Court of Justice of the European Communities (including Court of First Instance Decisions)

(Regulation (EEC) No 2913/92 Community Customs Code Customs debt Amount of duty Communication to the debtor Act that could give rise to criminal court proceedings)

In Joined Cases C-124/08 and C-125/08,

REFERENCES for a preliminary ruling under Article 234 EC, from the Hof van Cassatie (Belgium), made by decisions of 26 February 2008, received at the Court on 25 March 2008, in the proceedings

Gilbert Snauwaert,

Algemeen Expeditiebedrijf Zeebrugge BVBA,

Coldstar NV,

Dirk Vlaeminck,

Jeroen Den Haerynck,

Ann De Wintere (C-124/08),

Géry Deschaumes (C-125/08)

Belgische Staat,

composed of C.W.A. Timmermans, President of the Chamber, K. Schiemann, J. Makarczyk (Rapporteur), P. Klūris and L. Bay Larsen, Judges,

Advocate General: E. Sharpston,

Registrar: R. Grass,

having regard to the written procedure,

after considering the observations submitted on behalf of:

Mr Snauwaert, Algemeen Expeditiebedrijf Zeebrugge BVBA and Coldstar NV, by J. Verbist, advocaat,

Mr Den Haerynck, by E. Gevers, advocaat,

Mrs De Wintere, by H. Van Bavel and P. Wytinck, advocaten,

the Belgian Government, by J.'C. Halleux, acting as Agent,

the Greek Government, by S. Spyropoulos, Z. Chatzipavlou and V. Karra, acting as Agents,

the Commission of the European Communities, by M. van Beek and S. Schønberg, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

1. These references for a preliminary ruling relate to the interpretation of Article 221(1) and (3) 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').
2. The references have been made in the course of proceedings, in Case C-124/08 between Mr Snauwaert, Algemeen Expeditiebedrijf Zeebrugge BVBA, Coldstar NV, Mr Vlaeminck, Mr Den Haerynck and Mrs De Wintere, of the one part, and Belgische Staat (Belgian State), of the other, and in Case C-125/08 between Mr Deschaumes and Belgische Staat, concerning applications for post'clearance recovery of import duties.

Legal framework

3. Article 221 of the customs code provides:

'1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

...

3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due, such communication may, in so far as the provisions in force so allow, be made after the expiry of such three-year period.'

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

4. The actions in the main proceedings, as described by the referring court, concern a number of frauds relating to the import of meat not permitted on the European market, which occurred in Belgium in the mid-1990s.
5. The purpose of those frauds was both to bring on to the European market cheap meat from third countries which was normally unfit for human consumption according to the national and Community standards and to claim export refunds unlawfully.
6. As a result of the frauds, import duties in relation to the goods in question were evaded, since the competent customs authorities did not possess the information required in order to enter them in the accounts.

Case C-124/08

7. It is apparent from the order for reference in Case C-124/08 that, at the end of the proceedings, which took place before the correctionele rechtbank van Antwerpen (Criminal Court, Antwerp) at first instance, and the hof van beroep te Antwerpen (Court of Appeal, Antwerp) on appeal, Mr Snauwaert, Mr Vlaeminck, Mr Den Haerynck and Mrs De Wintere were jointly and severally ordered to pay the evaded import duties and levies, together with default interest. Algemeen Expeditiebedrijf Zeebrugge BVBA and Coldstar NV were declared liable, as a matter of civil law, for the sums due from Mr Snauwaert and Mr Den Haerynck respectively.
8. The referring court states that, in support of their appeal in cassation against the judgment of the hof van beroep te Antwerpen of 25 October 2006, the appellants in the main proceedings rely, in particular, on the provisions of Article 221(1) and (3) of the customs code, arguing that that court erred: first, in finding that the failure to enter in the accounts the amount of import or export duty legally due, or the late entry thereof, does not affect the right of the customs authorities to proceed to recovery of that duty; and, second, in finding that, for the purposes of extending the three'year limitation period from the date on which the customs debt was incurred, laid down in Article 221(3), it is not necessary to ascertain who ultimately committed the act liable to give rise to criminal court proceedings as a result of which the authorities were unable to determine the amount in question.
9. In those circumstances, the Hof van Cassatie (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

'1. Should Article 221(1) of the [customs code] be construed as meaning that the ... communication of a customs debt to the person liable for payment can be lawfully effected only after it has been entered in the accounts or, in other words, that the communication of a customs debt to the person liable for payment ... should always be preceded by its entry in the accounts if it is to be lawful and to comply with [that provision]?

