Case C‑224/16

Asotsiatsia na balgarskite predpriyatia za mezhdunarodni prevozi i patishtata (Aebtri)

v

Nachalnik na Mitnitsa Varna

(Request for a preliminary ruling from the Varhoven administrativen sad)

(Reference for a preliminary ruling — Customs union — External transit — Road freight transport operation carried out under cover of a TIR carnet — Article 267 TFEU — Jurisdiction of the Court to interpret Articles 8 and 11 of the TIR Convention — TIR operation not discharged — Liability of the guaranteeing association — Article 8(7) of the TIR Convention — Duty of the competent authorities to require payment so far as possible from the person or persons directly liable before making a claim against the guaranteeing association –Explanatory notes annexed to the TIR Convention — Regulation (EEC) No 2454/93 — Article 457(2) — Community Customs Code — Articles 203 and 213 — Persons who acquired or held the goods and who were aware or should reasonably have been aware that they had been removed from customs supervision)

Summary — Judgment of the Court (Second Chamber), 22 November 2017

1. Questions referred for a preliminary ruling—Jurisdiction of the Court—Scope—TIR Convention—Provisions intended to safeguard the receipt of customs duties—Included

   (Art. 267 TFEU; TIR Convention, Arts 8 and 11)

2. Free movement of goods—Community transit—Transport of goods under cover of a TIR carnet—Offences or irregularities—Duties and taxes payable as a result of an irregularity—Action for recovery from the guaranteeing association—Joint and several liability of the guaranteeing association—Duty of the competent authorities to require payment so far as possible from the person directly liable—Scope

   (TIR Convention, Art. 8(1), (2) and (7)

3. Customs union—Incurrence of a customs debt on importation following the removal from customs supervision of goods liable to import duties—Concept of a ‘debtor’—Recipient who has acquired or held goods transported under cover of a TIR carnet—Not included—Conditions—Existence of an irrebuttable presumption of awareness of the failure to present the goods at the customs office of destination—None

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 203(3), third indent, and Art. 213)

4. Customs union—Incurrence of a customs debt on importation following the removal from customs supervision of goods liable to import duties—Concept of a ‘debtor’—Condition of having participated knowingly in acquiring or holding goods removed from customs supervision—Assessment by the national court

   (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Art. 203(3), third indent)

1.  The Court has jurisdiction to give preliminary rulings on the interpretation of Articles 8 and 11 of the Customs Convention on the international transport of goods under cover of TIR carnets, signed in Geneva on 14 November 1975, and approved on behalf of the European Economic Community by Council Regulation (EEC) No 2112/78 of 25 July 1978, in its amended and consolidated version published by Council Decision 2009/477/EC of 28 May 2009.

   (see para. 54, operative part 1)

2.  Article 8(7) of the Customs Convention on the international transport of goods under cover of TIR carnets, approved on behalf of the Community by Regulation No 2112/78, in its amended and consolidated version published by Decision 2009/477, must be interpreted as meaning that, in a situation such as that in the main proceedings, the customs authorities have fulfilled the obligation laid down in that provision to require payment of the import duties and taxes concerned, so far as possible, from the holder of the TIR carnet as the person directly liable for those sums, before bringing a claim against the guaranteeing association.

   As regards, first, the wording of Article 8(7) of the TIR Convention, which, it must be pointed out at the outset, was drafted in English, French and Russian, the three versions being authentic, that provision provides that when the duties and taxes referred to in Article 8(1) and (2) of the convention become due, the competent authorities must so far as possible ‘require payment’ from the person or persons directly liable before making a ‘claim’ against the guaranteeing association. For its part, the explanatory note to Article 8(7) of the TIR Convention specifically states that the measures to be taken by the competent authorities in order to require such payment must include ‘at least notification of the non-discharge of the TIR operation and/or transmission of the claim for payment to the TIR Carnet holder’. It follows from the foregoing that neither the text of Article 8(7) of the TIR Convention nor that of the explanatory note to that provision make it possible, as they stand, to determine what specific acts the customs authorities must carry out with regard to the person directly liable for the debt for the purposes of satisfying the obligation imposed on them by Article 8(7).

   As regards, next, the context surrounding that provision, it is necessary, for the purposes of interpreting it, to examine it in the light of the general structure of the convention of which it forms part and of the totality of the provisions contained therein (see, to that effect, judgment of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraph 10). In the light of the joint and several nature of the guaranteeing association’s liability towards the customs authority, the requirement laid down in Article 8(7) of the TIR Convention to require payment of the amounts concerned from the person directly liable cannot be interpreted as leading to a situation in which the liability of the guaranteeing association becomes, in essence, entirely subsidiary to that of the person directly liable. That would be the case if that requirement had the consequence of obliging the competent customs authority to pursue recovery of the debt from the person directly liable as far as the enforcement stage.

