C-97/95

OPINION OF MR COSMAS — CASE C-97/95

OPINION OF ADVOCATE GENERAL COSMAS delivered on 14 November 1996 *

Table of Contents

I — Legal framework I - 4212

A — Council Decision 86/283 I - 4212

B — Other Community Legislation I - 4217

D — The fourth and fifth questions I - 4233

E — The seventh question I - 4237

V — Conclusion I - 4238

1. In the context of a legal dispute concern­ I — Legal framework ing the lawfulness of post-clearance recovery of import duties , the Tribunal Tributario de Segunda Instância (Tax Court of Second Instance ), Lisbon , referred to the Court of A — Council Decision 86/283 Justice certain preliminary questions which it considers necessary in order to resolve the litigation pending before it.

2. By Decision 86 / 283 / EEC 1 (hereinafter the 'Decision' ), the Council laid down a

1 — Council Decision 86/283/EEC of 30 June 1986 on the asso­ ciation of the overseas countries and territories with the * Original language: Greek. European Economic Community (OJ 1986 L 175, p. 1).

4. In accordance with Article 182 the Coun­ cil Decision is to enter into force on 1 July 'For the purpose of implementing the 1986, whilst in accordance with Article 183 Decision and without prejudice to para­ the decision was to apply until 28 February 2 graphs 3 and 4, the following products shall 1990. be considered:

5. In accordance with Article 184(1), the (...) countries and territories to which the Coun­ cil Decision is to apply are listed in Annex I.

(b) products originating in the countries and territories: 6. Annex I contains a 'list of the countries and territories referred to in Article 1' to which Council Decision 86/283 is to apply, including Greenland, as a country having 1. products wholly obtained in one or more countries or territories;

2 — With effect from 1 March 1990 Council Decision 91/482/EEC of 25 July 1991 on the association of the over­ seas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1) began to apply. In accord­ ance with Article 240(1) that decision is to apply for a period of 10 years. (...)'

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12. Article 6(1)(a) provides as follows:

'1 . The movement certificate EUR.1 shall be issued by the customs authorities of the 'Evidence of products' originating status, exporting Member State, country or territory within the meaning of this Annex, is given if the goods can be considered "originating by a movement certificate EUR.1 (...),'. products" within the meaning of this Annex.

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2. For the purpose of verifying whether the accordance with the procedures laid down conditions stated in paragraph 1 have been by that Member State, country or territory. met, the customs authorities shall have the The said authorities may (...) also require the right to call for any documentary evidence import declaration to be accompanied by a or to carry out any check which they con­ statement from the importer to the effect sider appropriate. that the goods meet the conditions required for the implementation of the Decision.'

(...).'

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particulars for the purpose of obtaining a that the particulars given on the said certifi­ movement certificate EUR.1 (...).' cate (...) are inaccurate.

(...)

19. Finally, Article 25 provides as follows:

3. The customs authorities of the importing Member State, country or territory shall be informed of the results of the verification within three months. These results must be such as to make it possible to determine whether the disputed movement certificate EUR.1 (...) applies to the goods actually '1 . Subsequent verification of movement cer­ exported, and whether these goods can, in tificates EUR.1 (...) shall be carried out at fact, qualify for the application of the prefer­ random or whenever the customs authorities ential arrangements. of the importing Member State, country or territory have reasonable doubt as to the authenticity of the document or the accuracy of the information regarding the true origin of the goods in question. When such disputes cannot be settled between the customs authorities of the importing Member State, country or terri­ tory and those of the exporting Member State, country or territory, or when they raise a question as to the interpretation of this Annex, they shall be submitted to the Committee on Origin set up under Council 2. For the purpose of implementing para­ Regulation (EEC) No 802/68 of 27 June graph 1, the customs authorities of the 1968 on the common definition of the con­ importing Member State, country or terri­ cept of the origin of goods. tory shall return the movement certificate EUR.1 (...) or a photocopy thereof, to the customs authorities of the exporting Member State, country, or territory, giving, where appropriate, the reasons of form or substance for an inquiry. The invoice, if it has been In all cases the settlement of disputes submitted, or a copy thereof shall be between the importer and the customs attached to certificate EUR.1 (...) and the authorities of the importing Member State, customs authorities shall forward any infor­ country or territory shall be under the legis­ mation that has been obtained suggesting lation of the said State, country or territory.'

