CJ, 08-11-2012, nr. C-438/11

This reference for a preliminary ruling concerns the interpretation of Article 220(2)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2005 L 311, p. 17) (‘the Customs Code’).

The reference has been made in proceedings between Lagura Vermögensverwaltung GmbH (‘Lagura’), a German company, and the Hauptzollamt Hamburg-Hafen (Principal Customs Office of the Port of Hamburg; ‘the Hauptzollamt’), concerning the post-clearance recovery from Lagura of import duties relating to the importation of shoes into the European Union.

Lagura imported shoes into the European Union in 2007. Between the months of February and September of that year, Lagura made a number of customs declarations for the purposes of the release of the goods for free circulation within the European Union. By way of documents attesting to the origin of the goods, certificates of origin Form A were attached to the customs declarations, showing that the goods came from Macao and that they had been produced by S and V, companies which had their head offices in that region. On the basis of those documents, the duty charged by the Hauptzollamt on the shoe imports was applied, on each occasion, only at the preferential rate of 3.5%.

After receiving information according to which certain goods originating in China had been wrongly declared as coming from Macao in order to avoid payment of a non-preferential import duty, the Hauptzollamt arranged for an application to be made to the competent Macao authorities for subsequent verification of the certificates in accordance with Article 94 of Regulation No 2454/93, as amended by Regulation No 1602/2000. In the course of that verification, the Macao authorities confirmed that they had issued the certificates of origin for the goods in question but they were unable to verify the accuracy of the content of those certificates, as the companies who provided the information as exporters had ceased production and had therefore been closed down. Nevertheless, the Macao authorities did not invalidate the certificates of origin.

As the subsequent verification had not confirmed the origin of the goods, the Hauptzollamt held that they were of unknown origin. Accordingly, by three import duty notices respectively dated 21, 22 and 25 August 2008, the Hauptzollamt claimed, on the basis of Article 220(1) of the Community Customs Code, recovery of the difference between the customs duties calculated on the basis of the preferential rate of duty (3.5%) and those calculated on the basis of the normal rate of duty (7%).

After unsuccessfully challenging that post-clearance recovery of import duties, Lagura brought proceedings before the Finanzgericht Hamburg, the referring court, in which it invoked inter alia the principle of the protection of legitimate expectations, in accordance with Article 220(2)(b) of the Customs Code.

The Finanzgericht Hamburg is uncertain as to which party must bear the burden of proving that the certificate of origin was based on a correct or incorrect account of the facts by the exporter. In that regard, it points out that, in Case C-293/04 Beemsterboer Coldstore Services [2006] ECR I-2263, the Court of Justice ruled that the burden of proving that the certificate issued by the authorities of the non-member country was based on a correct account of the facts lies with the person liable for the duty, notwithstanding generally accepted rules on the allocation of the burden of proof according to which that burden rests with the customs authorities which wish to rely on the third subparagraph of Article 220(2)(b) of the Customs Code. Referring to paragraph 43 of Beemsterboer Coldstore Services, according to which the European Union cannot be made to bear the adverse consequences of the wrongful acts of the suppliers of importers, the referring court asks whether the burden of proof must perhaps be borne by the person liable for payment only in cases where the exporter has done something wrong.

In those circumstances, the Finanzgericht Hamburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

By its question, the referring court seeks to know, essentially, whether Article 220(2)(b) of the Customs Code must be interpreted as meaning that, if the competent authorities of the non-member country are unable, through a subsequent verification, to determine whether the certificate of origin Form A that they issued is based on a correct account of the facts provided by the exporter, the burden of proving that the certificate was based on a correct account of the facts provided by the exporter rests with the person liable for payment only where clarification is impossible owing to carelessness wholly attributable to the exporter, or also where the exporter is responsible for clarification being impossible, albeit not because of carelessness on its part, or where the cause of that impossibility is not attributable to the customs authorities of the exporting State.

At the outset, it should be noted in this connection that the purpose of the subsequent verification is to check the accuracy of the origin indicated in the certificate of origin Form A (see, by analogy, concerning movement certificates EUR 1, Case C-12/92 Huygen and Others [1993] ECR I-6381, paragraph 16; Case C—97/95 Pascoal & Filhos [1997] ECR I-4209, paragraph 30; Beemsterboer Cold Services, paragraph 32; and Case C-409/10 Afasia Knits Deutschland [2011] ECR I-0000 paragraph 43).

However, if subsequent verification does not confirm the origin of the goods as stated in the certificate of origin Form A, it must be concluded that those goods are of unknown origin and that, in consequence, the certificate of origin and the preferential tariff were wrongly granted (see, by analogy, Huygen and Others, paragraphs 17 and 18; Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, paragraph 16; Beemsterboer Cold Services, paragraph 34; and Afasia Knits Deutschland, paragraph 44).

