On December 22, 2010, the ECJ ruled in a case involving transport under cover of a TIR carnet. (A TIR carnet is a customs transit document used to prove the existence of the international guarantee for duties and taxes for the goods transported.) The Spanish Tribunal referred the case to the ECJ for a preliminary ruling. The reference for a preliminary ruling concerned the interpretation of various provisions of the EU customs legislation and the Customs Convention of the international transport of goods under cover of TIR carnets (TIR Convention). The TIR Convention provides, among other things, that goods carried under the TIR procedure are not subject to payment or deposit of import or export duties and taxes at customs offices en route.
The case at hand involved a shipment of cigarettes bound for the customs office in Oporto (Portugal). The principal customs office in Germany registered passage of a TIR carnet. The cigarettes were not presented to the customs office of destination and, as a result, the German customs authorities raised assessments to the transport operator and the TIR carnet holder. German customs also informed the guaranteeing association in Germany that the TIR carnet had not been discharged and also made a claim for payment against this association.
Investigation learned that the cigarettes had in fact been unloaded in Sevilla (Spain). Based on these findings, German customs forwarded the file to the Spanish customs authorities, in order for them to proceed with the recovery of the customs debt. Spanish customs notified the truck driver, the holder of the TIR carnet and also the Spanish guaranteeing association. The latter was issued a provisional assessment concerning the debt that occurred. The Spanish guaranteeing association initiated legal actions pleading, amongst others, that the Spanish customs authorities were not competent to recover the duties and that the recovery actions were time-barred since deadlines had lapsed. The Spanish Tribunal decided to stay the proceedings and to refer the following questions to the ECJ for a preliminary ruling:
- If, after a Member State has detected an irregularity in the customs treatment of a TIR transport operation and has made a claim for payment of the amount corresponding to the assessment issued to the local guaranteeing association, the place where the infringement was actually committed is determined, is it compatible with Article 454(3) and Article 455 of [the implementing regulation] for the Member State where the infringement was committed to initiate new proceedings to recover the duties owed by the persons principally liable and by the guaranteeing association of the place where the infringement was actually committed, up to the limit of its liability, where the place where the infringement was committed is determined after the expiry of the time-limit laid down in the Community legislation?
If the answer is in the affirmative:
- May the guaranteeing association of the Member State in which the irregularity was actually committed claim, under Articles 454(3) and 455 of [the implementing regulation] or Article 221(3) of the … Customs Code, that the right to recover the amount of the guaranteed liability is time-barred because the prescribed time-limit has expired and it had no knowledge of the facts before the expiry of that time-limit?
- Does the claim for payment made against the guaranteeing association of the State which detected the irregularity by the customs authorities of that State under Article 11(2) of the TIR Convention have suspensory effect with respect to the proceedings initiated against the guaranteeing association of the place where the infringement was committed?
- Can the last sentence of Article 11(2) of the TIR Convention be interpreted as meaning that the time limit which it establishes is applicable to the State of the place of infringement even where the State which detected the irregularity did not suspend the demand for payment against the guaranteeing association, despite the existence of criminal proceedings relating to the same acts found to have been committed?’
Articles 454 and 455 of the implementing regulation contain provisions on, among other things, the place where an irregularity is committed as well as competence provisions and notification obligations (also referring to the TIR Convention). According to the ECJ, when a presumed competence of a certain Member State to recover a customs debt in the course of a TIR transport operation is rebutted following a judgment establishing that the offence was committed in another Member State, the customs authorities of the latter become competent to recover that debt. The above is subject to the condition that the facts which gave rise to the offence became the subject of legal proceedings within two years of the date on which the guaranteeing association for the territory on which the offence was detected was notified thereof.
In light of questions 2, 3 and 4, the ECJ ruled that — considering the circumstances of this case and article 455(1) of the implementing regulation, read in conjunction with article 11(1) of the TIR Convention — a guaranteeing association cannot rely on the limitation period provided for in these provisions where the customs authorities of the Member State for whose territory it is responsible, notify it, within a period of one year from the date on which those authorities were informed of an enforceable judgment identifying them as being competent.