Important legal notice

61996C0292

European Court reports 1998 Page I-00165

Opinion of the Advocate-General

In the present case the Finanzgericht (Finance Court) Düsseldorf, Federal Republic of Germany, has referred to the Court a number of questions for a preliminary ruling on the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) (`the customs regulation') and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the customs regulation (2) (`the implementing regulation').

Relevant Community rules

The following provisions of the customs regulation are relevant in the present case:

II. Simplified procedures

Article 76

(a) the declaration referred to in Article 62 to omit certain of the particulars referred to in paragraph 1 of that Article [or] for some of the documents referred to in paragraph 2 of that Article not to be attached thereto;

(b) a commercial or administrative document, accompanied by request for the goods to be placed under the customs procedure in question, to be lodged in place of the declaration referred to in Article 62;

(c) the goods to be entered for the procedure in question by means of an entry in the records; in this case, the customs authorities may waive the requirement that the declarant presents the goods to customs.

4. Special simplified procedures for the Community transit procedure shall be laid down in accordance with the committee procedure.

The provisions required for the implementation of this Code ... shall be adopted in accordance with the procedure laid down in paragraphs 2 and 3 ...

The following provisions of the implementing regulation are relevant in the present case:

Formalities at the office of departure

Article 398

The customs authorities of each Member State may authorise any person who fulfils the conditions laid down in Article 399 and who intends to carry out Community transit operations (hereinafter referred to as "the authorised consignor") not to present at the office of departure either the goods concerned or the Community transit declaration in respect of those goods.' (3)

Proceedings before the national court and questions referred for a preliminary ruling

Göritz Intransco International GmbH (`Göritz') runs a forwarding agency at Düsseldorf Airport, which comes within the jurisdiction of the Hauptzollamt (Principal Customs Office) Düsseldorf, Zollamt Flughafen (Airport Customs Office) (the office of departure (4)).

On 4 April 1995 Göritz applied to the Hauptzollamt Düsseldorf for the status of authorised consignor for dispatch of incoming air freight consignments under the Community transit procedure. Such authorisation would have allowed Göritz to use transit declaration forms pre-stamped by the office of departure; Göritz would not then have been required to await processing of transit declarations during the opening hours of the office of departure.

The Hauptzollamt Düsseldorf refused the application by decision of 23 June 1995. Göritz lodged an objection with the Oberfinanzdirektion (Principal Revenue Office) Düsseldorf, which by decision of 12 December 1995 dismissed the objection on the ground that there was no legal basis for the authorisation which Göritz sought, since it was impossible to transfer the place of declaration as provided for in Article 398 of the implementing regulation where the goods were already at the office of departure.

Göritz therefore lodged an appeal before the Finanzgericht Düsseldorf, which by order of 14 August 1996 stayed the proceedings and referred the following questions to the Court:

Analysis

By the first question the national court seeks to ascertain whether the legal basis for granting the status of authorised consignor in the context of the Community transit procedure is Article 76(1) of the customs regulation in conjunction with Article 398 of the implementing regulation, or the latter provision alone.

The Commission and the Hauptzollamt Düsseldorf maintain that Article 76(1) of the customs regulation cannot be regarded as a legal basis. Special simplified procedures for the Community transit procedure have been laid down, in accordance with the combined provisions of Articles 249 and 76(4) of the customs regulation, in Article 398 of the implementing regulation.

I should point out that, as the Commission and the Hauptzollamt Düsseldorf have argued, under Article 76(4) of the customs regulation, special simplified procedures for the Community transit procedure are to be laid down in accordance with the committee procedure, that is, laid down according to the procedure governed by Article 249 of the customs regulation. Article 398 of the implementing regulation concerns special simplified procedures for the Community transit procedure and was thus adopted on the basis of Article 249 in conjunction with Article 76(4) of the customs regulation.

I shall therefore turn immediately to the second question referred by the national court, as to whether under Article 398 of the implementing regulation exemption can be granted from the obligation to present a Community transit procedure declaration at the office of departure even though exemption cannot be granted from the obligation to present the goods at the office of departure because the authorised consignor is based at the office of departure.

The Hauptzollamt Düsseldorf maintains that Article 398 of the implementing regulation does not provide a legal basis for exemption from the obligation to present the goods, although it does allow the presentation of the goods to be transferred from the office of departure to a different place. In reality the second question is asking whether authorisation as an authorised consignor can be granted where the place of presentation can no longer be transferred. It follows from the wording of Article 398 and the balancing of the interest of effective control and the undertaking's interest in a simplified procedure that in that case authorisation as authorised consignor cannot be granted. Where the undertaking is based at the office of departure no transport costs can be saved by transferring the place of declaration and the interest of the undertaking therefore consists solely in being exempted from presenting the Community transit declarations at the office of departure. Such declarations must be filled out both in ordinary procedures and in simplified procedures. Where the undertaking is based at the office of departure, presentation involves no costs and only a limited amount of time, and even as an authorised consignor the undertaking must visit the office of departure to obtain pre-stamped declaration forms.

