Provisional text
JUDGMENT OF THE GENERAL COURT (Second Chamber, sitting with five Judges)
21 October 2026 (*)
( Reference for a preliminary ruling – Taxation – Common system of VAT – Importation of goods – Article 2(1)(d) and Article 30 of Directive 2006/112/EC – Importation of a sailing boat into the European Union, without customs clearance, for the purpose of carrying out maintenance and repair work – Chargeable event and chargeability of VAT – Article 70 and Article 71(1) of Directive 2006/112 – Lack of authorisation to use the inward processing procedure – Customs Union – Union Customs Code – Extinction of the customs debt upon exit from the customs territory of the Union – Article 124(1)(k) of Regulation (EU) No 952/2013 – Concept of ‘goods that have been used’ )
In Case T‑383/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesfinanzhof (Federal Fiscal Court, Germany), made by decision of 18 February 2025, received by the Court on 28 May 2025, in the proceedings
Hauptzollamt A
v
Segelbootwartung,
THE GENERAL COURT (Second Chamber, sitting with five Judges),
composed of N. Półtorak, President, G. Hesse, G. Steinfatt, D. Petrlík (Rapporteur) and I. Dimitrakopoulos, Judges,
Advocate General: M. Brkan,
Registrar: P. Cullen, Administrator,
having regard to the transmission of the request for a preliminary ruling to the General Court by the Court of Justice on 12 June 2025, pursuant to the third paragraph of Article 50b of the Statute of the Court of Justice of the European Union,
having regard to the fact that the case concerns the areas referred to in points (a) and (c) of the first paragraph of Article 50b of the Statute of the Court of Justice of the European Union and the fact that there is no independent question relating to interpretation within the meaning of the second paragraph of Article 50b of that statute,
having regard to the written part of the procedure,
further to the hearing on 25 March 2026,
after considering the observations submitted on behalf of:
– Segelbootwartung, by M. Hanke and M. Hanke, Rechtsanwälte,
– the Greek Government, by K. Konsta, A. Magrippi, S. Papaioannou and M. Tassopoulou, acting as Agents,
– the European Commission, by P. Carlin, B. Eggers and F. Moro, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 3 June 2026,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 2(1)(d) and Articles 30, 70 and 71(1) 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’), as well as Article 124(1)(k) of Regulation (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) (‘the Customs Code’).
2 The request has been made in proceedings between the Hauptzollamt A (Main Customs Office A, Germany) (‘the Hauptzollamt’) and Segelbootwartung concerning the import duties and value added tax (VAT) on imports claimed from the latter for bringing a sailing boat into German territory.
The legal framework
European Union law
VAT Directive
3 Article 2 of the VAT Directive states:
‘1. The following transactions shall be subject to VAT:
…
(d) the importation of goods.
…’
4 Article 30 of the VAT Directive provides:
‘“Importation of goods” shall mean the entry into the [Union] of goods which are not in free circulation within the meaning of Article [29 TFEU].
…’
5 Under Article 60 of the VAT Directive:
‘The place of importation of goods shall be the Member State within whose territory the goods are located when they enter the [Union].’
6 Article 70 of the VAT Directive provides:
‘The chargeable event shall occur and VAT shall become chargeable when the goods are imported.’
7 Under Article 71 of the VAT Directive:
‘1. Where, on entry into the [Union], 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.
…’
Customs Code
8 Recital 38 of the Customs Code states:
‘It is appropriate to take account of the good faith of the person concerned in cases where a customs debt is incurred through non-compliance with the customs legislation and to minimise the impact of negligence on the part of the debtor.’
9 Under Article 79 of the Customs Code:
‘1. For goods liable to import duty, a customs debt on import shall be incurred when there is non-compliance with any of the following:
(a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory;
…
2. The time at which the customs debt is incurred shall be either of the following:
(a) the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met;
…
3. In cases referred to under points (a) and (b) of paragraph 1, the debtor shall be any of the following:
(a) any person that was required to fulfil the obligations concerned;
…’
10 Article 124 of the Customs Code provides as follows:
‘1. … a customs debt on import or export shall be extinguished in one of the following ways:
…
(k) where, subject to paragraph 6, the customs debt was incurred pursuant to Article 79 and evidence is provided to the satisfaction of the customs authorities that the goods have not been used or consumed and have been taken out of the customs territory of the Union.
…
6. In the case referred to in point (k) of paragraph 1, the customs debt shall not be extinguished in respect of any person or persons who attempted deception.
