Malmö Motorrenovering AB v Allmänna ombudet hos Tullverket (C-781/23)

Contents

Judgment of the Court (Eighth Chamber)12 December 2024^note(Reference for a preliminary ruling — Customs union — Union Customs Code — Regulation (EU) No 952/2013 — Article 250 — Temporary admission procedure — Article 251 — Period during which goods imported under that procedure may remain — Period insufficient for achieving the objective of authorised use — Customs debt incurred through non-compliance with that period — Conditions for extending that period — Importation of a racing car)In Case C‑781/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), made by decision of 12 December 2023, received at the Court on 18 December 2023, in the proceedingsMalmö Motorrenovering ABvAllmänna ombudet hos Tullverket,THE COURT (Eighth Chamber),composed of S. Rodin, President of the Chamber, N. Piçarra and O. Spineanu‑Matei (Rapporteur), Judges,Advocate General: J. Kokott,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Malmö Motorrenovering AB, by D. Winhagen,– the Belgian Government, by S. Baeyens and P. Cottin, acting as Agents,– the European Commission, by M. Björkland and B. Eggers, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 251 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), as amended by Regulation (EU) 2019/474 of the European Parliament and of the Council of 19 March 2019 (OJ 2019 L 83, p. 38) (‘the Customs Code’).

2The request has been made in proceedings between Malmö Motorrenovering AB, a public limited company under Swedish law, and the Allmänna ombudet hos Tullverket (General Representative of the Customs Authority, Sweden) (‘the General Representative’) concerning a customs debt incurred through non-compliance with the period in which a racing car, imported under the temporary admission procedure, had to be re-exported.

Legal context

The Customs Code

3Under Article 79 of the Customs Code, headed ‘Customs debt incurred through non-compliance’:1.For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following:(a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory;…’

4Article 124 of that code, headed ‘Extinguishment’, states:1.Without prejudice to the provisions in force relating to non-recovery of the amount of import or export duty corresponding to a customs debt in the event of the judicially established insolvency of the debtor, a customs debt on import or export shall be extinguished in any of the following ways:…(h) where the customs debt was incurred pursuant to Article 79 or 82 and where the following conditions are fulfilled:(i) the failure which led to the incurrence of a customs debt had no significant effect on the correct operation of the temporary storage or of the customs procedure concerned and did not constitute an attempt at deception;(ii) all of the formalities necessary to regularise the situation of the goods are subsequently carried out;…’

5Title VII of that code is headed ‘Special procedures’. Chapter 4 of that Title VII, headed ‘Specific use’, contains Section 1, headed ‘Temporary admission’, which includes Article 250 of that code, headed ‘Scope’. That article provides, in paragraph 1 thereof:‘Under the temporary admission procedure non-Union goods intended for re-export may be subject to specific use in the customs territory of the Union, with total or partial relief from import duty …’

6Article 251 of the Customs Code, headed ‘Period during which goods may remain under the temporary admission procedure’, states:1. The customs authorities shall determine the period within which goods placed under the temporary admission procedure must be re-exported or placed under a subsequent customs procedure. Such period shall be long enough for the objective of authorised use to be achieved.2. Except where otherwise provided, the maximum period during which goods may remain under the temporary admission procedure for the same purpose and under the responsibility of the same authorisation holder shall be 24 months, even where the procedure was discharged by placing the goods under another special procedure and subsequently placing them under the temporary admission procedure again.3. Where, in exceptional circumstances, the authorised use cannot be achieved within the period referred to in paragraphs 1 and 2, the customs authorities may grant an extension, of reasonable duration of that period, upon justified application by the holder of the authorisation.4. The overall period during which goods may remain under the temporary admission procedure shall not exceed 10 years, except in the case of an unforeseeable event.’

Delegated Regulation (EU) 2015/2446

7Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation (EU) No 952/2013 of the European Parliament and of the Council as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1) states, in Article 103, headed ‘Failures which have no significant effect on the correct operation of a customs procedure’:‘The following situations shall be considered a failure with no significant effect on the correct operation of the customs procedure:(a) exceeding a time limit by a period of time which is not longer than the extension of the [time limit] that would have been granted had that extension been applied for;…’

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

8On 30 April 2019, Malmö Motorrenovering, under the temporary admission procedure, imported a racing car from the United States to Sweden in order to use it in racing competitions taking place in the European Union, the last of which was to take place on 8 September 2019, and subsequently to re-export it.

9According to the terms of authorisation obtained from the customs authority for that purpose, that car had to be re-exported by 30 July 2019, that is before the last competition, without the reason why that re-exportation date was fixed at 30 July 2019 being specified.

10That car was re-exported on 19 September 2019, namely after the date for re-exportation referred to in the preceding paragraph.

11No attempt at deception on the part of Malmö Motorrenovering was established as regards the non-compliance with that period. However, that non-compliance gave rise to a customs duty in the amount of 101959 kronor (SEK) (approximately EUR 8973) and value added tax in the amount of SEK 280387 (approximately EUR 24676) (‘the customs debt’).