2. Should Article 221(3) of the [customs code] ... be construed as meaning that the option of lawfully communicating the amount entered in the accounts after the period of three years from the date on which the customs debt was incurred, if that debt is the result of an act which is liable to give rise to criminal court proceedings, is available to the customs authorities only in respect of the person who is responsible for [that act]?'

Case C-125/08

10. It is apparent from the order for reference in Case C-125/08 that, by the judgment of the hof van beroep te Antwerpen of 2 May 2007, Mr Deschaumes was ordered to pay the evaded import duties and levies, together with default interest.
11. The referring court states that, in support of his appeal in cassation against that judgment, Mr Deschaumes relies, in particular, on the provisions of Article 221(1) of the customs code, arguing that the hof van beroep te Antwerpen did not find that the customs debt had been entered in the accounts before it was communicated, and that it is not evident from the file in the main proceedings that such entry in the accounts was made.
12. In those circumstances, the Hof van Cassatie decided to stay the proceedings and to refer to the Court of Justice for a preliminary ruling a question identical to the first question referred in Case C-124/08.
13. By order of the President of the Court of 22 April 2008, Cases C-124/08 and C-125/08 were joined for the purposes of the written and oral procedure and of the judgment.

The questions referred for a preliminary ruling

Admissibility of the references for a preliminary ruling

14. The Commission of the European Communities submits that the references for a preliminary ruling are inadmissible on the ground that they are insufficiently reasoned.
15. In that connection, it should be pointed out that it is settled case-law that the need to provide an interpretation of Community law which will be of use to the referring court makes it necessary that the referring court define the factual and legal context of the questions it is asking or, at the very least, explain the factual circumstances on which those questions are based (see, inter alia, Case C-67/96 Albany [1999] ECR I-5751, paragraph 39; Joined Cases C-51/96 and C-191/97 Deliège [2000] ECR I-2549, paragraph 30; and Case C-506/04 Wilson [2006] ECR I-8613, paragraph 38).
16. The information provided in orders for reference must not only be such as to enable the Court to reply usefully but must also give the governments of the Member States and other interested parties the opportunity to submit observations pursuant to Article 23 of the Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are notified to the interested parties (see, inter alia, Albany, paragraph 40; Case C-145/03 Keller [2005] ECR I-2529, paragraph 30; and Wilson, paragraph 39).
17. In the present case, the orders for reference contain sufficient details to enable the governments of the Member States and the other interested parties to submit observations. It is also apparent from the observations submitted by the Belgian and Greek Governments and by the Commission that they have been able to reply usefully to the questions referred by the national court.
18. In addition, the Court considers that the information contained in the orders for reference and the observations submitted to it is sufficient to enable it to reply usefully to the questions referred.
19. Accordingly, the Court must give an answer to the questions referred.

The first question in Case C-124/08 and the question in Case C-125/08

20. By those questions, the referring court seeks to ascertain whether Article 221(1) of the customs code must be interpreted as meaning that the amount of import and export duty due may be validly communicated to the debtor by the customs authorities in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities.
21. In that connection, it is sufficient to point out that it follows from the wording of Article 221(1) of the customs code that entry in the accounts, which, pursuant to Article 217(1) of the code, consists in entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import or export duty (Case C-201/04 Molenbergnatie [2006] ECR I-2049, paragraph 46).
22. Such a chronological order in the procedure for entry in the accounts and communication of the amount of duty, which is affirmed in the very heading of Section 1 of Chapter 3 of Title VII of the customs code ('Entry in the accounts and communication of the amount of duty to the debtor'), must be observed if there are not to be differences in treatment as between the persons liable and if, moreover, the smooth operation of the customs union is not to be prejudiced (Molenbergnatie, paragraph 47).
23. Consequently, the answer to the first question in Case C-124/08 and to the question in Case C-125/08 is that Article 221(1) of the customs code must be interpreted as meaning that the amount of import and export duty due may be validly communicated to the debtor by the customs authorities in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities.

