On October 26, 2016 on the website of the Court of Justice of the European Union (CJEU) the opinion of Advocate General Wahl in Case C‑679/15, Ultra-Brag AG versus Hauptzollamt Lörrach (ECLI:EU:C:2016:807) was published.
To what extent is an employer liable for a customs debt brought about as a result of one of its employees infringing customs obligations in the performance of the tasks entrusted to him? That is the issue on which the Court is called upon to rule in the present request for a preliminary ruling.
This request for a preliminary ruling from the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany) turns on the proper construction of the term ‘debtor’ as defined in the first and second indents of Article 202(3) of Regulation (EEC) No 2913/92, and more precisely on the parameters for holding a legal person liable for the conduct of its employees. In the same vein, the referring court also seeks guidance as to whether ‘obvious negligence’ within the meaning of Article 212a of the Customs Code includes the possible negligence of an employee.
The dispute in the main proceedings and the questions referred for a preliminary ruling
· The applicant in the main proceedings, Ultra-Brag AG, is a logistics undertaking established in Switzerland, which, among other things, offers transport services on European internal waters.
· On 25 May 2010, Ultra-Brag exported two transformers, each including two rollers, out of the EU customs territory and into Switzerland by inland waterways on a vessel named MS Aargau.
· The same day, Ultra-Brag was informed that one of its other vessels, which was due to take on board a 301-tonne turbine at 11.00 the next day in Strasbourg (France), bound for Antwerp (Belgium), was experiencing technical difficulties and was therefore not available for that transport operation. L, being an expert in transporting heavy goods and employed by the applicant as ‘key account manager’, was responsible for both operations. While L was searching for a substitute vessel he also considered sailing MS Aargau, from which one of the transformers and its two rollers had not yet been unloaded, to Strasbourg and taking the turbine on board there. If L chose this course of action, both the turbine and the transformer would then have to be transported back to Switzerland, where the transformer and its rollers would be unloaded. Thereafter, MS Aargau would carry the turbine to Antwerp.
· L contacted the competent Swiss authorities in order to enquire about the customs treatment of such interim transport. The Swiss authorities stated that a temporary export into the EU customs territory did not pose any difficulties from their point of view but that the competent German customs authorities (in this case the Zollamt Weil am Rhein-Schusterinsel, the Customs Office of Weil am Rhein-Schusterinsel) should be informed of the planned transport operation. However, on his way there, L’s car broke down and in consequence the competent German customs authorities were not informed.
· L’s search for a substitute vessel was unsuccessful and the same evening, after the closure of the Customs Office of Weil am Rhein-Schusterinsel, in order to make the loading slot in Strasbourg, L instructed the captain of MS Aargau, also an employee of Ultra-Brag, to sail to Strasbourg and collect the turbine, with the transformer and rollers on board. The transformer and the rollers were not presented to the customs authorities upon crossing the border from Switzerland to Germany.
· On the following day, 26 May 2010, L contacted the competent German customs authorities and informed them of the re-importation of the transformer and its rollers.
· On 27 May 2010 MS Aargau returned to the Rhine port of Basel (Switzerland) in order to unload the transformer and the two rollers. At this point, the German customs authorities identified those goods aboard the vessel in the course of an inspection.
· By import duty notice dated 9 August 2010, the defendant in the main proceedings, the Hauptzollamt Lörrach (Principal Customs Office of Lörrach, Germany), assessed Ultra-Brag alone as liable for payment of EUR 122,470.07 customs duty in respect of the transformer and its two rollers.
· Following an unsuccessful objection to that assessment, Ultra-Brag began legal proceedings before the referring court and argued that the customs duty assessment was unlawful as the conditions for exemption set out in Article 212a of the Customs Code were met. Ultra-Brag argued that it was not guilty of any obvious negligence in having entrusted its employee L with the transport of the goods concerned. Nor could L be accused of obvious negligence.
· Entertaining doubts as to whether an employer can be considered the debtor of a customs debt within the meaning of Article 202(3), first or second indent, and whether ‘obvious negligence’ within the meaning of Article 212a of the Customs Code includes the possible negligence of an employee, the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg) decided to stay the proceedings and to refer the following three questions to the Court for a preliminary ruling:
‘(1) Is the first indent of Article 202(3) of the [Customs Code] to be interpreted as meaning that a legal person becomes a customs debtor under the first indent of Article 202(3) of the [Customs Code] as the person who introduced goods if one of its employees, who is not its statutory representative, brought about the unlawful introduction while acting within the scope of his responsibility?
(2) If the answer to the first question is in the negative:
Is the second indent of Article 202(3) of the [Customs Code] to be interpreted as meaning that:
(a) a legal person participates in an unlawful introduction (even) if one of its employees, who is not a statutory representative, was involved in that introduction while acting within the scope of his responsibility, and
(b) in the case of legal persons who participate in an unlawful introduction, the subjective element that they “were aware or should reasonably have been aware” is to be determined by reference to the natural person in the legal person’s undertaking to whom the matter is entrusted, even if he is not the statutory representative of the legal person?
(3) If the answer to the first or second question is in the affirmative:
Is Article 212a of the Customs Code to be interpreted as meaning that whether the conduct of a participant involves fraudulent dealing or obvious negligence is to be determined, in the case of a legal person, solely by reference to the conduct of the legal person or its organs, or is the conduct of a natural person employed by it and entrusted with the task within the scope of his responsibility to be attributed to it?’
· Written observations have been submitted by the Commission. Pursuant to Article 76(2) of the Rules of Procedure of the Court of Justice, no hearing has been held.
Conclusion
The Advocate General proposes that the Court should answer the questions referred for a preliminary ruling by the Finanzgericht Baden-Württemberg (Finance Court, Baden-Württemberg, Germany) as follows:
· The first indent of Article 202(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended, is to be interpreted as meaning that a legal person becomes a customs debtor under that indent if one of its employees, who is not a statutory representative, has introduced goods unlawfully into the EU customs territory, while acting within the scope of the tasks entrusted to him and/or within the scope of his responsibilities.
· The second indent of Article 202(3) of Regulation No 2913/92 is to be interpreted as meaning that a legal person becomes a customs debtor under that indent when one of its employees, who is not a statutory representative, has participated in the unlawful introduction of goods into the EU customs territory, while acting within the scope of the tasks entrusted to him and/or within the scope of his responsibilities, provided that the employer knew or should reasonably have known that the introduction was unlawful, which is to be determined by reference to the employee to whom the matter is entrusted.
· Article 212a of Regulation No 2913/92, is to be interpreted as meaning that whether the conduct of a (legal) ‘person concerned’ involves fraudulent dealing or obvious negligence should be determined not only in relation to the company itself or its statutory representatives but also in relation to any employee acting within the scope of the tasks entrusted to him and/or within the scope of his responsibilities.
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