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tion or the time of any other act which, in whose name the declaration or any other in accordance with the provisions in act with the same legal effects was made. force, has the same effect in law as such acceptance.

(...).' (···)·'

25. The second paragraph of Article 14 pro­ vided that Regulation No 2144/87 was to 28. The second paragraph of Article 12 pro­ apply with effect from 1 January 1989. vided that Regulation No 1031/88 was to apply from 1 January 1989.

26. Council Regulation (EEC) No 1031/88 of 18 April 1988 concerns the determination of the persons liable for payment of a cus­ toms debt. 5 29. Article 251 of Council Regulation (EEC) No 2913/92 of 12 October 1992 on the 6 Common Customs Code (CCC) repealed, inter alia, both Regulations Nos 2144/87 and 1031/88.

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

32. Pursuant to the second paragraph of Article 253 the CCC applied as from 1 Janu­ (a) the release for free circulation of goods ary 1994. liable to import duties, or

33. Council Regulation (EEC) No 1697/79 (b) the placing of such goods under the tem­ of 24 July 1979 governs the post-clearance porary importation procedure with par­ recovery of import or export duties which tial relief from import duties. have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay 7 such duties.

2. A customs debt shall be incurred at the time of acceptance of the customs declara­ 34. Article 2 is as follows: tion in question.

'1 . Where the competent authorities find that all or part of the amount of import 3. The debtor shall be the declarant. In the event of indirect representation, the person on whose behalf the customs declaration is 7 — OJ 1979 L 197, p. 1. As from 1 January 1994 those matters made shall also be a debtor. are governed by the CCC, already cited above at footnote 6.

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'1 . Import duties may be repaid or remitted in special situations (...) which result from circumstances in which no deception or 1. (...)

8 — OJ 1979 L 175, p. 1. These matters are governed as from 1 January 1994 by the CCC, cited above at footnote 6. 9 — OJ 1986 L 286, p. 1. 10 — OJ 1986 L 352, p. 19.

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2. The following situations shall not by 39. The Portuguese authorities allowed all themselves be special situations resulting the consignments to be imported into the from circumstances in which no deception or Community free of duty. The import decla­ obvious negligence may be attributed to the rations were made by Pascoal on 23 and 30 person concerned: September 1988 and on 25 July 1989.

(...) 40. Subsequently, the Portuguese customs authorities requested the Greenland customs authorities to carry out a post-clearance check, in cooperation with representatives of the Commission, as to the accuracy of the (c) production, even in good faith, for the EUR.1 certificates which had been issued for purpose of securing preferential tariff the abovementioned consignments. treatment of goods entered for free cir­ culation, of documents subsequently found to be forged, falsified or not valid for the purpose of securing such prefer­ ential tariff treatment.'

'Movement certificates EUR.1 Nos 76 106 of 19 September 1988 ... 76 092 of 6 September 1988, 77 525 of 14 July 1989 and 77 526 of 14 July 1989: it has been established on the basis of the relevant documentation provided by 44. Taking the view that it was bound by the the abovementioned company that the quan­ abovementioned communication and with­ tities of Greenland fresh codfish delivered out proceeding to conduct further measures for further processing on board of the con­ of inquiry as to the actual origin of the cerned factory ships are not sufficient, goods, the Conferência Final da Alfândega according to the communicated processing (Final Customs Assessment Office), Oporto , yield, in order to obtain the quantities of fin­ applied the procedure for post-clearance ished products which have been imported recovery against Pascoal in respect of the into the EEC with the said movement cer­ four consignments of cod. That procedure tificates (...).' culminated in the adoption of assessments to duty amounting in total to ESC 61 709 940.

