Case C‑187/14

Skatteministeriet

v

DSV Road A/S

(Request for a preliminary ruling from the Østre Landsret)

‛Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Articles 203 and 204 — Regulation (EEC) No 2454/93 — Article 859 — External transit procedure — Incurrence of a customs debt — Removal or not from customs supervision — Failure to perform an obligation — Late submission of the goods at the office of destination — Goods refused by the consignee and returned without having been submitted to the customs office — Goods again placed under the external transit procedure via a fresh declaration — Directive 2006/112/EC — Article 168(e) — Deduction of VAT on import by the carrier’

Summary — Judgment of the Court (Fifth Chamber), 25 June 2015

1. Customs union — Incurrence of a customs debt on import following the removal of goods subject to duty from customs supervision — Scope — Goods refused by the consignee and returned without having been submitted to the customs office — Same goods again placed under the external transit procedure via a fresh declaration — No incurrence of a customs debt — Identity of those goods not established under the transit procedures — Incurrence of that debt

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 92(2), 96(1)(a) and 203)

2. Customs union — Incurrence of a customs debt on import following the removal of goods subject to duty from customs supervision — Scope — Goods placed under a first external transit procedure submitted late to the customs office of destination under a second transit procedure — Incurrence of a customs debt — Exceptions — Verification a matter for the national court

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 204; Commission Regulation No 2454/93, as amended by Regulation No 214/2007, Art. 356(3) and 859, second indent and second point, (a) and (c))

3. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Origin and scope of right of deduction — National rules refusing the carrier the right to deduct that tax as it is neither the importer or the owner of the goods in question, but merely carried out the transport and customs formalities as a freight carrier subject to that tax — Lawfulness

   (Council Directive 2006/112, Art. 168(e))

1.  Article 203 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006 must be interpreted as meaning that a customs debt is not incurred on the basis of the sole fact that the goods placed under an External Community transit procedure are, after an unsuccessful delivery attempt, brought back to the free port of departure without having been presented to either the customs office of destination or the customs of the free port if it is established that the same goods were subsequently transported again to their destination under a second correctly discharged External Community transit procedure. However, if it is not possible to establish that the goods covered by the first and second External Community transit procedures are the same goods, a customs debt is incurred under that provision.

   In the situation where it is established that the goods transported under the first and second transit procedures are the same, those goods have effectively been presented to the customs office of destination as part of their second dispatch. A failure to present those goods to the customs office of destination as part of their first dispatch and to present them to the customs office of the free port of dispatch after their return, their placement under the second transit procedure and the delay in their presentation to the customs office of destination are not facts which are sufficient, as such, to constitute removal from customs supervision.

   Under a transit procedure, customs supervision is, by its very nature, carried out at a distance. It covers goods which are not in a particular location, but which are transported from one place to another, without the customs authorities being able to ascertain their exact position at all times during the transport. That supervision at a distance is not hindered by the mere fact of an omission to present the goods in question at the customs offices of destination or of a free port, if all other conditions connected with the transit procedure are met. In such a situation, the goods in question, despite those omissions, remain in transport under an authorised transit procedure accompanied by the corresponding transit documents, so that the customs authorities are still able to access those goods and check them.

   However, where it is not established that the goods transported under the first and second transit procedures are the same, the conditions for incurring a customs debt on the basis of Article 203(1) of the Customs Code are satisfied. In that situation, it is not established that the goods were presented to the customs office of destination, as required under Article 96(1)(a) of the Customs Code. In such a situation, the competent customs authority is prevented from establishing, in accordance with Article 92(2) of the Customs Code, that the transit procedure was correctly discharged.

   (see paras 26-29, 32, operative part 1)

2.  Article 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006, read in conjunction with Article 859 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 214/2007, must be interpreted as meaning that the late presentation at the customs office of destination under a second External Community transit procedure of goods placed under a first External Community transit procedure constitutes an omission which leads to a customs debt being incurred, unless the conditions laid down in Article 356(3) or the second indent of Article 859 and point 2(c) thereof of that regulation are satisfied, which it is for the referring court to ascertain.

