Commissioners for Her Majesty’s Revenue and Customs v Isaac International Limited (C-371/09)

Contents

Judgment of the Court (Third Chamber)29 July 2010^noteIn Case C-371/09,REFERENCE for a preliminary ruling under Article 234 EC from the High Court of Justice (England and Wales) (Chancery Division) (United Kingdom), made by decision of 6 July 2009, received at the Court on 17 September 2009, in the proceedingsCommissioners for Her Majesty’s Revenue and CustomsvIsaac International Limited,THE COURT (Third Chamber),composed of K. Lenaerts, President of the Chamber, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur) and D. Šváby, Judges,Advocate General: N. Jääskinen,Registrar: R. Grass,having regard to the written procedure,after considering the observations submitted on behalf of:— the United Kingdom Government, by S. Ossowski, acting as Agent, and M. Angiolini, barrister,— the Commission of the European Communities, by R. Lyal and L. Bouyon, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This reference for a preliminary ruling concerns Article 212a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 320, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17, ‘the Customs Code’) and Article 292 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993, L 253, p. 1), as amended by Commission Regulation (EC) No 1602/2000 of 24 July 2000 (OJ 2000 L 188, p. 1, ‘the Implementing Regulation’).

2The reference has been made in the framework of a dispute between the Commissioners for Her Majesty’s Revenue and Customs and Isaac International Limited (‘Isaac’) concerning post-clearance recovery of customs duty and value added tax.

Legal context

European Union law

3An anti-dumping duty was introduced by Council Regulation (EEC) No 2474/93 of 8 September 1993 imposing a definitive anti-dumping duty on imports into the Community of bicycles originating in the People’s Republic of China and collecting definitively the provisional anti-dumping duty (OJ 1993 L 228, p. 1).

4That anti-dumping duty was extended to certain bicycle parts by Council Regulation (EC) No 71/97 of 10 January 1997 extending the definitive anti-dumping duty imposed by Regulation (EEC) No 2474/93 on bicycles originating in the People’s Republic of China to imports of certain bicycle parts from the People’s Republic of China, and levying the extended duty on such imports registered under Regulation (EC) No 703/96 (OJ 1997 L 16, p. 55).

5Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People’s Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93 (OJ 1997 L 17, p. 17, ‘the Exempting Regulation’) provides interested parties with precise instructions concerning the functioning of the system of exemption from anti-dumping duty.

6Article 14 of that regulation, entitled ‘Exemption subject to end-use control’ provides:‘Where imports of essential bicycle parts are declared for free circulation by a person other than an exempted party, as from the date of entry into force of [Regulation No 71/97], they shall be exempted from the application of the extended duty if declared in accordance with the Taric structure in Annex III and subject to the conditions laid down in Article 82 of [the Customs Code] and Articles 291 to 304 of [the Implementing Regulation], which shall be applicable mutatis mutandis, where:(a) the essential bicycle parts are delivered to a party exempted pursuant to Articles 7 or 12;or(b) the essential bicycle parts are delivered to another holder of an authorisation within the meaning of Article 291 of [the Implementing Regulation];or(c) on a monthly basis, less than 300 units per type of essential bicycle parts are either declared for free circulation by a party or are delivered to it. The number of parts declared by or delivered to any party shall be calculated by reference to the number of parts declared by or delivered to all parties which are associated with or have compensatory arrangements with that party.’

7Article 82(1) of the Customs Code provides:‘Where goods are released for free circulation at a reduced or zero rate of duty on account of their end-use, they shall remain under customs supervision. Customs supervision shall end when the conditions laid down for granting such a reduced or zero rate of duty cease to apply, where the goods are exported or destroyed or where the use of the goods for purposes other than those laid down for the application of the reduced or zero rate of duty is permitted subject to payment of the duties due.’

8Article 204(1) of the Customs Code provides:1. A customs debt on importation shall be incurred through:(a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed,or(b) non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods,in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.’

9The initial version of Article 212a of the Customs Code was inserted by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 amending Regulation (EEC) No 2913/92 establishing a Community Customs Code (OJ 1997 L 17, p. 1).

10Recital 12 to Regulation No 82/97 states:‘Whereas, where Community legislation provides for partial or total exemption from import or export duties, such partial or total exemption must be applicable in all cases, regardless of the circumstances in which the debt is incurred; whereas, in these circumstances, the application of the normal rate of duty does not seem to be an appropriate sanction in the event of a failure to comply with the customs procedure rules’.

11The said Article 212a provides:‘Where customs legislation provides for favourable tariff treatment of goods by reason of their nature or end-use or for relief or total or partial exemption from import or export duties pursuant to Articles 21, 82, 145 or 184 to 187, such favourable tariff treatment, relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211, on condition that the behaviour of the person concerned involves neither fraudulent dealing nor obvious negligence and he produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.’