it did not provide an adequate legal state­ resulting from the cancellation of move­ ment of the reasons on which the assessment ment certificates EUR. 1 issued on the was based; (b) that authority infringed Com­ basis of false information as to the ori­ munity legislation because the preconditions gin of the goods? for post-clearance recovery were not met and, moreover, there was an error of calcula­ tion. Thereupon Pascoal brought proceed­ ings before the Tribunal Fiscal Aduaneiro (Customs Court), Oporto, to have the (b) What is the meaning and scope of the assessments set aside. That court deemed the modal adverb "also" used in the second communication by the Greenland authorities subparagraph of Article 201(3) of the to constitute a sufficient statement of reasons Community Customs Code, in particu­ and dismissed the action as unfounded. lar where the national customs law pro­ vides that responsibility for payment of the duties due in respect of the goods involved in the infringement attaches exclusively to the person who commit­ ted the customs infringement? 47. Subsequently, Pascoal appealed against the dismissal of its action to the Tribunal Tributário de Segunda Instância (Tax Court of Second Instance), Lisbon. (c) May the rule in the judgment of the Court of Justice of the European Com­ munities of 7 December 1993 in Case C-12/92 E. Huygen, published at pages Ill — The preliminary questions 5 and 6 of Proceedings of the Court of Justice No 35/93, although relating to the Free Trade Agreement between the EEC and Austria, apply to the circum­ stances of this case, which concerns the interpretation and application of Coun­ 48. The national court, continuing to have cil Decision 86/283/EEC? doubts as to the interpretation of certain Community provisions which govern, in its view, the resolution of the dispute, submitted the following questions to the Court for a preliminary ruling, by an order dated 29 (d) What is the meaning, purport and scope November 1994: of the results of the verification referred to by Article 25(3) of Annex II to Council Decision No 86/283/EEC?

A — The first and second questions (f) Does the levying of an importer acting in good faith of the duties payable on goods in respect of which an exporter has committed a customs offence, in which the importer was in no way involved, infringe the principles of jus­ tice, prohibition of enrichment at the expense of others, proportionality, legal 50. In the first and second questions the certainty and good faith? national court is asking the Court to define the scope of an exporter's responsibility under Article 10(1) of Annex II to the Decision, and Article 201(3) of the Commu­ nity Customs Code and, specifically, (g) Since the customs authorities in the whether the exporter is liable to pay the country of exportation neglected to duties imposed after invalidation of the carry out a prior inspection of the EUR.1 goods movement certificates which exporter's warehouses before issuing the were issued on the basis of a false declaration movement certificates EUR.1, and since as to the origin of the goods. the Portuguese importer cannot remedy the situation arising from such negli­ gence, does that situation not constitute a case oi f orce majeure for the importer, precluding the procedure for post- clearance recovery commenced against it?' 51. Even though it realizes that the CCC entered into force after the debt arose (end of section 3 of order for reference), the national court seeks an interpretation of IV — Replies to the preliminary questions Article 201 of the CCC , deeming it to repro­ duce the previous superseded legislation. It has in contemplation Articles 2 and 3 of Regulation No 1031/88 concerning the same 13 question. 49. I consider it expedient to examine the questions submitted in five units, as follows: first, I will analyse the first and second, then 13 — Cited above at footnote 5.

54. The Commission maintains that the CCC applies only to the customs territory of the Community which, in accordance with Article 3 thereof, does not include Greenland. It also stresses that, under Article 2(2) of the CCC , certain of its provisions apply outside the Community customs terri­ 56. However, that construction is based tory in the framework either of special pro­ on a misapprehension of the Community visions or of international agreements. It fur­ rules. Whether Article 2(1) of Regulation ther considered that there is in fact special No 1031/88 or Article 201(3) of the CCC is provision for mutual cooperation between deemed applicable to the main proceedings, I the OCT , which include Greenland, and the Community (Decision 86/283); it therefore maintains that that decision merely provides machinery for checking the origin of goods 15 — According to Pascoal and the national court, under Portu­ guese law, the exporter alone is liable to pay post-clearance which give rise to entitlement to preferential import duties where his conduct is punishable, except where the importer is deemed also to be liable by dint of treatment but does not deal with the ques­ being a joint perpetrator. Conversely, the Portuguese Gov­ tion of determining the person responsible ernment considers that, under Portuguese law, the exporter is liable to pay post-clearance import duties only if the goods in question belong to the person committing the offence; in all other cases, that is to say where the goods belong to persons who have no responsibility for the cus­ toms infringement, those persons are liable only for the 14 — In fact they cite paragraph 17 et seq. of the judgment of amount of duty. And it concludes that, under Portuguese 16 July 1992 in Case C-343/90 Lourenço Dias [1992] ECR law, the importer has a sole liability to pay the entirety of I-4673. the duties.