12Malmö Motorrenovering filed an action with the Förvaltningsrätten i Linköping (Administrative Court, Linköping, Sweden) against the decision of the customs authority finding there to be a tax debt. After finding, first, in its customs declaration, that Malmö Motorrenovering had not stated any date for the re-exportation of the car at issue and that its intention was to re-export that car once the racing season had ended, secondly, that the file contained no indication that that company had acted with any fraudulent intent and, thirdly, that the customs administration did not find there to be reasons not to grant that company a period up to the date of the actual re-exportation of that car if that date had been stated in the declaration, that court upheld the action and ruled, on the basis of Article 124(1)(h) of the Customs Code, that that customs debt was extinguished.

13The action filed by the customs authority against that judgment was upheld by the Kammarrätten i Jönköping (Administrative Court of Appeal, Jönköping, Sweden). According to that court, that customs debt could not be declared to be extinguished on the basis of Article 124(1)(h) of the Customs Code. The granting of relief on the basis of that provision and Article 103(a) of Delegated Regulation 2015/2446 required the question to be examined of whether Malmö Motorrenovering could have benefited from an extension of the period to re-export the car at issue if it had made a request to the customs authority. However, Malmö Motorrenovering has not demonstrated that that is the case, because such an extension required exceptional circumstances to have been put forward in support of its request.

14Malmö Motorrenovering lodged an appeal with the Högsta förvaltningsdomstolen (Supreme Administrative Court, Sweden), the referring court, against the judgment of the Kammarrätten i Jönköping (Administrative Court of Appeal, Jönköping).

15The referring court states that, even though the parties to the main proceedings are Malmö Motorrenovering and the General Representative, who represents the public interest, the customs authority had the opportunity to submit observations. The parties and the customs authority have arrived at different interpretations of Article 251 of the Customs Code.

16Malmö Motorrenovering and the General Representative submit that Article 251(3) of the Customs Code must be interpreted as meaning that the existence of exceptional circumstances is only necessary when a request for an extension of the period during which goods imported under the temporary admission procedure may remain would have the effect that the cumulative duration of that period and the extension of that period applied for exceeds the maximum duration of 24 months laid down in Article 251(2) of that code. According to that interpretation, the existence of exceptional circumstances is not required where, as with the situation at issue in the main proceedings, that period does not exceed 24 months.

17By contrast, according to the customs authority, it follows from the reference made in Article 251(3) to Article 251(1) and (2) thereof that the requirement of exceptional circumstances applies in every case in which the authorised use cannot be achieved within the period initially granted, including situations in which that cumulative duration is less than 24 months.

18The Högsta förvaltningsdomstolen (Supreme Administrative Court) finds that the wording of Article 251 of the Customs Code does not preclude any of those interpretations.

19In those circumstances, the Högsta förvaltningsdomstolen (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Must Article 251 of the [Customs Code] be interpreted as meaning that the reference in paragraph 3 to paragraphs 1 and 2 [thereof] means that the requirement for exceptional circumstances in paragraph 3 applies only where a period already granted, together with an extension applied for, would mean that the overall period during which the goods may remain under the procedure in question exceeds 24 months? Or must the article be interpreted as meaning that the requirement for exceptional circumstances in paragraph 3 is applicable to all applications for an extension, that is to say, even if the period already granted, together with the extension applied for, does not exceed the 24-month period laid down in paragraph 2?’

Consideration of the question referred

20By its question, the referring court asks, in essence, whether Article 251 of the Customs Code must be interpreted as meaning that an extension of the period during which goods placed under the temporary admission procedure, determined on the basis of paragraph 1 of that article, requires the existence of ‘exceptional circumstances’, within the meaning of paragraph 3 of that article, where that extension does not mean that the overall period during which those goods may remain under that procedure exceeds the maximum duration of 24 months laid down in paragraph 2 of that article.

21As a preliminary point, the Court notes that the temporary admission procedure is a procedure allowing the specific use of non-Union goods in the customs territory of the Union with total or partial relief from import duties, as provided for in Article 250(1) of the Customs Code. Provisions laying down an exemption from customs duties constitute a derogation from the principle that goods imported into the Union are, as a general rule, subject to customs duties and, as such, must therefore, as derogating provisions, be interpreted strictly (see, to that effect, judgments of 17 February 2011, Marishipping and Transport, C‑11/10, EU:C:2011:91, paragraph 16, and of 5 September 2024, BIOR, C‑344/23, EU:C:2024:696, paragraph 44).

22Pursuant to Article 251(1) of the Customs Code, the customs authorities are to determine the period within which goods placed under the temporary admission procedure must be re-exported or placed under a subsequent customs procedure. That period must be long enough for the objective of authorised use to be achieved.

23Under Article 251(2), ‘except where otherwise provided, the maximum period during which goods may remain under the temporary admission procedure for the same purpose and under the responsibility of the same authorisation holder shall be 24 months’.

