Court of Justice 15-05-2003 ECLI:EU:C:2003:290

The legal framework

The main proceedings and the question referred for a preliminary ruling

It is apparent from the documents before the Court that on 24 November 1998 the Hauptzollamt Linz (Principal Customs Office, Linz), Austria,^(*) accepted a declaration in respect of the release for free circulation of goods made by the company Hannl + Hofstetter Internationale Spedition GmbH.^(*)

However, on 12 December 1998, Hannl drew the attention of the Hauptzollamt to the fact that an error had been made at the time of drawing up the declaration.

By decision of 17 December 1998, the Hauptzollamt therefore made a subsequent entry in the accounts of customs duty in accordance with Article 220 of the Code. This entry was in the sum of ATS 30 694. Furthermore, in accordance with Paragraph 108(1) of the ZollR-DG, the Hauptzollamt applied an increase in customs duty in the sum of ATS 2 157.

Hannl challenged this decision before the Hauptzollamt, and then before the Finanzlandesdirektion für Wien, Niederösterreich und Burgenland (Tax Office for the Länder of Vienna, Lower Austria and Burgenland), Austria.

The latter confirmed the decision, whilst also specifying the basis upon which the increase was calculated (namely ATS 228 668, of which ATS 30 694 was customs duty and ATS 197 974 turnover tax on import) as well as the applicable interest rate (5.66% per annum) and the related periods of arrears (one period from 15 November 1998 to 14 December 1998 and another from 15 December 1998 to 14 January 1999).

Hannl then brought an action before the Verwaltungsgerichtshof, arguing that the increase provided for under Paragraph 108(1) of the ZollR-DG was contrary to Community law.

The Verwaltungsgerichtshof considered that the outcome of the main proceedings would depend on the interpretation of the Community customs provisions. It therefore decided to stay the proceedings and to refer to the Court the following question:

‘Is the increase in duty under Paragraph 108(1) of the Austrian Zollrechts-Durchfiihrungsgesetz, 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 on which 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?’

Consideration of the question submitted for a preliminary ruling

The question posed by the Verwaltungsgerichtshof seeks to ascertain whether the provisions of the Customs Code preclude national legislation which prescribes that:

• where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211 of the Customs Code, the customs duty is to be increased by an amount which corresponds to interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts, and

• where a customs debt is the subject of subsequent recovery pursuant to Article 220 of the Customs Code, the customs duty is to be increased by an amount which corresponds to interest on arrears for the period between the date on which the customs debt originally entered in the accounts was due and the date of the subsequent entry in the accounts.

At the outset, it should be recalled that Article 232 of the Customs Code requires the payment of interest on arrears solely for the period subsequent to the entry in the accounts of a customs debt. It provides that the debtor is to pay interest on arrears if he does not pay the duty owed within a period not exceeding 10 days following communication of the amount of customs duty.

In the present case, Paragraph 108 of the ZollR-DG requires the payment of interest on arrears for a period prior to the entry in the accounts of a customs debt. It specifies that the increase covers the period between the incurrence of the customs debt and the entry in the accounts (where the customs debt is incurred under Articles 202 to 205 and 210 and 211 of the Code) or the period between the date on which the customs debt originally entered in the accounts was due and the subsequent entry in the accounts (where the debt is the subject of subsequent recovery pursuant to Article 220 of the Code).

The order for reference from the Verwaltungsgerichtshof therefore seeks to establish whether Community law permits Member States to impose interest on arrears for a period which is not covered by Article 232 of the Code.

With a view to answering this question, the principles relating to the power of Member States to adopt measures to secure the application of Community law should be noted.

It is settled case-law^(*) that where Community legislation does not specifically provide for any penalty for an infringement or refers for that purpose to national legislation, Article 10 EC requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalty remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.

As regards customs offences, the Court has pointed out^(*) that in the absence of harmonisation of the Community legislation in that field, the Member States are empowered to choose the penalties which appear to them to be appropriate. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality.

In the present case, it is appropriate to begin by examining the situations in which Austrian legislation requires the payment of interest on arrears. As we have already seen, such situations comprise cases where a customs debt is incurred under Articles 202 to 205, 210 and 211 of the Code, and cases where a customs debt is the subject of subsequent recovery pursuant to Article 220 of the Code.

Articles 202 to 205 as well as 210 and 211 of the Customs Code cover cases where a customs debt arises as a result of conduct which amounts to an infringement of Community rules. Articles 202 to 205 of the Code also provide that a customs debt on importation shall be incurred as a result of:

• the unlawful introduction into the customs territory of the Community of goods liable to import duties, or the unlawful introduction into another part of that territory of such goods located in a free zone or free warehouse;^(*)

• the unlawful removal from customs supervision of goods liable to import duties;^(*)

• non-fulfilment of one of the obligations arising, in respect of goods, from their temporary storage or from the use of the customs procedure under which they are placed,^(*) or noncompliance 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;^(*) and

• the consumption or use, in a free zone or a free warehouse, of goods liable to import duties, under conditions other than those laid down by the legislation in force.^(*)

Similarly, Articles 210 and 211 of the Code provide that a customs debt on exportation is incurred as a result of:

• the removal from the customs territory of the Community of goods liable to export duties without a customs declaration, and

• failure to comply with the conditions under which the goods were allowed to leave the customs territory of the Community with total or partial relief from export duties.

