C-26/18 Federal Express Corporation Deutsche Niederlassung

JUDGMENT OF THE COURT (First Chamber)

10 July 2019 ( *1 )

(Reference for a preliminary ruling – Customs Union – Regulation (EEC) No 2913/92 – Articles 202 and 203 – Customs duties on imports – Incurrence of a customs debt on account of infringements of customs legislation – Taxation – Value added tax (VAT) – Directive 2006/112/EC – Article 2(1)(d) and Article 30 – VAT on importation – Chargeable event – Concept of ‘importation’ of goods – Requirement that the goods must enter the economic network of the Union – Carriage of those goods to a Member State other than that in which the customs debt was incurred)

In Case C‑26/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hessisches Finanzgericht (Finance Court, Hesse, Germany), made by decision of 2 November 2017, received at the Court on 16 January 2018, in the proceedings

Federal Express Corporation Deutsche Niederlassung

v

Hauptzollamt Frankfurt am Main,

THE COURT (First Chamber),

composed of J.-C. Bonichot, President of the Chamber, C. Toader, A. Rosas, L. Bay Larsen and M. Safjan (Rapporteur), Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: D. Dittert, Head of Unit,

having regard to the written procedure and further to the hearing on 5 December 2018,

after considering the observations submitted on behalf of:

Federal Express Corporation Deutsche Niederlassung, by R. Welzel and U. Reimer, Steuerberater,

the Hauptzollamt Frankfurt am Main, by U. Beck, acting as Agent,

the Greek Government, by K. Georgiadis and M. Tassopoulou, acting as Agents,

the European Commission, by F. Clotuche-Duvieusart and B.-R. Killmann, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 February 2019,

gives the following

Judgment

Legal context and the dispute

1The request for a preliminary ruling concerns the interpretation of Article 2(1)(d) and Article 30 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1, ‘the VAT Directive’).

2The request has been made in proceedings between Federal Express Corporation Deutsche Niederlassung (‘FedEx’) and the Hauptzollamt Frankfurt am Main (Principal Customs Office, Frankfurt am Main, Germany; ‘the German Principal Customs Office’) concerning the obligation to pay the value added tax (VAT) in Germany arising from the incurrence of a customs debt on importation on account of infringements of customs legislation committed in the territory of that Member State.

Legal context

EU law

Regulation (EEC) No 2913/92

3Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1, and corrigendum OJ 2013 L 287, p. 90) repealed and replaced Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) from 1 May 2016. However, in the light of the date of the facts in the main proceedings, Regulation No 2913/92, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1; ‘the Customs Code’), remains applicable to the present case.

4Article 40 of the Customs Code stated:

‘Goods entering the customs territory of the Community shall be presented to customs by the person who brings them into that territory or, if appropriate, by the person who assumes responsibility for carriage of the goods following such entry, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory of the Community without a stop within this territory. The person presenting the goods shall make a reference to the summary declaration or customs declaration previously lodged in respect of the goods.’

5Article 50 of the Customs Code provided:

‘Until such time as they are assignated a customs-approved treatment or use, goods presented to customs shall, following such presentation, have the status of goods in temporary storage. Such goods shall hereinafter be described as “goods in temporary storage”.’

6Article 91(1)(a) of the Customs Code provided:

‘The external transit procedure shall allow the movement from one point to another within the customs territory of the Community of:

non-Community goods, without such goods being subject to import duties and other charges or to commercial policy measures’.

7Article 202(1) and (2) of the Customs Code was worded as follows:

‘1. A customs debt on importation shall be incurred through:

the unlawful introduction into the customs territory of the Community of goods liable to import duties

or

the unlawful introduction into another part of that territory of such goods located in a free zone or free warehouse.

For the purpose of this Article, unlawful introduction means any introduction in violation of the provisions of Articles 38 to 41 and the second indent of Article 177.

2. The customs debt shall be incurred at the moment when the goods are unlawfully introduced.’

8Article 203(1) and (2) of the Customs Code stated:

‘1. A customs debt on importation shall be incurred through:

the unlawful removal from customs supervision of goods liable to import duties.

2. The customs debt shall be incurred at the moment when the goods are removed from customs supervision.’

The VAT Directive

9Under Article 2(1)(d) of the VAT Directive:

‘The following transactions shall be subject to VAT:

…

the importation of goods.’

10Article 30 of that directive states:

‘“Importation of goods” shall mean the entry into the Community of goods which are not in free circulation within the meaning of Article 24 of the Treaty.

In addition to the transaction referred to in the first paragraph, the entry into the Community of goods which are in free circulation, coming from a third territory forming part of the customs territory of the Community, shall be regarded as importation of goods.’

11Article 60 of the VAT Directive provides:

‘The place of importation of goods shall be the Member State within whose territory the goods are located when they enter the Community.’

12Article 61 of the same directive provides:

‘By way of derogation from Article 60, where, on entry into the Community, goods which are not in free circulation are placed under one of the arrangements or situations referred to in Article 156, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the place of importation of such goods shall be the Member State within whose territory the goods cease to be covered by those arrangements or situations.

Similarly, where, on entry into the Community, goods which are in free circulation are placed under one of the arrangements or situations referred to in Articles 276 and 277, the place of importation shall be the Member State within whose territory the goods cease to be covered by those arrangements or situations.’

13Article 70 of the VAT Directive reads as follows:

‘The chargeable event shall occur and VAT shall become chargeable when the goods are imported.’

14Article 71 of that directive states:

‘1. Where, on entry into the Community, goods are placed under one of the arrangements or situations referred to in Articles 156, 276 and 277, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the chargeable event shall occur and VAT shall become chargeable only when the goods cease to be covered by those arrangements or situations.

However, where imported goods are subject to customs duties, to agricultural levies or to charges having equivalent effect established under a common policy, the chargeable event shall occur and VAT shall become chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.

2. Where imported goods are not subject to any of the duties referred to in the second subparagraph of paragraph 1, Member States shall, as regards the chargeable event and the moment when VAT becomes chargeable, apply the provisions in force governing customs duties.’

