on May 12, 2022, the ECJ issued its decision in the case C-714/20 (U.I.).
Context: Reference for a preliminary ruling — Customs Union — Value added tax (VAT) — Directive 2006/112/EC — Article 201 — Persons liable for the tax — VAT on imports — Union Customs Code — Regulation (EU) no 952/2013 – Article 77, paragraph 3 – Joint and several liability of the indirect customs representative and the importing company – Customs duties
Article in the EU VAT Directive
Article 201 of the EU VAT Directive 2006/112/EC.
On importation, VAT shall be payable by any person or persons designated or recognised as liable by the Member State of importation.
- The company U.I. Srl (the applicant in the main proceedings) had carried out a number of customs transactions pursuant to specific powers of attorney conferred on it by two import companies, namely A. SpA, in insolvency, and U.C. Srl. It had submitted the relevant declarations in its own name and on behalf of those two companies.
- The Agenzia delle Dogane e dei monopoli – Ufficio delle dogane di Venezia (Customs and Monopolies Agency – Venice Customs Office; ‘the Customs Agency’) (the defendant in the main proceedings) had found, in the course of tax inspections, that the ‘declarations of intent annexed to each import declaration’ were ‘unreliable’ because they were based on the allegedly mistaken assumption that the relevant export companies were established exporters.
- The import transactions which were the subject of the tax inspections were therefore not exempted from VAT, because the import companies A. SpA and U.C. Srl had not ‘carried out transactions which could be used to establish the VAT ceiling’.
- According to the Customs Agency, in accordance with Article 77(3) of Regulation No 952/2013, read together with Article 5(18) thereof, as well as Article 199 of Regulation No 2454/1993 and Article 201 of Regulation No 2913/1992 establishing the Community Customs Code, the import companies referred to above and their indirect customs representative – the applicant in the main proceedings – are liable jointly and severally for payment of that tax.
- Accordingly, the Customs Agency had drawn up two inspection reports, in response to which the applicant had, in due time, submitted its observations. The Customs Agency had rejected the arguments set out in those observations and issued two tax assessments which were notified to the applicant on 15 May 2017 and 6 February 2018. Those tax assessments rectified the import declarations submitted by the applicant and assessed the VAT due at EUR 173 561.22 and EUR 786 046.24 respectively, plus interest.
- By two separate actions, the applicant challenged those tax assessments before the referring court, the Commissione tributaria provinciale di Venezia (Provincial Tax
Court, Venice, Italy), claiming that they should be annulled and, in the alternative, that the questions which it has formulated should be referred to the Court of Justice of the European Union for a preliminary ruling.
1. In providing that, ‘on importation, VAT shall be payable by any person or persons designated or recognised as liable by the Member State of importation’, is Article 201 of Directive 2006/112/EC of 28 November 2006 to be interpreted as meaning that the Member State of importation is required to issue a State provision relating to import VAT (domestic-law tax: Court of Justice, Case C-272/13 of 14 July 2013) that expressly identifies the persons liable to pay import VAT?
2. Is Article 77(3) of Regulation (EU) No 952/2013 of 9 October 2013 ([Union Customs Code]), which concerns customs debts on import and which provides that, ‘in the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor’, to be interpreted as meaning that the indirect representative is liable not only for customs duties, but also for import VAT merely as a result of being a ‘declarant’ for customs purposes in its own name?
Decision (Unofficial translation)
1) Article 77(3) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code shall be interpreted as meaning that, according to this provision alone, the indirect customs representative is only liable for the customs duties due for the goods which he has declared to customs, and not, in addition, for the value added tax on imports for these same goods merchandise.
2) Article 201 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that the liability of the indirect customs representative under the payment of value added tax on imports, jointly with that of the importer, cannot be withheld in the absence of national provisions designating or recognizing him, explicitly and unequivocally, as being liable for this tax.