…’
11 Under Article 139 of the Customs Code:
‘1. Goods brought into the customs territory of the Union shall be presented to customs immediately upon their arrival at the designated customs office or any other place designated or approved by the customs authorities or in the free zone by one of the following persons:
(a) the person who brought the goods into the customs territory of the Union;
…’
12 Article 210 of the Customs Code states:
‘Goods may be placed under any of the following categories of special procedure:
…
(d) processing, which comprises inward and outward processing.’
13 Under Article 211 of the Customs Code:
‘1. An authorisation from the customs authorities shall be required for the following:
(a) the use of the inward or outward processing procedure, the temporary admission procedure or the end-use procedure;
…
2. The customs authorities shall grant an authorisation with retroactive effect, where all of [the conditions are set out in this paragraph are] fulfilled:
…
3. Except where otherwise provided, the authorisation referred to in paragraph 1 shall be granted only to persons who satisfy all of the following conditions:
(a) they are established in the customs territory of the Union;
(b) they provide the necessary assurance of the proper conduct of the operations; an authorised economic operator for customs simplifications shall be deemed to fulfil this condition, in so far as the activity pertaining to the special procedure concerned is taken into account in the authorisation referred to in point (a) of Article 38(2);
(c) where a customs debt or other charges may be incurred for goods placed under a special procedure, they provide a guarantee in accordance with Article 89;
(d) in the case of the temporary admission or inward processing procedure, they use the goods or arrange for their use or they carry out processing operations on the goods or arrange for them to be carried out, respectively.
4. Except where otherwise provided and in addition to paragraph 3, the authorisation referred to in paragraph 1 shall be granted only where all of the following conditions are fulfilled:
(a) the customs authorities are able to exercise customs supervision without having to introduce administrative arrangements which are disproportionate to the economic needs involved;
(b) the essential interests of Union producers would not be adversely affected by an authorisation for a processing procedure (economic conditions).
…’
14 Article 220 of that code provides:
‘Goods placed under customs warehousing or a processing procedure or in a free zone may undergo usual forms of handling intended to preserve them, to improve their appearance or marketable quality or to prepare them for distribution or resale.’
15 Under Article 256 of the Customs Code:
‘1. Without prejudice to Article 223, under the inward processing procedure non-Union goods may be used in the customs territory of the Union in one or more processing operations without such goods being subject to any of the following:
(a) import duty;
(b) other charges as provided for under other relevant provisions in force;
(c) commercial policy measures, in so far as they do not prohibit the entry or exit of goods into or from the customs territory of the Union.
2. The inward processing procedure may be used in cases other than repair and destruction only where, without prejudice to the use of production accessories, the goods placed under the procedure can be identified in the processed products.
In the case referred to in Article 223, the procedure may be used where compliance with the conditions laid down in respect of equivalent goods can be verified.
3. In addition to paragraphs 1 and 2, the inward processing procedure may also be used for any of the following goods:
(a) goods intended to undergo operations to ensure their compliance with technical requirements for their release for free circulation;
(b) goods which have to undergo usual forms of handling in accordance with Article 220.’
Delegated Regulation (EU) 2015/2446
16 Article 161 of Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation No 952/2013 as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1), provides:
‘By way of derogation from Article 211(3)(a) of the Code, the customs authorities may in occasional cases, where they consider it justified, grant an authorisation for the end-use procedure or the inward processing procedure to persons established outside the customs territory of the Union.’
German law
17 Under Paragraph 1 of the Umsatzsteuergesetz (Law on Turnover Tax) of 21 February 2005 (BGBl. 2005 I, p. 386), in the version applicable to the main proceedings:
‘(1) The following transactions shall be subject to turnover tax:
…
4. the importation of goods into the country …;
…’
18 Paragraph 21 of the Law on Turnover Tax provides:
‘…
(2) The rules governing customs duties apply mutatis mutandis to the tax on import turnover;
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
19 The defendant in the main proceedings, a natural person domiciled in Switzerland, crossed the German border by car, with a sailing boat registered in Switzerland in his name (‘the sailing boat’) on a boat trailer, without clearing customs. On the same day, he was subject to a customs inspection, during which he stated that he was travelling to the premises of company X, established in Germany, to have maintenance and repair work carried out on the sailing boat’s outboard motor. Following that inspection, the Hauptzollamt issued a notice setting out the customs duties and import VAT due in respect of the importation of the sailing boat into Germany.
