The customs authorities cannot require the guarantor to pay a customs debt as long as the amount of the duties has not been regularly communicated to the debtor
Judgment of the European Court of Justice of March 9, 2023, case number C-358/22.
On August 25, 2011, the company Alpha Commodities imported 46,000 tons of salt from Australia into France. Pending the re-export of these goods, it entered into a warehouse contract with BPC, a transport and logistics company.
On October 21, 2011, BPC entered into a temporary occupation contract with the port of Cherbourg (France) for said warehouse.
On December 8, 2011, Customs authorized BPC the bonded warehouse regime, which allowed the suspension of customs duties and taxes, for the period of validity of the temporary occupation contract.
On February 8, 2016, the Customs Administration, considering that BPC no longer had a valid temporary occupancy contract, annulled the authorization of the bonded warehouse regime.
On March 21, 2016, the Customs Administration proceeded to contract the amount of said debt and sent BPC an enforcement order for an amount of 454,807 euros, of which 104,265 euros corresponded to customs duties and 350,542 euros to VAT.
On March 21 and June 21, 2016, said Administration notified Alpha Commodities, in its capacity as guarantor of BPC, two enforcement orders for a total amount of 104,265 euros, corresponding to the guaranteed customs duties.
However, the formal communication of the customs debt by the Customs Authorities to the debtor (Alpha Commodities) had not taken place.
By decision of October 1, 2018, the Court of First Instance of Caen (France) dismissed the claims of BPC and Alpha Commodities for which they requested the annulment of both the enforcement orders issued against them.
However, on September 10, 2019, the Court of Appeal of Caen (France), partially annulling said decision as regards BPC, annulled the enforcement order that had been notified to it on March 21, 2016 and dismissed all the claims made against said company by the customs administration. The aforementioned court recalled, in particular, that, in accordance with the French Customs Code, in order for the communication of the amount of the duties to be regular, it must have been preceded by their contracting and that, in order to be collected by means of an enforcement order, the rights must have been communicated regularly to the debtor of the customs debt, which presupposes that they have been contracted. As this was not the case in the present case, the communication of the rights made to BPC was irregular.
As regards Alpha Commodities, the Court of Appeal of Caen, by the same judgment, upheld the decision ordering it to pay the customs duties claimed to BPC by the customs administration.
The Court of Cassation of France, notes that, on the date of notification of the enforcement orders to Alpha Commodities, the disputed rights had been contracted, within the meaning of article 217 of the previous customs code, but these had not been communicated regularly to BPC, debtor of the customs debt, within the meaning of article 221 of said code. Said court thus points out that what is in question is the concept of “enforceability of a customs debt” and questions whether the irregularity in the communication of the customs duties to the debtor, due to the absence of prior contraction, an irregularity that prohibits its collection against this constitutes a personal exception to this that the guarantor cannot invoke, or if the customs debt is only enforceable against the guarantor if it is against the debtor.
In this context, the referring Court decided to stay the proceedings and refer the following questions to the European Court of Justice for a preliminary ruling:
“1) Should articles 195, 217 and 221 of the [previous EU customs code] be interpreted as meaning that the customs administration cannot require the joint guarantor to pay a customs debt as long as the custom duties have not been regularly communicated to the debtor?
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From this it can be deduced that, when the amount of the duties has not been regularly communicated to the debtor because it had not previously been contracted – a situation that corresponds to the facts in the main proceedings, since it appears from the request for a preliminary ruling that the contraction was after the communication to BPC of the amount of the rights-, the customs debt is not enforceable against the debtor.
In these circumstances, it is appropriate to answer the first question referred for a preliminary ruling that articles 195, 217, paragraph 1, and 221, paragraph 1, of the previous customs code must be interpreted in the sense that the customs authorities cannot require the guarantor referred to said article 195 the payment of a customs debt while the amount of the duties has not been regularly communicated to the debtor.
However, we would like to mention that, currently, the wording of article 94 of the current European Customs Code differs from the wording of article 195 of the previous version of the European Customs Code, as shown below:
Article 195 of the previous European Customs Code
The guarantor must undertake in writing to pay jointly and severally with the debtor the guaranteed amount of the customs debt whose payment is due.
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Article 94 of the current European Customs Code
Guarantor
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- The guarantor will undertake in writing to pay the guaranteed amount of import or export rights corresponding to a customs debt and other charges.
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