28 July 2016 (*1)

‘Reference for a preliminary ruling — Customs union — Common Customs Tariff — Temporary importation procedure with relief from duties — Regulation (EEC) No 2454/93 — Conditions laid down for the total relief from import duties — Means of transport for aviation registered outside of the customs territory of the Union and used by a person established outside of that territory — Article 555(1)(a) — Commercial use — Concept — Use of helicopters by an aviation school for remunerated training flights flown by a trainee and instructor — Not included’

In Case C‑80/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany), made by decision of 27 January 2015, received at the Court on 20 February 2015, in the proceedings

Hauptzollamt Lörrach,

THE COURT (Tenth Chamber),

composed of F. Biltgen, President of the Chamber, A. Borg Barthet (Rapporteur) and E. Levits, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

—Robert Fuchs AG, by U. Lusche, Rechtsanwältin,

—the Italian Government, by G. Palmieri, acting as Agent, assisted by G. Albenzio, avvocato dello Stato,

—the European Commission, by L. Grønfeldt and B.-R. Killmann, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 18 February 2016,

gives the following

1This request for a preliminary ruling concerns the interpretation of the concept of ‘commercial use’ for the purposes of Article 555(1)(a) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 2286/2003 of 18 December 2003 (OJ 2003 L 343, p. 1) (‘the Implementing Regulation’).

2The request has been made in proceedings between Robert Fuchs AG, a company established in Switzerland (‘Fuchs’), and Hauptzollamt Lörrach (Customs Administration, Lörrach, Germany), concerning customs duties claimed from that company for the import, into the territory of the European Union and under the temporary importation procedure with total relief from import duties, of helicopters registered in Switzerland and used for training flights in Germany.

Legal context

International law

3The Convention on Temporary Admission, concluded in Istanbul on 26 June 1990 (‘the Istanbul Convention’), was approved by Council Decision 93/329/EEC of 15 March 1993 concerning the conclusion of the Convention on Temporary Admission and accepting its annexes (OJ 1993 L 130, p. 1, and corrigendum OJ 1993 L 289, p. 40).

Article 1 of Annex C of the Istanbul Convention reads as follows:

‘For the purposes of this Annex:

“means of transport” means:

any vessel (including lighters and barges, whether or not shipborne, and hydrofoils), hovercraft, aircraft, motor road vehicles (including cycles with engines, trailers, semi-trailers and combinations of vehicles) and railway rolling stock; together with their normal spare parts, accessories and equipment carried on board means of transport (including special equipment for the loading, unloading, handling and protection of cargo);

“commercial use” means:

the transport of persons for remuneration or the industrial or commercial transport of goods, whether or not for remuneration;

“private use” means:

the transport exclusively for personal use by the person concerned excluding commercial use;

EU law

The Customs Code

5Under Article 137 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1), (‘the Customs Code’):

‘The temporary importation procedure shall allow the use in the customs territory of the Community, with total or partial relief from import duties and without their being subject to commercial policy measures, of non-Community goods intended for re-export without having undergone any change except normal depreciation due to the use made of them.’

Article 141 of that code provides:

‘The case and the special conditions under which the temporary importation procedure may be used with total relief from import duties shall be determined in accordance with the committee procedure.’

Under Article 204(1)(a) of that code:

‘A customs debt on importation shall be incurred through:

non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed.’

The Implementing Regulation

8Article 232 of the Implementing Regulation, which lays down the rules relating to the temporary importation procedure with total relief from import duty, inter alia, for means of transport, provides:

‘1. The following, where not declared to customs in writing or orally, shall be considered to have been declared for temporary importation by the act referred to in Article 233, subject to Article 579:

the means of transport referred to in Articles 556 to 561;

Under Article 233 of that regulation:

‘1. For the purposes of Articles 230 to 232, the act which is considered to be a customs declaration may take the following forms:

in the case of exemption from the obligation to convey goods to customs in accordance with the provisions implementing Article 38(4) of the Code, in the case of export in accordance with Article 231 and in the case of re-exportation in accordance with Article 232(2):

the sole act of crossing the frontier of the customs territory of the Community.

