Kazimieras Viluckas and Ricardas Jonusas

(References for a preliminary ruling from the Bundesfinanzhof)

(Community Customs Code – Extent of the obligation as to presentation of goods arriving at customs – National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods at customs – Persons having brought in the goods and being under a duty to declare them – Concept of customs debtor)

Summary of the Judgment

Customs union – Creation of a customs debt following unlawful bringing in of goods – Extent of the obligation to present goods to customs – Inclusion of goods hidden in a vehicle without the knowledge even of its driver – Customs debtor within the meaning of the first indent of Article 202(3) of the Customs Code – Concept

(Council Regulation (EEC) No 2913/92, Article 4(19), Article 40 and the first indent of Article 202(3))

The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Regulation No 2913/92 establishing the Community Customs Code, concerns all goods, including those hidden in a secret compartment specially made for that purpose. The obligation to present goods as set out in Article 38 of the Code rests, as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge.

The person who has introduced goods into the customs territory of the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Customs Code, even if other persons can be declared debtors in respect of the same goods on the basis of the other provisions of that article.

(see paras 24, 29-30, operative part)

JUDGMENT OF THE COURT (Fourth Chamber) 4 March 2004(1)

(Community Customs Code – Extent of the obligation as to presentation of goods arriving at customs – National legislation providing for an express declaration in respect of hidden goods at the time of presentation of goods at customs – Persons having brought in the goods and being under a duty to declare them – Concept of customs debtor)

In Joined Cases C-238/02 and C-246/02,

REFERENCES to the Court under Article 234 EC by the Bundesfinanzhof (Germany) for a preliminary ruling in the proceedings pending before that court between

Kazimieras Viluckas (C-238/02), Ricardas Jonusas (C-246/02),

on the interpretation of Article 4(19), Article 40 and the first indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1),

THE COURT (Fourth Chamber),

composed of: J.N. Cunha Rodrigues, President of the Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges,

Advocate General: A. Tizzano, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

– the Commission of the European Communities by J.-C. Schieferer, acting as Agent,

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

gives the following

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

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.

(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:

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

(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.

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

If Question 1 is answered affirmatively:

Is Article 40 of the Customs Code to be interpreted as meaning that such notification must also be made by the driver of a lorry, or a co-driver also entitled to drive it, who was not aware and had no reason to be aware of the goods hidden or concealed in the lorry? [Case C-238/02]

If Question 2 is answered affirmatively:

Is the identity of the person who actually gave the (incomplete) notification a material factor in determining who is the customs debtor under the first indent of Article 202(3) of the Customs Code? [Case C-238/02]’

The questions

By its first two questions, which may be answered together, the Bundesfinanzhof asks essentially whether the presentation to customs of goods introduced into the Community, in terms of Article 4(19) of the Customs Code, concerns goods hidden in a secret compartment specially made for that purpose and whether the obligation to present goods as set out in Article 38 of the Code rests, as provided by Article 40 of the Code, with the drivers of a lorry who introduced the goods, although the goods were hidden in the vehicle without their knowledge.

The Commission states that Article 38 of the Customs Code specifies that goods brought into the customs territory of the Community must be conveyed without delay by the person bringing them into the Community to the customs office or to any other place designated or approved by those authorities and that it does not make any distinction between goods hidden or concealed and goods not hidden or concealed.

It considers, furthermore, that one of the aims of Article 4(19), Article 40 and Article 202 of the Customs Code is to impose individual responsibility on persons introducing into the customs territory of the Community a means of transport capable of carrying goods. As a result, Article 4(19) of the Customs Code should be interpreted as meaning that, in the notification to the customs authorities, all goods introduced into that territory are to be declared, including therefore hidden or concealed goods. Thus, the hidden cigarettes should have been declared to the customs authorities.

The Commission submits, finally, that not only the person driving the vehicle when it crossed the Community’s external border should be considered as a person having introduced goods, but also any person on board the vehicle who is also acting as co-driver.

It is clear from the wording and the broad logic of Articles 4(19), 38(1) and 40 of the Customs Code that all goods introduced into the customs territory of the Community must be presented to customs. The fact that certain goods were concealed in secret compartments in the vehicle in which they were transported does not have the effect of releasing them from that obligation.

The answer to the first two questions should therefore be that the presentation to customs of goods introduced into the Community, in terms of Article 4(19) of the Customs Code, concerns all goods, including those hidden in a secret compartment specially made for that purpose, and that the obligation to present goods as set out in Article 38 of the Code rests, as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge.

By its third question the Bundesfinanzhof essentially asks whether the person who introduced the goods into the customs territory of the Community without mentioning them in the notification of presentation to customs can be classed as a customs debtor within the meaning of the first indent of Article 202(3) of the Customs Code.

The Commission takes the view that the customs debtor, as defined by the above provision, is normally the person who introduces the goods and lodges an incomplete notification of presentation of the goods to customs, except where that person is, as in the main proceedings here, under the direction of another person on board the same vehicle.

The first indent of Article 202(3) of the Customs Code defines the customs debtor as the person who introduced the goods unlawfully.

As discussed in the reply to the first two questions, an introduction is considered unlawful when goods, including those concealed in a vehicle without its driver’s knowledge, were not declared by that driver upon presentation to customs.

Consequently, even if other persons can be declared debtors in respect of the same goods on the basis of the other provisions of Article 202(3) of the Customs Code, the person who in practical terms introduced the goods without declaring them remains the debtor by virtue of the provisions of the first indent of Article 202(3).

The answer to the third question must therefore be that the person who has introduced goods into the customs territory of the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Customs Code.

Costs

The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable.

On those grounds,

THE COURT (Fourth Chamber),

in answer to the questions referred to it by the Bundesfinanzhof by orders of 7 May 2002, hereby rules:

The presentation to customs of goods introduced into the Community, in terms of Article 4(19) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code concerns all goods, including those hidden in a secret compartment specially made for that purpose. The obligation to present goods as set out in Article 38 of that Code rests, as provided by Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods, even though the goods were hidden in the vehicle without their knowledge.

The person who has introduced goods into the customs territory of the Community without mentioning them in the notification of presentation to customs is a customs debtor within the meaning of the first indent of Article 202(3) of the Community Customs Code.

Cunha Rodrigues

Puissochet

Macken

Delivered in open court in Luxembourg on 4 March 2004.

Registrar

President of the Fourth Chamber

ECLI:EU:C:2025:140

Language of the case: German.