12Article 292 of the Implementing Regulation provides:1.The granting of a favourable tariff treatment in accordance with Article 21 of the Code shall, where it is provided that goods are subject to end-use customs supervisions, be subject to a written authorisation.Where goods are released for free circulation at a reduced or zero rate of duty on account of their end-use and the provisions in force require that the goods remain under customs supervision in accordance with Article 82 of the Code, a written authorisation for the purposes of end-use customs supervisions shall be necessary.2. Applications shall be made in writing using the model set out in Annex 67. The customs authorities may permit renewal or modification to be applied for by simple written request.3.In particular circumstances the customs authorities may allow the declaration for free circulation in writing or by means of a data-processing technique using the normal procedure to constitute an application for authorisation, provided that:— the application only involves one customs administration,— the applicant wholly assigns the goods to the prescribed end-use, and— the proper conduct of operations is safeguarded.…5.Where a single authorisation is applied for, the prior agreement of the authorities shall be necessary according to the following procedure:The application shall be submitted to the customs authorities designated for the place:— where the applicant’s main accounts are kept facilitating audit-based controls, and where at least part of the operations to be covered by the authorisation are carried out; or— otherwise, where the goods are assigned to the prescribed end-use.These customs authorities shall communicate the application and the draft authorisation to the other customs authorities concerned, which shall acknowledge the date of receipt within 15 days.The other customs authorities concerned shall notify any objections within 30 days of the date on which the draft authorisation was received. Where objections are notified within the above period and no agreement is reached, the application shall be rejected to the extent to which objections were raised.The customs authorities may issue the authorisation if they have received no objections to the draft authorisation within the 30 days.The customs authorities issuing the authorisation shall send a copy to all customs authorities concerned.6. Where the criteria and conditions for the granting of a single authorisation are generally agreed on between two or more customs administrations, the said administrations may also agree to replace prior consultation by simple notification. Such notification shall always be sufficient where a single authorisation is renewed or revoked.’

National law

13Pursuant to Article 292(3) of the Implementing Regulation, use of the simplified authorisation is subject to a number of additional conditions in the United Kingdom, contained in the UK Tariff. In particular, Volume 3 of Appendix E2 provides as follows:‘‘9400691. Goods Covered: Goods imported under the simplified End-Use procedure at a reduced or nil rate of customs duty, subject to their use within the EC for a prescribed purpose ...…9. Notes…9. 2 Involve only UK customs…9. 5 This CPC must only be used for civil aircraft, aircraft engines and “one-off” situations. It must not be used as a regular means of importation’.

14The UK Tariff, which is updated several times a year, is freely available for consultation at the offices of Her Majesty’s Revenue and Customs (HMRC), some public libraries and relevant extracts are supplied free of charge by HMRC upon request. It is not available free of charge on the internet, but can be obtained by yearly subscription from HMRC.

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

15Isaac is a company incorporated in the United Kingdom with a branch in Germany. It has an office and warehouse in the United Kingdom and a warehouse and distribution centre in Germany. It has five employees in the United Kingdom dealing with importations and has additional staff in Germany, where the company’s marketing and sales operations are based.

16Isaac’s main activity is the importation of bicycle parts from China. All parts are initially imported into the United Kingdom and immediately sent to its distribution centre in Germany.

17All the bicycle parts imported by Isaac were ‘essential bicycle parts’ for the purposes of Commission Regulation 2474/93 and of the Exempting Regulation, as regards the extension introduced by Regulation No 71/97.

18Between 18 November 2003 and 11 April 2005, Isaac undertook 33 importations of bicycle frames, which it declared for free circulation under end-use control, using CPC Code 940069, in order to obtain exemption from antidumping duty under the provisions of Article 14(c) of the Exempting Regulation. With regard to the 33 importations which are the subject of the present dispute, during the relevant period, Isaac imported less than 300 units per month.

19At the time it undertook the 33 importations, Isaac had not read or otherwise considered the relevant provisions of the Customs Code, the Implementing Regulation or of the Exempting Regulation. Isaac had engaged a reputable import agent in order to deal with import formalities.

20Isaac did not hold an end-use authorisation for the purpose of Article 14(c) of the Exempting Regulation but it believed it could use the simplified authorisation provided for in Article 292(3) of the Implementing Regulation.

21At that time, Isaac did not make any enquiries with the taxing authorities in relation to its use of the simplified authorisation.

22Having concluded that Isaac did not hold the authorisation required in order to benefit from exemption from anti-dumping duty pursuant to Article 14(c) of the Exempting Regulation, the Commissioners for Her Majesty’s Revenue and Customs issued a post clearance duty demand for GBP 161120.76 of custom duty and GBP 28196.13 of value added tax.