Article 234 of the Implementing Regulation provides:

Under Article 555(1) of the Implementing Regulation:

For the purposes of this subsection:

“commercial use” means the use of means of transport for the transport of persons for remuneration or the industrial or commercial transport of goods, whether or not for remuneration;

“private use” means the use other than commercial of a means of transport;

“internal traffic” means the carriage of persons or goods picked up or loaded in the customs territory of the Community for setting down or unloading at a place within that territory.

Article 558(1) of that regulation provides:

Total relief from import duties shall be granted for means of road, rail, air, sea and inland waterway transport where they

are registered outside the customs territory of the Community in the name of a person established outside that territory …;

are used by a person established outside that territory, without prejudice to Articles 559, 560 and 561; and

in the case of commercial use and with the exception of means of rail transport, are used exclusively for transport which begins or ends outside the customs territory of the Community; however, they may be used in internal traffic where the provisions in force in the field of transport, in particular those concerning admission and operations, so provide.

German law

The Law on aviation

Paragraph 2(7) and (8) of the Luftverkehrsgesetz (Law on aviation), in the version published on 10 May 2007 (BGBl. 2007 I, p. 698), provides:

Aircraft not registered and approved within the territory of application of this Law may enter that territory, or be brought there in any other way in order to be used as a means of transport there, only after having obtained due authorisation. The authorisation is not necessary when a treaty between the State of origin and the Federal Republic of Germany, or an agreement binding both States, provides otherwise.

The authorisation referred to in subparagraphs (6) and (7) may be granted in general terms or for a specific case; it may be accompanied by conditions and by a time-limit.

The Law on customs administration

Under Paragraph 2(2) of the Zollverwaltungsgesetz (Law on customs administration), of 21 December 1992 (BGBl. 1992 I, p. 2125, and 1993 I, p. 2483):

Incoming and outgoing aircraft shall only land and take-off at a designated customs airfield.

The Customs Regulation

Paragraph 2 of the Zollverordnung (Customs Regulation), of 23 December 1993 (BGBl. 1993 I, p. 2449, and 1994 I, p. 162), headed ‘Customs routes’, provides, in subparagraph 3:

Moreover, in individual cases, an exemption from the requirement to use designated customs routes [Zollstraßenzwang] can also be made in administrative proceedings for the purposes of facilitating the flow of traffic provided that the circumstances do not potentially impair customs inspections and that there are no other prohibitions or limitations to the contrary.

Paragraph 3 of that regulation, headed ‘Customs airfields’, provides in subparagraph 4:

Paragraph 2(3) applies to customs airfields mutatis mutandis.

The dispute in the main proceedings and the question referred

Fuchs, a company based in Switzerland, offers, as part of its activities, inter alia helicopter flight training.

By a decision of 13 October 2009, Fuchs was granted an exemption from the obligation to use a customs airfield for the importation into Germany of 10 helicopters registered in its name in Switzerland.

In the context of the organisation of several training courses during 2009 and 2010, those helicopters were brought into the customs territory of the Union, either by a flight instructor employed by Fuchs, or by trainee pilots in the presence of such an instructor.

Those helicopters did not leave the customs territory of the Union during the training flights. They returned to Switzerland at the end of each training period.

In a decision of 10 June 2011 imposing customs duties on imports, the Customs Administration found that those helicopters had been used for commercial purposes, without the authorisation referred to in the first sentence of Paragraph 2(7) of the Law on aviation, and that, therefore, Fuchs had infringed the conditions for temporary admission of those helicopters with total relief from import duties provided for in Article 558(1)(c) of the Implementing Regulation.

Considering that, in accordance with Article 204(1)(a) of the Customs Code, a customs debt was incurred for those helicopters, the Customs Administration set the amount of customs duties owed by Fuchs at EUR 175873.36.

Following the administration’s rejection of the objection which Fuchs had brought against that decision fixing the import duties, Fuchs brought an action before the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany).