German law

15Paragraph 1 of the Umsatzsteuergesetz (Law on turnover tax) of 21 February 2005 (BGBl. 2005 I, p. 386), in the version applicable to the facts of the main proceedings (‘the UStG’), entitled ‘Taxable transactions’, provides in point 4 of subparagraph 1:

‘The following transactions shall be subject to turnover tax:

…

4the importation of goods into the national territory … (import turnover tax);

…’

16Paragraph 13 of the UStG, entitled ‘Chargeability of the tax’, provides in subparagraph 2:

‘Paragraph 21(2) shall be applicable to import turnover tax.’

17Paragraph 21 of the UStG, entitled ‘Special provisions in respect of import turnover tax’, provides in subparagraph 2:

‘The rules applicable to customs duties shall apply by analogy to import turnover tax’.

18Paragraph 14 of the Einfuhrumsatzsteuer-Befreiungsverordnung (Federal regulation on the exoneration from import tax) of 11 August 1992 (BGBl. 1992 I, p. 1526), in the version applicable to the facts of the main proceedings, entitled ‘Refund or remission’, provides in subparagraph 1:

‘The import turnover tax shall be refunded or remitted in the cases provided for in Articles 235 to 242 of the Customs Code; those provisions and their implementing rules are applicable by analogy.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

19During the month of January 2008, FedEx sent goods from Israel, Mexico and the United States (‘the goods at issue’) liable to import duties to various recipients located in Greece, their final destination. Those goods were transported in 18 separate lots (‘the 18 lots’) by air to Frankfurt am Main (Germany), where they were placed in another aircraft to be transported onwards to Greece.

20By letter of 23 October 2008, the customs office at Athens airport (Greece) informed the German Principal Customs Office that the 18 lots had been transported onwards to Greece contrary to customs law.

21In the light of that information, the German Principal Customs Office found that 14 of the 18 lots had not undergone, in Germany, the presentation to customs provided for in Article 40 of the Customs Code, and inferred from this that those lots had been introduced into the customs territory of the European Union unlawfully. It thus took the view that, pursuant to Article 202 of the Customs Code, a customs debt on importation had been incurred through the unlawful introduction of those lots.

22In the case of 3 of the 18 lots, the German Principal Customs Office found that the goods concerned were in temporary storage on their arrival at Frankfurt am Main airport, that they had been transported onwards to Athens without having been placed under the Community external transit arrangements and that they had therefore been removed from the place of storage without authorisation. With regard to the final lot, it was found that, before the goods were transported to Athens, an external transit procedure had been duly discharged from Paris (France) to Frankfurt am Main but that those goods had likewise been removed from the place of storage without authorisation. In relation to these four lots, the German Principal Customs Office took the view that a customs debt on importation was incurred, on the basis of Article 203 of the Customs Code, through the infringements of customs legislation.

23Accordingly, with regard to the 18 lots, the German Principal Customs Office issued FedEx, on 30 November and 1 December 2010, with five notices relating to the collection of customs duties on imports. The same office found, in relation to those lots, that VAT on importation, referred to in Germany as import turnover tax, was payable on the ground that, in accordance with Paragraph 21(2) of the UStG, the rules applicable to customs duties are to apply by analogy to that tax.

24FedEx paid the customs duties on imports and the import turnover tax resulting from those five notices. However, in November 2011, that company applied for a refund of those duties and that tax on the ground, inter alia, that they had been collected twice, contrary to EU law. In that regard, FedEx claimed that the goods at issue, after arriving in Athens, were released for free circulation and that the import duties, including the Greek import turnover tax, were collected. By notices of 9 and 10 April 2013, the German Principal Customs Office rejected those applications for a refund.

25Following the complaint procedures brought by FedEx against those notices, the tax authority amended the rates of taxation applied in two of the five notices of 30 November and 1 December 2010 and issued a partial refund of the import turnover tax related to those two notices.

26On 13 June 2014, FedEx brought an action before the Hessisches Finanzgericht (Finance Court, Hesse) (Germany) against those five notices. At the hearing, FedEx discontinued its action in respect of the customs duties on imports but maintained its application as regards the import turnover tax. In that connection, it submitted that that tax is a tax on consumption imposed only on goods which are actually consumed in the national territory. Since the goods at issue were transported to Greece without having been introduced into the German economic network, they cannot be regarded as having been imported into German territory and as being capable of forming the subject matter of a taxable transaction on that basis.

27The referring court therefore has doubts whether, further to the infringements of customs legislation mentioned in paragraphs 21 and 22 of this judgment, which gave rise to a customs debt on importation, VAT on importation was incurred in Germany in relation to the goods at issue.

28In this regard, the referring court mentions paragraph 65 of the judgment of 2 June 2016, Eurogate Distribution and DHL Hub Leipzig (C‑226/14 and C‑228/14, EU:C:2016:405), which refers to the concept of the ‘risk’ of entry into the economic network of the European Union. That court observes that, if that concept is to be applied, in cases in which goods introduced into the territory of the European Union were not placed under a customs arrangement or were removed from the arrangement under which they had been placed, it remains to be examined only whether there is a risk of those goods entering the economic network of the European Union in the fiscal territory of the Member State concerned. In the present case, such a risk must be deemed to exist because the goods at issue, having been introduced unlawfully or unlawfully removed from customs supervision, were, specifically, not or no longer under such surveillance. In particular, the goods introduced unlawfully into the customs territory of the European Union could have been removed unnoticed and consumed untaxed.

29However, in the light of the judgments of the Court of 1 June 2017, Wallenborn Transports (C‑571/15, EU:C:2017:417) and of 18 May 2017, Latvijas Dzelzceļš (C‑154/16, EU:C:2017:392), the referring courts asks whether VAT on importation, with regard to the Member State within whose fiscal territory the goods were introduced into the European Union, is incurred only where those goods also enter the economic network of the European Union in the fiscal territory of that Member State. In those circumstances, that economic network is entered only once the goods have been released for free circulation in accordance with customs legislation or where an infringement of customs legislation leads to the presumption that the goods have entered that economic network and that they may have been consumed or used. Only those two situations constitute ‘importation’ within the meaning of the VAT Directive.

