OPINION OF ADVOCATE GENERAL

delivered on 6 May 2004(1)

(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))

(Community Customs Code – Article 202 – Unlawful introduction of goods into the customs territory of the Community – Customs debt – Liability of the employer)

By order of 6 November 2002 the Verwaltungsgerichtshof (Higher Administrative Court), Vienna referred to the Court for a preliminary ruling a question on the interpretation of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (‘the Customs Code’ or simply ‘the Code’). (2) Essentially the national court wishes to know if that provision precludes rules in a Member State under which employers (or other undertakings) incur liability for a customs debt where their employees (or other persons contracted by them) have infringed customs obligations in the performance of the tasks allocated to them.

I – Legal background

Community provisions

Article 202 of the Customs Code provides:

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

(a) the unlawful introduction into the customs territory of the Community of goods liable to import duties …

3. The debtors shall be:

– the person who introduced such goods unlawfully,

– any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been aware that such introduction was unlawful, and

– any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been introduced unlawfully.’

Article 213 states: ‘Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt.’

National provisions

Paragraph 79(2) of the Zollrechts-Durchführungsgesetz (Act implementing customs law; ‘the ZollR-DG’) (3) states that:

‘Where an employee or other person contracted by an undertaking incurs liability for a customs debt because that person has, in the discharge of the affairs of his employer or the undertaking which engaged him, acted unlawfully with regard to customs obligations, the employer or undertaking shall simultaneously incur liability for that customs debt in so far as it has not become the customs debtor in respect thereof pursuant to any other provision.’

II – Facts and procedure

According to the file, Mr Hassan Bas is an employee of the company Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul (‘Ulustrans’).

On 5 December 1996 Mr Hassan Bas drove an articulated lorry registered in Ulustrans’ name across the customs border at Höchst between Switzerland and Austria without going through customs formalities in relation to the four cloth-weaving looms which he was transporting.

By decision of 11 December 1996 the Hauptzollamt Feldkirch (Feldkirch customs office) therefore informed Mr Hassan Bas that he was liable under Article 202(1) and (3) of the Customs Code for a customs debt in the sum of ATS 770 684 (ATS 83 770 in customs duties and ATS 686 914 in import turnover tax).

In addition, on 27 February 1997 the Feldkirch customs office informed Ulustrans that it was also liable under Article 202(1) of the Customs Code, in conjunction with Paragraph 79(2) of the ZollR-DG, for a customs debt in the same amount as that owed by its employee.

The objection lodged by Ulustrans against that decision was dismissed. Ulustrans then brought an administrative action before Appeal Chamber IV of the Linz Region of the Finanzlandesdirektion für Oberösterreich, which was also dismissed by decision of 21 November 2000.

Ulustrans therefore brought a new action before the Verwaltungsgerichtshof, seeking the annulment of the decision of the Finanzlandesdirektion für Oberösterreich (‘the respondent authority’) and claiming in particular that Paragraph 79(2) of the ZollR-DG infringes Community law as it unlawfully extends the exhaustive list of customs debtors set out in Article 202(3) of the Code.

Seised of that question, the Verwaltungsgerichtshof therefore considered it necessary to refer to the Court of Justice under Article 234 EC the following question: ‘Does Paragraph 79(2) of the Zollrechts-Durchführungsgesetz (under which an employer or undertaking incurs liability for a customs debt at the same time as the employee or other person contracted by the undertaking incurs liability for the debt, if that person has, in the discharge of his employer’s or the undertaking’s affairs, acted unlawfully with regard to customs obligations) widen the meaning of the term “customs debtor” in a manner that is contrary to Article 202(3) of the Customs Code and therefore incompatible with Community law?’

In the proceedings thus commenced, written observations were submitted by the respondent authority, the Austrian Government and the Commission.

III – Legal analysis

The national court therefore asks the Court to review the compatibility of Paragraph 79(2) of the ZollR-DG with Article 202(3) of the Customs Code.

It is, however, common ground that, within the framework of preliminary ruling proceedings, the Court does not have jurisdiction to give a ruling on the compatibility of a national measure with Community law. It can only ‘supply the national court with a ruling on the interpretation of Community law so as to enable that court to determine whether such compatibility exists in order to decide the case before it’. (4)

According to the current practice of the Court in these cases, the question referred by the Verwaltungsgerichtshof must therefore be reformulated and understood as seeking to establish whether the provision of the Customs Code referred to precludes national rules such as those in Austria which render employers (or undertakings) liable for a customs debt where their employees (or other persons contracted by them) infringe customs obligations in the performance of the tasks allocated to them.

