Case C‑154/16

‘Latvijas Dzelzceļš’ VAS

v

Valsts ieņēmumu dienests

(Request for a preliminary ruling
from the Augstākās tiesas Administratīvo lietu departaments)

(Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Article 94(1) and Article 96 — External Community transit procedure — Liability of the principal — Articles 203, 204 and Article 206(1) — Incurrence of a customs debt — Unlawful removal from customs supervision — Non-fulfilment of one of the obligations flowing from the use of a customs procedure — Total destruction or irretrievable loss of the goods as a result of the actual nature of the goods or unforeseeable circumstances or force majeure — Article 213 — Payment of the customs debt under joint and several liability — Directive 2006/112/EC — Value added tax (VAT) — Article 2(1), Articles 70 and 71 — Chargeable event and chargeability of the tax — Articles 201, 202 and 205 — Persons liable for payment of the tax — Finding by the customs office at the destination of a freight deficit — Lower unloading device of a wagon-tank incorrectly closed or damaged)

Summary — Judgment of the Court (Eighth Chamber), 18 May 2017

1. Customs union—Incurrence of a customs debt on importation following the failure to present goods liable to tax on importation to customs control—Scope—Goods placed under the Community transit procedure—Failure to present the total volume of goods to the customs office of destination owing to the total destruction or irretrievable loss of part of those goods—Not included

   (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Art. 203(1))

2. Customs union—Incurrence of a customs debt on failure to comply with a requirement under the external transit procedure—Scope—Goods placed under the Community transit procedure—Failure to present the total volume of goods to the customs office of destination owing to the total destruction or irretrievable loss of a part of those goods—Included—Conditions—Lack of force majeure or unforeseeable circumstances—Verification a matter for the national court

   (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Arts 204(1)(a) and 206(1))

3. Harmonisation of fiscal legislation—Common system of value added tax—Chargeable event and chargeability of the tax—Imports of goods—Total destruction or irretrievable loss of a part of the goods placed under the external Community transit procedure—Not equivalent to goods that have exited that procedure

   (Council Directive 2006/112, Arts 2(1)(d), 70 and 71)

4. Customs union—External transit procedure—Requirement to produce the goods intact to the customs office of destination—Failure of the transporter to comply with that requirement—Principal liable for payment of customs debt

   (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Arts 96(1)(a), 96(2) and 204(1)(a) and 3)

5. Customs union—External transit procedure—Requirement to produce the goods intact to the customs office of destination—Failure of both the principal and the transporter of the goods to comply with that requirement—Principal and transporter both liable for the customs debt—No obligation for the customs office of the Member State to engage the joint and several liability of the transporter

   (Council Regulation No 2913/92, as amended by Regulation No 648/2005, Arts 96(1)(a) and (2), 204(1) and 213)

1.  Article 203(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 must be interpreted as meaning that it does not apply where the total volume of the goods placed under the external Community transit procedure has not been presented to the customs office of destination provided for in that procedure, owing to the total destruction or irretrievable loss of some of the goods, which is proven to a satisfactory standard.

   However, the application of Article 203(1) of the Customs Code is justified where the disappearance of the goods presents a risk that they have entered the economic networks of the European Union without clearing customs (see, to that effect, the judgments of 20 January 2005, Honeywell Aerospace, C‑300/03, EU:C:2005:43, paragraph 20, and of 15 May 2014, X, C‑480/12, EU:C:2014:329, paragraphs 35 and 36).

   That is not the case when the goods disappear due to their total destruction or irretrievable loss — such loss being defined under Article 206(1), second paragraph, of the Customs Code as when the goods are unusable by any person — in the case of the leak of a liquid, such as the solvent at issue in the main proceedings, from a tank during its transportation. Goods which no longer exist or are unusable by any person cannot, for that sole reason, enter the economic networks of the European Union.

