C-97/95

JUDGMENT OF 17. 7. 1997 — CASE C-97/95

JUDGMENT OF THE COURT (Fifth Chamber) 17 July 1997 *

In Case C-97/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal Tributario de Segunda Instância (Portugal) for a preliminary ruling in the proceed­ ings pending before that court between

a Pascoal & Filhos Ld.

and

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after considering the written observations submitted on behalf of:

— Pascoal & Filhos Ld.a,by Adriano Garção Soares, of the Oporto Bar;

— the Portuguese Government, by Luis Fernandes, Director of the Legal Service in the European Communities General Directorate of the Ministry of Foreign Affairs, and Maria Luisa Duarte, Legal Adviser in that service, acting as Agents;

— the French Government, by Catherine de Salins, Head of Sub-Directorate in the Legal Directorate of the Ministry of Foreign Affairs, and Claude Cha- vance, Foreign Affairs Secretary in that directorate, acting as Agents;

1 By order of 29 November 1994, received at the Court on 27 March 1995, the Tri­ bunal Tributário de Segunda Instância (Fiscal Court of Second Instance) referred

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for a preliminary ruling under Article 177 of the EC Treaty seven questions on the interpretation of Council Decision 86/283/EEC of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community (OJ 1986 L 175, p. 1) and Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p . 1, hereinafter 'the Customs Code').

a 2 Those questions have arisen in a dispute between Pascoal & Filhos Ld. , a com­ pany established under Portuguese law (hereinafter 'Pascoal'), and the Fazenda Pública (Public Exchequer) concerning post-clearance recovery of customs duties on imports of cod.

The Community rules

6 According to Article 8(1) of Annex II, the customs authorities of the country of exportation are to issue the EUR. 1certificate if the goods to which it relates can be considered as products originating in the overseas country concerned. In order to determine whether that is so, those authorities may, under Article 8(2), call for any documentary evidence or carry out any check which they consider appropriate.

7 Article 25(1) of Annex II provides that, in cases where the customs authorities of the Member State of importation have reasonable doubt as to the authenticity of an EUR . 1certificate or the accuracy of the information regarding the true origin of the goods in question, they are to request the customs authorities of the country of exportation to carry out subsequent verification of the certificate concerned.

8 In accordance with Article 25(3), the results of this verification are to be notified to the customs authorities of the Member State of importation. Those results must be such as to make it possible to determine whether the disputed EUR . l certificate applies to the goods actually exported and whether those goods can in fact qualify for application of the preferential arrangements.

9 Article 2(1) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post- clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involv­ ing the obligation to pay such duties (OJ 1979 L 197, p . 1) states that, where the competent authorities of a Member State find that all or part of the amount of import duties legally due has not been required of the person liable for payment, they shall take action to recover the duties not collected.

(a) the release for free circulation of goods liable to import duties, or

(b) the placing of such goods under the temporary importation procedure with partial relief from import duties.

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2. A customs debt shall be incurred at the time of acceptance of the customs dec­ laration in question.

3. The debtor shall be the declarant. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor.

15 Following that verification, the Greenland authorities and the Commission drew up a joint report (hereinafter 'the mission report'), which includes the following conclusion regarding the four EUR.1 certificates at issue:

'... it has been established ... that the quantities of Greenland fresh codfish deliv­ ered for further processing on board of the concerned factory ships are not suf­ ficient, according to the communicated processing yield, in order to obtain the quantities of finished products which have been imported into the EEC with the ... movement certificates [at issue]'.

16 On the basis of that report, the Greenland authorities sent to the Portuguese authorities a communication (hereinafter 'the communication') worded as follows:

'As control examinations — carried out in collaboration with representatives from EEC Commission — have proved that some goods certificates issued on EUR.1 in Greenland do not comply with the regulations laid down in OLT-Agreement's [decision 86/283] annex n° II regarding attainment of status of origin, you are kindly asked to arrange that the following goods certificates are revoked and can­ celled.'

The mission report on which this communication was based was not forwarded to the Portuguese authorities.

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'(1) Does the responsibility of the exporter, referred to in Article 10(1) of Annex II to Council Decision 86/283/EEC of 30 June 1986, extend to customs duties resulting from the cancellation of EUR.1 movement certificates issued on the basis of false information as to the origin of the goods?

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(2) What is the meaning and scope of the adverb "also" used in the second sub­ paragraph of Article 201(3) of the Community Customs Code, in particular where the national customs law provides that responsibility for payment of the duties due in respect of the goods involved in the infringement attaches exclusively to the person who committed the customs infringement?

(3) May the rule expressed in the judgment of the Court of Justice of the Euro­ pean Communities of 7 December 1993 in Case C-12/92 Huygen and Others ([1993] ECR I-6381), published at pages 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 circumstances of this case, which concerns the interpretation and application of Council Decision 86/283/EEC?