20 After paying the import duties, the defendant in the main proceedings transported the sailing boat to the premises of company X to have maintenance and repair work carried out on it. That work consisted of modifying the centreboard mount, refitting the centreboard, checking the engine, repairing the fuel filtration system and replacing the exhaust gas treatment catalyst. The defendant in the main proceedings subsequently re-exported the sailing boat to Switzerland.
21 The defendant in the main proceedings lodged an appeal against the notice setting the customs duties and VAT on importation referred to in paragraph 19 above, which was dismissed. He then brought the matter before the Finanzgericht (Fiscal Court, Germany), which set aside that notice and the decision on the appeal against it. The Finanzgericht (Fiscal Court) held that a customs debt had arisen, since the defendant in the main proceedings had not submitted an explicit notification of presentation to customs or a customs declaration when he crossed the border with the sailing boat. It did, however, express doubts as to whether an import VAT debt had arisen in respect of the sailing boat. In any event, it held that that customs debt, as well as any import VAT debt, had been extinguished, in accordance with Article 124(1)(k) of the Customs Code, since the sailing boat had been re-exported to Switzerland without having been used or consumed within the customs territory of the European Union.
22 The Hauptzollamt lodged an appeal on a point of law against the judgment of the Finanzgericht (Fiscal Court) before the Bundesfinanzhof (Federal Fiscal Court, Germany), which is the referring court, arguing that the sailing boat had been ‘used’ within the meaning of Article 124(1)(k) of the Customs Code, since it had undergone unauthorised modification. Consequently, the customs debt was not extinguished despite the subsequent re-export of the sailing boat. Furthermore, an import VAT liability arose, as the modification constituted the provision of services in respect of the sailing boat, which thus entered the economic network of the European Union. The defendant in the main proceedings argues, in essence, that the customs debt was extinguished following the re-export of the sailing boat and that the boat could not have entered the economic network of the European Union, as the work carried out was limited to maintenance.
23 The referring court considers that a customs debt arose, in accordance with Article 79(1)(a) of the Customs Code, when the defendant in the main proceedings brought the sailing boat into the customs territory of the Union without carrying out the formal customs presentation required by Article 139(1) of that Code. However, that court has doubts, first, as to whether an import VAT liability arose, in addition to the customs debt, under Article 2(1)(d) of the VAT Directive. In particular, it questions whether the fact that the sailing boat was brought into the customs territory of the Union without being placed under a customs procedure and that it was the passive recipient of maintenance and repair services, without being actively used as a means of transport for the supply of goods or services, is sufficient to characterise entry into the economic network of the European Union, which alone allows for the presumption of consumption capable of triggering the chargeable event for VAT. Furthermore, the referring court asks whether the customs debt was extinguished, within the meaning of Article 124(1)(k) of the Customs Code, following the subsequent exit of the sailing boat from the customs territory of the Union. In so far as the maintenance and repair work could not be regarded as usual forms of handling within the meaning of Article 220 of the Customs Code, it is not certain that the sailing boat, although not having been placed under the inward processing procedure, had been used within the customs territory of the Union.
24 In those circumstances, the Bundesfinanzhof (Federal Fiscal Court) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Does a means of transport enter the economic network of the European Union if it is not used as a means of transport in a Member State, but a service (in the present case: maintenance and repair works) is performed on it?
(2) Is Article 124(1)(k) of the [Customs Code] to be interpreted as meaning that a non-Union good is used, within the meaning of that provision, if, within the customs territory of the Union, only maintenance or repair works are carried out on it, and the non-Union good is then re-exported?’
Consideration of the questions referred
The first question
25 As a preliminary point, it should be noted that, whilst the wording of the first question referred for a preliminary ruling does not refer to any provision of EU law, it is clear from the grounds of the request for a preliminary ruling that the referring court is seeking an interpretation of the provisions of Article 2(1)(d) and Articles 30, 70 and 71 of the VAT Directive, which are expressly cited in that request.
26 In those circumstances, it must be held that, by its first question, the referring court is essentially seeking to ascertain whether Article 2(1)(d) and Articles 30, 70 and 71 of the VAT Directive are to be interpreted as meaning that the unauthorised introduction of a means of transport from a third country into a Member State, where it is subsequently subjected to maintenance and repair work, before being re-exported outside the customs territory of the Union without having been used as a means of transport, constitutes an importation of goods subject to VAT.