The second question in Case C-124/08

24. By that question, the referring court seeks to ascertain whether Article 221(3) of the customs code must be interpreted as meaning that, after the expiry of a period of three years from the date on which the customs debt was incurred, the customs authorities of a Member State may validly communicate the amount of the duty to be recovered only in respect of the person who is responsible for the act which is liable to give rise to criminal court proceedings, and as a result of which those authorities were unable to determine the exact amount of that duty.
25. First of all, it should be recalled that the expression 'an act that could give rise to criminal court proceedings' used in Article 221(3) of the customs code means acts which, under the legal system of the Member State whose competent authorities are seeking the post-clearance recovery of duties, may be classified as offences under national criminal law (see by analogy, in relation to Article 3 of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1), Case C-273/90 Meico-Fell [1991] ECR I-5569, paragraph 9).
26. The Court has also had occasion to make it clear that classification by the customs authorities of an act as 'an act that could give rise to criminal court proceedings' does not constitute a finding that an infringement of criminal law has actually been committed. That classification is made only in the context and for the purposes of an administrative procedure whose sole purpose is to enable those authorities to make good incorrect or insufficient collection of import or export duties (see by analogy, in relation to Article 3 of Regulation No 1697/79, Case C-62/06 ZF Zefeser [2007] ECR I-11995, paragraph 28).
27. In order to respond to the present question, it must first be pointed out that, under Article 221(1) of the customs code, the amount of import or export duty due is to be communicated to the debtor in respect of the customs debt.
28. Second, it should be noted that the first sentence of Article 221(3) lays down a limitation rule whereby that communication is not to take place after the expiry of a period of three years from the date on which the customs debt was incurred.
29. As an exception to that rule, the second sentence of Article 221(3) stipulates that the customs authorities may, in so far as the provisions in force so allow, make such communication after the expiry of that period, where the customs authorities were unable, as a result of an act that could give rise to criminal court proceedings, to determine the exact amount of duty legally due.
30. Consequently, it is apparent both from the wording and the broad logic of Article 221 of the customs code that the amount of duty may be communicated to the debtor after the expiry of the three-year period, where, as a result of an act that could give rise to criminal court proceedings, the customs authorities were initially unable to determine the exact amount of duty legally due. That includes cases where the debtor is not the person who ultimately committed that act.
31. That interpretation is also borne out by the use of the words 'such communication' in the second sentence of Article 221(3) of the customs code, which refer back to the words 'communication to the debtor' in the first sentence of that provision. Thus, Article 221(3) does not confine the communication of the duty due to cases where the debtor ultimately committed the act that could give rise to criminal court proceedings.
32. Consequently, the answer to the second question referred in Case C-124/08 is that Article 221(3) of the customs code must be interpreted as meaning that the customs authorities may, after the expiry of the period of three years from the date on which the customs debt was incurred, validly communicate to the debtor the amount of duty legally due, where the exact amount of that duty could not be determined by those authorities as a result of an act that could give rise to criminal court proceedings. That includes cases where the debtor has not committed that act.

Costs

33. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Second Chamber) hereby rules:

1. Article 221(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as meaning that the amount of import or export duty due may be validly communicated to the debtor by the customs authorities in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by those authorities.

2. Article 221(3) of Regulation No 2913/92 must be interpreted as meaning that the customs authorities may, after the expiry of the period of three years from the date on which the customs debt was incurred, validly communicate to the debtor the amount of duty legally due, where the exact amount of that duty could not be determined by those authorities as a result of an act that could give rise to criminal court proceedings. That includes cases where the debtor has not committed that act.

[Signatures]

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* Language of the case: Dutch.