30In those circumstances, the Hessisches Finanzgericht (Finance Court, Hesse) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

Is importation within the meaning of Articles 2(1)(d) and 30 of [the VAT Directive] subject to the condition that goods which have been introduced into the territory of the European Union must enter the economic network of the European Union, or is the mere risk that the goods introduced may enter the economic network of the European Union sufficient?

If importation is subject to the condition that goods must enter the economic network of the European Union:

Do goods which have been introduced into the territory of the European Union automatically enter the economic network of the European Union in the case where, contrary to customs law, those goods are not placed under an arrangement within the meaning of the first paragraph of Article 61 of the [VAT] Directive or, although initially placed under such an arrangement, they later cease to be covered by that arrangement on account of conduct contrary to customs law, or is it the case that, in the event of conduct contrary to customs law, entry into the economic network of the European Union is subject to the condition that it may be presumed that, on account of the conduct contrary to customs law, the goods entered the economic network of the European Union in the fiscal territory of the Member State in which the unlawful conduct was committed and may have been consumed or used?’

The questions referred for a preliminary ruling

The first question

31By its first question, the referring court asks, in essence, whether Article 2(1)(d) and Article 30 of the VAT Directive are to be interpreted as meaning that, where goods are introduced into the territory of the European Union, the concept of the ‘importation of goods’, within the meaning of those provisions, refers only to the entry of those goods into the economic network of the European Union, or whether that concept also covers the risk of such goods entering that network.

32As a preliminary point, it should be recalled that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 28 March 2019, Cogeco Communications, C‑637/17, EU:C:2019:263, paragraph 57 and the case-law cited).

33Under Article 2(1)(d) of the VAT Directive, the importation of goods is to be subject to VAT. The first paragraph of Article 30 of that directive states that ‘importation of goods’ is to mean the entry into the Community of goods which are not in free circulation within the meaning of Article 24 EC.

34In accordance with the case-law of the Court, since VAT is by nature a tax on consumption, it applies to goods and services that enter the economic network of the European Union and may be the object of consumption (judgment of 18 May 2017, Latvijas Dzelzceļš, C‑154/16, EU:C:2017:392, paragraph 69 and the case-law cited).

35In the present case, it is clear from the actual wording of the order for reference that the goods at issue were transported to Greece, their final destination, where they were consumed. It is therefore established that those goods entered the economic network of the European Union within the meaning of the VAT Directive.

36Accordingly, as the Advocate General observed in point 43 of his Opinion, in a case such as that in the main proceedings, the question whether the existence of a ‘risk’ of goods entering the economic network of the European Union is sufficient to take the view that those goods were the object of ‘importation’, within the meaning of Article 2(1)(d) and Article 30 of the VAT Directive, appears to be hypothetical.

37In the light of the case-law cited in paragraph 32 of this judgment, the first question is therefore inadmissible.

The second question

38By its second question, the referring court asks, in essence, whether Article 2(1)(d) and Article 30 of the VAT Directive are to be interpreted as meaning that, where goods are introduced into the territory of the European Union, it is sufficient that those goods have been the subject of infringements of customs legislation in a particular Member State, which gave rise to a customs debt on importation, to take the view that those goods entered the economic network of the European Union in that Member State.

39In that regard, it should be noted that, under Article 60 of the VAT Directive, the place of importation of goods is to be the Member State within whose territory the goods are located when they enter the Community. The first paragraph of Article 61 of that directive provides that, by way of derogation from Article 60 of the Directive, where, on entry into the Community, goods which are not in free circulation are placed under one of the arrangements or situations referred to in Article 156 of the Directive, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the place of importation of such goods is to be the Member State within whose territory the goods cease to be covered by those arrangements or situations.

40Article 70 of the VAT Directive provides that the chargeable event is to occur and VAT is to become chargeable when the goods are imported. Article 71(1) of the VAT Directive provides inter alia in its first subparagraph that where, on entry into the Community, goods are placed under customs warehousing arrangements, the chargeable event is to occur and VAT is to become chargeable only when the goods cease to be covered by those arrangements. However, the second subparagraph of that article covers the specific situation in which, in the case of imported goods subject to customs duties, to agricultural levies or to charges having equivalent effect established under a common policy, the chargeable event is to occur and VAT is to become chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.

41According to settled case-law of the Court, import VAT and customs duties display comparable essential features since they arise from the fact of importation of goods into the European Union and the subsequent distribution of those goods through the economic channels of the Member States. This parallel nature is, moreover, confirmed by the fact that the second subparagraph of Article 71(1) of the VAT Directive authorises Member States to link the chargeable event and the date on which the VAT on importation becomes chargeable with those laid down for customs duties (judgments of 28 February 1984, Einberger, 294/82, EU:C:1984:81, paragraph 18, and of 11 July 2013, Harry Winston, C‑273/12, EU:C:2013:466, paragraph 41).

42In the present case, it is clear from the order for reference that, in the course of 2008, various goods from third countries liable to import duties were transported to Germany before being carried onwards to Greece, their final destination. Some of those goods were not presented to the German customs authorities and were therefore introduced unlawfully into the customs territory of the European Union. The other goods were introduced lawfully into that territory in Germany but were then transported onwards to Greece having been removed from customs supervision, in breach of customs law.

43It is not disputed that, in the case in the main proceedings, as a result of those infringements of customs legislation, a customs debt on importation was incurred in Germany on the part of the company which introduced the goods at issue into the territory of the European Union, on the basis – respectively – of Article 202(1)(a) and Article 203(1) of the Customs Code.

44According to the case-law of the Court, in addition to the customs debt, there may also be a requirement to pay VAT in the case where, based on the particular unlawful conduct which gave rise to the customs debt, it can be presumed that the goods entered the economic network of the European Union and that they may have undergone consumption, that is, the act on which VAT is levied (judgments of 2 June 2016, Eurogate Distribution and DHL Hub Leipzig, C‑226/14 and C‑228/14, EU:C:2016:405, paragraph 65, and of 1 June 2017, Wallenborn Transports, C‑571/15, EU:C:2017:417, paragraph 54).

