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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Hannl + Hofstetter Internationale Spedition (Customs union) [2003] EUECJ C-91/02 (16 October 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C9102.html Cite as: [2003] ECR I-12077, [2003] EUECJ C-91/2, [2003] EUECJ C-91/02 |
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JUDGMENT OF THE COURT (Second Chamber)
16 October 2003 (1)
(Community Customs Code - Customs debt on importation - Charging of interest on arrears)
In Case C-91/02,
REFERENCE to the Court under Article 234 EC by the Verwaltungsgerichtshof (Austria) for a preliminary ruling in the proceedings pending before that court between
Hannl + Hofstetter Internationale Spedition GmbH
and
Finanzlandesdirektion für Wien, Niederösterreich und Burgenland,
on the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1),
THE COURT (Second Chamber),
composed of: R. Schintgen (Rapporteur), President of the Chamber, V. Skouris and N. Colneric, Judges,
Advocate General: P. Léger,
Registrar: R. Grass,
after considering the written observations submitted on behalf of:
- Hannl + Hofstetter Internationale Spedition GmbH, by P. Csoklich, Rechtsanwalt,
- the Finanzlandesdirektion für Wien, Niederösterreich und Burgenland, by L. Lenitz, acting as Agent,
- the Austrian Government, by H. Dossi, acting as Agent,
- the Italian Government, by I.M. Braguglia, acting as Agent,
- the Commission of the European Communities, by J.C. Schieferer and R. Tricot, acting as Agents,
having regard to the report of the Judge-Rapporteur,
after hearing the Opinion of the Advocate General at the sitting on 15 May 2003,
gives the following
Legal background
Community legislation
1. Save as otherwise expressly provided by this Code and without prejudice to paragraph 2, the amount of the import duty or export duty applicable to goods shall be determined on the basis of the rules of assessment appropriate to those goods at the time when the customs debt in respect of them is incurred.
2. Where it is not possible to determine precisely when the customs debt is incurred, the time to be taken into account in determining the rules of assessment appropriate to the goods concerned shall be the time when the customs authorities conclude that the goods are in a situation in which a customs debt is incurred.
However, where the information available to the customs authorities enables them to establish that the customs debt was incurred prior to the time when they reached that conclusion, the amount of the import duty or export duty payable on the goods in question shall be determined on the basis of the rules of assessment appropriate to the goods at the earliest time when existence of the customs debt arising from the situation may be established from the information available.
3. Compensatory interest shall be applied, in the circumstances and under the conditions to be defined in the provisions adopted under the committee procedure, in order to prevent the wrongful acquisition of a financial advantage through deferment of the date on which the customs debt was incurred or entered in the accounts.
1. Where a customs debt is incurred as a result of the acceptance of the declaration of goods for a customs procedure other than temporary importation with partial relief from import duties or any other act having the same legal effect as such acceptance the amount corresponding to such customs debt shall be entered in the accounts as soon as it has been calculated and, at the latest, on the second day following that on which the goods were released.
However, provided that payment has been secured, the total amount of duty relating to all the goods released to one and the same person during a period fixed by the customs authorities, which may not exceed 31 days, may be covered by a single entry in the accounts at the end of the period. Such entry in the accounts shall take place within five days of the expiry of the period in question.
2. Where it is provided that goods may be released subject to meeting certain conditions laid down by Community legislation which govern either determination of the amount of the debt or its collection, entry in the accounts shall take place no later than two days following the day on which the amount of the debt or the obligation to pay the duties resulting from that debt is determined or fixed.
However, where the customs debt relates to a provisional anti-dumping or countervailing duty, that duty shall be entered in the accounts no later than two months following publication in the Official Journal of the European Communities of the Regulation establishing a definitive anti-dumping or countervailing duty.
3. Where a customs debt is incurred under conditions other than those referred to in paragraph 1, the relevant amount of duty shall be entered in the accounts within two days of the date on which the customs authorities are in a position to:
(a) calculate the amount of duty in question, and
(b) determine the debtor.
Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time limit may be extended in accordance with Article 219.
The customs authorities may grant the debtor payment facilities other than deferred payment.
The granting of such payment facilities shall:
(a) be conditional on the provision of security. However, such security need not be required where to require it would, because of the situation of the debtor, create serious economic or social difficulties;
(b) result in credit interest being charged over and above the amount of duty. The amount of such interest shall be calculated in such a way that it is equivalent to the amount which would be charged for this purpose on the national money or financial market of the currency in which the amount is payable.
The customs authorities may refrain from claiming credit interest where to claim it would, because of the situation of the debtor, create serious economic or social difficulties.
Where the amount of duty due has not been paid within the prescribed period:
(a) the customs authorities shall avail themselves of all options open to them under the legislation in force, including enforcement, to secure payment of that amount.
Special provisions may be adopted, in accordance with Committee procedure, in respect of guarantors within the framework of the transit procedure;
(b) interest on arrears shall be charged over and above the amount of duty. The rate of interest on arrears may be higher than the rate of credit interest. It may not be lower than that rate.
Repayment by the competent authorities of amounts of import duties or export duties or of credit interest or interest on arrears collected on payment of such duties shall not give rise to the payment of interest by those authorities. However, interest shall be paid:
- where a decision to grant a request for repayment is not implemented within three months of the date of adoption of that decision,
- where national provisions so stipulate.
The amount of such interest shall be calculated in such a way that it is equivalent to the amount which would be charged for this purpose on the national money or financial market.
The national legislation
Except in the cases referred to in sub-paragraph (2), where a customs debt is incurred under Articles 202 to 205, or 210, or 211 of the Customs Code, or in the event of subsequent recovery under Article 220 of the Customs Code, an increase in duty is to be paid, the amount of which shall correspond to the amount which would have been incurred as interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts, or, in the event of subsequent recovery under Article 220 of the Customs Code, which corresponds to the amount which would have been incurred as interest on arrears for the period between the date on which the customs debt originally entered in the accounts was due and the subsequent entry in the accounts. The obligation to pay administrative charges under Article 105 is unaffected.
The main proceedings and the question referred
2
Is the increase in duty under Paragraph 108(1) of the ZollR-DG, which is payable in the event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the Customs Code or in the event of subsequent recovery under Article 220 of the Customs Code and which corresponds to the amount which would have been incurred as interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts, and in the case of subsequent recovery under Article 220 of the Customs Code between the date when the customs debt originally entered in the accounts was due and the entry in the accounts of the customs debt to be subsequently recovered, contrary to Community customs provisions?
The question referred
Costs
24. The costs incurred by the Italian and Austrian Governments and by the Commission, which have submitted observations to the Court, are not recoverable. 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.
On those grounds,
THE COURT (Second Chamber),
in answer to the question referred to it by the Verwaltungsgerichtshof by order of 28 February 2002, hereby rules:
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 must be interpreted as not precluding legislation which provides for an increase in duty in the event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the Customs Code or in the event of subsequent recovery under Article 220 of the Customs Code, corresponding to the amount which would have been incurred as interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts or, in the case of subsequent recovery under Article 220 of the Customs Code, between the date when the customs debt originally entered in the accounts was due and the subsequent entry in the accounts of that debt, provided that the rate of interest is determined under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity and which make the penalty effective, proportionate and dissuasive. It is for the national court to determine whether the rate of increase at issue in the main proceedings is consistent with those principles.
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Schintgen
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Delivered in open court in Luxembourg on 16 October 2003.
R. Grass V. Skouris
Registrar President
1: Language of the case: German.