   In that regard, Article 356(3) of the Implementing Regulation provides that, where the goods are produced at the office of destination after expiry of the time-limit prescribed by the office of departure and where this failure to comply with the time-limit is due to circumstances which are explained to the satisfaction of the office of destination and which are beyond the control of the carrier or the principal, the latter is to be deemed to have complied with the time-limit prescribed.

   As regards whether the negative conditions laid down in Article 204 of the Customs Code, which excludes a customs debt being incurred where the ‘failures have no significant effect on the correct operation of the temporary storage or customs procedure in question’ is satisfied, it must be borne in mind that Article 859 of the Implementing Regulation gives an exhaustive list of the situations likely to satisfy that condition.

   As regards, firstly, the third indent and point 2(a) of Article 859 of the Implementing Regulation, those provisions require all the formalities necessary to regularise the situation of the goods to be subsequently carried out and the goods entered for the procedure to have actually been presented intact at the office of destination. If it is established that the goods transported under the first and second transit procedures are the same and the second procedure was correctly discharged, those conditions are satisfied. Secondly, Article 859(2)(c) of the Implementing Regulation requires, when the time-limit set under Article 356 of that regulation has been exceeded and paragraph (3) thereof does not apply, the goods none the less to be presented to the office of destination within a reasonable period. With regard, thirdly, to the second indent of Article 859 of the Implementing Regulation, which lays down the condition that the failures under consideration must not imply obvious negligence by the person concerned, the concept of ‘obvious negligence’ must be assessed taking account in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader.

   (see paras 39, 40, 42, 44-47, operative part 2)

3.  Article 168(e) of Directive 2006/112 on the common system of value added tax must be interpreted as not precluding national legislation which excludes the deduction of value added tax on import which the carrier, who is neither the importer nor the owner of the goods in question and has merely carried out the transport and customs formalities as part of its activity as a transporter of freight subject to value added tax, is required to pay.

   Since the value of the goods transported does not form part of the costs making up the prices invoiced by a transporter whose activity is limited to transporting those goods for consideration, the conditions for application of Article 168(e) of Directive 2006/112 are not satisfied.

   (see paras 50, 51, operative part 3)

Case C‑187/14

Skatteministeriet

v

DSV Road A/S

(Request for a preliminary ruling from the Østre Landsret)

‛Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Articles 203 and 204 — Regulation (EEC) No 2454/93 — Article 859 — External transit procedure — Incurrence of a customs debt — Removal or not from customs supervision — Failure to perform an obligation — Late submission of the goods at the office of destination — Goods refused by the consignee and returned without having been submitted to the customs office — Goods again placed under the external transit procedure via a fresh declaration — Directive 2006/112/EC — Article 168(e) — Deduction of VAT on import by the carrier’

Summary — Judgment of the Court (Fifth Chamber), 25 June 2015

1. Customs union — Incurrence of a customs debt on import following the removal of goods subject to duty from customs supervision — Scope — Goods refused by the consignee and returned without having been submitted to the customs office — Same goods again placed under the external transit procedure via a fresh declaration — No incurrence of a customs debt — Identity of those goods not established under the transit procedures — Incurrence of that debt

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 92(2), 96(1)(a) and 203)

2. Customs union — Incurrence of a customs debt on import following the removal of goods subject to duty from customs supervision — Scope — Goods placed under a first external transit procedure submitted late to the customs office of destination under a second transit procedure — Incurrence of a customs debt — Exceptions — Verification a matter for the national court

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 204; Commission Regulation No 2454/93, as amended by Regulation No 214/2007, Art. 356(3) and 859, second indent and second point, (a) and (c))

3. Harmonisation of fiscal legislation — Common system of value added tax — Deduction of input tax — Origin and scope of right of deduction — National rules refusing the carrier the right to deduct that tax as it is neither the importer or the owner of the goods in question, but merely carried out the transport and customs formalities as a freight carrier subject to that tax — Lawfulness

   (Council Directive 2006/112, Art. 168(e))

1.  Article 203 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006 must be interpreted as meaning that a customs debt is not incurred on the basis of the sole fact that the goods placed under an External Community transit procedure are, after an unsuccessful delivery attempt, brought back to the free port of departure without having been presented to either the customs office of destination or the customs of the free port if it is established that the same goods were subsequently transported again to their destination under a second correctly discharged External Community transit procedure. However, if it is not possible to establish that the goods covered by the first and second External Community transit procedures are the same goods, a customs debt is incurred under that provision.