We have seen that Article 220 of the Code covers cases where the amount of duty resulting from a customs debt could not be entered in the accounts in accordance with Article 218 of the Code. As the Austrian Government pointed out,^(*) this provision concerns mainly the situation where the trader has communicated incorrect or inadequate information to the customs authorities, as Article 220(2)(b) expressly excludes a possible subsequent entry in the accounts where the error is committed by the customs authorities.

To my knowledge, Community legislation does not specifically provide for any penalty in these various situations.

I have not found a provision, either in the Code or in Commission Regulation (EEC) No 2454/93 of 2 July 1993,^(*) which specifically provides for any penalty where the customs debt is incurred as a result of a breach of obligations relating to the introduction or exportation of goods into (or out of) the Community. Similarly, I have not found any provision imposing a penalty where, as a result of the conduct of the trader, the customs authorities were not able to enter the duty in the accounts immediately after the incurrence of the customs debt.

As a result, contrary to the assertions made by Hannl, the Member States are empowered to impose penalties which appear to them to be appropriate in this field. The Republic of Austria could therefore legitimately take the measure laid down by Paragraph 108 of the ZollR-DG.

In accordance with the case-law considered above,^(*) however, the measure must be consistent with Community law and, in particular, with the principle of proportionality.

I take the view that the purpose of the increase in issue unquestionably complies with Community law.

As the Austrian Government has pointed out,^(*) the problem that arises when a customs debt is incurred under Articles 202 to 205, 210 and 211 of the Code, or when a customs debt is the subject of subsequent recovery, is not that the debtor would be late in paying his debt. The problem lies in the fact that as a result of the conduct of the trader, the customs authorities are not always able to immediately enter the customs debt in the accounts or to establish precisely the amount of the debt and the debtor. Therefore some time may pass between the point at which the customs debt is incurred and the point at which it is the subject of an entry (or subsequent entry) in the accounts.

In such situations, the customs authorities suffer a financial loss as a result of the delay in the customs debt being entered in the accounts and, accordingly, the traders make a saving as a result of the postponed payment of their debt.

Against that background, the increase in issue aims to counteract a benefit enjoyed by traders who do not comply with the requirements prescribed by customs legislation or who submit incorrect information to the authorities concerned. As the Austrian Government noted,^(*) if such a measure did not exist, traders who behaved in an illegal or negligent manner would, as a result of the delay in the entry (or subsequent entry) of their debt in the accounts, be at an advantage compared to traders whose actions led to a swift settlement of the customs debt.

The increase in issue therefore aims to encourage traders to comply with the obligations laid down by customs legislation. Such a purpose evidently complies with Community law.^(*)

It should be recalled that it has been held that^(*) the amount of the increase at issue must be determined in accordance with the principle of proportionality and under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity. However, in the judgments in Siessem^(*) and De Andrade,^(*) the Court specified that it is for the national courts to carry out this examination.

In this case therefore it is for the Verwaltungsgerichtshof to determine whether the amount of the increase prescribed by Paragraph 108(1) of the ZollR-DG complies with the principle of proportionality and whether it is set at a level which is comparable to that which is applicable under national law to equivalent infringements. To that end, the national court may take into account the fact that the increase at issue simply counteracts a benefit that traders would derive from a customs offence, without imposing upon them an effective penalty. In any event, the referring court will ascertain whether the interest rate of 5.66% per annum, which appears to be reasonable, corresponds to the interest rate applied under national law to infringements of the same nature and gravity.

Subject to this examination, I therefore propose that the Court reply to the question referred for a preliminary ruling to the effect that the Customs Code does not preclude a measure such as that prescribed by Paragraph 108 of the ZollR-DG.

Conclusion

In the light of the foregoing considerations, I propose that the Court give the following answer to the question referred by the Verwaltungsgerichtshof:

The provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code do not preclude national legislation which provides that:

• where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211 of the Customs Code, the customs duty is to be increased by an amount which corresponds to the interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts, and

• where a customs debt is the subject of subsequent recovery pursuant to Article 220 of the Customs Code, the customs duty is to be increased by an amount which corresponds to the interest on arrears for the period between the date on which the customs debt originally entered in the accounts was due and the date of the subsequent entry in the accounts,

provided that the amount of interest is determined in accordance with the principle of proportionality and under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity. It is for the national court to determine whether the increase at issue complies with these principles.