The ECJ has given its judgment in a case concerning the fulfilment of obligations entailed by Community transit procedures. Community transit is a customs procedure allowing the movement of goods that are not in free circulation, i.e., non-EU goods that have not been cleared into the EU, between two points in the EU under suspension of customs duties.
DSV, a Danish transport and logistics undertaking, initiated external Community transit procedures for some goods from Copenhagen (Denmark) to Jönköping (Sweden). The goods were not accepted by the consignee in Jönköping and were then returned to Copenhagen, without having been presented to either the Jönköping or Copenhagen customs offices. DSV argued that the goods were included in a later transit procedure which was correctly discharged, whereas the Danish authorities disputed this. The Danish authorities sought to establish that DSV had incurred a customs debt under Article 203 or, in the alternative, Article 204 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended, (the “Customs Code”) and denied DSV the right to deduct the import VAT it had to pay on the goods.
The Court ruled that if it could not be established that the two transit procedures concerned the same goods, then a customs debt is incurred under Article 203, because the goods would be regarded as removed from customs supervision, having never been presented to the customs authority. If on the other hand, the two transit procedures did concern the same goods, the mere fact that the goods were not presented to either the customs office of destination or at origin as part of the first transit procedure is insufficient to constitute removal from customs supervision if it is established that the same goods were subsequently transported again to their destination under a second, correctly discharged transit procedure. Accordingly no customs debt would be incurred under Article 203 and Article 204 would need to be considered instead.
Article 204 concerns customs debts incurred through the failure to fulfil obligations generated by transit procedures. The relevant question regarding Article 204 was whether the late presentation of the goods at the customs office constituted an omission leading to a customs debt being incurred. The Court ruled that it did on the basis of its previous case-law. The instant case was also distinguishable from situations where an authorised consignor had, by mistake, generated two external transit procedures for one and the same consignment of goods – in any event DSV, did not make the dispatches as authorised consignor – or where the goods at issue were never transported under the first transit procedure. However, it was also necessary to consider Article 356(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implantation of Council Regulation (EEC) No 2913/92, as amended, (the “Implementing Regulation”), which provides that a carrier or principal is deemed to have complied with the prescribed time limit where the failure to comply is explained to the satisfaction of the customs office of destination and which is beyond the carrier’s or principal’s control. It was for the referring court to ascertain whether this was the case. Alternatively, the negative conditions in Article 204 of the Customs Code exclude a customs debt being incurred where the “failures have no significant effect on the correct operation of the temporary storage or customs procedure in question”. Article 859 of the Implementing Regulation gives an exhaustive list of the situations likely to satisfy that condition. Again, this is a matter for the referring court. Of particular interest in these proceedings were the requirement that there should not be obvious negligence and that the goods should be presented at the destination office within a reasonable time.
Lastly, the Court ruled that Article 168(e) of the VAT Directive did not preclude national legislation excluding the deduction of import VAT by the carrier of goods who is neither the importer nor owner of the goods in question.
Case C‑187/14 Skatteministeriet v DSV Road A/S (Danske Speditører), 25 June 2015