45In particular, the Court has held that, in the event that goods liable to import duties are removed from customs supervision in a free zone and are no longer located in that zone, it should, in principle, be presumed that they have entered the economic network of the European Union (judgment of 1 June 2017, Wallenborn Transports, C‑571/15, EU:C:2017:417, paragraph 55).

46In the present case, first, with regard to the goods at issue which were not lawfully introduced into the customs territory of the European Union, in the light of the case-law cited in paragraphs 44 and 45 of this judgment, it should, in principle, be presumed that they entered the economic network of the European Union in the territory of the Member State in which they were introduced into the European Union, that is to say in Germany.

47Second, as for the goods at issue which were removed from customs surveillance, they ceased to be covered in Germany by the customs arrangements under which they were placed. Accordingly, in the light of the case-law cited in paragraphs 44 and 45 of this judgment, it should likewise be presumed that they entered the economic network of the European Union in that Member State.

48However, as the Advocate General observed in points 56 and 68 of his Opinion, such a presumption may be rebutted if it is established that, despite the infringements of customs legislation and the incurrence, as a result, of a customs debt on importation in the Member State in which those infringements were committed, the goods were introduced into the economic network of the European Union in the territory of another Member State, where they were intended for consumption. In such cases, VAT on importation is payable in the latter Member State.

49It is apparent from the order for reference that, although the goods at issue were the subject of infringements of customs legislation in German territory, they were simply transferred from one aircraft to another in that territory.

50It is true that, on account of those infringements of customs legislation, the goods at issue, which were physically on the territory of the European Union, were no longer under the supervision of the German customs authorities, which were unable to monitor the movement of those goods.

51However, in the present case, it is clear from the order for reference that it is established that the goods at issue were transported to Greece, their final destination, where they were consumed.

52Accordingly, in a case such as that in the main proceedings, the infringements of customs legislation that occurred on German territory do not, in themselves, constitute a sufficient basis to take the view that the goods at issue entered the economic network of the European Union in Germany.

53In those circumstances, it should be held that, in such a case, the goods entered the economic network of the European Union in the Member State of their final destination and that, therefore, the VAT on importation related to those goods was incurred in that Member State.

54In the light of the foregoing considerations, the answer to the second question is that Article 2(1)(d) and Article 30 of the VAT Directive must be interpreted as meaning that, where goods are introduced into the territory of the European Union, it is not sufficient that those goods have been the subject of infringements of customs legislation in a particular Member State, which gave rise in that State to a customs debt on importation, to take the view that the goods entered the economic network of the European Union in that Member State, where it is established that the same goods were transported onwards to another Member State, their final destination, where they were consumed, the VAT on importation related to the goods thus being incurred only in the latter Member State.

Costs

55Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (First Chamber) hereby rules:

Article 2(1)(d) and Article 30 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, where goods are introduced into the territory of the European Union, it is not sufficient that those goods have been the subject of infringements of customs legislation in a particular Member State, which gave rise in that State to a customs debt on importation, to take the view that the goods entered the economic network of the European Union in that Member State, where it is established that the same goods were transported onwards to another Member State, their final destination, where they were consumed, the value added tax on importation related to the goods thus being incurred only in the latter Member State.

Signatures

[Signatures]

( *1 ) Language of the case: German.

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 27 February 2019 ¹

(Preliminary ruling — Customs debt — Regulation (EEC) No 2913/92 — Common system of value added tax (VAT) — Directive 2006/112/EC — Scope — Definition of importation — Requirement that goods must enter the economic network of the Union — Presumption)

1In the judgments in Eurogate Distribution and DHL Hub Leipzig ² and Wallenborn Transports, ³ the Court answered questions, referred for a preliminary ruling by the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) and the Hessisches Finanzgericht (Finance Court, Hesse, Germany) respectively, concerning whether import VAT and a customs debt should both be calculated where a taxed transaction has failed to fulfil certain conditions laid down by the customs legislation.

2In the Opinion in the first of those cases, ⁴ I pointed out that that possibility is not as automatic as an initial reading of the judgment of the Court of 15 May 2014, X, ⁵ might suggest. I argued that there is no reason why the incurrence of a customs debt should inevitably lead to import VAT being due. The Court adopted that view in the two judgments cited above.

3The Hessisches Finanzgericht (Finance Court, Hesse) has made a fresh reference for a preliminary ruling on such double calculations. In particular, it believes that it has identified a certain contradiction in the latter two judgments with regard to the conditions laid down by the Court for ascertaining whether goods have entered the European Union’s economic network. That was, in short, the key factor which made it possible to determine whether a customs debt and a VAT debt should both be payable.

I. Legislative framework

A. EU law

1. Community Customs Code ⁶

4In accordance with Article 202:

‘1. A customs debt on importation shall be incurred through:

the unlawful introduction into the customs territory of the Community of goods liable to import duties, or

the unlawful introduction into another part of that territory of such goods located in a free zone or free warehouse.

For the purpose of this Article, unlawful introduction means any introduction in violation of the provisions of Articles 38 to 41 and the second indent of Article 177.

2. The customs debt shall be incurred at the moment when the goods are unlawfully introduced.

…’

5Article 203 stipulates:

‘1. A customs debt on importation shall be incurred through:

the unlawful removal from customs supervision of goods liable to import duties.

2. The customs debt shall be incurred at the moment when the goods are removed from customs supervision.

…’

6Article 204 provides:

‘1. A customs debt on importation shall be incurred through:

non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or

non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods,

in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.

2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.

…’

2. Directive 2006/112/EC ⁷

7In accordance with Article 2(1)(d), ‘the importation of goods’ is subject to VAT.

8Article 30 states:

‘“Importation of goods” shall mean the entry into the Community of goods which are not in free circulation within the meaning of Article 24 of the Treaty.

In addition to the transaction referred to in the first paragraph, the entry into the Community of goods which are in free circulation, coming from a third territory forming part of the customs territory of the Community, shall be regarded as importation of goods.’