   Finally, as regards the objectives of the TIR Convention, it follows from the preamble thereto that, in concluding that convention, the contracting parties intended ‘to facilitate the international carriage of goods by road vehicle’ while considering that ‘the improvement of the conditions of transport constitutes one of the factors essential to the development of cooperation among them’ and declaring ‘themselves in favour of a simplification and a harmonisation of administrative formalities in the field of international transport, in particular at frontiers’. To interpret Article 8(7) of the TIR Convention as having the effect of obliging the competent customs authority to exhaust all possibilities of recovery from the person or persons directly liable for the debt before being able to claim payment from the guaranteeing association, would undermine the very balance between, on the one hand, the facilities granted by Article 4 of the TIR Convention and, on the other, one of the essential conditions which must govern their implementation, namely that the guaranteeing association will incur specific liability.

   In the light of the above, Article 8(7) of the TIR Convention, read in conjunction with the explanatory note to that provision, must be interpreted as meaning that a customs authority fulfils its obligations to require payment from the person directly liable where it complies with the minimum requirements indicated in that explanatory note.

   (see paras 65, 67, 69, 70, 81, 82, 84, 86, 88, operative part 2)

3.  The third indent of Article 203(3) and Article 213 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that the fact that a recipient acquired or held goods which he knew to have been conveyed under cover of a TIR carnet and the fact that it has not been established that those goods were presented and declared to the customs office of destination, are not sufficient, in themselves, for it to be concluded that such a recipient was aware or should reasonably have been aware that those goods had been removed from customs supervision within the meaning of the first of those provisions and must therefore be held jointly and severally liable for the customs debt pursuant to the second of those provisions.

   In the event of a customs debt arising from the removal of goods from customs supervision, the persons who may be responsible for that customs debt are listed in Article 203(3) of the Customs Code, which identifies four categories of persons potentially liable for the duties. Those categories include, as stated in the third indent of Article 203(3) of the Customs Code, 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 removed from customs supervision.

   The third indent of Article 203(3) of the Customs Code covers any person who, although not responsible for the unlawful removal of the goods from customs supervision from which the customs debt arose, and not himself required to clear the goods through customs, has nevertheless been involved in the unlawful removal either before or after that removal as a result of having acquired or held the goods (see, by analogy, judgment of 25 January 2017, Ultra-Brag, C‑679/15, EU:C:2017:40, paragraph 22). The second of the conditions laid down in the third indent of Article 203(3) of the Customs Code specifically covers the situation in which, at the time when he acquired or received the goods at issue, the recipient was aware or should reasonably have been aware that those goods had not been presented to the customs office of destination and that, consequently, any customs duties and taxes due had not been paid. Accordingly, the status of ‘debtor’ for the purposes of the third indent of Article 203(3) of the Customs Code is subject to conditions based on subjective criteria, namely whether natural or legal persons participated knowingly in acquiring or holding goods removed from customs supervision (see, by analogy, judgment of 3 March 2005, Papismedov and Others, C‑195/03, EU:C:2005:131, paragraph 40 and the case-law cited).

   In the present case, the referring court’s question relates specifically to whether the fact that a recipient acquired or held goods and was aware or should have been aware, in view of the documents received or signed by him on receipt of those goods, that they had been transported under cover of a TIR carnet, where it has not, moreover, been established that those goods were presented and declared to the customs office of destination, suffices, in itself, for it to be concluded that that recipient was aware or should reasonably have been aware that those goods had been removed from customs supervision, within the meaning of the third indent of Article 203(3) of the Customs Code. To adopt such an interpretation of that provision would be tantamount to inferring, in essence, on the basis of some kind of irrebuttable presumption, from the fact that a recipient knows or should reasonably be aware that the goods which he received were transported under cover of a TIR carnet, that he was aware or should have been aware that those goods had not, assuming that to be the case, been presented to the customs office of destination. Such an interpretation, which failed to take account of the subjective conditions laid down in the third indent of Article 203(3) of the Customs Code, is not consistent either with the intention of the EU legislature, referred to in paragraph 95 above, to lay down exhaustively the conditions for determining who are the debtors responsible for the customs debt, or with the very letter and purpose of that provision (see, by analogy, judgment of 23 September 2004, Spedition Ulustrans, C‑414/02, EU:C:2004:551, paragraphs 39, 40 and 42).

   (see paras 96, 97, 105, 106, 109-111, 113, operative part 3)

4.  See the text of the decision.

   (see paras 106-108)