   In the situation where it is established that the goods transported under the first and second transit procedures are the same, those goods have effectively been presented to the customs office of destination as part of their second dispatch. A failure to present those goods to the customs office of destination as part of their first dispatch and to present them to the customs office of the free port of dispatch after their return, their placement under the second transit procedure and the delay in their presentation to the customs office of destination are not facts which are sufficient, as such, to constitute removal from customs supervision.

   Under a transit procedure, customs supervision is, by its very nature, carried out at a distance. It covers goods which are not in a particular location, but which are transported from one place to another, without the customs authorities being able to ascertain their exact position at all times during the transport. That supervision at a distance is not hindered by the mere fact of an omission to present the goods in question at the customs offices of destination or of a free port, if all other conditions connected with the transit procedure are met. In such a situation, the goods in question, despite those omissions, remain in transport under an authorised transit procedure accompanied by the corresponding transit documents, so that the customs authorities are still able to access those goods and check them.

   However, where it is not established that the goods transported under the first and second transit procedures are the same, the conditions for incurring a customs debt on the basis of Article 203(1) of the Customs Code are satisfied. In that situation, it is not established that the goods were presented to the customs office of destination, as required under Article 96(1)(a) of the Customs Code. In such a situation, the competent customs authority is prevented from establishing, in accordance with Article 92(2) of the Customs Code, that the transit procedure was correctly discharged.

   (see paras 26-29, 32, operative part 1)

2.  Article 204 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006, read in conjunction with Article 859 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 214/2007, must be interpreted as meaning that the late presentation at the customs office of destination under a second External Community transit procedure of goods placed under a first External Community transit procedure constitutes an omission which leads to a customs debt being incurred, unless the conditions laid down in Article 356(3) or the second indent of Article 859 and point 2(c) thereof of that regulation are satisfied, which it is for the referring court to ascertain.

   In that regard, Article 356(3) of the Implementing Regulation provides that, where the goods are produced at the office of destination after expiry of the time-limit prescribed by the office of departure and where this failure to comply with the time-limit is due to circumstances which are explained to the satisfaction of the office of destination and which are beyond the control of the carrier or the principal, the latter is to be deemed to have complied with the time-limit prescribed.

   As regards whether the negative conditions laid down in Article 204 of the Customs Code, which excludes a customs debt being incurred where the ‘failures have no significant effect on the correct operation of the temporary storage or customs procedure in question’ is satisfied, it must be borne in mind that Article 859 of the Implementing Regulation gives an exhaustive list of the situations likely to satisfy that condition.

   As regards, firstly, the third indent and point 2(a) of Article 859 of the Implementing Regulation, those provisions require all the formalities necessary to regularise the situation of the goods to be subsequently carried out and the goods entered for the procedure to have actually been presented intact at the office of destination. If it is established that the goods transported under the first and second transit procedures are the same and the second procedure was correctly discharged, those conditions are satisfied. Secondly, Article 859(2)(c) of the Implementing Regulation requires, when the time-limit set under Article 356 of that regulation has been exceeded and paragraph (3) thereof does not apply, the goods none the less to be presented to the office of destination within a reasonable period. With regard, thirdly, to the second indent of Article 859 of the Implementing Regulation, which lays down the condition that the failures under consideration must not imply obvious negligence by the person concerned, the concept of ‘obvious negligence’ must be assessed taking account in particular of the complexity of the provisions non-compliance with which has resulted in the customs debt being incurred, and the professional experience of, and care taken by, the trader.

   (see paras 39, 40, 42, 44-47, operative part 2)

3.  Article 168(e) of Directive 2006/112 on the common system of value added tax must be interpreted as not precluding national legislation which excludes the deduction of value added tax on import which the carrier, who is neither the importer nor the owner of the goods in question and has merely carried out the transport and customs formalities as part of its activity as a transporter of freight subject to value added tax, is required to pay.

   Since the value of the goods transported does not form part of the costs making up the prices invoiced by a transporter whose activity is limited to transporting those goods for consideration, the conditions for application of Article 168(e) of Directive 2006/112 are not satisfied.

   (see paras 50, 51, operative part 3)