9Pursuant to Article 60:

‘The place of importation of goods shall be the Member State within whose territory the goods are located when they enter the Community.’

10Article 61 provides:

‘By way of derogation from Article 60, where, on entry into the Community, goods which are not in free circulation are placed under one of the arrangements or situations referred to in Article 156, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the place of importation of such goods shall be the Member State within whose territory the goods cease to be covered by those arrangements or situations.

Similarly, where, on entry into the Community, goods which are in free circulation are placed under one of the arrangements or situations referred to in Articles 276 and 277, the place of importation shall be the Member State within whose territory the goods cease to be covered by those arrangements or situations.’

11In accordance with Article 71:

‘1. Where, on entry into the Community, goods are placed under one of the arrangements or situations referred to in Articles 156, 276 and 277, or under temporary importation arrangements with total exemption from import duty, or under external transit arrangements, the chargeable event shall occur and VAT shall become chargeable only when the goods cease to be covered by those arrangements or situations.

However, where imported goods are subject to customs duties, to agricultural levies or to charges having equivalent effect established under a common policy, the chargeable event shall occur and VAT shall become chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.

2. Where imported goods are not subject to any of the duties referred to in the second subparagraph of paragraph 1, Member States shall, as regards the chargeable event and the moment when VAT becomes chargeable, apply the provisions in force governing customs duties.’

12Under Article 156(1)(a), Member States may exempt, inter alia other transactions, ‘the supply of goods which are intended to be presented to customs and, where applicable, placed in temporary storage’.

B. National law: Umsatzsteuergesetz (Law on turnover tax) ⁸

13In accordance with Paragraph 1:

‘(1) The following transactions shall be subject to the tax:

1. the supply of goods and other services for consideration within German territory by an undertaking in the context of its activities.

…

4. the importation of goods into Germany … (import turnover tax);

…’

14Pursuant to Paragraph 13, Paragraph 21(2) of the UStG is applicable to import turnover tax.

15Paragraph 21(2) provides:

‘The customs rules shall apply by analogy to import turnover tax …’

II. Facts and questions referred for a preliminary ruling

16By letter of 23 October 2008, the customs office at Athens airport informed the Hauptzollamt Frankfurt am Main (Principal Customs Office, Frankfurt am Main; ‘the Customs Office’) that, in January 2008, 18 consignments dealt with by Federal Express Corporation Deutsche Niederlassung (‘FedEx’) had been affected by irregularities in connection with the Community transit procedure for air travel. Enquiries revealed that these were goods from Israel, Mexico and the United States, with recipients in Greece.

17On 30 November and 1 December 2010, the Customs Office sent FedEx a total of five notices, imposing, in particular, import turnover tax on those consignments.

18According to the Customs Office:

in the case of 14 of those consignments, the goods did not comply with Article 40 of the CCC (presentation to customs) and, therefore, had been introduced into the customs territory of the European Union unlawfully, thereby incurring a customs debt (Article 202 of the CCC). With regard to the import turnover tax, the Customs Office relied on Paragraph 21(2) of the UStG;

the remaining 4 consignments had been removed from the place of storage without authorisation and a customs debt as provided for in Article 203 of the CCC had been incurred.

19FedEx paid the import turnover tax resulting from the assessment notices received. However, in November 2011, it applied for a refund of that tax, on the ground, inter alia, that the fact that the tax had been collected twice was contrary to EU law.

20The Customs Office rejected the application for a refund of the turnover tax. The majority of FedEx’s complaints were also unsuccessful and it brought an action before the Hessisches Finanzgericht (Finance Court, Hesse).

21According to that court, the dispute concerns goods which arrived in the EU, initially entering the territory of the Federal Republic of Germany by air and then being transported onwards to Greece from the same airport in another aircraft. It is necessary to determine whether import VAT became chargeable in Germany in circumstances where the introduction of those goods into the European Union infringed provisions of customs law or in circumstances where, although such an infringement was not committed, the goods were later transported onwards to Greece without being placed under the external Community transit procedure.

22Against that background, the Hessisches Finanzgericht (Finance Court, Hesse) has referred the following questions for a preliminary ruling:

‘Question 1:

Is importation within the meaning of Articles 2(1)(d) and 30 of Council Directive 2006/112 … subject to the condition that goods which have been introduced into the territory of the European Union must enter the economic network of the European Union, or is the mere risk that the goods introduced may enter the economic network of the European Union sufficient?

If importation is subject to the condition that goods must enter the economic network of the European Union:

Question 2:

Do goods which have been introduced into the territory of the European Union automatically enter the economic network of the European Union in the case where, contrary to customs law, those goods are not placed under an arrangement within the meaning of the first paragraph of Article 61 of the Directive or, although initially placed under such an arrangement, they later cease to be covered by that arrangement on account of conduct contrary to customs law, or is it the case that, in the event of conduct contrary to customs law, entry into the economic network of the European Union is subject to the condition that it may be presumed that, on account of the conduct contrary to customs law, the goods entered the economic network of the European Union in the fiscal territory of the Member State in which the unlawful conduct was committed and may have been consumed or used?’

III. Procedure before the Court of Justice and arguments of the parties

23The reference for a preliminary ruling was received at the Registry of the Court of Justice on 16 January 2018.

24Written observations were lodged by FedEx, the Greek Government and the Commission. All those parties, together with the representative of the Customs Office, attended the hearing held on 5 December 2018.

25FedEx maintains that, following their arrival in Athens, the goods were released for free circulation and consumption after Greek import VAT had been levied on them. In its submission, it can be inferred from the judgment in Wallenborn Transports that, in order to add a VAT debt to a customs debt, it is not sufficient that there is merely a risk that, as a result of the unlawful conduct which gave rise to the customs debt, the goods could have entered the economic network of the Union, since it is for the national court to verify that those goods did not enter that economic network.