In support of its action, Fuchs claims that the conditions for total relief from import duties to be granted to it are satisfied. It states, in particular, that the helicopters in question were not the subject of ‘commercial use’ for the purposes of Article 555(1) of the Implementing Regulation.

The Customs Administration contends, in contrast, that Fuchs used those helicopters commercially, since, in the course of the flight instruction, persons were transported for remuneration. In the opinion of the Customs Administration, it makes little difference that the sums paid by the trainee pilots had been for their training rather than their transportation.

The referring court points out that the main conditions under which the use of temporary importation of means of transport with total relief from import duties is authorised are included in Article 558(1) of the Implementing Regulation. In the case in the main proceedings, it is undisputed that the conditions referred to in Article 558(1)(a) and (b) were satisfied. Therefore the only question is whether the applicant satisfied the conditions laid down in Article 558(1)(c) of the Implementing Regulation, which provides that, in the case of commercial use, the means of transport cannot, in principle, be used for transport which begins or ends outside the customs territory of the Community. The answer to that question depends on the interpretation of the words ‘commercial use’ in Article 555(1)(a) of the Implementing Regulation.

27In those circumstances the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 555(1)(a) of the Implementing Regulation be interpreted as meaning that remunerated flight training with helicopters in which a trainer and trainee are in the helicopter also amounts to a commercial use of a means of transport?’

The question referred for a preliminary ruling

28By its question, the referring court asks, in essence, whether remunerated flights for helicopter flight instruction, with a trainee pilot and a flight instructor on board, must be regarded as constituting commercial use of a means of transport for the purposes of Article 555(1)(a) of the Implementing Regulation.

Under that provision, ‘commercial use’ covers the use of a means of transport ‘for the transport of persons for remuneration or the industrial or commercial transport of goods, whether or not for remuneration.’

It follows from the wording of that provision that, to be categorised as ‘commercial use’, the means of transport in question must be used for purposes of transportation.

That interpretation is borne out by the background to Article 555(1)(a) of the Implementing Regulation.

Indeed, as noted by the Advocate General in point 34 of his Opinion, the concept of ‘commercial use’ in the Implementing Regulation, replaced that of ‘business use’, which was defined in Article 1(2)(d) of Regulation (EEC) No 1855/89 of the Council of 14 June 1989 on the temporary importation of means of transport, as ‘the use of a means of transport in direct exercise of an activity carried out for consideration or financial gain’. The latter definition was replaced by the more restrictive one in Article 670 of Regulation No 2454/93, in its original version, under which commercial use corresponded to ‘the use of a means of transport of persons for remuneration or the industrial or commercial transport of goods, whether or not for remuneration’.

That definition was, subsequently, broadened by Commission Regulation (EC) No 993/2001 of 4 May 2001 amending Regulation No 2454/93, to cover ‘use of means of transport for the transport of persons or of goods for remuneration or in the framework of the economic activity of an enterprise’. As noted by the Advocate General in point 37 of his Opinion, the concept of ‘commercial use’ then covered all means of transport in a business context, whether or not for remuneration and irrespective of the purpose of use.

However, Regulation No 2286/2003 replaced that definition of commercial use by that applicable to the dispute in the main proceedings. As noted by the Advocate General in point 40 of his Opinion, that regulation not only removed from the concept of ‘commercial use’ the non-remunerated transport of persons, but also made the purpose of the use the determining factor. Therefore, that concept no longer covers all economic activities involving a means of transport and which includes transport of persons in the broad sense, but concerns only those whose purpose is the transport, inter alia, of persons.

In circumstances such as those at issue in the main proceedings, where the means of transport are used for training purposes, the transport of persons, if it took place, is only the corollary of the training activity which, as the main purpose of the contract, is the provision of services in return for which the trainee pilots have paid.

In view of the foregoing, the use of a means of transport for the purposes of the provision of flight training services cannot come within the concept of ‘commercial use’ for the purposes of Article 555(1) of the Implementing Regulation.

Costs

44Since 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.