23Isaac applied for authorisation pursuant to Article 292(2) of the Implementing Regulation on 18 April 2006 and such authorisation was granted, with the maximum retrospection of one year allowed by Article 294(3) of the Implementing Regulation. Accordingly, no post-clearance demand has been issued in relation to importations which took place after 18 April 2005.

24Isaac brought an action before the VAT and Duties Tribunal which held that, although Isaac did not hold a prior end-use authorisation and was not authorised to use the simplified procedure, it could avail itself of the exemption in Article 212a of the Customs Code since it had not demonstrated obvious negligence in believing that the simplified procedure could apply. The customs authorities appealed against that decision.

25In those circumstances, the High Court of Justice (England and Wales) (Chancery Division) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:1. In circumstances such as those of the present case, where an importer is established and operates in two Member States and imports goods in one Member State and immediately transports them to a second Member State, does the end-use authorisation required for the purpose of obtaining exemption from anti-dumping duty pursuant to Article 14(c) of [the Exempting Regulation] involve more than one customs authority for the purpose of Article 292(3) of [the Implementing Regulation]?2. In circumstances such as those of the present case, where an importer failed to obtain the necessary authorisation for use of the end-use procedure envisaged by Article 14(c) of [the Exempting Regulation], can exemption from anti-dumping duty nevertheless apply pursuant to Article 212a of [the Customs Code]?3. If the answer to the second question is in the affirmative, in assessing whether a trader in a situation such as that of Isaac has been obviously negligent,(a) are the provisions of Article 14(c) of [the Exempting Regulation] and Article 292(3) of [the Implementing Regulation] sufficiently clear that a trader who failed to ascertain, by consulting the Official Journal of the European Union, that the simplified authorisation was not available to it due to the involvement of more than one customs authority, must be regarded as obviously negligent?(b) Alternatively, if the relevant provisions are to be regarded as complex, would it be incumbent on a trader to seek clarification from the taxing authorities prior to undertaking the importations? Does the answer to this question depend on whether the trader subjectively, but erroneously, concluded that the relevant provisions were clear in their application?(c) How is the experience of a trader, in a situation such as that of Isaac, whose main business is the import of bicycle parts from China, who employs five members of staff to deal with importation and has undertaken 33 similar importations in a period of 16 month to be classified? In particular, must such a trader be regarded as experienced?(d) Are the taxing authorities of a Member State, in assessing whether a trader, in a situation such as that of Isaac, has been obviously negligent, entitled to rely on published legislation such as the UK Tariff which, though available for consultation without charge at certain offices of the taxing authorities and other public libraries, is only available over the internet on payment of a yearly subscription?’

The questions referred

The first question

26The first question referred to the Court concerns the words ‘the application only involves one customs administration’ in Article 292(3) of the Implementing Regulation.

27By that question, the national court is asking the Court, in essence, whether the procedure laid down in that provision can be used to authorise an importer established and operating in two Member States, which imports goods into the first Member State and then transports them immediately to the second Member State, so as to permit the importer to obtain an exemption from anti-dumping duty under Article 14(c) of the Exempting Regulation.

28The first subparagraph of Article 292(1) of the Implementing Regulation provides that the granting of a favourable tariff treatment is, where it is provided that goods are subject to end-use customs supervision, to be subject to a written authorisation.

29By way of derogation from that provision, Article 292(3) provides that ‘in particular circumstances’ the customs authorities may allow the declaration for free circulation to constitute an application for authorisation.

30As can be seen from the first indent in that provision, that possibility presupposes, inter alia, that ‘the application only involves one customs administration’.

31In order to determine whether, in circumstances such as those in the main proceedings, more than one customs administration is involved within the meaning of the first indent of Article 292(3) of the Implementing Regulation, account must be taken of the context in which the authorisation which can be granted under this provision operates.

32In that connection, it must first be recalled that Article 14 of the Exempting Regulation, which provides for exemptions from anti-dumping duty in certain circumstances, is entitled ‘Exemption subject to end-use control’.

33In addition, the de minimis exemption under Article 14(c) of that regulation, at issue in the main proceedings, presupposes that ‘on a monthly basis, less than 300 units’ are involved. That provision states that that number ‘shall be calculated by reference to the number of [bicycle] parts declared by or delivered to all parties which are associated with or have compensatory arrangements with that party’.

34It follows from those rules that the procedure to be followed under Article 292 of the Implementing Regulation must ensure effective control of the conditions for the grant of the exemption under Article 14(c) of the Exempting Regulation. It must be pointed out in particular in that regard that that provision lays down a monthly quantitative limit and states that the number of units is to be calculated by taking account of all parties which are associated with, or have compensatory arrangements with, the importer or the person making the declaration.

35However, in a situation such as the one in the main proceedings, where an importer is established and operates in two Member States and imports goods in one Member State and then transports them immediately to a second Member State, the simplified procedure, which presupposes that only one customs administration is involved, is not suitable to ensure effective control of the conditions under Article 14(c) of the Exempting Regulation.