27 In that regard, it should be noted, first of all, that, in accordance with Article 2(1)(d) of the VAT Directive, imports of goods are subject to VAT, and that, under the first paragraph of Article 30 of that directive, the entry into the Union of goods which are not in free circulation is deemed to be an importation of goods.
28 Next, Article 70 of the VAT Directive establishes the principle that the chargeable event occurs and VAT becomes chargeable at the time when the importation of goods takes place.
29 Finally, the first subparagraph of Article 71(1) of the VAT Directive provides, inter alia, that where goods have, since their entry into the Union, been subject to one of the customs procedures or situations referred to in that article, the chargeable event occurs and the tax becomes chargeable only at the time when the goods cease to be covered by that procedure or situation.
30 However, the second subparagraph of Article 71(1) of the VAT Directive addresses the specific situation in which, in the case of imported goods subject, in particular, to customs duties, the chargeable event occurs and the tax becomes chargeable when the chargeable event in respect of those duties occurs and those duties become chargeable.
31 In the present case, according to the information provided by the referring court, a customs debt arose pursuant to Article 79(1)(a) of the Customs Code, as the sailing boat was not presented to the customs office immediately after its entry into the customs territory of the Union, in breach of Article 139(1)(a) of that code.
32 It follows from the case-law that, in view of the parallel nature of import VAT and customs duties, as confirmed by the second subparagraph of Article 71(1) of the VAT Directive, 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 (see judgment of 18 January 2024, Hauptzollamt Braunschweig (Place where VAT is incurred – III), C‑791/22, EU:C:2024:59, paragraph 30 and the case-law cited). That would be the case, in particular, where goods have not been lawfully brought into the customs territory of the Union (see, to that effect, judgment of 10 July 2019, Federal Express Corporation Deutsche Niederlassung, C‑26/18, EU:C:2019:579, paragraph 46).
33 However, the Court has already held – in relation to goods unlawfully brought into the customs territory of the Union which could be consumed or used in several Member States – that the presumption of entry into the economic network may be rebutted if it is established that, despite breaches of customs regulations, which give rise to a customs debt on importation in the Member State where those breaches were committed, the goods in question were introduced into the economic network of the European Union via the territory of another Member State, where they were intended for consumption. In that case, the chargeable event for VAT on importation occurs in that other Member State (judgments of 10 July 2019, Federal Express Corporation Deutsche Niederlassung, C‑26/18, EU:C:2019:579, paragraph 48, and of 18 January 2024, Hauptzollamt Braunschweig (Place where VAT is incurred – III), C‑791/22, EU:C:2024:59, paragraph 31).
34 It is therefore necessary to consider whether the presumption that goods have entered the economic network may also be rebutted in a situation where the goods, which were unlawfully brought into the Union via the territory of a single Member State, were intended for consumption not in another Member State but outside the territory of the Union.
35 On that point, it is clear from the case-law that breaches of customs regulations alone do not, in themselves, constitute sufficient grounds for concluding that the goods in question have actually entered the economic network of the European Union. That may be the case even where such breaches have resulted in those goods no longer being under the supervision of the customs authorities, which were thereby deprived of the possibility of monitoring their movement (see, to that effect, judgment of 10 July 2019, Federal Express Corporation Deutsche Niederlassung, C‑26/18, EU:C:2019:579, paragraphs 50 to 52).
36 In addition, as VAT is by its very nature a tax on consumption, the entry of goods into the economic network of the European Union presupposes, at the very least, that those goods were intended for consumption or use within the territory of the Union (see, to that effect, judgments of 3 March 2021, Hauptzollamt Münster (Place where VAT is incurred), C‑7/20, EU:C:2021:161, paragraphs 31 to 35; of 8 September 2022, Hauptzollamt Hamburg (Place where VAT is incurred – II), C‑368/21, EU:C:2022:647, paragraph 33; and of 18 January 2024, Hauptzollamt Braunschweig (Place where VAT in incurred – III), C‑791/22, EU:C:2024:59, paragraph 33).
37 That is all the more so given that the presumption that goods unlawfully introduced into the customs territory of the Union enter the economic network of the European Union is justified, in particular, by the need to ensure competitive neutrality between goods from third countries and comparable goods from the Union. However, where it is established that goods originating in a third country were not intended for consumption or use within the territory of the Union, they are not, in principle, likely to compete with comparable goods originating in the Union.
