Opinion of the Advocate General — ECLI:EU:C:2005:527
Date: 2005-09-08
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Own resources of the European Communities – Post-clearance recovery of import or export duties (European Parliament and Council Regulation No 2700/2000; Council Regulation No 2913/92, Art. 220(2)(b)) 2. Origin of goods – Preferential tariff arrangements (Council Regulation No 2913/92, Art. 220(2)(b)) 3. Own resources of the European Communities – Post-clearance recovery of import or export duties (Council Regulation No 2913/92, Art. 220(2)(b)) 1. Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, applies to a customs debt which was incurred and the post-clearance recovery of which was commenced before the entry into force of Regulation No 2700/2000. The provision in question, which governs the conditions under which a person liable avoids the post-clearance recovery of import duties as the result of an error on the part of the customs authorities, enacts a substantive rule and should not, in principle, apply to situations existing before it entered into force. However, the substantive rules of Community law may exceptionally be interpreted as applying to situations existing before their entry into force in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them. It is apparent from recital (11) in the preamble to Regulation No 2700/2000 that the purpose of the amendment of Article 220(2)(b) of the Customs Code was to clarify the concepts of error by the customs authorities and good faith of the person liable for payment, which were already contained in the initial version of that article. Thus, the new version of Article 220(2)(b) of the Customs Code is essentially an interpretative provision. In addition, neither the principle of legal certainty nor that of the protection of legitimate expectations precludes the application of the provision in question to situations existing before its entry into force. (see paras 20-23, 26-27, operative part 1) 2. Inasmuch as the origin of the goods referred to in a movement certificate EUR.1 can no longer be confirmed following subsequent verification, that certificate must be considered to be an ‘incorrect certificate’ within the meaning of Article 220(2)(b) of Regulation No 2913/92, establishing the Community Customs Code, as amended by Regulation No 2700/2000. Where a subsequent verification does not confirm the origin of the goods as stated in the EUR.1 certificate, it must be concluded that the goods are of unknown origin and that the EUR.1 certificate and the preferential tariff were thus wrongly granted. (see paras 34-35, operative part 2) 3. Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000, must be interpreted as meaning that it is the person who relies on the third subparagraph of that article who must adduce the evidence necessary for his claim to succeed. It is therefore in principle for the customs authorities which wish to rely on the beginning of the third subparagraph of that Article 220(2)(b) in order to carry out post-clearance recovery to adduce evidence that the incorrect certificates were issued because of the inaccurate account of the facts provided by the exporter. Where, however, as a result of negligence wholly attributable to the exporter, it is impossible for the customs authorities to adduce the necessary evidence that the movement certificate EUR.1 was based on the accurate or inaccurate account of the facts provided by the exporter, the burden of proving that that certificate issued by the authorities of the non-member country was based on an accurate account of the facts lies with the person liable for the duty. (see para. 46, operative part 3)