Case C‑438/11

Lagura Vermögensverwaltung GmbH

v

Hauptzollamt Hamburg-Hafen

(Reference for a preliminary ruling from the Finanzgericht Hamburg)

‛Community customs code — Article 220(2)(b) — Post-clearance recovery of import duties — Legitimate expectations — Impossibility of verifying the accuracy of a certificate of origin — Notion of ‘certificate based on an incorrect account of the facts provided by the exporter’ — Burden of proof — Scheme of generalised tariff preferences’

Summary — Judgment of the Court (First Chamber), 8 November 2012

European Union’s own resources — Post-clearance recovery of import or export duties — Conditions for non-entry of import duties in the accounts set out in Article 220(2)(b) of Regulation No 2913/92 — Impossibility of verifying the accuracy of a certificate of origin Form A by the competent authorities of the non-member country, since the exporter has ceased production — Burden of proof rests with the person liable for payment

(Council Regulation (EEC) No 2913/92, Art. 220(2)(b), as amended by European Parliament and Council Regulation (EC) No 2700/2000)

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 if, owing to the fact that the exporter has ceased production, the competent authorities of the non‑member country are unable, through a subsequent verification, to determine whether the certificate of origin Form A that they issued is based on a correct account of the facts by the exporter, the burden of proving that the certificate was based on a correct account of the facts by the exporter rests with the person liable for payment.

It is true that Regulation No 2913/92 does not place the exporter under any obligation to keep the supporting documents, owing to the fact that it is not possible for the European Union unilaterally to impose obligations on economic operators in non-member countries. However, the absence of such an obligation on the exporter cannot, in itself, lead to a situation in which the person liable for payment is relieved of the duty to exercise all due diligence or freed from all risk as regards the verification and determination of the origin of the goods at the stage of a subsequent verification. It is, therefore, the responsibility 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.

Moreover, a situation where the customs authorities of the importing State had to prove the inaccuracy of the facts provided by the exporter, but were unable to do so owing to the exporter having ceased its activities, could create a risk of conduct incompatible with the objectives of the generalised tariff preferences scheme. Even if the cessation of production represents, in principle, an everyday economic decision, the possibility cannot be excluded that it could nevertheless constitute improper behaviour on the part of the exporter, designed to circumvent the rules of the generalised tariff preferences scheme, through being used by that exporter as a means of concealing the real origin of goods originating from a State which is not admitted to the preferential arrangements.

(see paras 27, 29, 30, 32, 41, operative part)

Case C‑438/11

Lagura Vermögensverwaltung GmbH

v

Hauptzollamt Hamburg-Hafen

(Reference for a preliminary ruling from the Finanzgericht Hamburg)

‛Community customs code — Article 220(2)(b) — Post-clearance recovery of import duties — Legitimate expectations — Impossibility of verifying the accuracy of a certificate of origin — Notion of ‘certificate based on an incorrect account of the facts provided by the exporter’ — Burden of proof — Scheme of generalised tariff preferences’

Summary — Judgment of the Court (First Chamber), 8 November 2012

European Union’s own resources — Post-clearance recovery of import or export duties — Conditions for non-entry of import duties in the accounts set out in Article 220(2)(b) of Regulation No 2913/92 — Impossibility of verifying the accuracy of a certificate of origin Form A by the competent authorities of the non-member country, since the exporter has ceased production — Burden of proof rests with the person liable for payment

(Council Regulation (EEC) No 2913/92, Art. 220(2)(b), as amended by European Parliament and Council Regulation (EC) No 2700/2000)

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 if, owing to the fact that the exporter has ceased production, the competent authorities of the non‑member country are unable, through a subsequent verification, to determine whether the certificate of origin Form A that they issued is based on a correct account of the facts by the exporter, the burden of proving that the certificate was based on a correct account of the facts by the exporter rests with the person liable for payment.

It is true that Regulation No 2913/92 does not place the exporter under any obligation to keep the supporting documents, owing to the fact that it is not possible for the European Union unilaterally to impose obligations on economic operators in non-member countries. However, the absence of such an obligation on the exporter cannot, in itself, lead to a situation in which the person liable for payment is relieved of the duty to exercise all due diligence or freed from all risk as regards the verification and determination of the origin of the goods at the stage of a subsequent verification. It is, therefore, the responsibility 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.

Moreover, a situation where the customs authorities of the importing State had to prove the inaccuracy of the facts provided by the exporter, but were unable to do so owing to the exporter having ceased its activities, could create a risk of conduct incompatible with the objectives of the generalised tariff preferences scheme. Even if the cessation of production represents, in principle, an everyday economic decision, the possibility cannot be excluded that it could nevertheless constitute improper behaviour on the part of the exporter, designed to circumvent the rules of the generalised tariff preferences scheme, through being used by that exporter as a means of concealing the real origin of goods originating from a State which is not admitted to the preferential arrangements.

(see paras 27, 29, 30, 32, 41, operative part)