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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Gerlach (Customs union) [2007] EUECJ C-44/06 (08 March 2007) URL: http://www.bailii.org/eu/cases/EUECJ/2007/C4406.html Cite as: [2007] EUECJ C-44/06, [2007] ECR I-2071, [2007] EUECJ C-44/6 |
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(Customs union Community transit Proof of the regularity of a transit operation or of the place of the offence Three-month period Period granted subsequent to the decision to recover the import duties)
In Case C-44/06,
REFERENCE for a preliminary ruling under Article 234 EC from the Finanzgericht des Landes Brandenburg (Germany), made by decision of 12 October 2005, received at the Court on 30 January 2006, in the proceedings
Gerlach & Co. mbH
Hauptzollamt Frankfurt (Oder),
composed of R. Schintgen, President of the Chamber, A. Tizzano (Rapporteur) and A. Borg Barthet, Judges,
Advocate General: E. Sharpston,
Registrar: R. Grass,
having regard to the written procedure,
after considering the observations submitted on behalf of:
Gerlach & Co. mbH, by G. Schemmann, Steuerberater, and by T. Krüger, Rechtsanwalt,
the Commission of the European Communities, by J. Hottiaux, acting as Agent, and by B. Wägenbaur, avocat,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
The Community legislation
'When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings.'
'When the consignment has not been produced at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed:
in the Member State to which the office of departure belongs, or
in the Member State to which the office of transit at the point of entry into the Community belongs and to which a transit advice note has been given,
unless, within a period to be determined, proof is furnished, to the satisfaction of the competent authorities, of the regularity of the transit operation or of the place where the offence or irregularity has actually been committed.
If, in the absence of such proof, the said offence or irregularity remains deemed to have been committed in the Member State of departure or in the Member State of point of entry as referred to in the second indent, the duties and other taxes relating to the goods concerned shall be levied by that Member State in accordance with its laws, regulations and administrative provisions.
...'
'1. Where a consignment has not been produced at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.
2. The notification referred to in paragraph 1 must indicate, in particular, the time-limit by which the proof of the regularity of the transit operation or the place where the offence or irregularity has actually been committed must be furnished to the office of departure to the satisfaction of the competent authorities.
This time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of this period, the competent Member State shall take steps to recover the duties and other charges involved. In cases where this Member State is not the one in which the office of departure is located, the latter shall immediately inform that Member State.'
The dispute in the main proceedings and the question referred for preliminary ruling
'Is a national customs administration entitled to enter duties in its accounts before granting the period to establish the place of the infringement or the irregularity provided for in Article 11a(2) of [Regulation No 1062/87] and to make that period legally binding for the first time during appeal proceedings?'
The question referred for preliminary ruling
Arguments of the parties
Response of the Court
Costs
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990, must be interpreted as meaning that the Member State to which the office of departure belongs cannot grant to the principal the three'month period to enable it to provide proof of the regularity of the transit operation or proof of the place where the offence or irregularity was actually committed after the decision has been taken to proceed to recovery of the import duties, during the proceedings relating to a complaint lodged against that decision.
[Signatures]
* Language of the case German.