Interservice d.o.o. Koper v Sándor Horváth.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: von Danwitz
• ECLI: ECLI:EU:C:2016:983
• Date: 21 December 2016
• Docket Number: C-547/15
• Procedure Type: Reference for a preliminary ruling

JUDGMENT OF THE COURT (Fourth Chamber)

21 December 2016 ( *1 )

‛Reference for a preliminary ruling — Community Customs Code — Regulation (EEC) No 2913/92 — Article 96 — External transit procedure — Definition of ‘carrier’ — Failure to produce goods at the customs office of destination — Liability — Transport subcontractor who has handed the goods over to the main carrier in the car park of the customs office of destination and subsequently again assumed responsibility for the goods in order to continue with the transport’

In Case C‑547/15,

REQUEST for a preliminary ruling under Article 267 TFEU from the Kúria (Supreme Court, Hungary), made by decision of 29 September 2015, received at the Court on 20 October 2015, in the proceedings

Interservice d.o.o. Koper

v

Sándor Horváth,

THE COURT (Fourth Chamber),

composed of T. von Danwitz (Rapporteur), President of the Chamber, E. Juhász, C. Vajda, K. Jürimäe and C. Lycourgos, Judges,

Advocate General: Y. Bot,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

— Mr Sándor Horváth, by J. Ocsák, ügyvéd,

— the Hungarian Government, by G. Koós and Z. Fehér, acting as Agents,

— the European Commission, by L. Grønfeldt and A. Sipos, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 July 2016,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 96(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13) (‘the Customs Code’).

2 The request has been made in proceedings between Interservice d.o.o. Koper and Mr Sándor Horváth concerning the recovery of customs duties paid by Interservice as ‘principal’ to the Slovenian customs authorities following the removal from customs supervision of goods transported under the external Community transit procedure by Mr Horváth as subcontractor.

Legal context

3 Article 4(21) of the Customs Code defines the ‘holder of the procedure’ as ‘the person on whose behalf the customs declaration was made or the person to whom the rights and obligations of the aforementioned person in respect of a customs procedure have been transferred’.

4 Article 37 of the Customs Code provides as follows: ‘1. Goods brought into the customs territory of the Community shall, from the time of their entry, be subject to customs supervision. They may be subject to customs control in accordance with the provisions in force. 2. They shall remain under such supervision for as long as necessary to determine their customs status, if appropriate, and in the case of non-Community goods and without prejudice to Article 82(1), until their customs status is changed, they enter a free zone or free warehouse or they are re-exported or destroyed in accordance with Article 182.’

5 Article 92 of the Customs Code is worded as follows: ‘1. The external transit procedure shall end and the obligations of the holder shall be met when the goods placed under the procedure and the required documents are produced at the customs office of destination in accordance with the provisions of the procedure in question. 2. The customs authorities shall discharge the procedure when they are in a position to establish, on the basis of a comparison of the data available to the office of departure and those available to the customs office of destination, that the procedure has ended correctly.’

6 In accordance with Article 96 of the Customs Code: ‘1. The principal shall be the of [sic] [holder] under the external Community transit procedure. He shall be responsible for: (a) production of the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification; (b) observance of the provisions relating to the Community transit procedure. 2. Notwithstanding the principal’s obligations under paragraph 1, a carrier or recipient of goods who accepts goods knowing that they are moving under Community transit shall also be responsible for production of the goods intact at the customs office of destination by the prescribed time limit and with due observance of the measures adopted by the customs authorities to ensure identification.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

7 Friedler Spedition GmbH entrusted IGAZ Trans Kft with the task of transporting goods which had arrived from China by container at the port of Koper in Slovenia.

8 IGAZ Trans instructed Interservice, the applicant in the main proceedings, to carry out the necessary customs formalities. It then instructed Mr Horváth, the defendant in the main proceedings, to convey the goods in question from Koper to Vienna, in Austria, then, on completion of the customs formalities, on to Rome, in Italy.

9 Interservice initiated the external Community transit procedure on 11 December 2008 by emailing the transit declaration, bearing the seal ‘T’, to the Koper customs office. It also issued and forwarded to Mr Horváth the authorisation necessary to secure from the customs authorities the retrieval of the goods in question, along with the CMR consignment note (dispatch note based on the Convention on the contract for the international carriage of goods by road, signed at Geneva on 19 May 1956, as amended by the protocol of 5 July 1978).

10 For the purpose of the discharge of the external Community transit procedure, the goods in question were due to be produced at the Vienna customs office, in Austria, no later than 18 December 2008.

11 After taking delivery of the goods in question at the Koper customs office, Mr Horváth transported them to the car park of the Vienna customs office indicated on the CMR consignment note, where he stayed from 12 to 17 December 2008 with the container containing the goods. He handed over to the representative of IGAZ Trans the transit documents necessary for carrying out the customs formalities. According to IGAZ Trans, that representative then forwarded those documents to Friedler Spedition for the purposes of completing the customs formalities. Mr Horváth returned to Hungary on 17 December 2008, leaving the container in question in Vienna.

12 On his return to Vienna on 18 December 2008, Mr Horváth transported the goods in question to their final destination in Italy, with a new consignment note given to him by the IGAZ Trans representative.

13 The goods in question were not produced at the customs office of destination in Vienna.

14 The Slovenian customs authorities discovered that Friedler Spedition and IGAZ Trans had sent them falsified documents to demonstrate discharge of the external transit procedure. Taking the view that the goods in question had been removed from customs supervision, those authorities demanded that Interservice, as principal, pay customs duties, value added tax (VAT) and late payment interest amounting to EUR 11196.49, which that company paid on 16 October 2009.

15 Interservice instituted legal proceedings against Mr Horváth, on grounds of non-contractual liability, seeking an order that he pay to Interservice the sum of EUR 11196.49, together with interest and ancillary costs, by way of compensation for the damage suffered, arguing that, pursuant to Article 96(2) of the Customs Code, the carrier is liable, jointly with...