C-368/92
ECLI:EU:C:1993:842
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CHIFFRE
OPINION OF MR ADVOCATE GENERAL GULMANN delivered on 13 October 1993
Mr President, the system of preferences are laid down Members of the Court, separately by the individual industrial coun tries.
1. The question referred to the Court by the Cour d'Appel, Toulouse, arises from a dis 3. It is common ground between the parties pute between the French Customs Author that the goods which the customs agent ities and a customs agent and concerns the imported in 1987 and 1988 on behalf of a conditions for obtaining exemption from French client are entitled to exemption from duties on the importation of certain goods duties under the Community rules in force if from India. the French customs authorities accept that there is proper documentation to show that the goods originate from India.
2. The relevant provisions on exemption from duties are part of the European Com munity's generalized tariff preferences for goods originating in developing countries. In connection with the customs declaration, As is well known, the generalized system of the customs agent produced a number of cer preferences — GSP — has its background in tificates of origin certified by the Indian the Resolution adopted by UNCTAD's Sec authorities. Box 12 of the certificates of ori ond Conference in 1968 whereby the indus gin, which is completed by the exporter, trial countries are to grant generalized tariff states in the English version used in the case: preferences to developing countries. The sys tem is now adapted to the individual devel oping country's economic circumstances and to a certain extent different rules apply to different types of goods. In the present case it is significant that the conditions governing entitlement to exemption from duties under 'The undersigned hereby declares that the above details and statements are correct; that all the goods were produced in ..., and that * Original language: Danish. they comply with the origin requirements
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specified for those goods in the generalized or one of the Member States. Since neither system of preferences for goods exported the European Economic Community nor a to ...'. 1 Member State was indicated by the customs agent in the certificates of origin as the coun try to which the goods were to be exported, the French Customs Authorities took the view that the conditions for granting exemp tion from duties were not fulfilled and issued a demand inter alia for payment of the 7% It appears from the certificates of origin pro duty normally applicable to goods of the duced by the customs agent that the goods kind in question. originated in India; in some of the certificates it is stated that they are to be exported to the Czechoslovak Socialist Republic and in other certificates to the Polish People's Republic.
5. The customs agent had informed the French authorities that Box 12 was com pleted as it was because compensatory pur In Box 11 it is certified by the competent chases between East European countries and Indian authorities 'on the basis of control India were involved. According to the infor carried out, that the declaration by the mation supplied by the agent, this arose 2 exporter is correct'. because the East European countries sold material to India where purchasers, who did not have foreign exchange available, paid in goods, inter alia skins and clothes, and since the East European countries did not need those goods they sold them on other mar kets, for example, France, and the goods 4. It appears from the Community rules were sent directly to the purchasers. applicable in 1987 and 1988 in connection with the exemption from duties of the goods 3 in question that Box 12 in the certificate of origin should properly be completed by indicating 'European Economic Community'
6. The customs agent, which considers that 1 — The certificates, which are set out on standard forms, are drawn up in English or French. it is entitled to exemption from duties, claims 2 — The French version reads 'Il est certifié, sur la base du that the customs debt arises solely as a con contrôle effectué, que la déclaration de l'exportateur est exacte'. sequence of the movement of goods — it is 3 — The relevant regulations are, respectively, Regulation quite clear that the goods originate from No 3749/83 (Official Journal 1983 L 372, p . 1) and Regula tion No 693/88 (Official Journal 1988 L 77, p . 1), both being India — and not as a consequence of the cer regulations 'on the definition of the concept of originating tificates. It considers that the French Cus- products for purposes of the application of tariff preferences granted by the European Economic Community in respect of certain products from developing countries'. The 1983 regulation is applicable to imports in 1987 whereas the 1988 regulation is applicable to imports in 1988. The provisions that are relevant as far as the reply to the question referred to 4 — See Note 8 in Annex I to the 1983 Regulation and Note 9 in the Court is concerned are identical in both regulations. Annex I to the 1988 Regulation.
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toms Authorities, in line with earlier cases, The Commission and the French, Belgian should enable exemption from duties to be and UK Governments contest that view. granted by means of allowing the certificates to be rectified.
7. The Cour d'Appel, which inter alia must decide whether exemption from duties may be granted, referred the following question to the Court for a preliminary ruling: 9. In my opinion there is no ground for doubting that the Community rules in ques tion must be understood as meaning that there is no basis for the French Customs 'Is the benefit of the preferential treatment Authorities to grant exemption from duties granted by the EEC to developing countries, in a case where Box 12 is completed with an resulting in exemption from customs duties, indication that export is to take place to a necessarily lost when the certificate of origin country other than a European Community Form A issued on the export of the products Member State. refers to a State other than a Member State of the EEC?'
