On December 21, 2016 the Court of Justice of the European Union (CJEU) judged in Case C‑547/15, Interservice d.o.o.Koper versus Sándor Horváth (ECLI:EU:C:2016:983).
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’).
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.
Must Article 96(2) of the Customs Code be interpreted as meaning that not only the person who enters into a transport agreement with the seller for the transport of the goods (the contractual or main carrier), but also the person who carries out the transport, in full or in part, on the basis of another transport agreement concluded with the contractual or main carrier (the transport subcontractor), is to be regarded as a carrier of the goods?
If the first question is answered in the affirmative, must Article 96(2) of the Customs Code be interpreted as meaning that, in a case such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed?’
The dispute in the main proceedings and the questions referred for a preliminary ruling
· 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.
· 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.
· 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).
· 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.
· 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.
· 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.
· The goods in question were not produced at the customs office of destination in Vienna.
· 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 11 196.49, which that company paid on 16 October 2009.
· 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 11 196.49, 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 the principal, for the production of the goods, irrespective of the fact that in this particular case the carrier was merely a transport subcontractor.
· The court at first instance and the appeal court having dismissed that action, on the ground, inter alia, that Article 96(2) of the Customs Code does not apply to a transport subcontractor, Interservice lodged an appeal in cassation before the Supreme Court, Hungary).
· That court states that the outcome of the main proceedings depends on whether the customs debt incurred by Interservice as principal, pursuant to Article 203 of the Customs Code, is attributable to unlawful and wrongful conduct on the part of Mr Horváth. It observes that Mr Horváth accepted the goods in question knowing that they were moving under the external Community transit procedure, but failed, nevertheless, to satisfy himself, before continuing with the transport of the goods from Vienna to Rome, that IGAZ Trans or Friedler Spedition had in fact produced them at the customs office of destination. The referring court adds that there is no evidence in the substantive proceedings to suggest that the defendant was aware that those goods had been removed from customs supervision.
· In those circumstances, the Kúria (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must Article 96(2) of the Customs Code be interpreted as meaning that not only the person who enters into a transport agreement with the seller for the transport of the goods (the contractual or main carrier), but also the person who carries out the transport, in full or in part, on the basis of another transport agreement concluded with the contractual or main carrier (the transport subcontractor), is to be regarded as a carrier of the goods?
(2) If the first question is answered in the affirmative, must Article 96(2) of the Customs Code be interpreted as meaning that, in a case such as that in the main proceedings, the transport subcontractor is required, before continuing the transport of the goods, to ensure in a satisfactory manner that the main carrier actually produced the goods at the customs office of destination in the manner prescribed?’
Judgment
The CJEU judged as follows:
“The concept of a ‘carrier’ under an obligation to produce goods intact at the customs office of destination in Article 96(2) 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 is to be interpreted as referring to any person, including a transport subcontractor, who actually transports the goods moving under the external Community transit procedure and has agreed to transport the goods knowing that they are moving under that procedure.Article 96(2) of Regulation No 2913/92, as amended by Regulation No 648/2005, is to be interpreted as meaning that a transport subcontractor, such as the subcontractor in the main proceedings, who has, first, handed over the goods to the main carrier, together with the transit document, at the car park of the customs office of destination and, second, assumed responsibility for the goods once again in order to continue with the transport, was under an obligation to ensure that the goods were produced at the customs office of destination and may be held liable for any failure to ensure that the goods were thus produced only if he was aware, when he again assumed responsibility for the goods, that the transit procedure had not been properly completed, which is a matter to be determined by the national court.”
From the considerations of the Court
The first question
· By its first question, the referring court seeks to ascertain, in essence, whether the concept of a ‘carrier’ under an obligation to produce goods intact at the customs office of destination in Article 96(2) of the Customs Code is to be interpreted as referring to any person, including a transport subcontractor, who actually transports the goods moving under the external Community transport procedure.
· In the absence of a definition of the word ‘carrier’ in the Customs Code, it is necessary, according to settled case-law, to determine the scope of that concept of EU law by taking into account its wording, context and objectives (see, to that effect, judgment of 16 April 2015, Angerer, C‑477/13, EU:C:2015:239, paragraph 26 and the case-law cited).
