On 23 February 2019, Advocate General M. CAMPOS SÁNCHEZ-BORDONA gave its opinion in case C-26/18 (Federal Express Corporation Deutsche Niederlassung). This case concerns the question of where the importation of goods takes place: the country where the goods first arrive, or the country where the goods are withdrawn from the customs procedure.
Unofficial translation
Facts (simplified):
The Greek customs authorities at the Athens airport informed the Hauptzollamt Frankfurt am Main (Germany) that Federal Express Corporation Deutsche Niederlassung (‘FedEx’) had committed irregularities in the external Community transit procedure for the carriage of goods by air. Research showed that this involved goods from Israel, Mexico and the United States with addressees in Greece.
The German Customs Office issued a total of five assessments, in which, in particular, VAT was charged on imports on the aforementioned shipments.
The basis of these assessments was that:
- in 14 of those consignments relating to the goods, Article 40 of the CCC (customs clearance) had not been complied with and those goods had thus been introduced irregularly into the customs territory of the Union, so that a customs debt was incurred. This also resulted in a VAT debt.;
- the four remaining consignments had been unauthorized removed from the warehouse, resulting in a customs debt.
FedEx paid the import VAT imposed on the assessments. However, it claimed repayment, arguing that there was double taxation, which was an infringement of EU law.
The customs office rejected the requests for VAT refund.
According to the German court, the dispute mainly concerns goods which, by air transport, were first brought into the EU via Germany and then transported to Greece from another airport by another aircraft. In that context, it is necessary to ascertain whether VAT is payable on importation into Germany, where goods have been imported into the EU at the time of the introduction of the goods or, if no such infringement has been committed, the subsequent transport of the goods to Greece occurred without being placed under the external Community transit procedure.
In that context, the Hessisches Finanzgericht asks the European Court of Justice for a preliminary ruling on the following questions:
“1. Does the importation of goods presuppose that goods brought into the EU have entered the EU economic circuit? Or is there a mere risk that the imported goods end up in the economic circuit of the EU?
In the event that the import of goods presupposes that the goods have entered the economic circuit of the Union:
2. Does a good brought into the EU enter the EU’s economic circuit where the goods have not been placed under a scheme in breach of customs legislation, or initially such an arrangement is in place but is subsequently withdrawn from that scheme by virtue of a customs misconduct, or presupposes that it is brought into the EU’s economic circuit in the case of a customs offense which can be presumed to be good on the basis of this lawful unlawful conduct in the tax territory of the Member State where the unlawful conduct took place, entered the economic circuit of the Union and was therefore possibly consumed or used?”
Opinion
The A-G is of the opinion that the first question is irrelevant.
“(…) an abstract question concerning ‘the mere risk of the goods brought into the Union’s economic circuit’ is inadmissible if, in the context of the dispute in the main proceedings and in the light of the facts which the referring court considers to be proven, there is no question – as I have already explained above – of a problem relating to a risk, but on the contrary it has been established that the goods have entered the economic circuit of the Union.
The referring court’s first question therefore has only a purely hypothetical interest.”
His answer to the second question is as follows:
The importation of a good requires that it has entered the economic circuit of the Union, where it is assumed that it ended up in the Member State where it is subject to one of the conditions laid down in the first paragraph of Article 61 of Directive 2006/112;
In circumstances such as those of the present case, the national court may consider that presumption to be refuted if it has been proved that, although the customs legislation has been infringed in respect of the provisions of the first paragraph of Article 61 of Directive 2006/112 – with the result that in the Member State where the breach occurred, a customs debt is incurred, – the goods have entered the economic circuit of the Union through the territory of another Member State, where they have been used up, so that VAT has become chargeable in that Member State.
Source: curia.europa.eu (Dutch version, no English version yet)
