Case C‑409/14

Schenker Nemzetközi Szállítmányozási és Logisztikai Kft.

v

Nemzeti Adó- és Vámhivatal Észak-alföldi Regionális Vám- és Pénzügyőri Főigazgatósága

(Request for a preliminary ruling from the

Debreceni Közigazgatási és Munkaügyi Bíróság)

‛Reference for a preliminary ruling — Common Customs Tariff — Combined Nomenclature — Classification of goods — Interpretation of a subheading of the Combined Nomenclature — Directive 2008/118/EC — Importation of excise goods — Customs suspensive procedure or arrangement — Effects of a customs declaration referring to an incorrect subheading of the Combined Nomenclature — Irregularities during the movement of excise goods’

Summary — Judgment of the Court (Fifth Chamber), 8 September 2016

1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Classification of goods under tariff headings in the Common Customs Tariff

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant aspects of EU law — Reformulation of the questions

   (Art. 267 TFEU)

3. Customs union — Common Customs Tariff — Classification of goods — Criteria — Characteristics and objective properties — Scope — Intended use of the product — Included — Condition

4. Common Customs Tariff — Tariff headings — Smoking tobacco partly composed of elements which may be classified as tobacco waste — Classification under heading 2401 of the Combined Nomenclature — Not included — Classification under subheading 2403 10 90 of the Combined Nomenclature — Condition

   (Council Regulation No 2658/87, Annex I, as amended by Regulation No 861/2010)

5. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Goods placed under a transit procedure or customs suspensive arrangement — Summary declaration of temporary storage or customs declaration indicating an incorrect tariff heading — No effect on customs suspensive procedure or arrangement — Conditions

   (Council Regulation No 2913/92, Arts 202 and 2014; Commission Regulation No 2454/93, Art. 859, as amended by Regulation No 444/2002; Council Directive 2008/118, Art. 2(b) and (4), points 6 and 8)

6. Tax provisions — Harmonisation of laws — Excise duties — Directive 2008/118 — Irregularity occurring during a movement of excise goods after the release for consumption — Concept — Goods placed under a transit procedure or customs suspensive arrangement and accompanied by a document indicating an incorrect tariff classification placed under a customs suspensive procedure or arrangement — Not included

   (Council Directive 2008/118, Arts 4(6) and 38

1.  See the text of the decision.

   (see paras 70, 71)

2.  See the text of the decision.

   (see para. 72)

3.  See the text of the decision.

   (see paras 76, 78)

4.  Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Regulation No 861/2010, must be interpreted as meaning that goods consisting in smoking tobacco, irrespective of the presence of tobacco waste, since the latter does not prevent the intended use of the product concerned, are not included under heading 2401 of the Combined Nomenclature (CN) in Annex I to Regulation No 2658/87. However, such goods may be classified under heading 2403 of the CN, in particular subheading 2403 10 90 thereof, if they are packed in bulk and compacted in plastic-lined bags having a net weight 30 kg per box.

   In order to assign that product the correct tariff, it is necessary to identify, under the rule stated in point 3(b) of the general rules for the interpretation of the CN, from among the materials of which they are composed, the one which gives them their essential character. This may be done by determining whether the goods would retain their characteristic properties if one or other of their constituents were removed from them. Since, the presence of tobacco waste does not prevent the product as a whole from constituting smoking tobacco, that product cannot be classified under heading 2401 of the CN. More specifically, the decisive criterion for classifying goods under heading 2403 of the CN rather than heading 2401 thereof depends on whether the leaves have been subject to processing to such an extent that they constitute manufactured tobacco ready to be smoked without further industrial processing

   In those circumstances, if the goods consist of tobacco ready for smoking, packed in bulk, compacted in plastic-lined bags having a net weight 30 kg per box, they are to be classified under subheading 2403 10 90 of the CN.

   (see paras 84, 86, 90, 91, 93, operative part 1)

5.  The concept of ‘customs suspensive procedure or arrangement’, laid down in Article 4(6) of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12, must be interpreted as meaning that the placement of specific goods under a customs suspensive procedure or arrangement cannot be challenged if the chapter of the Common Customs Tariff which covers those goods is correctly mentioned in their accompanying documents, but the specific subheading is incorrectly indicated. In such a case, Article 2(b) and Article 4(8) of Directive 2008/118 must be interpreted as meaning that there has been no importation of those goods, and that they are not excise goods.

   When the presentation of goods to customs required by Article 40 of the Customs Code is accompanied by the lodging of a summary declaration of temporary storage which contains the information necessary for the identification of the goods as to their type, quantity and their packing, only the tariff subheading being incorrect, cannot be regarded as having entered the customs territory of the European Union unlawfully within the meaning of Article 202 of the Customs Code.

   Nevertheless, as regards the conditions potentially giving rise to a customs debt, given that the obligation on the declarant to provide accurate information also extends to the determination of the correct subheading at the time of the tariff classification of the goods, it is conceivable that a customs debt may arise on the basis of Article 204 of the Customs Code. However, Article 859 of Implementing Regulation No 2454/93 supports the finding that the failure to perform one of the obligations contingent on the use of the transit procedure has no significant effect on the correct operation of that procedure if the three conditions listed in point 2 of Article 859 are fulfilled and provided that the three conditions set out in the first indent of Article 859 are satisfied. It is for the national court to ascertain whether all of those conditions are fulfilled.

   (see paras 106-108, 111, 112, 116, 117, 120, operative part 2)

6.  The concept of ‘irregularity’, within the meaning of Article 38 of Directive 2008/118 concerning the general arrangements for excise duty and repealing Directive 92/12, must be interpreted as not cover goods placed under a customs suspensive procedure or arrangement which are accompanied by a document mentioning an incorrect tariff classification.

   The conditions of Article 38(4) of Directive 2008/118, read together with Article 33(1) thereof, are not satisfied where they have not been released for consumption in a Member State, as they were placed under a ‘customs suspensive procedure or arrangement’ within the meaning of Article 4(6) of Directive 2008/118 and they were not held for commercial purposes in another Member State in order to be delivered or used there, but are intended to be re-exported to a third State.

   (see paras 126-128, operative part 3)