· As regards the wording of Article 96(2) of the Customs Code, it should be noted that two requirements must be fulfilled in order for a ‘carrier’ to be under an obligation to produce the goods intact at the customs office of destination, within the meaning of that provision. The first requirement entails acceptance of the goods, which involves taking physical possession and being in actual control of them, and the second entails the knowledge, upon acceptance, that the goods are moving under Community transit.
· As regards the context and objective of that provision, it should be noted that Article 96(2) of the Customs Code imposes liability on the carrier in tandem with that imposed on the principal under Article 96(1) of the code. As the Advocate General observed in points 47 to 49 of his Opinion, the liability of the carrier is nonetheless different from that of the principal, both in terms of the basis of that liability and its extent.
· The liability of the principal is based on his capacity as ‘holder’ under the transit procedure, that term being defined in Article 4(21) of the Customs Code as the person on whose behalf the customs declaration was made or to whom the rights and obligations of that person in respect of a customs procedure have been transferred. In his capacity as holder under the transit procedure, the principal is liable, under Article 96(1)(b) of the Customs Code, for ensuring that all the provisions relating to that procedure are complied with.
· On the other hand, the liability of the carrier under Article 96(2) of the Customs Code is based on physical control of the goods and the knowledge that they are moving under Community transit. That provision requires the carrier who accepts the goods in the knowledge that they are moving under that procedure, in his capacity as physical holder of the goods, to produce them 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.
· In that regard, the question whether the person who retains physical possession of the goods transports them under a subcontract with the principal carrier is irrelevant. Any other interpretation would allow persons to evade their liability under that provision, on the ground that they are operating under a subcontract, even though they have physical control of the goods in question and are aware that they are moving under Community transit.
· In the light of the foregoing considerations, the answer to the first question is that the concept of a ‘carrier’ under an obligation to produce goods intact at the customs office of destination in Article 96(2) of the Customs Code is to be interpreted as referring to any person, including a transport subcontractor, who actually transports the goods moving under the external Community transport procedure and has agreed to transport the goods knowing that they are moving under that procedure.
The second question
· By its second question, the referring court seeks to ascertain, in essence whether Article 96(2) of the Customs Code is to be interpreted as meaning that a transport subcontractor, such as the subcontractor in the main proceedings, who has, first, handed over the goods, together with the transit document, to the main carrier at the car park of the customs office of destination and, second, assumed responsibility for the goods once again in order to continue with the transport, was under an obligation to ensure that the goods were produced at the customs office of destination and may be held liable for any failure to ensure that the goods were thus produced.
· It should be noted in that regard that it is possible, under Article 96(2) of the Customs Cod, to hold a transport subcontractor, such as the subcontractor in the main proceedings, liable for failure to produce the goods at the customs office of destination only if the subcontractor is obliged to produce the goods because he has accepted the goods and is aware that they are moving under Community transit within the meaning of that provision.
· In the present case, as it is apparent from the order for reference that Mr Horváth initially accepted the goods in question knowing that they were moving under the external Community transit procedure, it is clear from the answer to the first question that he was under an obligation to produce them at the customs office of destination in so far as concerns the transport of those goods from Koper to Vienna.
· It is therefore necessary to examine, first, whether Mr Horváth discharged that obligation by handing the goods, together with the transit document, over to the representative of the main carrier, IGAZ Trans, at the car park of the customs office of destination in Vienna and, second, if so, whether, when he again assumed responsibility for those goods in order to transport them from Vienna to Rome, he was once again under that obligation.
· As regards the question whether Mr Horváth discharged the obligation to produce the goods to the customs office of destination by handing over the goods in question in the main proceedings to the representative of the main carrier, IGAZ Trans, at the car park of the customs office of destination in Vienna, it is apparent from the answer to the first question that the liability of the carrier under Article 96(2) of the Customs Code is based on physical control of the goods. Accordingly, a carrier who transfers that control to another carrier by handing over the goods has, in principle, discharged the obligation laid down in that provision, provided that the second carrier is aware that the goods are moving under Community transit.