60. Citing in this connection a provision of the Portuguese Constitution requiring the public administration to act in compliance with the 'principle of justice', the national 58. Under those circumstances and irrespec­ court considers that the customs authorities tive of whether the provision of the CCC is cannot subject citizens to 'unjust taxes' applicable to the main proceedings or not, which it would be for others to pay. In such and of whether that provision may be a situation, the national court considers that applied to an exporter established in Green­ there would not only be an infringement of land, it is not appropriate to reply to the first the 'principle of justice' but also unjust and second questions because it is evident enrichment in favour of the person commit­ that, since they are based on a misconception ting the customs offence. of Community law that any liability on the part of the exporter is sufficient to exempt the importer from all liability, any reply given would not be useful to the national court in resolving the dispute pending before it.

61. Moreover, in the national court's view, to deem the importer in good faith to be responsible for the customs debt would be contrary to the principle of proportionality, since the imposition of customs duties on the B — The sixth question importer in good faith who took no part in the customs offence affects him irreparably and thus goes beyond what is necessary in order to protect Community interests. Fur­ thermore, the national court considers that that solution runs counter to the principle of 59. In its sixth question the national court legal certainty 'by overturning the contrac­ asks whether the imposition on an importer tual basis and substantially altering the fac­ in good faith of the obligation to pay duties, tual circumstances underlying the parties' where those duties were imposed after the intention to enter into contractual relations.'

63. I stated above that Community legisla­ 66. Whilst acknowledging the difficulties tion renders the declarant/importer respon­ faced by the importer in good faith who is in sible in all cases for post-clearance payment the end required to pay post-clearance cus­ of customs duties. On the other hand, under toms duties, the Court gave priority to the the legislation in force, the good faith of the Community interest which requires those importer is not an event giving rise to extinc­ 17 duties to be collected. Thus, on the one tion of the customs debt. hand, it recognized that 'the possibility of checking after importation without the importer's having been previously warned may cause him difficulties when in good faith he has thought he was importing goods ben­ efiting from tariff preferences in reliance on certificates which, unbeknown to him, were incorrect or falsified', but held that 'in the 64. I do not consider that, under the Court's first place the Community does not have to case-law, the good faith of the importer may bear the adverse consequences of the wrong­ exempt the latter from his liability to pay ful acts of the suppliers of its nationals, in post-clearance duties. the second place the importer can attempt to obtain compensation from the perpetrator of the fraud and in the third place, in calculat­ ing the benefits from trade in goods likely 16 — Case 827/79 Amministrazione delle Finanze v Acampora [1980] ECR 3731. 17 — See Article 9(1) and (2)(a) of Directive 79/623, cited above at footnote 3, Article 8(1) of Regulation No 2144/87, cited above at footnote 4, and Article 233 of the CCC , cited above at footnote 6. 18 — Cited above at footnote 16.

68. As regards infringement of the principle of proportionality as a result of post- clearance imposition on the importer in good faith of customs duties, I would stress that imposition of customs duties on the importer/declarant is evidently an appropri­ 70. Consequently, post-clearance imposition ate means of enabling the Community to of customs duties on the importer in good receive the customs duties owing to it. That faith is both necessary and appropriate in measure is aimed at importers because they order to attain the legitimately pursued are persons known to the customs authori­ ties by virtue of the fact that it is they who lodge the declarations for entry into free cir­ culation of goods subject to customs duties. 20 — In his Opinion in Case C-12/92 Huygen and Others [1993] ECR 1-6381 (paragraph 29 in fine) Advocate General Gul- It is thus also necessary since exemption of mann argued that 'the importer must of course be aware the importer/declarant would result in the that he is taking a risk when he makes a contract with an exporter without making sure beforehand that the latter is in possession of the documents proving the origin of the goods. If the exporter (...) cannot submit the necessary documents, it is the importer who must take the conse­ quences by paying the customs duty.' Judgment in that case 19 — Paragraph 8 of the judgment. was delivered on 7 December 1993.