26FedEx submits that, once a customs debt has been incurred under Article 202(1) or Article 203(1) of the CCC, it is still necessary to examine whether an importation of goods has taken place for the purposes of Article 2(1)(d) of Directive 2006/112. It is not sufficient that the goods have been introduced into the EU because they must be in free circulation or no longer be covered by one of the arrangements provided for in Article 61 and Article 71(1), first subparagraph, of that directive.

27Accordingly, FedEx submits that the answer to the question referred for a preliminary ruling must be that importation is subject to the condition that goods which arrive in the territory of the EU must enter the European Union’s economic network and that, in the event of a breach of the customs legislation, it may be presumed that the goods were introduced into that network via the fiscal territory of the Member State in which the breach was committed.

28The Customs Office argues that the goods entered the economic network of the Union in Germany, since that was the Member State in which the breach of customs legislation was committed. Accordingly, VAT is payable in Germany and not in Greece.

29The Greek Government proposes that the answer to the first question should be that importation occurs not only with the entry of the goods into the economic network of the Union but also where there is the risk that the goods will enter that network. Therefore, there is no need to answer the second question.

30The Commission observes that the goods at issue probably entered the economic network of the Union in Greece, which means that an import VAT debt was incurred. The only uncertainty is where and when that debt was incurred.

31The Commission further observes that a customs debt was also incurred in Germany, either because the goods arrived there unlawfully or because they were removed from customs supervision in that Member State. Either of those two situations would give rise to import VAT but only if it is found that the goods entered the economic network of the Union; a mere risk that they might have entered that network is not sufficient for those purposes.

32As regards the second question, the Commission states that the referring court must examine whether there is justification for the presumption that the breach of the customs legislation created an import VAT debt in addition to a customs debt, as a result of the entry of the goods into the economic network of the Union.

33In the Commission’s submission, if the referring court confirms that the goods left Germany for another Member State, in which they were distributed to their intended recipients, it must be found that they entered the economic network of the Union. If that took place in Germany as a result of infringement of the customs legislation, the import VAT debt will have been incurred in that State. The Commission argues that that circumstance would not alter the fact that VAT must be paid only once and that it is to be borne by the end consumer, which is ensured in the different hypotheses it develops in that regard.

34The Commission therefore proposes that the answer to the second question should be that goods may enter the economic network of the Union in the place where and at the time when they are not covered by any customs arrangement or have ceased to be covered by such an arrangement.

IV. Assessment

A. (Partial) admissibility

35The referring court relies on an interpretation of Directive 2006/112 pursuant to which an ‘importation of goods’ subject to VAT occurs where goods have been introduced into the territory of the Union without being placed under any of the arrangements or situations referred to in Article 61(1) of that directive or where, although initially placed under such an arrangement or situation, they later ceased to be covered by it.

36However, the referring court adds that, in the light of the purpose of VAT and, in particular, certain observations of the Court of Justice in recent judgments, ⁹ it is open to question whether the mere introduction of goods under those conditions could be construed as ‘importation’. For that purpose, it may be necessary for the goods to have actually entered the European Union’s economic network, without the mere risk that they may have done so being sufficient.

37According to the information supplied in the order for reference, the issue in the main proceedings is whether goods which arrived in the European Union, entering the territory of the Federal Republic of Germany by air and then, without leaving Frankfurt am Main airport, being transported onwards, also by air, to Greece, are subject to import VAT in two situations:

there was a breach of the customs provisions in Germany; or

the goods were transported onwards to Greece without being placed under the external Community transit arrangements laid down in the customs legislation. ¹⁰

38On that basis, the referring court wishes to know: (a) whether the time when and the place where import VAT becomes chargeable are dependent on the entry of the goods into the European Union’s economic network and (b) whether a mere risk that the goods may have entered that economic network is sufficient.

39However, in its order for reference, the Hessisches Finanzgericht (Finance Court, Hesse) states that the goods did not enter German fiscal territory at any time and were instead transported onwards to Athens, where they were introduced into the economic network of the Union. ¹¹

40If that is how events unfolded, the first question could be regarded as hypothetical and, therefore, inadmissible. ¹² Indeed, since it has been established and accepted by the referring court that the goods did not enter the economic network of the Union in Germany but rather in Greece, where they were intended for consumption, it makes no sense to ask whether ‘the mere risk that the goods introduced [into the territory of the European Union] may enter the economic network of the European Union [is] sufficient’.

41In the situation described in the order for reference, there was, I repeat, no risk that the goods would enter the economic network of the European Union via Germany. Furthermore, it is categorically stated that it was in Greece where those goods entered that network and were intended for consumption. Since that is the case, I do not think it necessary to rely on a presumption when the fact has already been established, and it is not worth speculating about the risk that it might occur.

42Therefore, an abstract question concerning ‘the mere risk that the goods introduced may enter the economic network of the European Union’ should be ruled inadmissible when, in the context of the main proceedings and in the light of the facts which the referring court regards as established, there is, I repeat, no issue of risk but rather a finding that the goods did enter the European Union’s economic network.

43The referring court’s first question is, therefore, only of purely hypothetical interest.

44In any event, in case the Court of Justice does not share my view, I shall deal with the substance of the first question when, in response to the second question, I analyse the extent to and the conditions under which a simple infringement of the customs legislation can create a presumption that goods have entered the economic network of the Union.

B. The substance

45As I stated in the Opinion in Wallenborn Transports, ¹³‘the decisive factor as far as the chargeable event for import VAT is concerned is that the goods on which it is charged should be able to form part of the economic network of the European Union and, consequently, be consumed at a later stage’.

