CJEU JUDGMENT C-187/14, DSV ROAD. GOODS IN EXTERNAL TRANSIT RETURNED AND DEDUCTION OF VAT ON IMPORT BY THE CARRIER
In this Resolution, the Court is questioned about Articles 203 and 204 of the Customs Code, which contemplate that the customs debt occurs when there is a violation of the customs surveillance of the merchandise subject to import duties (Article 103), or when there is a breach of the obligations that the suspensive regime entails (Article 104), such as failure to comply with the deadline set by the customs office of departure to present the goods at the customs office or free port of destination.
In the present case, the transport company DSV initiated an external transit with origin in Denmark and destination in Sweden, with a date set for the presentation of the goods at destination. However, the goods were rejected by the consignee in Sweden, DSV taking these goods back to Denmark, but without the transit documentation having been annulled or the goods having been presented at the customs office of exit in Sweden.
Later, these same goods, together with other merchandise, were included in another shipment, initiating a second external transit. However, the Tax Administration did not consider it proven that the same goods were included in the second shipment, which caused DSV to be claimed for import duties plus VAT on imports, without also allowing it to deduct VAT on imports. .
Faced with the claim presented by the company, the EU Court is questioned whether the customs debt can be originated, in application of articles 203 or 204 of the Customs Code, when the goods return to the free port of origin without having been presented at customs nor the free port of destination.
The Court, in the first place, proceeds to clarify that Articles 203 and 204 are not compatible with each other, so that it must first be determined whether there is a violation of customs surveillance or not, to apply Article 203, and if there is none, Possible causes of non-compliance with Article 204 will be assessed. In addition, the Court clarifies that two cases must also be distinguished:
a) If the identity of the goods cannot be proven in the first and second transit, the customs debt will occur since it is not proven that the goods were presented at the destination customs and that the transit ended correctly.
b) If the identity of the goods is accredited, it means that they were presented at the customs office of destination, so that the error in the formalization of the exit from the external transit regime does not give rise to a theft of customs surveillance, since understands that these goods are still protected by transit and therefore are subject to control by customs.
However, this second assumption gives rise to the second question posed to the Court, and that is that if Article 203 does not apply because there is no subtraction of customs surveillance, could Article 204 apply and there is a breach of the conditions of the regime ? At this point, the Court recalls that this case has already been resolved by the Court itself, so that if the presentation at destination took place outside the period established by the customs office of origin in the first transit, there will be a breach.
However, the Court continues to resort to article 356 of the Customs Code where a sort of measures are established to avoid import duties, so that, in accordance with the provisions of said article, the term will not be missed if the delay is due to Justifiable causes and not attributable to the carrier or the principal obligee, so it leaves it up to the national body to decide whether the deadline has been breached or not.
In addition, the Court also mentions article 859 of the Regulation of application of the Customs Code where some exclusions are allowed, assessed so as not to consider a breach of the requirements, referring to two of them: that the requirements are fulfilled a posteriori or that there is no manifest negligence, which is for the national body to determine.
Finally, in relation to the question raised about the denial of the deduction of import VAT paid by the carrier, the Court recalls that it is the criterion of this body to consider that the input VAT is related to the economic activity of the taxable person when the cost of the goods and services is incorporated into the price of the goods and services that constitute its economic activity, this being not the case since it is not included in the services provided by the carrier in its economic activity.