In this respect, I note first that where goods liable to import duties are unlawfully introduced into the customs territory of the Community, Article 202(3) of the Code provides that three categories of persons are liable for a customs debt: (i) the person who introduced such goods unlawfully; (ii) any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been aware that such introduction was unlawful; (iii) and any persons who acquired or held the goods in question and who were aware or should reasonably have been aware at the time of acquiring or receiving the goods that they had been introduced unlawfully.

In order to answer the question under consideration it is therefore necessary as a preliminary point to determine whether the list of customs debtors cited above is exhaustive or, on the contrary, the Member States can extend it by adding other categories of debtors to those persons.

The respondent authority and the Austrian Government support the second proposition. They take the view that Article 202(3) of the Customs Code is only a ‘base’ provision which merely establishes minimal harmonisation of the definition of customs debtor. It does not therefore prevent the Member States from adopting further provisions, such as Paragraph 79(2) of the ZollR-DG, intended to widen that definition in order to secure payment of customs debts.

According to the respondent authority and the Austrian Government, that interpretation is consistent with Article 232(1)(a) of the Customs Code and with Article 8 of Council Decision 2000/597 on the system of the European Communities’ own resources, (5) which entrust the national customs authorities and the Member States respectively with the task of using all options open to them under national provisions to secure collection of customs duties.

I do not think I can accept that interpretation however. In my opinion, Article 202(3) of the Customs Code identifies fully the debtors liable for the unlawful introduction of goods into the customs territory of the Community.

That conclusion is already confirmed by the wording of the provision in question.

Article 202(3) identifies specifically who ‘the debtors shall be’ in regard to customs debts, while its wording offers no support for the view that the Member States may regard as debtors persons other than those expressly listed.

The conclusion above is confirmed also by a historical analysis of earlier relevant provisions.

Before the adoption of the Customs Code the relevant provisions were contained in various measures of delegated legislation. In particular, the rules on the persons liable for payment of a customs debt were the subject-matter of Council Regulation (EEC) No 1031/88 of 18 April 1988 (‘Regulation No 1031/88’). (6)

The first paragraph of Article 3 of that regulation provided that, where a customs debt has been incurred through the unlawful introduction of goods into the customs territory of the Community, ‘the person who introduced the goods unlawfully into the customs territory of the Community shall be liable for payment of such debt.’ The second paragraph of Article 3, however, added that ‘under the provisions in force in Member States, the following shall also be jointly and severally liable for payment of such debt: … any persons who participated in the unlawful introduction of the goods’, ‘any persons who acquired or held the goods in question’, and ‘… any other persons who are liable by reason of such unlawful introduction’. (7)

As the Commission has correctly observed, Regulation No 1031/88 therefore allowed the Member States to identify further categories of persons involved in some way in the unlawful introduction of goods from whom payment of customs debts could be sought.

As is generally known, in order to facilitate the task ‘both of Community traders and the customs authorities’, the Customs Code assembled in a code ‘the provisions of customs legislation that [were then] contained in a large number of Community regulations and directives’, including in particular Regulation No 1031/88 itself (first recital in the preamble), (8) and also amended that legislation where necessary in order to make Community customs legislation ‘more consistent … simpl(e)’ and ‘complete’ (second recital).

Article 202, which replaced Article 3 of Regulation No 1031/88, must therefore be considered in that light to specifically identify the debtors liable for a customs debt without any reference to national provisions, unlike in the past.

In my view it appears from the legislative background described that the list of debtors contained in Article 202 is the result of a conscious choice on the part of the legislature, which, with a view to achieving a ‘simple’ and ‘complete’ set of rules, expressly and exhaustively listed the persons who can be requested to take responsibility for customs obligations incurred through unlawful introduction of goods.

I therefore conclude that after the adoption of the Code the Member States are no longer authorised to adopt or maintain provisions which identify other persons liable, or jointly and severally liable, to pay such debts.

It is now necessary to determine whether provision, such as that in the Austrian legislation, for the liability of employers to pay customs debts incurred through the unlawful conduct of an employee extends the exhaustive list of debtors laid down in Article 202(3) of the Code or whether it comes within one of the three categories of persons provided for.