Accordingly, if the authorities of the exporting State have issued incorrect certificates of origin Form A, the issue of those certificates must, under the second and third subparagraphs of Article 220(2)(b), be regarded as an error on the part of those authorities, unless it transpires that the certificates were based on an incorrect account of the facts provided by the exporter. If those certificates were issued on the basis of false statements by the exporter, post-clearance recovery of the import duties must be carried out as a consequence, unless, inter alia, it is clear that the authorities which issued those certificates knew, or ought to have known, that the goods did not meet the conditions necessary in order for them to receive preferential treatment (see, by analogy, Afasia Knits Deutschland, paragraph 48).

The referring court seeks to ascertain whether, in circumstances such as those in the case before it, the burden of proof that the certificates were based on false statements by the exporters rests with the Hauptzollamt or whether, on the contrary, it is for the person liable for payment — namely, Lagura — to prove that the exporters gave the competent Macao authorities an incorrect account of the facts.

It should be noted in this respect that, regarding allocation of the burden of proof, the Court has ruled that it is for the person liable for payment to prove that the EUR 1 movement certificate issued by the authorities of the non-member country was based on a correct account of the facts by the exporter, where it is impossible, as a result of negligence wholly attributable to the exporter and, in particular, if the exporter has failed to meet the obligation laid down in the applicable rules to keep the supporting documents for at least three years, for the customs authorities to adduce the necessary evidence themselves that the EUR.1 certificate was based on the accurate or inaccurate account of the facts provided by the exporter (see, to that effect, Beemsterboer Coldstore Services, paragraphs 40 and 46).

In placing on the person liable for payment the burden of proving that the exporters gave the competent authorities a correct account of the facts, such a requirement constitutes a derogation from the generally accepted rules on the allocation of the burden of proof, under which it is, in principle, for the customs authorities, who wish to rely on Article 220(2)(b) in order to carry out post-clearance recovery, to adduce in support of their claim the evidence that the incorrect certificates were issued because of the inaccurate account of the facts provided by the exporter (see Beemsterboer Coldstore Services, paragraphs 39 and 46).

It is necessary to determine the way in which the interpretation of Article 220(2)(b) of the Customs Code provided by the Court in Beemsterboer Coldstore Services should be applied to circumstances such as those in the case before the referring court.

Lagura contends that that interpretation cannot be transposed to the present case, which means that it is for the customs authorities of the importing State to adduce evidence of the inaccuracy of the exporters' statements on the basis of which the incorrect certificates of origin were issued. According to Lagura, that position is supported, in particular, by the fact that, unlike the situation in the case before the referring court in Beemsterboer Coldstore Services, it is not possible, in the present case, to identify any negligence whatsoever, wholly attributable to the exporters, which made it impossible for the customs authorities to adduce evidence that the certificate that they had issued had been based on an accurate or inaccurate account of the facts provided by that exporter. Specifically, Lagura contends that the exporters cannot be accused of failing to meet their obligation to keep the supporting documents. In addition, Lagura states that, by contrast with Beemsterboer Coldstore Services, the certificates of origin have not, in the present case, been invalidated or withdrawn by the competent Macao authorities.

The Czech and Italian Governments argue, as does the Commission, that, on the contrary, it is for the person liable for payment to show that the certificates were based on a correct account of the facts by the exporter.

It should be pointed out in this regard that the circumstances of the present case are different from those in the case which gave rise to the judgment in Beemsterboer Coldstore Services, in that the preferential arrangement has been established, not pursuant to a free trade agreement between a non-member country and the European Union, but unilaterally by the European Union, pursuant to Regulation No 980/2005.

Unlike the free trade agreement in question in Beemsterboer Coldstore Services, Regulation No 980/2005 does not place the exporter under any obligation to keep the supporting documents, owing to the fact that it is not possible for the European Union unilaterally to impose obligations on economic operators in non-member countries.

Accordingly, with regard to the argument that, in the present case, the burden of proof does not rest with the person liable for payment since the exporter cannot be accused of failing to keep the supporting documents, it must be stated that, since there is no such obligation under the relevant legislation in the present case, such an obligation obviously could not have been breached.

However, the absence of such an obligation on the exporter cannot, in itself, lead to a situation in which the person liable for payment is relieved of the duty to exercise all due diligence or freed from all risk as regards the verification and determination of the origin of the goods at the stage of a subsequent verification.

As the Court has repeatedly held, it is the responsibility of traders to make the necessary arrangements in their contractual relations in order to guard against the risks of an action for post-clearance recovery (Pascoal & Filhos, paragraph 60; order in Case C-299/98 P CPL Imperial 2 and Unifrigo v Commission [1999] ECR I-8683 paragraph 38; and Beemsterboer Coldstore Services, paragraph 41).