36As the Government of the United Kingdom and the Commission of the European Communities argue, the quantitative limit cannot be satisfactorily controlled by the United Kingdom customs administration alone. On the one hand, the quantitative limits can be easily avoided by imports into both the United Kingdom and Germany. On the other, under Article 82(1) of the Customs Code, control of the end-use must be carried out during the entire reference period, namely one month, so as to ascertain whether the quantitative limit, that is to say, 300 units per month, has been complied with. However, when the goods are immediately transported to a second Member State, the customs authorities of the first Member State are unable, on their own, to control compliance with that limit but are dependant on the co-operation of the authorities in the other Member State, with the result that more than one customs administration is necessarily involved.

37In the light of the foregoing, the answer to the first question must be that the procedure laid down in Article 292(3) of the Implementing Regulation cannot be used to authorise an importer established and operating in two Member States, which imports goods into the first Member State and then transports them immediately to the second Member State, so as to permit the importer to obtain an exemption from anti-dumping duty under Article 14(c) of the Exempting Regulation.

The second and third questions

38By its second question, the national court is asking the Court, essentially, whether Article 212a of the Customs Code permits an exemption from anti-dumping duty to be granted to an importer who did not have the necessary authorisation to benefit from the exemption provided for in Article 14(c) of the Exempting Regulation but satisfied the substantive conditions by virtue of having complied with the quantitative limit.

39According to Article 212a of the Customs Code, the favourable treatment provided for in the customs legislation also applies in cases where a customs debt is incurred pursuant to Articles 202 to 205, on condition that the behaviour of the person concerned involves neither fraudulent dealing nor obvious negligence and he produces evidence that ‘the other conditions for the application’ of favourable treatment have been satisfied.

40Since the national court started from the premise that a customs debt, in the present case, an anti-dumping duty, was incurred pursuant to Article 204 of the Customs Code and that exemption from such a duty was to be regarded as ‘favourable tariff treatment’ within the meaning of Article 212a of that Code, the question to be determined was whether the fact that Isaac had complied with the quantitative limit was sufficient to conclude that ‘the other conditions for the application’, within the meaning of the latter provision, had been satisfied.

41First, Article 14 of the Exempting Regulation, adopted by the legislature shortly after Regulation No 82/97, which inserted Article 212a into the Customs Code, refers expressly to the conditions laid down in Articles 291 to 304 of the Implementing Regulation by making the exemption from anti-dumping duties at issue subject to them. Among those conditions is the issue of a prior authorisation, set out in Article 292 of the Implementing Regulation.

42Under those circumstances, it must be held that the legislature expressly and specifically made entitlement to the exemption subject to the issue of such an authorisation. Applying Article 212a of the Customs Code to a case such as that in the main proceedings by considering that the mere fact that the importer has complied with the quantitative limit laid down in Article 14(c) of the Exempting Regulation is sufficient to conclude that ‘the other conditions for the application’ have been satisfied renders nugatory the condition requiring a prior authorisation. Since that article lays down an exemption from anti-dumping duty and must therefore be interpreted strictly (see, by analogy, Case C-48/98 Söhl & Söhlke [1999] ECR I-7877, paragraph 52), account must be taken of that condition for the purposes of interpreting Article 212a of the Customs Code.

43Secondly, it must be pointed out that the abovementioned prior authorisation is of particular importance in the context of the rules laid down in the Exempting Regulation inasmuch as it permits the customs authorities to verify, at the material time, that all the requirements regarding the exemption from anti-dumping duty at issue have been satisfied.

44Thus, application of Article 212a of the Customs Code cannot, in those circumstances, lead to the result that such an exemption from anti-dumping duty, which is subject, by virtue of Article 14 of the Exempting Regulation, read in combination with Article 292 of the Implementing Regulation, to procedural conditions could be granted even where those conditions have not been satisfied.

45In the light of the foregoing, the answer to the second question is that Article 212a of the Customs Code does not permit an exemption from anti-dumping duty to be granted to an importer who does not have the prior authorisation to benefit from the exemption provided for in Article 14(c) of the Exempting Regulation.

46Having regard to the answer given to the second question, there is no need to answer the third question.

Costs

47Since 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.

Operative part

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

1.The procedure laid down in Article 292(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 1602/2000 of 24 July 2000, cannot be used to authorise an importer established and operating in two Member States, which imports goods into the first Member State and transports them immediately to the second Member State, so as to permit the importer to obtain an exemption from anti-dumping duty under Article 14(c) of Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People’s Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93.

2.Article 212a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 does not permit an exemption from anti-dumping duty to be granted to an importer who does not have the prior authorisation to benefit from the exemption from such duties provided for in Article 14(c) of Regulation No 88/97.