38 In those circumstances, it must be held that the presumption that goods have entered the economic network of the European Union, as referred to in paragraph 32 above, may be rebutted where the person who unlawfully introduced goods into the customs territory of the Union establishes, on the basis of objective and verifiable evidence, that those goods were not intended for consumption or use within that territory.
39 In that regard, it should be noted, first of all, that means of transport are not normally, by their very nature, subject to consumption but to use (see, to that effect, judgment of 8 September 2022, Hauptzollamt Hamburg (Place where VAT in incurred – II), C‑368/21, EU:C:2022:647, paragraph 34).
40 Next, in order to rebut the presumption that the means of transport has entered the economic network of the European Union, the person who has unlawfully brought a means of transport into the customs territory of the Union must provide objective and verifiable evidence enabling the territory in which that means of transport is intended to be used to be determined or, at the very least, demonstrate that it is, in any event, intended for use outside the customs territory of the Union (see, by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 44).
41 In that context, particular account must be taken of the circumstances in which the transport of the goods took place over time, the place of residence of the owner or holder, the place where the goods are normally used, and the existence or absence of links which that owner or holder maintains, first, with the customs territory of the Union and, secondly, with third countries which may constitute the place of destination of that means of transport (see, by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraphs 45 and 46).
42 Furthermore, the intentions of the person who unlawfully brought the means of transport into the customs territory of the Union must be taken into account, as far as possible, provided that they are supported by objective and verifiable evidence (see, to that effect and by analogy, judgment of 18 November 2010, X, C‑84/09, EU:C:2010:693, paragraph 47).
43 Finally, it is important to note that the actual consumption or use of the goods within the customs territory of the Union means that they are deemed to have entered the economic network of the European Union. Consequently, it is for the person who unlawfully brought the goods into the customs territory of the Union to establish, in particular, that the goods left the customs territory of the Union without having been actually consumed or used there.
44 In that regard, it should be noted that, in principle, for such use to be regarded as ‘actual’, it must enable the property to be utilised in accordance with its specific function or intended purpose. By contrast, the mere fact that that means of transport is present within the territory of the Union or that it is the subject of operations intended to render it fit for such use is not sufficient to characterise its use as ‘effective’.
45 More specifically, the actual use of means of transport refers, in particular, to their use for the purpose of transporting people or goods.
46 By contrast, the movement of a means of transport to the place where it is actually used cannot, in itself, constitute actual use of that means of transport (see, to that effect and by analogy, judgment of 8 September 2022, Hauptzollamt Hamburg (Place where VAT is incurred – II), C‑368/21, EU:C:2022:647, paragraph 34).
47 In the present case, it is apparent from the information provided by the referring court that the defendant in the main proceedings is domiciled in Switzerland and that the sailing boat is registered in that country. Furthermore, it is not disputed that that sailing boat was brought into Germany solely for the purpose of carrying out maintenance and repair work and that it was re-exported to Switzerland once that work had been completed. Furthermore, there appears to be nothing in the file to establish the existence of any particular links between that sailing boat and Germany, apart from the carrying out of the aforementioned works. Those factors tend to indicate that the sailing boat was not intended for use as a means of transport in Germany or in another Member State, which it is for the referring court to verify.
48 Moreover, although the sailing boat is a means of transport intended for navigation, it is apparent from the uncontested submissions of the defendant in the main proceedings that the sailing boat was transported into German territory on a trailer and was not used for navigation within that territory.
49 In addition, it is apparent from the information provided by the referring court that that sailing boat was transported to company X for maintenance and repair work and was subsequently re-exported to Switzerland.
50 It follows from the very nature of that work – which consisted of modifying the centreboard mount, refitting the centreboard, checking the engine, repairing the fuel filtration system and replacing the exhaust gas treatment catalyst, that the sole purpose of that work was to render the sailing boat fit for use in accordance with its specific function and intended purpose, namely navigation. Merely carrying out such work does not constitute the owner or keeper of a sailing boat making use of it in accordance with its function or intended purpose.
51 Moreover, it is irrelevant in that regard that such works may, as supplies of services for consideration within the territory of a Member State within the meaning of Article 2(1)(c) of the VAT Directive, be subject to VAT. In so far as the possible chargeability of VAT in respect of those services is independent of that of import VAT, those services must be regarded as transactions distinct from the importation of the sailing boat, even if that work resulted in an increase in its value.