24Under Article 251(3), in exceptional circumstances, if the authorised use cannot be achieved within the period referred to in paragraphs 1 and 2 of that article, the customs authorities may grant an extension, of reasonable duration, of that period, upon justified application by the holder of the authorisation. Lastly, according to Article 251(4) of the Customs Code, the overall period during which the goods may remain under that procedure is not to exceed 10 years, except in the case of an unforeseeable event.

25It is apparent from a combined reading of paragraphs 1 to 3 of Article 251 of the Customs Code that, whereas paragraph 1 of that article provides for the obligation to set a sufficient period for the goods imported under the temporary admission procedure, paragraph 2 of that article merely provides, ‘except where otherwise provided’, a maximum duration of 24 months for that period. Paragraph 3 of that article constitutes such a derogating provision, in so far as it allows the extension of that period beyond that maximum duration. Therefore, paragraph 3, by using the singular, refers to a single period of which the maximum duration results from the joint application of paragraphs 1 and 2.

26Therefore, the existence of exceptional circumstances is only required in situations where that maximum duration of 24 months is insufficient for the objective of authorised use. In such a situation, the extension of the period for which the goods may remain may be granted if the evidence put forward by the holder of the customs authorisation in support of its request can be classified as ‘exceptional circumstances’, following an examination in accordance with the requirements of strict interpretation of the temporary admission procedure, recalled in paragraph 21 above. In accordance with Article 251(4) of the Customs Code, such an extension must not result in that period exceeding 10 years, except in the case of an unforeseeable event.

27Accordingly, it follows from the wording of Article 251 of the Customs Code that the existence of ‘exceptional circumstances’ within the meaning of Article 251(3) thereof is required where the cumulative duration of the period for which the goods may remain, initially determined pursuant to paragraph 1 of that article, and of the extension of that period applied for exceeds the maximum duration of 24 months laid down in paragraph 2 of that article.

28In the present case, it is apparent from the order for reference that, on 30 April 2019, Malmö Motorrenovering, under the temporary admission procedure, imported a racing car into the European Union in order to use it in racing competitions, the last of which was to take place on 8 September 2019. However, the end of the period in which that car had to be re-exported was fixed by the customs authority at 30 July 2019, namely before the objective for which that car had been imported had been realised in full, without the reason for choosing that date being determined. Since the car at issue was re-exported after the expiration of that period, that is on 19 September 2019, the customs authority found that a customs debt was incurred, in accordance with Article 79(1)(a) of the Customs Code.

29Thus, as is also apparent from the order for reference, the parties to the dispute in the main proceedings are in agreement that the period for re-exportation established by the customs authority was insufficient for achieving the objective of authorised use, that a period of less than 24 months would have been sufficient for achieving that objective and that the non-compliance with the rules applicable to the temporary admission procedure was not due to fraudulent intent. In those circumstances, Malmö Motorrenovering requested that that customs debt be regarded as extinguished.

30In that regard, the Court observes that, in accordance with Article 124(1)(h) of the Customs Code, a customs debt incurred pursuant to Article 79 of that code is to be extinguished where two conditions are fulfilled, namely, first, that the failure which led to the incurrence of that customs debt had no significant effect on the correct operation of the customs procedure concerned and did not constitute an attempt at deception and, secondly, that all the formalities necessary to regularise the situation of the goods are subsequently carried out.

31In accordance with Article 103(a) of Delegated Regulation 2015/2446, a failure is regarded as having no significant effect on the correct operation of the applicable customs procedure where exceeding a time limit by a period of time which is not longer than the extension of the time limit that would have been granted had that extension been applied for.

32As is apparent from the interpretation of Article 251 of the Customs Code set out in paragraph 27 above, an extension of the period initially fixed pursuant to paragraph 1 of that article could have been granted by the customs authority up until the date on which the car at issue was re-exported, that is 19 September 2019, without the existence of exceptional circumstances being required, since the initial period and that extension would not have exceeded the maximum duration of 24 months laid down in paragraph 2 of that article. Consequently, if the other conditions laid down in Article 124(1)(h) of the Customs Code are fulfilled, it is for the referring court to verify whether the customs debt should be regarded as extinguished.

33In the light of the foregoing, the answer to the question raised by the referring court is that Article 251 of the Customs Code must be interpreted as meaning that an extension of the period during which goods placed under the temporary admission procedure, determined on the basis of paragraph 1 of that article, does not require the existence of ‘exceptional circumstances’, within the meaning of paragraph 3 of that article, where that extension does not mean that the overall period during which those goods may remain under that procedure exceeds the maximum duration of 24 months laid down in paragraph 2 of that article.

Costs

34Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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 (Eighth Chamber) hereby rules: Article 251 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, as amended by Regulation (EU) 2019/474 of the European Parliament and of the Council of 19 March 2019,must be interpreted as meaning that an extension of the period during which goods placed under the temporary admission procedure, determined on the basis of paragraph 1 of that article, does not require the existence of ‘exceptional circumstances’, within the meaning of paragraph 3 of that article, where that extension does not mean that the overall period during which those goods may remain under that procedure exceeds the maximum duration of 24 months laid down in paragraph 2 of that article.