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objective, and its disadvantages do not 73. As regards the 'principle of justice' relied outweigh its advantages. on by the national court which, in its view, is binding on the administration and precludes the imposition of 'unjust taxes' on the importer in good faith where the customs offence was committed by the exporter, it must be observed that Community law con­ 24 tains no higher-ranking general principle to this effect.

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restrict beyond what is necessary the general which the institutions exercise their powers equitable provision contained in Article and individuals carry on their activities. I do 13(1) of Regulation No 1430/79. It recalled not believe that this principle is infringed by 27 in that connection its settled case-law to the post-clearance imposition of customs the effect that 'verifications carried out after duties on the importer in good faith. In fact, importation would be largely deprived of the scheme of post-clearance recovery of their usefulness if the use of false certificates duties established by the Community legisla­ could, of itself, justify granting a remission.' ture expressly allows for post-clearance 28 And it went on to state that 'the opposite checks and the likelihood of customs duties result could discourage traders from adopt­ being imposed, where it is shown that certain ing an inquiring attitude and make the public goods have been illegally imported free of purse bear a risk which falls mainly on trad­ duty. ers.'

77. Finally, the national court refers to the 75. The national court also invokes the prin­ contractual basis which it says precludes ciple of legal certainty and takes the view post-clearance imposition of customs duties that post-clearance imposition of customs on the importer in good faith on the ground duties on the importer in good faith would that that would substantially alter the condi­ run counter to this principle. tions under which the parties decided to enter into contractual relations.

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principles of prohibition of unjust enrich­ in several respects from the present case. ment, proportionality, legal certainty and First, the Greenland authorities replied unre­ good faith. servedly that the EUR.1 certificates had to be cancelled. Secondly, where the outcome of checks is not clear as regards the validity of the certificates, the checks which may be car­ ried out by the authorities of the importing country are not obligatory but merely an option open to those authorities. Thirdly, C — The third question inasmuch as the Court gave judgment in light of certain factual circumstances, the solution adopted in its judgment cannot be extended automatically to other circum­ stances. The Portuguese Government thus concludes that, where the competent authorities of the exporting State certify to the competent authorities of the importing 80. The third question submitted turns on 30 State that certain EUR.1 certificates were not the judgment in Huygen and Others. In issued in compliance with the rules laid that case, the authorities of the importing down in Annex II to the Decision, the State were unable to determine the true ori­ results of the verification are binding on the gin of the goods. In accordance with para­ authorities of the importing State and leave graphs 1 and 2 of the operative part of that them no margin of discretion, with the con­ judgment, where the authorities of the sequence that the cancellation of the certifi­ exporting State reply to the authorities of the cates is justified. importing State, upon a request for post- clearance verification, that they have not suc­ ceeded in establishing the precise origin of the goods, the authorities of the importing State are not definitively bound in connec­ tion with a claim for payment of unpaid cus­ toms duties but may take into consideration other proofs of origin of the goods.

83. Article 25(3) of Annex II to the Decision decision requiring post-clearance settlement provides that the results of verification of the of import duties in accordance with the EUR.1 certificates carried out at the request results of the verification carried out. On the of the customs authorities of the importing other hand, they would be so bound if they Member State, country or territory are, did not refer the matter to the Committee on within a period of no more than three Origin. months, to be brought to the notice of those authorities by the customs authorities of the exporting country. Under that provision, where the customs authorities of the import­ ing Member State, country or territory and those of the exporting Member State, coun­ 85. Accordingly, I consider that it would be try or territory have been unable between contrary to the relevant Community provi­ them to settle disputes arising or if those dis­ sions for the customs authorities of the State putes raise a question of interpretation of of importation to regard themselves as Annex II, the question is to be submitted, at bound to take a decision in accordance with the request of the authorities of the Member the findings on the validity of the EUR.1 State or of the OCT, to the Committee on certificates made by the customs authorities Origin established by Council Regulation of the State of exportation, and to refuse to 31 (EEC) No 802/68. assess the results of verification in order to determine whether they should be contested 32 before the Committee on Origin.