In particular, where the person liable for payment obtains from the other contracting party, on or after conclusion of the contract, all the necessary evidence confirming that the goods come from the State which is a ‘beneficiary country’ vis-à-vis the generalised tariff preferences scheme, including documents establishing that origin, this can constitute prevention of the risk of an action for post-clearance recovery.

Moreover, it should be emphasised that a situation where the customs authorities of the importing State had to prove the inaccuracy of the facts provided by the exporter, but were unable to do so owing to the exporter having ceased its activities, could create a risk of conduct incompatible with the objectives of the generalised tariff preferences scheme. Even if the cessation of production represents, in principle, an everyday economic decision, the possibility cannot be excluded that it could nevertheless constitute improper behaviour on the part of the exporter, designed to circumvent the rules of the generalised tariff preferences scheme, through being used by that exporter as a means of concealing the real origin of goods originating from a State which is not admitted to the preferential arrangements.

However, it is established that the European Union cannot be made to bear the adverse consequences of the wrongful acts of suppliers of importers (Pascoal & Filhos, paragraph 59, and Beemsterboer Coldstore Services, paragraph 43).

Also, as regards the argument that the certificates of origin in question have not been invalidated by the competent Macao authorities, it should be noted that it is undoubtedly true that, in relation to agreements between the European Union and non-member countries, such as association agreements or free trade agreements, the Court has held that the system of administrative cooperation can function only if the customs authorities of the State of import accept the determinations legally made by the authorities of the State of export (see Case 218/83 Les Rapides Savoyards and Others [1984] ECR 3105, paragraph 27; Joined Cases C-23/04 to C-25/04 Sfakianakis [2006] ECR I-1265, paragraph 23; Case C-442/08 Commission v Germany [2010] ECR I-6457, paragraph 72; and Afasia Knits Deutschland, paragraph 29).

However, the fact remains that the requirement for the customs authorities of the Member States to take into account the assessments made by the customs authorities of the exporting country does not arise in the same way where the preferential scheme is established not by an international agreement binding the European Union to a non-member country on the basis of reciprocal obligations, but by a unilateral EU measure (Faroe Seafood and Others, paragraph 24).

Accordingly, it must be held that, under the scheme of generalised tariff preferences established unilaterally by the European Union, the assessment made by the authorities of the exporting State as to the validity of certificates of origin Form A cannot be binding upon the European Union and its Member States when, as in circumstances akin to those of the case before the referring court, the customs authorities of the importing State continue to harbour doubts as to the true origin of the goods, despite the fact that those certificates of origin have not been invalidated.

A contrary approach, which would deprive the customs authorities of the importing State — in the context of proceedings before a court of that same State, such as those before the referring court — of the possibility of requesting proof that the certificate of origin was based on a correct or incorrect account of the facts by the exporter, would undermine the objective of the subsequent verification, which, as is apparent from paragraph 17 above, is to check at a later stage the accuracy of the origin of the goods as declared in the certificate of origin Form A.

It follows from the foregoing that, in circumstances such as those of the case before the referring court, the burden of proving that the certificate of origin was based on a correct account of the facts provided by the exporter rests with the person liable for payment.

It is true that the fact of imposing such a burden on the person liable for payment can be a source of inconvenience for that person, in particular where that person has, in good faith, imported goods from a State admitted to the system of generalised tariff preferences, the origin of which has later been called into question, owing to the allegedly false nature of statements made by the exporter, upon subsequent verification.

However, it should be borne in mind that a prudent trader aware of the rules must, in calculating the benefits from trade in goods likely to enjoy tariff preferences, assess the risks inherent in the market which he is considering and accept them as normal trade risks (see Case 827/79 Acampora [1980] ECR 3731, paragraph 8; Pascoal & Filhos, paragraph 59; and the order in CPL Imperial 2 and Unifrigo v Commission, paragraph 37).

In the light of all the foregoing, the answer to the question referred for a preliminary ruling is that Article 220(2)(b) of the Customs Code must be interpreted as meaning that if, owing to the fact that the exporter has ceased production, the competent authorities of the non-member country are unable, through a subsequent verification, to determine whether the certificate of origin Form A that they issued is based on a correct account of the facts by the exporter, the burden of proving that the certificate was based on a correct account of the facts by the exporter rests with the person liable for payment.

Since 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.

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

Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that if, owing to the fact that the exporter has ceased production, the competent authorities of the non-member country are unable, through a subsequent verification, to determine whether the certificate of origin Form A that they issued is based on a correct account of the facts by the exporter, the burden of proving that the certificate was based on a correct account of the facts by the exporter rests with the person liable for payment.

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