52 It follows that the mere fact that the sailing boat underwent repair and maintenance work in Germany before subsequently being re-exported to Switzerland cannot be regarded as constituting actual use of that means of transport within the customs territory of the Union.
53 Consequently, if the defendant in the main proceedings establishes, on the basis of objective and verifiable evidence, that the sailing boat was not intended for use in Germany or in another Member State, in particular because, first, it was not intended to be used in that way and, secondly, the sailing boat was re-exported to Switzerland without having been actually used within the customs territory of the Union – a point which it is for the referring court to verify – no import VAT would be payable.
54 Contrary to the Greek Government’s contention, such a conclusion does not call into question the practical effect of the first subparagraph of Article 71(1) of the VAT Directive, which makes the suspension of the chargeable event for VAT on importation conditional upon the goods being placed under one of the customs procedures or in one of the situations expressly provided for in that provision.
55 Economic operators who bring goods into the Union under one of the customs procedures provided for in the first subparagraph of Article 71(1) of the VAT Directive remain incentivised to place the goods in question under that customs procedure, since, if they did not do so, they would face, on the one hand, the creation of a customs debt and, where applicable, penalties for customs infringements and, on the other hand, the burden of rebutting, on the basis of the criteria set out in paragraph 38 above, the presumption that the goods have entered the economic network of the European Union in order to avoid their being subject to VAT.
56 Likewise, the conclusion set out in paragraph 53 above is not contradicted by the case-law according to which, where goods have been seized and confiscated after going beyond the first customs office situated inside the customs territory of the Union, the chargeable event for VAT has already occurred and the VAT has become chargeable as a result (judgments of 29 April 2010, Dansk Transport og Logistik, C‑230/08, EU:C:2010:231, paragraph 94, and of 7 April 2022, Kauno teritorinė muitinė, C‑489/20, EU:C:2022:277, paragraph 50).
57 In the cases giving rise to the judgments referred to in paragraph 56 above, the goods at issue – namely cigarettes unlawfully brought into the Union – were, by their very nature and in the light of the circumstances of their introduction, intended for consumption within the territory of the Union. The question of whether the presumption that the goods had entered the economic network of the European Union could be rebutted therefore did not arise, since the conditions set out in paragraph 38 above were not likely to be satisfied.
58 In the light of all the foregoing considerations, the answer to the first question is that Article 2(1)(d) and Articles 30, 70 and 71 of the VAT Directive must be interpreted as meaning that the unauthorised introduction of a means of transport from a third country into the customs territory of the Union does not constitute an importation of goods subject to VAT, where it is established, on the basis of objective and verifiable evidence, that such a means of transport was not intended for use within that territory and that it was re-exported without having been actually used within that territory.
The second question
59 By its second question, the referring court asks, in essence, whether Article 124(1)(k) of the Customs Code must be interpreted as meaning that the fact that goods have, prior to their re-export, undergone maintenance and repair work within the customs territory of the Union constitutes use of those goods within the meaning of that provision, where that work was not authorised as a processing operation under the inward processing procedure.
60 In accordance with Article 124(1)(k) of the Customs Code, the customs debt arising under Article 79 of that Code is to be extinguished where, provided that the person concerned has not attempted deception within the meaning of Article 124(6) of that code, it is proved that the goods have not been used or consumed and that they have left the customs territory of the Union.
61 Article 124(1)(k) of the Customs Code must be interpreted in the light of recital 38 of that code, according to which account must be taken of the good faith of the person concerned in cases where a customs debt arises as a result of non-compliance with customs legislation, and the impact of any negligence on the part of the debtor must be minimised.
62 In that regard, the Court has already had occasion to clarify that Article 124(1)(k) of the Customs Code, read in the light of recital 38 and in conjunction with Article 124(6) of that code, is intended to allow, in the absence of any attempt at deception, the extinction of the customs debt arising under Article 79 of that code in cases where, despite non-compliance with certain conditions or obligations arising from that Code, it is proven that the goods have not been used in such a way that justifies the imposition of duties and that they have left the customs territory of the Union (judgment of 8 October 2020, Combinova, C‑476/19, EU:C:2020:802, paragraph 32).
63 Thus, the concept of ‘goods that have been used’, within the meaning of Article 124(1)(k) of the Customs Code, must be understood as covering not all use but only such use giving rise, on its own, to a customs debt (judgment of 8 October 2020, Combinova, C‑476/19, EU:C:2020:802, paragraph 33).