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bound thereby and without taking any mea­ customs authorities of the importing State sures regarding evidence of the true origins requested verification of four EUR.1 certifi­ of the goods, initiated four procedures for cates issued in respect of the same number of post-clearance recovery against the appellant consignments of cod which had already been which culminated in the issue of the con­ imported into Portugal. The question tested assessment notices' (emphasis added). whether the verification carried out was indeed that provided for in this Article, that is to say verification upon request by the customs authorities of the importing Mem­ ber State, concerns appraisal of factual cir­ cumstances of the main proceedings, which D — The fourth and fifth questions is a matter exclusively for the national 33 court. Since the question submitted con­ cerns an interpretation of Community law which is not in principle foreign to the subject-matter of the main proceedings, the 34 87. In the fourth and fifth questions the Court is obliged in my view to reply to it. national court requests the court to define the content of the term 'results of verifica­ tion' appearing in Article 25(3) of Annex II to Council Decision 86/283/EEC and the consequences of the communication of those results by the customs authorities of the exporting State to the customs authorities of the importing State.

91. Pascoal maintains that the notices of order to reject the provenance asserted and assessment to import duties are invalid to set aside the certificate presented. because they do not contain a statement of the reasons on which they are based. The notification, it says, did not contain a state ment of facts on the basis of which the cus toms authorities of the exporting State reached the conclusion that the EUR.1 cer 35 tificates were invalid. Thus it was not in a position to defend itself against the decision of the customs authority of the importing 93. The reply suggested to the third prelimi Member State precisely because it did not nary question already contains in nuce the know the reasons for the cancellation of the solution to those which I shall examine here. EUR.1 certificate. Allow me to recall that, under Article 25(3) of Annex II to the Decision, the authorities of the Member State, country or territory of importation may challenge the results of verification of the EUR.1 certificates carried out at their request by the customs authori ties of the exporting State by submitting the

In ties of the exporting State. other words, as far as the Commission is concerned, the question apparently seeks to ascertain whether a request for post- clearance verification and, more specifically, the receipt of the results of that verification constitute a condition sine qua non of an action for post-clearance recovery. In its view, nothing of the kind may be inferred either from the letter or the spirit of the 94. In my opinion, for the importing State applicable provisions. Consequently, it con to be able to avail itself of the possibility of siders that an action for post-clearance bringing the matter before the Committee on recovery may be brought, even in the Origin under Article 25(3) of Annex II to absence of such verification, where the cus the Decision, it is essential that the com toms authorities of the importing State have munication sent by the customs authorities at their disposal all the evidence necessary in of the exporting State puts it in a position to form a view on the question whether it regards those results as satisfactory or not and whether they are such as to carry con 35 — In this connection Pascoal invokes the principle of Portu guese law to the effect that a fiscal decision must be accom

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regime. It is true that Article 25(3) of Annex sent. II imposes no limit on the scope of the infor mation derived from the verification and the rationale of that provision is not verification of the validity and adequacy of the grounds of the administrative decision invalidating the EUR.1 certificates. However, as regards relations between customs authorities, the result of the verification must be clear and unequivocal and must give the customs auth ority of the importing State an accurate indi cation of whether the certificates subject to 97. In light of the foregoing considerations, verification are valid or not. Given that, and in particular of the analysis in regard to when the relevant results are communicated the third question, I do not consider that the to them, the customs authorities of the mere communication made by the customs importing State may, in the event of doubt, authorities of the exporting country could be bring the matter before the Committee on deemed to be a communication of the results Origin, the communication sent by the cus of verification within the meaning of Article toms authorities of the exporting State must 25(3) of Annex II to the Decision and that it contain a minimum of explanations as to the was capable of being used by the competent reasons on which those conclusions are customs authorities of the importing Mem based, that is to say the reasons why the ber State to bring and, a fortiori, conduct to issue of EUR.1 movement certificates was in their conclusion proceedings for post-

