecutive with the reference to unloading.

29. As the Belgian Government points out, the person who makes the declaration or the persons to whom Article 44(2) of the Code refers are required to initiate the formalities necessary for the goods to be assigned a customs-approved treatment or use, and to bear the costs incurred as a consequence of the measures taken by the authorities to regularise their situation (Article 187 of the implementing regulation in conjunction with Article 53 of the Code), but these provisions are unconnected with those referred to in Article 203(3), final indent, first phrase, of the Code, which refers to the tasks relating to storage, in particular, putting the goods into customs custody. That is to say, the latter provision is a rule for establishing who is liable for the duty when the controls have been avoided and holds liable, amongst others, the person required to fulfil the obligations arising from temporary storage of the goods, whereas Article 187 provides for a different situation, in which it is necessary to guide the goods towards their customs-approved treatment or use, so that they may leave the customs domain, following the relevant procedures.

30. Accordingly, the persons referred to in the first and second questions are not jointly and severally but consecutively liable, so that those mentioned in the first question are liable only until the goods, after being unloaded, are handed over to the persons mentioned in the second question who, from that moment, become the only persons liable under Article 203(3), final indent, first phrase, of the Code.

VI – Conclusion

31. In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Hof van beroep, Antwerp as follows:

(1) Article 203(3), final indent, of the Community Customs Code, approved by Council Regulation (EEC) No 2913/92 of 12 October 1992, when it refers to ‘the person required to fulfil the obligations arising from temporary storage’, means:

– if the goods are still in the means of transport in which they entered the Community, (a) the person who brought the goods into the customs territory of the Community, (b) the person who, before and after presentation, assumes responsibility for carriage of the goods, or (c) the person in whose name either of the above persons acts;

– if the goods have been unloaded, the person who has them in his possession in order to move them or store them.

(2) The two previous groups are not simultaneously and jointly and severally liable but consecutively liable, so that the persons in the first group are liable only until the goods, after being unloaded, are handed over to the persons who constitute the second group, who, from that moment, are the only persons liable under Article 203(3), final indent, first phrase, of the aforementioned Code.

—

1 – Original language: Spanish.

—

2 – Approved by Council Regulation (EEC) No 2913/92 of 12 October 1992 (OJ 1992 L 302, p. 1).

—

3 – Unamar vigorously denies having enclosed that document, a fact which is stated in the order for reference. In its observations it claims that the document was signed and submitted by Hamburg Süd.

—

4 – In accordance with Community case-law, the rule applies when an act or omission prevents, if only for a short time, the competent customs authority from gaining access to goods under customs supervision and from carrying out the monitoring required by Article 37(1) of the aforementioned Code (Case C-66/99 D. Wandel [2001] ECR I-873, paragraph 47; Case C‑371/99 Liberexim [2002] ECR I-6227, paragraph 55; Case C-337/01 Hamann International [2004] ECR I-1791, paragraph 31; Case C-222/01 British American Tobacco [2004] ECR I‑4683, paragraph 47; and Case C-300/03 Honeywell Aerospace [2005] ECR I-0000, paragraph 19.

—

5 – The Court of Justice, in its judgment of 23 September 2004 in Case C-414/02 Spedition Ulustrans [2004] ECR I-0000, paragraph 39, confirmed that the Community Code lays down exhaustively the conditions for determining who are the debtors of the customs debt. Academic lawyers maintain that the Community legislature, with commendable common sense, decided not to define the chargeable event and the taxpayer, simply giving a casuistic list of the factors which give rise to the tax charge and of the persons called upon to pay it (see Pelechá Zozaya, F., El Código aduanero comunitario y su aplicación en España, editorial Marcial Pons, Madrid 1995, p. 49).

—

6 – Emphasis added.

—

7 – Commission Regulation of 2 July 1993 laying down provisions for the implementation of the Community Customs Code (OJ 1993 L 253, p. 1).

—

8 – Apart from that, the choice is correct because the goods in question did not enter Community territory through improper channels, but following the guidelines set out in Articles 38 to 41 of the Code; it was only when they were stored and awaiting allocation of a customs-approved treatment or use that they evaded supervision.

—

9 – Goods imported from countries or territories outside the European Union acquire the status of Community goods through release for free circulation, an operation which entails the charging of any customs duties legally due (Articles 79 and 201(1) of the Code). However, they may be under the external transit procedure, in storage, under the inward processing procedure or subject to the temporary importation procedure, in which case, in principle, duty is not chargeable (Articles 91, 98, 114 and 137).

—

10 – Under Article 37 of the Code, goods introduced into the Community remain under supervision, and subject to control by the authorities. This situation lasts for as long as necessary to determine their customs status.