The Commission considers that the wording of Article 398 in the various language versions indicates that exemption from the obligation to present a Community transit declaration at the office of departure can be granted even though exemption from the obligation to present the goods at the office of departure cannot be granted because the authorised consignor is based at the office of departure. This construction is confirmed by a comparison with Article 406 of the implementing regulation, which concerns the authorised consignee, and also by the purpose of Article 398 et seq., which is to simplify as much as possible the formal requirements imposed on undertakings and the customs authorities in regard to the Community transit procedure. Exemption from the obligation to present a Community transit declaration at the office of departure is advantageous to the undertaking concerned and also to the customs authorities, even where the undertaking is based at the office of departure. Exemption in those circumstances is not prejudicial to customs interests. If the status of authorised consignor can be granted in cases where the goods are in a place other than the office of departure, there is all the more reason why such authorisation should be available where the goods are at the office of departure.

I must point out that there is a difference between the various language versions of the final part of Article 398. Thus, the German, Dutch, French, Spanish, Greek and Swedish versions use the words `neither ... nor'. The English version has `either ... or'; however, those words follow a negative and therefore in reality also amount to `neither ... nor'. On a strict interpretation of the wording, those versions may perhaps, because that expression is used, be taken to mean that exemption cannot be granted in respect of only one of the authorisations referred to in Article 398.

The Danish, Italian and Portuguese versions use the word `and'. The Finnish version uses the word `or'. It does not follow from those versions, therefore, that exemption cannot be granted in respect of only one of those two authorisations.

In my opinion the different language versions make no definite contribution to the interpretation of Article 398 and decisive weight must therefore be placed on the substantive considerations underlying the rule.

As the Commission maintains, a comparison may be made with the provisions on authorised consignees in Article 406, which provides that the obligation to present goods transported under the Community transit procedure at the office of destination may be waived. Article 409(1)(b) provides that the authorised consignee must, inter alia, send the office of destination without delay the copies of the Community transit document which accompanied the consignment. Exemption cannot therefore be granted from the obligation to present the Community transit document at the office of destination, whereas under Article 398 exemption may be granted from the obligation to present the Community transit declaration at the office of departure. That does not, however, prevent exemption being granted from the obligation to present the goods at the office of destination.

I fail to see why, where the position is reversed, that is to say where it is impossible in practice to grant exemption from the obligation to present the goods at the office of departure, there should be anything to prevent exemption being granted from the obligation to present the Community transit declaration at the office of departure.

On the contrary, it seems logical to assume that it must also be possible, a fortiori, to grant exemption from the obligation to present Community transit declarations at the office of departure when it is possible to grant exemption from the obligation to present both Community transit declarations and goods at the office of departure.

It is that interpretation which is most consistent with the aim of the rules in question, namely to simplify formalities and procedures as much as possible. Nor, according to what the Commission has said, can there be any danger to customs interests if, where the goods are at the office of departure, exemption is granted from the obligation to present the Community transit declaration at that place.

Conclusion

For those reasons, I propose that the Court should answer the questions referred by the Finanzgericht Düsseldorf as follows:

The legal basis on which authorisation as an authorised consigner is granted is to be found in Article 398 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the customs regulation. That provision must be interpreted as meaning that exemption from the obligation to present Community transit declarations at the office of departure may be granted even if exemption cannot be granted from the obligation to present the goods in question at the office of departure because the authorised consignor is based at that office.

(1) - OJ 1992 L 302, p. 1.

(2) - OJ 1993 L 253, p. 1.

(3) - In the other official languages of the Community at the time when the implementing regulation was adopted the final part of Article 398 was worded as follows: `... til ikke at frembyde de pågældende varer og til ikke at fremlægge den dertil hørende angivelse til fællesskabsforsendelse for afgangsstedet.' `... der Abgangsstelle hverken die Waren zu gestellen noch die Anmeldung zum gemeinschaftlichen Versandverfahren für diese Waren vorzulegen.' `... om nog de goederen nog de bijbehorende aangifte voor communautair douanevervoer bij het kantoor van vertrek aan te bieden.' `... à ne présenter au bureau de départ ni les marchandises, ni la déclaration de transit communautaire dont ces marchandises font l'object.' `... a no presentar en la oficina de partida ni las mercancías ni la declaración de tránsito comunitario de la que éstas sean objeto.' `...íá ìçí ðñïóêïìßóåé óôï ôåëùíåßï áíá÷þñçóçò ïýôå ôá åìðïñåýìáôá ïýôå ôç äÞëùóç êïéíïôéêÞò äéáìåôáêüìéóçò ôçò ïðïßáò ôá åìðïñåýìáôá áõôÜ áðïôåëïýí áíôéêåßìåíï.' `... a non presentare all'ufficio di partenza le merci e la relativa dichiarazione di transito comunitario.' `... da apresentação na estância de partida das mercadorias e da declaração de trânsito comunitário de que essas mercadorias são objecto.' That phrase is worded as follows in those languages which became official after the regulation had been adopted: `... luvan olla esittämättä lähtötoimipaikassa tavoroita tai niitä koskevaa yhteisön passitusilmoitusta.' `... at inte behöva uppvisa varken varorna i fråga eller deklarationen för transitering för dessa varor för avgångskontoret.'

(4) - Under Article 309(b) of the implementing regulation, the office of departure is the customs office where the Community transit operation begins.