visions. That condition is not satisfied where 86/283] Annex II regarding attainment of status of origin', the reply by the customs authority of the and secondly, that the customs authorities of the exporting State requested the customs authorities of the importing exporting country is excessively brief. State 'to arrange that the following goods certificates arc revoked and cancelled' (emphasis added). 37 — The French Government observed that, at point 14 'results , of verification of the model EUR.1 certificate, which forms Annex 5 to Annex II to the Decision, it suffices to tick the corresponding square to say whether the EUR.1 certificate 'satisfies the requisite conditions as to authenticity and regularity'. It considers that it is possible to reply in that way to the request for post-clearance verification made by the customs authorities of the exporting State by those of the importing State. That cannot, however, suffice on its own as an argument in support of the proposition that the legislature intended a brief indication/communication on the part of the competent authorities of the exporting State

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98. The national court also points out (point defence, I consider that the Court must reply 4.4 in fine of the order for reference) that to it. even the basic report was insufficient because the customs authorities of the exporting country were unsuccessful in determining the exact origin of the cod, simply stating that it did not originate in Greenland. In light of the foregoing analysis, inasmuch as the results of the verification clearly show 100. The Court has consistently held that 39

the amount arrived at under this heading. means in my view that, prior to conducting Examination of this question would be oti­ to a conclusion proceedings for post- ose if the view were taken that bare notifica­ clearance recovery of import duties, the tion does not constitute communication of the results of the verification. However, since this question is fundamental, being directly linked to observance of the rights of the 39 — See judgment in Case C-32/95 P Commission v Lisrestal and Others [1996] ECR I-5373, paragraphs 21 and 3°0. See also judgment in Case C-135/92 Fiskano v Commission [1994] ECR I-2885, paragraph 39, and judgment in Joined Cases C-48/90 and C-66/90 Netherlands v Commission [1992] ECR I-565, paragraph 44. 38 — Moreover, it would be illogical to require the customs 40 — See judgment in Case C-60/92 Otto [1993] ECR I-5683, authorities of the exporting country to determine not only paragraph 14. The Court has acknowledged that the prin- whether the goods, in this case cod, were or were not of ciple in question must be observed, that is to say that the Greenland provenance but, moreover, its precise origin, it rights of the defence of those concerned must be secured being the case that with current ultra-modern methods the within the context of the establishment by national law of fish might have been caught anywhere where cod with the appropriate procedure for the application of Articles 85 similar characteristics to Greenland cod is located. and 86 of the Treaty by the national authorities.

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103. The Court has consistently held that 'in 41 — See judgment in Huygen, cited above at footnote 20 (para- the absence of specific provisions, recogni­ graph 31 of the judgment). See also judgment in Joined Cases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78 and tion of circumstances constituting force 264/78, 39/79, 31/79, 83/79 and 85/79 Vedsabbia and Others v Commission [1980] ECR 907, paragraph 140. majeure presupposes that the external cause 42 — See, inter alia, Huygen, cited above, paragraph 31, and relied on by individuals has consequences judgments in Case 11/70 Internationale Handelsgeselbchaft [1970] ECR 1125, paragraph 23; Case 266/84 Denkavit which are inexorable and inevitable to the France [1986] ECR 149, paragraph 27; Case C-338/89 point of making it objectively impossible for Organisationen Danske Slagterier [1991] ECR I-2315, para- graph 16; and Case C-50/92 Molkerei-Zentrale Süd [1993] the persons concerned to comply with their ECR 1-1035, paragraph 11.

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V — Conclusion

106. On those grounds I therefore propose that the Court should reply as follows to the questions referred to it for a preliminary ruling by the Tribunal Tributário de Segunda Instância, Lisbon:

(1) The post-clearance imposition of liability to pay customs duties on an importer who acted in good faith concerning the validity of EUR.1 movement certificates, which were finally cancelled following post-clearance checks, is not contrary to the principles of good faith, the prohibition on unjust enrich­ ment, proportionality or legal certainty.

(4) The fact that the customs authorities of the exporting country carried out no verification prior to issue of the EUR.1 certificate whose annulment entailed post-clearance payment of import duties does not constitute a case of force majeure capable of being relied on by an importer in order to exempt himself from his obligation to settle the amount due by way of import duties.

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