(4) What is the meaning, purport and scope of the results of the verification referred to by Article 25(3) of Annex II to Council Decision 86/283/EEC?

21 It is appropriate to begin by examining the second question; following that, the third, fourth and fifth questions will be answered jointly, then the first question, the sixth question, and finally the seventh.

The second question

22 The second question posed by the national court concerns the interpretation of the second subparagraph of Article 201(3) of the Customs Code. The Tribunal Tribu­ tário de Segunda Instância takes the view that, even though it was not yet in force when the four consignments in question were imported, the Customs Code is rel­ evant for the resolution of the dispute in the main proceedings since it re-enacts the legislation previously in force.

23 Referring to the judgment in Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673, the Portuguese Government submits that the Court does not have jurisdiction to answer this question in view of the fact that the Customs Code was not applicable when the facts which gave rise to the dispute in the main proceedings occurred.

24 The Commission considers that the second question is inadmissible on the same grounds.

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27 It is common ground that, following subsequent verification of the EUR.1 certifi­ cates, the Greenland authorities sent the Portuguese authorities only the communi­ cation in which they stated that the certificates had been improperly issued and should therefore be cancelled. Subsequently, without having received the mission report, without having requested the Greenland authorities to set out in more detail the grounds justifying such cancellation, and without seeking to determine the true origin of the goods, the Portuguese authorities instituted recovery pro­ ceedings against Pascoal. The national court takes the view that, before bringing such an action, the customs authorities of the State of importation ought to have taken 'all necessary steps to establish the true origin of the goods'. If they were still in doubt as to the true origin of the goods, they should not have proceeded to an assessment of the customs duties now in dispute.

28 In these circumstances, the point of the third, fourth and fifth questions raised by the national court is, first, whether a communication addressed to the authorities of the State of importation by the authorities of the State of exportation on completion of subsequent verification of an EUR.1 certificate, in which the latter

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authorities merely confirm that the certificate in question was improperly issued and should therefore be cancelled, without setting out in detail the grounds justify­ ing such cancellation, can be regarded as 'results of ... verification' within the meaning of Article 25(3) of Annex II and, second, whether the authorities of the State of importation are entitled to bring proceedings to recover the unpaid cus­ toms duties on the basis of such a communication alone, without seeking to estab­ lish the true origin of the imported goods.

31 In its judgments in Case 218/83 Les Rapides Savoyards and Others v Directeur General des Douanes et Droits Indirects [1984] ECR 3105, Huygen and Others, cited above, Case C-432/92 Anastasiou and Others [1994] ECR I-3087, and in Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, the Court interpreted the provisions of administrative cooperation schemes similar to the one at issue in the present case. Those judgments concerned, respectively, the Agreement on free trade between the European Economic Com­ munity and the Swiss Confederation, signed in Brussels on 22 July 1972 (OJ, English Special Edition 1972 (31 December), p. 191), the Agreement on free trade between the European Economic Community and the Republic of Austria, signed in Brussels on 22 July 1972 (OJ, English Special Edition 1972 (31 December), p. 4), the Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus (OJ 1973 L 133, p . 2), and Commission Regulation (EEC) No 3184/74 of 6 December 1974 concerning the definition of the concept of 'originating products' and methods of

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administrative cooperation for the application of the customs procedure applicable to certain products originating in and coming from the Faroe Islands (OJ 1974 L 344, p. 1).

32 It follows from that case-law that determination of the origin of goods is based on an allocation of responsibilities as between the authorities of the exporting country and those of the importing country, origin being established by the authorities of the exporting country, if necessary at the request of the authorities of the import­ ing country, and the proper working of that system being monitored jointly by the authorities concerned on both sides. That system is justified by the fact that the authorities of the exporting country are in the best position to verify directly the facts which determine origin {Faroe Seafood, cited above, paragraph 19).

37 Where the competent authorities of the State of exportation declare, following subsequent verification, that an EUR.1 certificate does not apply to the goods actually exported, that is sufficient to enable the authorities of the State of importa­ tion to hold that duties legally due have not been required and consequently insti­ tute proceedings to recover them. Nothing in the rules obliges the latter authorities to establish the accuracy of the results of the verification or the true origin of the goods.

38 It is true that the system of administrative cooperation incorporates a mechanism for regulating differences arising between the authorities of exporting States and those of importing States, provided for in the second subparagraph of Article 25(3) of Annex II. However, the authorities of the State of importation may always rely on the results of the verification alone, without being obliged to have recourse to that mechanism.

39 As to the fact that the action for recovery was brought before the person liable became aware of the reasons for the cancellation of the EUR.1 certificate, it is suf­ ficient to note that the onus of providing proof as to the origin of the goods rests with the traders concerned.

