EN Official Journal of the European Union C 39/5

Judgment of the Court (First Chamber) of 15 December 2011 (reference for a preliminary ruling from the Bundesfinanzhof — Germany) — Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland GmbH

(Case C-409/10) (1)

(Common commercial policy - Preferential regime for the importation of products originating in the African, Caribbean and Pacific (ACP) States - Irregularities detected during an investigation carried out by the European Anti-Fraud Office (OLAF) in the exporting ACP State - Post-clearance recovery of the import duties)

2012/C 39/07

Language of the case: German

Referring court

Bundesfinanzhof

Parties to the main proceedings

Appellant on a point of law: Hauptzollamt Hamburg-Hafen

Respondent on a point of law: Afasia Knits Deutschland GmbH

Re:

Reference for a preliminary ruling — Bundesfinanzhof — Interpretation 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, concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation (OJ 2000 L 317, p. 3), and Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Exportation of textiles made in China from Jamaica to the European Union — Subsequent verification of proofs of origin undertaken by OLAF and not by the customs authorities of the exporting country as laid down in Protocol 1 — Protection of the possible legitimate expectations of the importer

Operative part of the judgment

1. 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 Council Decision 2003/159/EC of 19 December 2002, must be interpreted as meaning that the results of a subsequent verification as to the accuracy of the origin of goods as indicated on the EUR. 1 certificates issued by an ACP State and which consisted, for the most part, of an investigation conducted by the Commission, and more precisely by the European Anti-Fraud Office, 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.

2. Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, must be interpreted as meaning that, in circumstances where the EUR. 1 certificates issued for the importation of goods into the European Union are cancelled on the ground that the issue of those certificates was marred by irregularities and that the preferential origin indicated on those certificates could not be confirmed during a subsequent verification, the importer cannot object to post-clearance recovery of the import duties by claiming that the possibility cannot be ruled out that, in reality, some of those goods have that preferential origin.

(1) OJ C 274, 9.10.2010.