Judgments nº T-385/05 of Court of First Instance of the European Communities, September 23, 2009
|Resolution Date:||September 23, 2009|
|Issuing Organization:||Court of First Instance of the European Communities|
Customs union - External Community transit operations - Consignments of tobacco and ethyl alcohol for third countries - Fraud - Claim for remission of import duties - Article 239 of Regulation (EEC) No 2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause - Existence of a special situation - Comprehensive guarantee
In Case T-385/05,
Transnáutica - Transportes e Navegação, SA, established in Matosinhos (Portugal), represented by C. Fernández Vicién, I. Moreno-Tapia Rivas, D. Ortigão Ramos and B. Aniceto Silva, lawyers,
Commission of the European Communities, represented by X. Lewis and J. Hottiaux, acting as Agents,
APPLICATION for annulment of Commission Decision REM 05/2004 of 6 July 2005 refusing the reimbursement and remission of certain customs duties,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),
composed of N.J. Forwood, President, D. -váby and E. Moavero Milanesi (Rapporteur), Judges,
Registrar: K. Poche-, Administrator,
having regard to the written procedure and further to the hearing on 12 February 2009,
gives the following
External Community transit procedure
1 Under Articles 37, 91 and 92 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; -the Customs Code-), non-Community goods brought into the Community which, instead of being subject to import duties immediately, are placed under the external Community transit procedure may, under customs supervision, move from one point to another within the customs territory of the Community and will be released for free circulation only at the customs office of destination.
2 The person in whom the rights and obligations in respect of the external Community transit procedure are vested is defined by the Customs Code as -the principal-. In that capacity, he must produce the goods intact at the customs office of destination by the prescribed time-limit and must observe the provisions relating to the Community transit procedure (Article 96 of the Customs Code). Those obligations end when the goods and the corresponding documents are produced at the customs office of destination (Article 92 of the Customs Code).
3 Under Articles 341, 346, 348, 350, 356 and 358 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (OJ 1993 L 253, p. 1; -the Implementing Regulation-), the goods in question must first be presented at the customs office of departure together with a T1 declaration. The office of departure prescribes the period within which the goods must be presented at the office of destination, enters the necessary particulars on the T1 declaration, retains its own copy and returns the other copies to the principal. The goods are transported under cover of the T1 document. After presentation of the goods, the office of destination records on the copies of the T1 document the details of controls carried out and sends back a receipt without delay. Articles 361 et seq. of the Implementing Regulation, in the version applicable in the present case, state that the receipt issued by the office of destination is to be returned, at the request of the person presenting Copies 4 and 5 of the transit declaration, to the office of departure without delay through a central office.
4 The customs supervision to which goods transported under the external Community transit procedure are subject comes to an end when the goods are released for free circulation, in particular as a result of the payment of import duties (Articles 37(2) and 79 of the Customs Code). If the goods are prematurely removed from customs supervision, a customs debt on importation is immediately incurred (Article 203(1) and (2) of the Customs Code). Liability for that debt lies not only with the person who removed the goods from customs supervision, but also with the person required to fulfil the obligations arising from the use of the customs procedure under which those goods were placed (Articles 203(3) and 213 of the Customs Code), namely, the principal.
5 Under Article 379(1) of the Implementing Regulation, where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure is to notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.
Comprehensive security for the customs debt
6 Under Article 94 of the Customs Code, the principal must provide a guarantee in order to ensure payment of any customs debt or other charges which may be incurred in respect of the goods. In that connection, Article 191 states that, at the request of the person concerned, the customs authorities are to allow comprehensive security to be provided to cover two or more operations in respect of which a customs debt has been or may be incurred. Under Article 198, where the customs authorities establish that the security provided does not ensure, or is no longer certain or sufficient to ensure, payment of the customs debt within the prescribed period, they are to require the person who is liable or may become liable, at his option, to provide additional security or to replace the original security with a new security.
7 In accordance with Article 361 of the Implementing Regulation, the amount of the comprehensive guarantee is to be set at least at 30% of the duties and other charges payable, or at a level equal to the full amount of duties and other charges payable, where the guarantee is intended to cover external Community transit operations concerning goods listed in Annex 53, which include cigarettes and alcohol. However, Article 361 provides that, in that situation, the customs authorities may in exceptional cases set the amount of the guarantee at 50% of the duties and other charges payable.
8 The comprehensive guarantee is to be lodged with an office of guarantee; that office is to determine the amount of the guarantee, accept the guarantor-s undertaking and issue an authorisation allowing the principal to carry out, within the limits of the guarantee, any Community transit operation irrespective of the office of departure. For that purpose, each person who has obtained authorisation is to be issued with one or more copies of a guarantee certificate (Article 362 of the Implementing Regulation). On issue of the certificate of guarantee or at any time during the validity thereof, the principal is, on his own responsibility, to designate on the reverse of the certificate the person or persons authorised to sign Community transit declarations on his behalf. The principal may at any time delete the name of an authorised person from the reverse of the certificate (Article 363). Under Article 364 of the Implementing Regulation, any person named on the reverse of a guarantee certificate presented at an office of departure is to be deemed to be the authorised representative of the principal.
Remission of import duties
9 As the application for remission of import duties was lodged on 27 September 2004, the applicable legislation is Chapter 3 of Title IV of Part IV of the Implementing Regulation, which contains specific provisions relating to the application of Article 239 of the Customs Code, in the version in force at that date.
10 Article 239 of the Customs Code reads as follows:
-1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238:
- to be determined in accordance with the procedure of the committee;
- resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.
Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon...
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