46I observed on that occasion that the Court confirmed this in the judgment in Eurogate Distribution, in which it held that, in addition to the customs debt incurred as a result of an infringement of the customs legislation, ‘there may also be a requirement to pay VAT where, based on the particular unlawful conduct which gave rise to the customs debt, it can be presumed that the goods entered the economic network of the Union and, consequently, that they may have undergone consumption, that is, the act on which VAT is levied’. ¹⁴

47The Court elaborated on that principle in its judgment in Wallenborn Transports. ¹⁵

48In both cases, the Court held that, ‘based on the particular unlawful conduct which gave rise to the customs debt’ — that is, based on the specific infringement of the customs legislation at issue in each set of proceedings and its context — the goods at issue could not be found to have entered the economic network of the Union:

in Eurogate Distribution, that was because, although the obligation to enter the removal of the goods from the customs warehouse in the appropriate stock records had not been fulfilled, it was deemed to have been established that the goods were covered by the customs warehouse procedure until they were re-exported ‘and it is not disputed that there was no risk of them entering the European Union’s economic network;’ ¹⁶

in Wallenborn Transports, it was because, although the goods had been removed from customs supervision inside a free zone and were no longer in that zone, the referring court considered that it had been established that, before the goods left the free zone with their final destination being a third country, ‘there [was] no distribution through the economic channels of the Member State to whose territory the free zone belongs because, after their removal from customs supervision, the goods initially remained in the free zone and were neither released for consumption nor consumed or used there’. ¹⁷

49Admittedly, in Eurogate Distribution, the Court referred to the risk that the goods at issue may have entered the European Union’s economic network. ¹⁸

50The referring court appears to interpret that reference as though the decisive factor, for the purposes of establishing whether there was an importation, were to confirm the existence of such a risk. Since it was stated in Wallenborn Transports that the decisive factor was to establish that the goods had not entered the European Union’s economic network, ¹⁹ the referring court identifies a certain contradiction, which leads it to ask whether or not the mere risk of entry into the European Union’s economic network is sufficient for import VAT to be chargeable.

51A careful reading of the judgments cited enables even the slightest contradiction between them to be ruled out.

52The basic idea has always been that import VAT becomes chargeable when goods enter the economic network of the Union. In that connection, the answer to the first question referred by the national court is not open to doubt: ‘Importation within the meaning of Articles 2(1)(d) and 30 of [the VAT] Directive … [is] subject to the condition that goods which have been introduced into the territory of the European Union must enter the economic network of the European Union’, while ‘the mere risk that the goods introduced may enter the economic network of the European Union [is not] sufficient’.

53The entry of goods into the economic network of the European Union may: (a) be established as an event which has actually occurred (physical entry) or (b) merely be presumed. The latter is envisaged by Directive 2006/112 when a number of factors are present (for example, non-compliance with the customs legislation).

54In fact, there is a succession of legal presumptions in this area:

the first is that all goods introduced into the territory of a Member State from a third country are intended for consumption and, therefore, are intended to enter the economic network of the Union. That presumption can be rebutted if the goods are placed under certain arrangements provided for in the customs legislation, such as external transit or customs warehousing;

the placing of the goods under such arrangements gives rise to a second presumption: in that hypothetical situation, it is assumed (presumed) that, although the goods are physically on the territory of a Member State, they have not entered the European Union and, therefore, cannot be introduced into the European Union’s economic network;

the third presumption takes effect when the second no longer applies because the customs legislation which enabled it has been breached. In that situation, the initial presumption could be said to recover its effectiveness (goods which enter the territory of the Union are intended to be introduced into the economic network of the Union) and the circle is closed.

55In other words, that is what the judgments in Wallenborn Transports and Eurogate Distribution state: ‘in addition to the customs debt, there may also be a requirement to pay VAT in the case where, on the basis of the particular unlawful conduct which gave rise to the customs debt, it can be presumed that the goods entered the economic network of the European Union and, consequently, that they may have undergone consumption, that is, the act on which VAT is levied’. ²⁰

56Since the first (goods introduced from a third country enter the European Union’s economic network) and second (goods placed under certain arrangements do not enter that network) presumptions can be rebutted, the third presumption (goods which have infringed the customs legislation enabling the second presumption enter the economic network of the Union) can also be rebutted. None of those three presumptions is irrebuttable (juris et de jure) and instead all can be overturned by evidence to the contrary (juris tantum).

57That is precisely what occurred in Wallenborn Transports and Eurogate Distribution: the presumption that goods had entered the economic network of the European Union because the customs legislation had been breached (third presumption) was rebutted because it was established that, despite that breach, the goods had not entered that network:

in Eurogate Distribution, that was because, despite non-fulfilment of the obligation relating to entry in the stock records, it was possible to establish that the goods were covered by the customs warehousing arrangement until they were re-exported; ²¹

in Wallenborn Transports, that was because, although the goods were removed from customs supervision, it was established that they remained in the free zone and were not released for free circulation, consumed or used. ²²

58The judgment in Eurogate Distribution observed that the ‘goods were covered by the customs warehouse procedure until they were re-exported and it is not disputed that there was no risk of them entering the European Union’s economic network’. ²³ As I have pointed out above, that sentence appears to be at the root of the referring court’s uncertainty, and that court interprets it as meaning that it is sufficient to rely on the existence of such a risk to consider it to be established that the goods entered the European Union’s economic network.

59In my view, what was meant by that sentence is that, since the goods in those proceedings were covered by the customs warehouse procedure, it was not possible to conclude, in the circumstances described, that, as a result of non-compliance with the customs legislation, the goods had entered the European Union’s economic network. In other words, it was possible for the infringement of customs legislation to be successfully challenged in that case by the argument that the goods had been re-exported and, therefore, had not entered the European Union’s economic network. ²⁴

60Therefore, it is not the case that the mere risk that goods may enter the European Union’s economic network, together with the infringement of a number of customs rules, inevitably results in import VAT being due.

61Applying that reasoning to the present dispute, while bearing in mind the account of the facts set out in the order for reference, the breach of customs provisions at Frankfurt am Main airport, where the goods were simply transferred from one aircraft to another bound for Greece, is irrelevant for the purposes of the levying, in Germany, of import VAT (even though a customs debt was incurred, a matter which is not in dispute).

62That same breach of procedural obligations would not have enabled import VAT to be assessed, in accordance with the judgment in Wallenborn Transports, if the goods were intended for re-export after being placed under the customs warehousing procedure in Frankfurt am Main airport because their re-export meant that they did not enter the economic network of the Union. I do not see why the opposite should have to occur when, following transit through Frankfurt am Main airport, the destination of the goods was ²⁵ Greece, the country where their entry for economic purposes took place (in other words, the real point of entry to the European Union’s economic network) and where they were later released for consumption.