In connection with that question the Cour d'Appel referred to various provisions in the relevant Community regulations which might empower the customs authorities to rectify the certificates of origin or provide a basis for accepting exemption from duties in Exemption from duties is granted under the some other way. Community rules provided there is docu mentary proof that the goods originate in the country to which the European Community grants exemption from duties. It is the Euro pean Community which independently lays The question whether the French Customs down the criteria for deciding whether goods Authorities can ignore the fact that Box 12 in are to be regarded as originating in the State the certificates of origin is not completed to whose goods the European Community properly grants exemption from duties. The certifi cates of origin produced in the case contain information from the exporter that the goods are to be exported to two countries which are not members of the European Commu 8. The customs agent is, as stated, basically nity and it is that information which is certi of the opinion that what is involved is a mis fied by the competent Indian authorities. It take of form, which can be rectified. is thus clear that on the basis of the certifi-
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cates of origin produced there is no certainty products are located'. It is claimed by the that the Community origin rales have been UK and French Governments, and undis complied with. The certificates of origin are puted in the course of the proceedings, that therefore defective and the defect involved is Article 22 concerns the situation where a not merely of a formal land, since it cannot consignment originally destined for a Mem be excluded that the origin rules in the coun ber State is to be sent on in whole or in part tries to which, according to the certificates, to one or several other Member States before the goods are to be exported, may be differ it is released into free circulation. ent from the Community origin rules. Fur thermore, according to the information avail able, it appears that in fact the origin rules of Czechoslovakia at least were different from the Community rules.
The question whether the exporting country can retrospectively issue new certificates of origin
10. Accordingly it is also clear that the pos sibility accorded in Article 12 of the two rel evant regulations to the customs authorities in the Member States of rectifying the infor mation in certificates of origin cannot be 12. There is disagreement between the used in the present case. Article 12 provides French Government on the one hand and the that 'slight discrepancies between the state Commission and UK and Belgian Govern ments made in the certificate and those made ments on the other on the point whether the in the documents produced to the customs provision laid down in Article 23 of the rel office for the purpose of carrying out the for evant regulations also authorizes the retro malities for importing the products shall not spective issue of fresh certificates of origin ipso facto render the certificate null and void, by which the Indian authorities would con provided it is duly established that the cer firm the Indian origin of the goods in a case tificate corresponds to the products con where the export referred to in Box 12 is to cerned'. In the circumstances described it is one of the Member States of the European not a question of 'slight discrepancies'. Community.
11. It appears equally clear to me that the special provision concerning the replacement 13. Article 23 provides: of certificates of origin contained in Arti cle 22 of the regulation cannot be applied in connection with the present case. According to the provision it shall 'always be possible to replace one or more certificates of origin Form A by one or more other such certifi cates, provided that this is done at the cus '1 . In exceptional cases, a certificate may be toms office in the Community where the issued after the actual exportation of the
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products to which it relates, if it was not even if they are issued retrospectively, that is issued at the time of exportation as a result to say after the importation of the goods into of errors involuntarily made or omissions or the Community. It is claimed that the certifi other special circumstances, and provided cates of origin produced in the case may be that the goods were not exported before the regarded as non-existent in relation to the communication to the Commission of the Community rules. European Communities of the information required by Article 26.
2. The appropriate governmental authority may issue a certificate retrospectively only 16. In my opinion it is quite clear that retro after verifying that the particulars contained spective issue of certificates of origin may in the exporter's application agree with only take place when the competent authori those contained in the corresponding export ties in the exporting country are in a posi documents and that no certificate of origin tion, on the basis of the information avail was issued when the products in question able, to certify the information which the were exported.' exporter has provided in that connection in Box 12. It is also clear that such retrospectively-issued certificates may only give entitlement to exemption from duties if the certificates are issued within any appli cable time-limits and it is possible to import 14. The French Government claims that in the goods within any applicable tariff quotas. the present situation that provision does not afford a basis for the retrospective issue of the certificate of origin. It refers to the fact that the provision lays down that certificates of origin should not previously have been issued at the time of exportation of the goods in question and claims, moreover, that it would be difficult for the Indian authori ties in a situation such as this to certify that Once those conditions are satisfied, however, the goods originated in India under the in my view it is proper to adopt the UK and Community's origin rules. Belgian Government's interpretation of Article 23, and allow that that provision pro vides a basis for accepting retrospectively- issued certificates of origin in a situation such as that before the Court. There do not appear to be any fundamental reasons relat 15. The Commission and the other two ing to customs administration militating Governments consider that it may be pos against such an interpretation and there do sible in a situation such as the present to not seem to be any grounds for interpreting obtain customs exemption on the basis of the Community rules in such a way as to properly completed certificates of origin prevent exemption from duties being
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obtained on the importation of goods from interpretation would mean that the importer developing countries. Such a restrictive inter had no legal remedy and that such a result pretation would run counter to the consider would be disproportionate to the purpose of ations underlying the generalized preference the regulations which is to grant exemption system. It is in my view correct to state, as for certain goods originating in developing the UK Government does, that a restrictive countries.
Conclusion
17. On the above grounds, I would suggest that the Court reply as follows to the question referred to it:
Entitlement to exemption from duties in connection with the system of preferences granted by the European Community to developing countries is lost where, in the certificate of origin Form A, a country of destination other than a Member State of the European Community is indicated.
The authorities of the importing State may not, however, refuse exemption from duties when, after importation, a properly completed certificate of origin Form A is presented, even if, because of special circumstances, a certificate produced earlier indicated a country of destination other than a Member State of the European Community.
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