Case C-248/07, Trespa v Nova Haven- en Vervoerbedrijf

This reference for a preliminary ruling concerned the interpretation of Arts 1a, 291 and 297 of Regulation 2454/93, which implemented Regulation 2913/92 establishing the Community Customs Code.

The reference was made in proceedings between Trespa and Nova with regard to an action brought by Trespa seeking damages and reimbursement of administrative costs incurred as a result of errors allegedly committed by Nova.

The referring court asked whether Art. 291(1) of the implementing regulation was to be interpreted as meaning that the concept of “person importing the goods or having them imported for free circulation” contained therein referred not only to the importer for whom the goods were destined but also to the customs agent who made the customs declaration.

Secondly, the referring court asked whether Art. 297(1) of the implementing regulation, read in conjunction with Art. 1a of that regulation, was to be interpreted as meaning that in the case where goods were imported into Belgium and then transported to the Netherlands, there was a transfer of goods within the Community. In addition, it wished to know whether, in such a case, the person referred to in Art. 291 of the implementing regulation must held the authorisation referred to in that Article.

Finally, it asked whether the term “transferee” in Art. 297(1) of the implementing regulation referred to a customs agent who carried out customs formalities on behalf of the ultimate importer. The Commission questioned the admissibility of the reference for a preliminary ruling. It submitted that the dispute in the main proceedings concerned the private law relationship between the parties to the main proceedings, which was governed by the Belgian Civil Code, and that the relevance of the questions to the resolution of that dispute was not obvious.

The Court first of all that in the context of Art. 234 EC, it was solely for the national court before which the dispute had been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submitted to the Court. (See, inter alia,
Case C-144/04 Mangold [2005]; Case C‑217/05 ConfederaciĆ³n EspaƱola de Empresarios de Estaciones de Servicio [2006]; and Case C‑119/05 Lucchini [2007]).

The Court held that questions on the interpretation of Community law referred by a national court, in the factual and legislative context which that court was responsible for defining and the accuracy of which was not a matter for the Court to determine, enjoyed a presumption of relevance.

The presumption that questions referred by national courts for a preliminary ruling were relevant might be rebutted only in exceptional cases, where it was quite obvious that the interpretation which was sought of Community law bore no relation to the actual facts of the main action or to its purpose or where the problem was hypothetical or the Court did not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see
Case C-105/03 Pupino [2005]; and Case C-467/05 Dell’Orto [2007], on which I wrote this post).

The Court found that, in the present case, interpretation of the Community customs legislation would enable it to be known whether a customs agent must, in the circumstances of the main proceedings, hold an end-used authorisation. The question was neither hypothetical nor one which bore no relation to the actual facts or purpose of the dispute in the main proceedings.

The Court reiterated that it could not resolve a dispute concerning the facts. Such a dispute, like any other assessment of the facts involved, was within the province of the national court. In the present case, however, the Court had sufficient information to interpret the Community rules concerned and to give useful answers distinguishing, as necessary, the different hypothetical situations. The reference for a preliminary ruling was therefore admissible (see
Case C-279/06 CEPSA [2008]).

The Court held that Article 291(1) of the implementing regulation was to be interpreted as meaning that the concept of “person importing the goods or having them imported for free circulation” contained therein referred to the person for whom the goods were destined and who intended to assign them to the prescribed end-use, irrespective of whether he made the customs declaration himself or had that done by a representative within the meaning of Art. 5 of the Customs Code.

That concept did not refer to the representative of that person before the customs authorities, disregarding those cases in which that person was deemed to act in his own name and on his own behalf pursuant to the second subparagraph of Art. 5(4) of that code and who must therefore be considered an importer.

Furthermore, Article 297(1) of the implementing regulation must be interpreted as meaning that there had been no transfer of goods within the Community in a situation where goods were imported into Belgium then transported to the Netherlands, if the person authorised acts on behalf of the ultimate importer, which was for the national court to ascertain.

The mere fact that the goods were imported into and cleared through customs in Belgium then transported to the Netherlands was irrelevant to the establishment of the existence of a transfer within the meaning of that provision. Where goods were transferred, the transferee must hold an authorisation issued in accordance with Art. 291 of that regulation.

Finally, the Court held that the concept of “transferee” contained in Art. 297(1) of the implementing regulation did not refer to a customs agent who carried out customs formalities on behalf of the importer.

Text of judgment