63To put it another way, since it has been established that the goods genuinely did not enter the European Union’s economic network in Germany but rather in Greece, the procedural irregularity which occurred at Frankfurt am Main airport does not by itself provide a sufficient legal basis for import VAT to be levied in Germany.

64I therefore agree with the referring court’s interpretation of the judgment in Eurogate Distribution for the purposes of its application to the dispute on which it is required to adjudicate: ‘On that basis, it would have to be concluded in the case at issue that German import turnover tax [VAT] did not become chargeable because neither the unlawful introduction of the goods in question nor their removal from customs supervision caused those goods to enter the European Union’s economic network in German fiscal territory. It is, after all, established that the goods were transported onwards to Athens and were not consumed until after they had arrived there [Greece].’ ²⁶

65That being so, Article 60 of Directive 2006/112 is applicable, meaning that the place of importation of the goods (and, as a corollary, of the levying of VAT) ‘shall be the Member State within whose territory the goods are located when they enter the Community’.

66The fact that the referring court has no record that VAT was actually paid in Greece is, as the Commission pointed out at the hearing, another matter. ²⁷ However, in this case, it is not a question of determining what really happened but rather what should have happened in the light of the provisions of EU law applicable to the case.

67What should have happened, in accordance with EU law, is that, since the referring court established that the goods did not enter the European Union’s economic network via Germany, the authorities of that Member State should not have been able to demand payment of import VAT but rather only payment of the debt incurred as a result of the infringement of the customs legislation.

V. Conclusion

Conclusion

68In the light of the foregoing considerations, I propose that the Court of Justice declare that the first question referred for a preliminary ruling by the Hessisches Finanzgericht (Finance Court, Hesse, Germany) is inadmissible and give the following answer to the second question:

Article 2(1)(d) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, in conjunction with Articles 30 and 60 of that directive, must be interpreted as meaning that:

the importation of goods means that goods have entered the economic network of the European Union and it must be presumed that the goods entered that network in the Member State in which they ceased to be covered by one of the arrangements referred to in the first paragraph of Article 61 of Directive 2006/112;

in circumstances like those at issue in these proceedings, the national court may consider that presumption to be rebutted if it is established that, despite the infringement of the customs legislation governing the arrangements referred to in the first paragraph of Article 61 of Directive 2006/112 — and the incurrence, as a result, of a customs debt in the Member State in which the infringement was committed — the goods were introduced into the European Union’s economic network via the territory of another Member State, where they were intended for consumption, in which case VAT should be payable in the latter Member State.

¹ Original language: Spanish.

² Judgment of 2 June 2016, C‑226/14 and C‑228/14, EU:C:2016:405; ‘judgment in Eurogate Distribution’.

³ Judgment of 1 June 2017, C‑571/15, EU:C:2017:417; ‘judgment in Wallenborn Transports’.

⁴ Cases C‑226/14 and C‑228/14, EU:C:2016:1.

⁵ Case C‑480/12, EU:C:2014:329.

⁶ Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1); ‘CCC’.

⁷ Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

⁸ Law of 21 February 2005 (BGBl. 2005 I, p. 386), in the version applicable to the facts; ‘UStG’.

⁹ Specifically, the judgments in Eurogate Distribution and Wallenborn Transports; the judgment of 15 May 2014, X, C‑480/12 (EU:C:2014:329); and the judgment of 18 May 2017, Latvijas Dzelzceļš (C‑154/16, EU:C:2017:392).

¹⁰ Paragraph I, first subparagraph, of the order for reference.

¹¹ Paragraph II, number 2(b), second subparagraph, of the order for reference.

¹² The hypothetical nature of the question is one of the reasons, in addition to the irrelevance of the reference in relation to the subject matter of the main proceedings and insufficient factual and legal material necessary to give a useful answer, which can overturn the presumption of relevance of questions referred for a preliminary ruling. See judgments of 16 June 2015, Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraphs 24 and 25; of 4 May 2016, Pillbox 38, C‑477/14, EU:C:2016:324, paragraphs 15 and 16; of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 19; of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 54; of 28 March 2017, Rosneft, C‑72/15, EU:C:2017:236, paragraphs 50 and 155; and of 10 July 2018, Jehovan todistajat, C‑25/17, EU:C:2018:551, paragraph 31.

¹³ Case C‑571/15, EU:C:2016:944, point 67.

¹⁴ Judgment in Eurogate Distribution, paragraph 65.

¹⁵ Judgment in Wallenborn Transports, paragraph 54.

¹⁶ Judgment in Eurogate Distribution, paragraph 65.

¹⁷ That situation is referred to in the judgment in Wallenborn Transports, paragraph 56.

¹⁸ Judgment in Eurogate Distribution, paragraph 65.

¹⁹ In the words of the Court of Justice, ‘where, in circumstances such as those of the case in the main proceedings, … it transpires that the goods concerned did not enter the economic network of the European Union … no import VAT can be payable’ (judgment in Wallenborn Transports, paragraph 57).

²⁰ Judgment in Wallenborn Transports, paragraph 56. Italics added.

²¹ Judgment in Eurogate Distribution, paragraph 65.

²² Judgment in Wallenborn Transports, paragraph 56.

²³ Judgment in Eurogate Distribution, paragraph 65. Italics added.

²⁴ On that occasion, the Court found that the non-fulfilment of a specific customs obligation (entry of goods in the stock records) did not mean, in the circumstances of the case, that the goods had entered the EU’s economic network because it had been established that they were ultimately re-exported.

²⁵ According to the order for reference, in some cases, before being transported to Athens, the goods were placed under an external transit procedure at Paris airport, from where they were sent to Frankfurt am Main.

²⁶ Paragraph II. 3(b)(cc), fourth subparagraph, of the order for reference.

²⁷ FedEx was unable to furnish the referring court with documentary proof of payment of Greek VAT, which it attributes to the time elapsed since the goods were delivered in Greece (2007 and 2008).