Opinion of the Advocate General — ECLI:EU:C:2011:594
Date: 2011-09-15
Language of the case: German
Subject matter: External relations;Free movement of goods;Commercial policy;Customs Union;International agreements
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. International agreements – ACP-EU Cotonou Agreement – Post-clearance recovery of the import duties – Subsequent verification of the origin of the goods carried out by the Commission – Results formally documented in a report, co-signed by a representative of the government of the State of export (ACP-EU Cotonou Agreement, Annex V, Protocol No 1, Art. 32) 2. Own resources of the European Union – Post-clearance recovery of import or export duties – Conditions of non-entry in the accounts of import duties set out in Article 220(2)(b) of Regulation No 2913/92 – Inconclusive subsequent verification of the EUR 1 certificate (Council Regulation No 2913/92, Art. 220(2)(b)) 1. On a proper construction of Article 32 of Protocol 1 to Annex V to the 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, and approved on behalf of the Community by Decision 2003/159, the results of a subsequent verification as to the accuracy of the origin of goods as indicated in the certificates of origin issued by one of the African, Caribbean and Pacific (ACP) States consisting, for the most part, of an investigation conducted by the Commission, and more precisely by the European Anti-Fraud Office (‘the OLAF’), in that State, and at its invitation, are binding on the authorities of the Member State into which the goods were imported, provided that – and this is a matter for the national court to establish – those authorities received a document unequivocally acknowledging that that ACP State endorsed those results. It is, in that regard, irrelevant that the subsequent verification was performed by the OLAF. Such verification must be carried out not only when the importing Member State so requests, but also when, according to one of the States party to the Agreement or according to the Commission, which, in accordance with Article 211 EC, is charged with ensuring that the Agreement is correctly implemented, there exist indications giving rise to the suspicion of irregularity in regard to the origin of the imported goods. That is so in the case of an investigative mission led by the OLAF which was performed at the invitation of the Ministry of Foreign Affairs and Foreign Trade of the State of export. In those circumstances, the investigation conducted by the OLAF in the territory of that State cannot be regarded as interference in that State’s internal affairs and therefore does not constitute violation of its sovereignty. With regard to the form in which the investigation results must be notified to the Member State of import in order to be capable of binding the authorities of that State, notification, to the latter, of the report on the investigation conducted by the OLAF, duly signed on behalf of the ACP State of export and stating unequivocally that the EUR.1 certificates are incorrect and, therefore, void, has the effect of making such results binding on those authorities. Finally, so far as concerns the question whether the person signing the report on behalf of the ACP State of export was competent to do so under the law of the latter, it is only in the case of doubt as to the competence of the person signing on behalf of the State of export that the authorities of the Member State of import are obliged to ascertain from the ACP State concerned whether that person was in fact competent to bind that State in that respect. (see paras 32-33, 36-38, 40, operative part 1) 2. On a proper construction of Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, in circumstances in which certificates of origin issued for the importation of goods into the European Union are cancelled on the ground that their issue was marred by irregularities and that the preferential origin indicated on those certificates could not be confirmed during a subsequent verification, the importer may not object to post-clearance recovery of the import duties by claiming that it is not, in actual fact, inconceivable that some of those goods have that preferential origin. On the one hand, the purpose of subsequent verification is to check whether the statement of origin in the EUR.1 certificate is correct. When a subsequent verification does not enable the origin of the goods as stated in the EUR.1 certificate to be confirmed, it must be concluded that those goods are of unknown origin and that the EUR.1 certificate and the preferential tariff were therefore wrongly granted. It follows that the post-clearance recovery of import duties unpaid at the time of importation is the normal consequence where a subsequent verification does not enable the origin of the goods as stated in the EUR.1 certificate to be confirmed. On the other hand, when the authorities of the exporting State have been misled by the exporters, the issue of incorrect EUR.1 certificates cannot be regarded as constituting an error on the part of those authorities themselves. If there is no such error, Article 220(2)(b) of the Customs Code does not allow the person liable for payment to plead legitimate expectations. (see paras 43-44, 46, 54-55, operative part 2)