   (see paras 48-50, operative part 1)

2.  Article 204(1)(a) of Regulation No 2913/92 of 12 October 1992, as amended by Regulation No 648/2005 must be interpreted as meaning that where the total volume of goods placed under the external Community transit procedure has not been produced at the customs office of destination laid down in that procedure owing to the total destruction or irretrievable loss of some of the goods, proven to a satisfactory standard, that situation, which constitutes the non-fulfilment of one of the obligations under that procedure, namely to produce goods intact at the customs office of destination, gives rise, in principle, to a customs debt on importation for the part of the goods which was not produced at that customs office. It is for the national court to determine whether a circumstance such as damage to an unloading device meets, in the present case, the criteria of ‘force majeure’ or an ‘unforeseeable circumstance’, within the meaning of Article 206(1) of Regulation No 2913/92, as amended by Regulation No 648/2005, namely, whether it is an abnormal circumstance for a trader in the business of the transportation of liquid substances and extraneous to that trader, and whether the consequences could not have been avoided even if all due care had been exercised. In the context of that determination, that court must, in particular, take into account compliance, by operators such as the principal and the carrier, with the rules and obligations in force regarding the technical condition of tanks and the safety of transportation of liquid substances such as a solvent.

   (see para. 65, operative part 2)

3.  Article 2(1)(d) and Articles 70 and 71 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that VAT is not due on the totally destroyed or irretrievably lost part of goods placed under the external Community transit procedure.

   It follows from those provisions that the total destruction or the irretrievable loss of goods placed under the external Community transit procedure is capable of giving rise to the chargeable event and causing VAT to become chargeable only if those goods can be placed on the same footing as goods that have ceased to be subject to that procedure.

   In that regard, it must be held that, VAT being a tax on consumption, it applies to goods and services that enter the economic network of the European Union and may be the object of consumption (see, to that effect, the judgments of 7 November 2013, Tulică and Plavoşin, C‑249/12 and C‑250/12, EU:C:2013:722, paragraph 35, and of 2 June 2016, Eurogate Distribution and DHL Hub Leipzig, C‑226/14 and C‑228/14, EU:C:2016:405, paragraph 65).

   Therefore, the exit of goods from the external Community transit procedure, which gives rise to the chargeable event and causes VAT to become chargeable, must be regarded as referring to the integration of those goods into the economic network of the European Union, which is excluded for goods that are non-existent or unusable by any person (see, to that effect, the judgment of 29 April 2010, Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraphs 93 and 96).

   Consequently, to the extent that goods totally destroyed or irretrievably lost while they are placed under the external Community transit procedure cannot be integrated into the economic network of the European Union and, hence, cannot exit that procedure, they cannot be regarded as ‘imported’, within the meaning of Article 2(1)(d) of the VAT Directive, nor subject to VAT under provision.

   (see paras 68-72, operative part 3)

4.  Article 96(1)(a) in conjunction with Article 204(1)(a) and (3) of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the principal is liable for the payment of the customs debt arising in relation to goods placed under the external Community transit procedure, even if the carrier did not fulfil the obligations to which he was subject under Article 96(2) of that regulation, in particular the requirement to produce those goods intact at the customs office of destination within the prescribed period.

   (see para. 82, operative part 4)

5.  Article 96(1)(a) and (2), Article 204(1)(a) and (3) and Article 213 of Regulation No 2913/92, as amended by Regulation No 648/2005, must be interpreted as meaning that the customs authority of a Member State is not obliged to declare the joint and several liability of the carrier who, together with the principal, must be regarded as liable for payment of the customs debt.

   In that regard, the Court has stated that the mechanism of joint and several liability provided for in Article 213 of the code constitutes an additional legal device made available to the national authorities to strengthen the effectiveness of the action they take for the recovery of customs debts and the protection of the EU’s own resources (judgment of 17 February 2011, Berel and Others, C‑78/10, EU:C:2011:93, paragraph 48).

   (see paras 88, 91, operative part 5)