On July 28, 2016, the ECJ issued its decsion in the case C-80/15 (Robert Fuchs).
Context: Reference for a preliminary ruling — Customs union — Common Customs Tariff — Temporary importation procedure with relief from duties — Regulation (EEC) No 2454/93 — Conditions laid down for the total relief from import duties — Means of transport for aviation registered outside of the customs territory of the Union and used by a person established outside of that territory — Article 555(1)(a) — Commercial use — Concept — Use of helicopters by an aviation school for remunerated training flights flown by a trainee and instructor — Not included
Customs Code
Under Article 137 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 (OJ 1997 L 17, p. 1), (‘the Customs Code’):
- ‘The temporary importation procedure shall allow the use in the customs territory of the Community, with total or partial relief from import duties and without their being subject to commercial policy measures, of non-Community goods intended for re-export without having undergone any change except normal depreciation due to the use made of them.’
Article 141 of that code provides:
- ‘The case and the special conditions under which the temporary importation procedure may be used with total relief from import duties shall be determined in accordance with the committee procedure.’
Under Article 204(1)(a) of that code:
- ‘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.’
The Implementing Regulation
Article 232 of the Implementing Regulation, which lays down the rules relating to the temporary importation procedure with total relief from import duty, inter alia, for means of transport, provides:
- 1. The following, where not declared to customs in writing or orally, shall be considered to have been declared for temporary importation by the act referred to in Article 233, subject to Article 579:
- (b) the means of transport referred to in Articles 556 to 561;
- 2. Where they are not declared to customs in writing or orally, the goods referred to in paragraph 1 shall be considered to have been declared for re-exportation discharging the temporary importation procedure by the act referred to in Article 233.’
Under Article 233 of that regulation:
- 1. For the purposes of Articles 230 to 232, the act which is considered to be a customs declaration may take the following forms:
- (b) in the case of exemption from the obligation to convey goods to customs in accordance with the provisions implementing Article 38(4) of the Code, in the case of export in accordance with Article 231 and in the case of re-exportation in accordance with Article 232(2):
- – the sole act of crossing the frontier of the customs territory of the Community.’
- (b) in the case of exemption from the obligation to convey goods to customs in accordance with the provisions implementing Article 38(4) of the Code, in the case of export in accordance with Article 231 and in the case of re-exportation in accordance with Article 232(2):
Article 234 of the Implementing Regulation provides:
- 1. Where the conditions of Articles 230 to 232 are fulfilled, the goods shall be considered to have been presented to customs within the meaning of Article 63 of the Code, the declaration to have been accepted and release to have been granted, at the time when the act referred to in Article 233 is carried out.
- 2. Where a check reveals that the act referred to in Article 233 has been carried out but the goods imported or taken out do not fulfil the conditions in Articles 230 to 232, the goods concerned shall be considered to have been imported or exported unlawfully.’
Under Article 555(1) of the Implementing Regulation:
- For the purposes of this subsection:
- (a) “commercial use” means the use of means of transport for the transport of persons for remuneration or the industrial or commercial transport of goods, whether or not for remuneration;
- (b) “private use” means the use other than commercial of a means of transport;
- (c) “internal traffic” means the carriage of persons or goods picked up or loaded in the customs territory of the Community for setting down or unloading at a place within that territory.’
Article 558(1) of that regulation provides:
- Total relief from import duties shall be granted for means of road, rail, air, sea and inland waterway transport where they
- (a) are registered outside the customs territory of the Community in the name of a person established outside that territory …;
- (b) are used by a person established outside that territory, without prejudice to Articles 559, 560 and 561; and
- (c) in the case of commercial use and with the exception of means of rail transport, are used exclusively for transport which begins or ends outside the customs territory of the Community; however, they may be used in internal traffic where the provisions in force in the field of transport, in particular those concerning admission and operations, so provide.’
Facts
- Fuchs, a company based in Switzerland, offers, as part of its activities, inter alia helicopter flight training.
- By a decision of 13 October 2009, Fuchs was granted an exemption from the obligation to use a customs airfield for the importation into Germany of 10 helicopters registered in its name in Switzerland.
- In the context of the organisation of several training courses during 2009 and 2010, those helicopters were brought into the customs territory of the Union, either by a flight instructor employed by Fuchs, or by trainee pilots in the presence of such an instructor.
- Those helicopters did not leave the customs territory of the Union during the training flights. They returned to Switzerland at the end of each training period.
- In a decision of 10 June 2011 imposing customs duties on imports, the Customs Administration found that those helicopters had been used for commercial purposes, without the authorisation referred to in the first sentence of Paragraph 2(7) of the Law on aviation, and that, therefore, Fuchs had infringed the conditions for temporary admission of those helicopters with total relief from import duties provided for in Article 558(1)(c) of the Implementing Regulation.
- Considering that, in accordance with Article 204(1)(a) of the Customs Code, a customs debt was incurred for those helicopters, the Customs Administration set the amount of customs duties owed by Fuchs at EUR 175 873.36.
- Following the administration’s rejection of the objection which Fuchs had brought against that decision fixing the import duties, Fuchs brought an action before the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany).
- In support of its action, Fuchs claims that the conditions for total relief from import duties to be granted to it are satisfied. It states, in particular, that the helicopters in question were not the subject of ‘commercial use’ for the purposes of Article 555(1) of the Implementing Regulation.
- The Customs Administration contends, in contrast, that Fuchs used those helicopters commercially, since, in the course of the flight instruction, persons were transported for remuneration. In the opinion of the Customs Administration, it makes little difference that the sums paid by the trainee pilots had been for their training rather than their transportation.
- The referring court points out that the main conditions under which the use of temporary importation of means of transport with total relief from import duties is authorised are included in Article 558(1) of the Implementing Regulation. In the case in the main proceedings, it is undisputed that the conditions referred to in Article 558(1)(a) and (b) were satisfied. Therefore the only question is whether the applicant satisfied the conditions laid down in Article 558(1)(c) of the Implementing Regulation, which provides that, in the case of commercial use, the means of transport cannot, in principle, be used for transport which begins or ends outside the customs territory of the Community. The answer to that question depends on the interpretation of the words ‘commercial use’ in Article 555(1)(a) of the Implementing Regulation.
Questions
Must Article 555(1)(a) of the Implementing Regulation be interpreted as meaning that remunerated flight training with helicopters in which a trainer and trainee are in the helicopter also amounts to a commercial use of a means of transport?
AG Opinion
Remunerated flight training with helicopters, in which a trainer and trainee are in the helicopter, does not amount to a ‘commercial use’ of a means of transport within the meaning of Article 555(1)(a) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the Customs Code as amended by Commission Regulation (EC) No 2286/2003 of 18 December 2003.
Decision
Article 555(1)(a) 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, as amended by Commission Regulation (EC) No 2286/2003 of 18 December 2003 must be interpreted as meaning that remunerated flights for helicopter flight instruction, with a trainee pilot and a flight instructor on board, are not to be regarded as constituting commercial use of a means of transport for the purposes of that provision.
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