64 Furthermore, failure to comply with the formal requirements laid down in the Customs Code cannot, in itself, preclude the application of certain provisions of that code intended to mitigate the consequences of a breach of customs obligations, including the provision set out in Article 124(1)(k) of that code, since those provisions are specifically designed to apply in situations arising from such a breach. Article 124(1)(k) of the Customs Code would thus be largely deprived of its practical effect if it were interpreted as not being applicable where the goods have not been placed under the inward processing procedure (see, to that effect and by analogy, judgment of 12 June 2025, Palmstråle, C‑125/24, EU:C:2025:431, paragraph 33).
65 Consequently, the mere fact that the processing operations were not formally authorised under the inward processing procedure cannot, in itself, prevent the customs debt from being extinguished where the conditions laid down in Article 124(1)(k) of the Customs Code, read in the light of recital 38 thereof, are otherwise satisfied.
66 Therefore, as the Commission pointed out in its written observations, where a transaction involving goods within the customs territory of the Union does not, in itself, give rise to a customs debt, since it has the characteristics of a transaction that could have been authorised under the inward processing procedure, that operation cannot be classified as use within the meaning of Article 124(1)(k) of the Customs Code, notwithstanding the absence of formal authorisation for that operation under such a procedure (see, to that effect, judgment of 8 October 2020, Combinova, C‑476/19, EU:C:2020:802, paragraph 35).
67 In those circumstances, it is for the referring court to determine whether the maintenance and repair work has such characteristics that it could have been authorised under the inward processing arrangements.
68 In that regard, the referring court must, in particular, examine, first, whether the maintenance and repair work, in itself, fell within the scope of the inward processing arrangements, as defined in Article 256 of the Customs Code.
69 Secondly, it is for the referring court to verify whether the defendant in the main proceedings met the conditions required for the grant of authorisation to use the inward processing procedure.
70 In that regard, it should be noted that the Customs Code provides for the possibility of granting authorisation to use the inward processing procedure with retroactive effect where the conditions set out in Article 211(2) of that code are met. Thus, in order to ensure that that provision is not deprived of its practical effect, those conditions must also be met where a court is required to assess retrospectively whether certain transactions could have been authorised under that procedure.
71 In that context, it should also be noted that Article 161 of Delegated Regulation 2015/2446 provides that, by way of derogation from Article 211(3)(a) of the Customs Code, authorisation to use the inward processing procedure may, where the issue of such authorisation is deemed to be justified, be granted on an ad hoc basis to persons established outside the customs territory of the Union.
72 If, following verification by the referring court in accordance with paragraphs 67 to 70 above, it transpires that the maintenance and repair work could have been authorised under the inward processing procedure, the carrying out of that work cannot be regarded as use of the sailing boat within the meaning of Article 124(1)(k) of the Customs Code.
73 In that regard, it should be added that that conclusion does not affect the practical effect of Article 210 of the Customs Code, which provides for the placement of goods under one of the specific customs procedures.
74 As is apparent from paragraph 55 above, economic operators who bring goods into the Union that may be covered by the inward processing procedure remain incentivised to place those goods under that procedure, since the use of such a procedure prevents a customs debt from arising and thus exempts them from having to apply for its discharge at a later date.
75 In the light of all the foregoing considerations, the answer to the second question is that Article 124(1)(k) of the Customs Code must be interpreted as meaning that the fact that goods have, prior to their re-export, undergone maintenance and repair work within the customs territory of the Union does not constitute use of those goods within the meaning of that provision, where such work could have been authorised under the inward processing procedure.
Costs
76 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.
On those grounds,
THE GENERAL COURT (Second Chamber, sitting with five Judges)
hereby rules:
1. Article 2(1)(d) and Articles 30, 70 and 71 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 unauthorised introduction of a means of transport from a third country into the customs territory of the European Union does not constitute an importation of goods subject to value added tax (VAT), where it is established, on the basis of objective and verifiable evidence, that such a means of transport was not intended for use within that territory and that it was re-exported without having been actually used within that territory.
2. Article 124(1)(k) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code
must be interpreted as meaning that the fact that goods have, prior to their re-export, undergone maintenance and repair work within the customs territory of the Union does not constitute use of those goods within the meaning of that provision, where such work could have been authorised under the inward processing procedure.
|
Półtorak |
Hesse |
Steinfatt |
|
Petrlík |
Dimitrakopoulos |
Delivered in open court in Luxembourg on 21 October 2026.
[Signatures]
* Language of the case: German.