· While the fact that goods brought into the customs territory of the Community are subject to customs supervision, as provided for in Article 37 of the Customs Code, precludes the carrier from freeing himself of his liability under Article 96(2) of the code by handing the goods over to simply any other person, the carrier may nonetheless discharge that liability by handing them over to another person who is, pursuant to Article 96 of that code, under an obligation to produce the goods in a satisfactory manner at the customs office of destination, such as another carrier who accepts the goods knowing that they are moving under Community transit.
· In the present case, it is apparent from the findings of the referring court that Mr Horváth conveyed the goods at issue in the main proceedings to the car park of the customs office of destination in Vienna. He then went back to Hungary, leaving the container containing the goods in Vienna, after handing over the transit document under cover of which the goods were being transported to the representative of the main carrier, IGAZ Trans. According to statements made by IGAZ Trans, its representative then forwarded that document to Friedler Spedition for the completion of customs formalities. Subject to verification by the referring court, it would therefore appear, as the Advocate General observed in point 52 of his Opinion, that Mr Horváth discharged his obligation under Article 96(2) of the Customs Code at the point at which he handed over those goods, together with the transit document, to the representative of the main carrier, IGAZ Trans. The fact that IGAZ Trans then passed that document on to Friedler Spedition is, in that regard, irrelevant.
· If it transpired that Mr Horváth in fact discharged his liability under Article 96(2) of the Customs Code by handing the goods in question, together with the transit documents, over to the representative of IGAZ Trans, his earlier status as ‘carrier’ within the meaning of that provision cannot have the effect of having placed him under an obligation to ensure, after the goods were handed over and before he once again assumed responsibility for them in order to transport them to the final recipient in Rome, that they were produced intact and in a satisfactory manner at the customs office of destination in Vienna.
· If that is the case, it will then be for the referring court to verify whether Mr Horváth once again assumed liability for the purpose of Article 96(2) of the Customs Code by taking over responsibility for the goods in question in the main proceedings when he transported them from Vienna to Rome.
· As the Advocate General observed in point 61 of his Opinion, if the goods in question in the main proceedings were still moving under the external Community transit procedure when Mr Horváth once again assumed responsibility for them in order to transport them from Vienna to Rome and if he was aware of that fact, he might once again fulfil the conditions laid down in Article 96(2) of the Customs Code in order to be classified, a second time, as the persons subject to the obligation laid down in that provision.
· In the main proceedings, as it is apparent from the order for reference that the goods in question were not produced at the customs office of destination in Vienna, the external Community transit procedure could not have been completed by the time specified in Article 92 of the Customs Code and it cannot be ruled out they were still moving under Community transit when Mr Horváth once again assumed responsibility for them on 18 December 2008 in order to convey them to their final recipient in Rome. Furthermore, it is not possible, on the basis of the information before the Court, to decide with certainty whether Mr Horváth was at all aware that those goods were still moving under the transit procedure.
· It is therefore for the referring court to ascertain whether the goods in question in the main proceedings were still moving under the external Community transit procedure when Mr Horváth once again assumed responsibility for them, and whether Mr Horváth was aware of this. If he was not, it cannot be said that that assumption of responsibility placed him once again under an obligation to ensure that the goods were produced in a satisfactory manner at the customs office of destination.
· In the light of all the foregoing considerations, the answer to the second question is that Article 96(2) of the Customs Code is to be interpreted as meaning that a transport subcontractor, such as the subcontractor in the main proceedings, who has, first, handed over the goods to the main carrier, together with the transit document, at the car park of the customs office of destination and, second, assumed responsibility for the goods once again in order to continue with the transport, was under an obligation to ensure that the goods were produced at the customs office of destination and may be held liable for any failure to ensure that the goods were thus produced only if he was aware, when he again assumed responsibility for the goods, that the transit procedure had not been properly completed, which is a matter to be determined by the national court.
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Click here to be forwarded to the Opinion of Advocate General Bot as delivered on July 14, 2016.
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