40 While that proof is, in principle, provided by the EUR.1 certificate, the person liable cannot entertain a legitimate expectation with regard to the validity of such a certificate by virtue of the fact that it was initially accepted by the cus­ toms authorities of a Member State, since such initial acceptance does not prevent subsequent checks from being carried out (see, to this effect, Faroe Seafood, paragraph 93).

44 Article 10 of Annex II makes the exporter responsible for submitting the request for the EUR.1 certificate, along with, where relevant, any appropriate supporting document proving that the goods to be exported are such as to qualify for the issue of the certificate requested.

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45 That article, however, concerns only the procedure for obtaining the EUR.1 cer­ tificate and is not intended to identify the person required to pay any customs debt which may be due in the State of importation.

46 Under the Community legislation in force when the goods in question were imported, the creation of the customs debt at the time of importation into the European Community did not depend on the request made by the exporter but resulted from the declaration of release of the goods into free circulation. The per­ son required to pay the customs debt was therefore the person in whose name that declaration had been made.

47 The answer to the first question must therefore be that the responsibility of the exporter, as referred to in Article 10(1) of Annex II, does not extend to customs duties which prove to be due in respect of the importation into the European Community of goods which are the subject of an EUR.1 certificate, even where the latter was issued on the basis of false information supplied by the exporter as to the origin of the goods and was cancelled following subsequent verification.

51 In its order for reference, the national court expresses the view that it would be contrary to the 'principle of justice', recognized in Portuguese law, to impose on an importer customs duties 'which should lawfully be paid by other persons'.

52 It is not necessary to determine whether this principle is one of the general prin­ ciples of Community law, since an importer becomes liable for the customs debt only if he has made the import declaration. That being so, he personally assumes the obligation to pay the debt, which does not therefore rest on a third party.

53 The national court also takes the view that the exporter, as the party responsible for the customs offence, would be unjustly enriched if the importer were to pay the customs debt.

54 However, if the obligation to pay the customs debt rests on the importer, a third party cannot be enriched solely because the importer has paid that debt. Neverthe­ less, that payment may give rise to an obligation on the part of the exporter or another person towards the importer, legally distinct from the importer's customs

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59 Admittedly, the possibility of verifying the EUR.1 certificate following importa­ tion, without the importer being given prior warning, may cause him difficulties where, in good faith, he has imported goods benefiting from preferential tariffs in reliance on certificates which are incorrect or were falsified without his knowledge. It must, however, be pointed out, first, that the European Community cannot be made to bear the adverse consequences of the wrongful acts of suppliers of import­ ers, second, that the importer may seek compensation from the perpetrator of the fraud, and, finally, that, in calculating the benefits from trade in goods likely to obtain tariff preferences, a prudent trader aware of the rules must assess the risks inherent in the market which he is considering and accept them as normal trade risks (see, to this effect, Acampora, cited above, paragraph 8).

60 As the Court pointed out in Faroe Seafood, at paragraph 114, it is the responsibil­ ity 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.

61 It follows that the fact of requiring an importer who has acted in good faith to pay customs duties payable on the importation of goods in respect of which the exporter has committed a customs offence, where the importer has played no part in that offence, is not contrary to the general principles of law which the Court is required to uphold.

The seventh question (negligence on the part of the authorities of the State of exportation)

66 In those circumstances, the fact that those authorities decided, in a specific case, not to exercise that option cannot preclude post-clearance recovery of a customs debt which subsequently proves to be due. Such a situation cannot be described as constituting force majeure, since it is neither abnormal nor unforeseeable.

67 The answer to the seventh question must therefore be that the fact that the authorities of the State of exportation issued an EUR . l certificate pursuant to Decision 86/283 without having carried out any prior check to determine the true origin of the goods in question does not constitute a case oí force majeure prevent­ ing post-clearance recovery of customs duties owed by an importer who has acted in good faith.

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Costs

68 The costs incurred by the Portuguese and French Governments, the Council of the European Union and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. 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.

2. The responsibility of the exporter, as referred to in Article 10(1) of Annex II to Decision 86/283, does not extend to customs duties which prove to be due in respect of the importation into the European Community of goods which are the subject of an EUR.1 movement certificate, even where the latter was issued on the basis of false information supplied by the exporter as to the origin of the goods and was cancelled following subsequent verification.

3. The fact of requiring an importer who has acted in good faith to pay cus­ toms duties payable on the importation of goods in respect of which the exporter has committed a customs offence, where the importer has played no part in that offence, is not contrary to the general principles of law which the Court is required to uphold.

4. The fact that the authorities of the State of exportation issued an EUR . 1 movement certificate pursuant to Decision 86/283 without having carried out any prior check to determine the true origin of the goods in question does not constitute a case of force majeure preventing post-clearance recov­ ery of customs duties owed by an importer who has acted in good faith.

Moitinho de Almeida Sevón Edward

Jann Wathelet

Delivered in open court in Luxembourg on 17 July 1997.