In that connection I would point out first that the third category of debtors provided for in the provision under consideration, that is to say, persons who acquired or held the goods introduced unlawfully, is of no relevance in the present case. There is in this case no question of the liability of a person who, after introduction of the goods, acquired or held them, but rather of a person bound by an employment relationship to the person carrying out the unlawful introduction of goods.

By contrast, it is the instances of liability in the first and second indents of Article 202(3) of the Customs Code which must be taken into account.

As has been seen, the first indent lays down that ‘the person who introduced such goods unlawfully’ is a debtor.

As regards that provision, the national court stated in the order that, according to some of the academic authority, where goods are introduced unlawfully by an employee the debtor within the meaning of Article 202(3) is always the employer. According to that approach, in such cases it is always the undertaking which introduces the goods into the Community, albeit indirectly through its employee.

In my opinion, that view cannot be accepted.

The Court has already clearly established that ‘the person who in practical terms introduced the goods’ (9) is the debtor within the meaning of the first indent of Article 202(3) of the Code, that is to say, only the person, such as the driver of a vehicle, who is in practical control of the goods at the time of their introduction into the customs territory. Accordingly, a rule such as the Austrian rule which provides for the liability of the employer for breach of the rules by its employee cannot come within the provision in point.

There remains to be considered the case in the second indent of Article 202(3) of the Code, which states that debtors are also ‘any persons who participated in the unlawful introduction of the goods and who were aware or should reasonably have been aware that such introduction was unlawful’.

As the Commission has correctly noted, the liability of employers for breach of the rules by employees may properly fall within that provision, provided of course that the conditions laid down therein are fulfilled.

For that purpose, as is clear from Article 202(3), there must exist first the objective requirement of ‘participation in the unlawful introduction’ of the goods into the customs territory. That requirement is obviously satisfied each time a person makes a practical or moral contribution to introduction of the goods into the Community, for example, when an employer entrusts an employee with the task of transporting certain goods into the Community and even places a vehicle at his disposal for that purpose.

The person participating in the introduction must also have been ‘aware or should reasonably have been aware … that [the goods] had been introduced unlawfully.’ This means that it must be shown that that person was actually aware of the unlawful conduct of the person having practical control of the goods or that he was in any event in a situation in which it is reasonable to believe that he was aware or should have been aware.

It is my view that a provision such as the Austrian provision which renders employers (or undertakings) liable for a customs debt where their employees (or other persons contracted by them) infringe customs obligations ‘in the performance of the tasks allocated to them’ fulfils the conditions stated. By limiting liability to cases of infringement of customs obligations by employees in the performance of the tasks allocated to them, it ensures that employers are to be responsible for customs debts only in the exact instances envisaged by that provision of the Code.

The employer will first of all be liable for having delegated the task of transporting goods into the Community and for having thus participated in the introduction of those goods into the customs territory.

In addition, the employer will be liable because, owing to his position, it is reasonable to believe that he knew (or should have known) the manner in which the employee discharges his duties; and in any event it is for him to ensure that the employee complies with the relevant rules in the course of those duties.

For the foregoing reasons I therefore believe that Article 202(3) of the Customs Code does not preclude a national provision such as Paragraph 79(2) of the ZollR-DG which renders employers (or undertakings) liable for a customs debt where their employees (or other persons contracted by them) infringe customs obligations in performing the tasks allocated to them.

IV – Conclusion

In the light of the foregoing considerations I propose that the Court give the following answer to the question of the Verwaltungsgerichtshof: Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code does not preclude a national provision such as Paragraph 79(2) of the Austrian Zollrechts-Durchführungsgesetz which renders employers (or undertakings) liable for a customs debt where their employees (or other persons contracted by them) infringe customs obligations in performing the tasks allocated to them.

1 – Original language: Italian.

OJ 1992 L 302, p. 1.

BGBl. 1994/659.

See, among many others, Joined Cases C-37/96 and C-38/96 Sodiprem and Others [1998] ECR I-2039, paragraph 22, and Case C-17/00 De Coster [2001] ECR I-9445, paragraph 23.

Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42).

Council Regulation (EEC) No 1031/88 of 18 April 1988 determining the persons liable for payment of a customs debt (OJ 1988 L 102, p. 5).

Emphasis added.

See Article 251 of the Customs Code.

Joined Cases C-238/02 and C-246/02 Viluckas and Others [2004] ECR I-0000, paragraph 29. Emphasis added.