# C_2012194EN.01001002.xml

| 30.6.2012 | EN | Official Journal of the European Union | C 194/10 |
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30.6.2012

EN

Official Journal of the European Union

C 194/10

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Reference for a preliminary ruling from the Finanzgericht München (Germany) lodged on 13 April 2012 — Sandler AG v Hauptzollamt Regensburg

(Case C-175/12)

2012/C 194/17

Language of the case: German

Referring court

Referring court

Finanzgericht München

Parties to the main proceedings

Parties to the main proceedings

Applicant: Sandler AG

Applicant:

Defendant: Hauptzollamt Regensburg

Defendant:

Questions referred

Questions referred

| 1. | Is the second indent of the first subparagraph of Article 889(1) of the Customs Code Implementing Provisions (1) to be interpreted as only regulating cases of requests for repayment where goods were first released for free circulation at the third-country duty rate and it subsequently transpires that at the time when the customs declaration was accepted a reduced or zero rate of import duty (here: preferential tariff rate) actually existed, but had already expired again when the request for repayment is made, with the result that the expiry of a temporary preferential tariff arrangement cannot be invoked against an operator in connection with submission of a request for repayment where the preferential tariff rate is granted during clearance and preferential treatment is refused and the third-country duty rate applied only upon post-clearance recovery by the administration? |
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1.

Is the second indent of the first subparagraph of Article 889(1) of the Customs Code Implementing Provisions (1) to be interpreted as only regulating cases of requests for repayment where goods were first released for free circulation at the third-country duty rate and it subsequently transpires that at the time when the customs declaration was accepted a reduced or zero rate of import duty (here: preferential tariff rate) actually existed, but had already expired again when the request for repayment is made, with the result that the expiry of a temporary preferential tariff arrangement cannot be invoked against an operator in connection with submission of a request for repayment where the preferential tariff rate is granted during clearance and preferential treatment is refused and the third-country duty rate applied only upon post-clearance recovery by the administration?

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| 2. | Are Article 16(1)(b) and Article 32 of Protocol 1 to Annex V of the Cotonou Agreement (2) to be interpreted to the effect that, if the exporting State endorses an EUR.1 movement certificate with a stamp other than the specimen impression of the stamp notified to the Commission, the customs authorities of the importing State may treat such a variation, in cases of doubt, as a technical deficiency for the purposes of Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement and thus declare invalid the EUR.1 movement certificate without the participation of the customs authorities of the exporting State? |
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2.

Are Article 16(1)(b) and Article 32 of Protocol 1 to Annex V of the Cotonou Agreement (2) to be interpreted to the effect that, if the exporting State endorses an EUR.1 movement certificate with a stamp other than the specimen impression of the stamp notified to the Commission, the customs authorities of the importing State may treat such a variation, in cases of doubt, as a technical deficiency for the purposes of Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement and thus declare invalid the EUR.1 movement certificate without the participation of the customs authorities of the exporting State?

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| 3. | If the answer to Question 2 is in the affirmative:






  (a) | Is Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement applicable even where the technical deficiency is not detected immediately at importation, but only during the subsequent verification by the customs authorities? |
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3.

If the answer to Question 2 is in the affirmative:

(a)

Is Article 16(1)(b) of Protocol 1 to Annex V of the Cotonou Agreement applicable even where the technical deficiency is not detected immediately at importation, but only during the subsequent verification by the customs authorities?

| (b) | Can Article 16(4) and (5) of Protocol 1 to Annex V of the Cotonou Agreement be interpreted to the effect that a technical deficiency is considered to be rectified where, in the case of an EUR.1 movement certificate issued retrospectively, one of the indications provided for in Article 16(4) of Protocol 1 to Annex V of the Cotonou Agreement has not been entered, in its precise wording, in the ‘Remarks’ box, but only a phrase to the effect that the preference certificate was issued retrospectively? |
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(b)

Can Article 16(4) and (5) of Protocol 1 to Annex V of the Cotonou Agreement be interpreted to the effect that a technical deficiency is considered to be rectified where, in the case of an EUR.1 movement certificate issued retrospectively, one of the indications provided for in Article 16(4) of Protocol 1 to Annex V of the Cotonou Agreement has not been entered, in its precise wording, in the ‘Remarks’ box, but only a phrase to the effect that the preference certificate was issued retrospectively?

| 4. | If Question 2 is answered in the negative:
  Is Article 236(1) (3) of the Customs Code to be interpreted to the effect that import duties were not legally owed and were therefore wrongly recovered pursuant to Article 220(1) of the Customs Code where the EUR.1 movement certificates originally used could not be declared invalid by the customs authorities of the importing country without the involvement of the customs authorities of the exporting country? |
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4.

If Question 2 is answered in the negative:

Is Article 236(1) (3) of the Customs Code to be interpreted to the effect that import duties were not legally owed and were therefore wrongly recovered pursuant to Article 220(1) of the Customs Code where the EUR.1 movement certificates originally used could not be declared invalid by the customs authorities of the importing country without the involvement of the customs authorities of the exporting country?

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| 5. | In the event that an EUR.1 movement certificate issued retrospectively is presented pursuant to Article 16 of Protocol 1 to Annex V of the Cotonou Agreement, is the repayment of already recovered and paid import duties under Article 889 of the Customs Code Implementing Provisions possible only if the preferential tariff rate still applies at the time of the request for repayment? |
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5.

In the event that an EUR.1 movement certificate issued retrospectively is presented pursuant to Article 16 of Protocol 1 to Annex V of the Cotonou Agreement, is the repayment of already recovered and paid import duties under Article 889 of the Customs Code Implementing Provisions possible only if the preferential tariff rate still applies at the time of the request for repayment?

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(1)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code OJ L 253, 11.10.1993, p. 1, Commission Regulation (EC) No 214/2007 of 28 February 2007 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2007 L 62, p. 6).

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(2)  2000/483/EC: Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3).

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(3)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

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