Hauptzollamt Hamburg-Hafen v Afasia Knits Deutschland GmbH.
Date: 2011-12-15
28. As the Court has already held, the system of administrative cooperation established by a protocol stating, in an annex to an agreement between the European Union and a non-member State, the rules concerning the origin of goods is based on mutual trust between the authorities of the importing Member States and those of the exporting State (Joined Cases C‑23/04 to C‑25/04 Sfakianakis [2006] ECR I-1265, paragraph 21, and Case C‑442/08 Commission  v Germany  [2010] ECR 1-0000, paragraph 70).
29. With regard, in particular, to the subsequent verification of the EUR.1 certificates issued by the exporting State, the findings of the authorities of the exporting State are binding on the authorities of the importing Member State. The cooperation established by a protocol with regard to the origin of goods can function only if the importing State accepts the determinations legally made in that regard by the exporting State (Case C‑97/95 Pascoal & Filhos  [1997] ECR I-4209, paragraph 33; Case C‑442/08 Commission v Germany , paragraphs 72 and 73; and Case C‑386/08 Brita [2010] ECR I‑1289, paragraph 62).
31. In that context, it must be held that, in addition to the rules set out in Article 32(1) to (6) of Protocol 1, paragraph (7) of that article provides that the exporting ACP State must carry out, on its own initiative or at the request of the European Union, the necessary enquiries to identify and prevent contraventions of the provisions of that protocol.
32. It follows that, as pointed out in the written observations of the Czech and Italian Governments and of the Commission, and as observed by the Advocate General at point 23 of his Opinion, a subsequent verification must be carried out not only when the importing Member State so requests, but also, in general, 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 the correct implementation of the Agreement, there are indications which point to an irregularity in regard to the origin of the imported goods (see, by analogy, Sfakianakis , paragraphs 30 and 31, and Case C‑442/08 Commission  v Germany , paragraph 82).
40. In view of the foregoing, the answer to the first question is that Article 32 of Protocol 1 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 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.
The second question
43. In that regard, it must be noted at the outset that the purpose of subsequent verification is to check whether the statement of origin in the EUR.1 certificate is correct (Case C‑293/04 Beemsterboer Coldstore Services  [2006] ECR I‑2263, paragraph 32 and the case-law cited).
44. As the Court has repeatedly held in this context, where a subsequent verification does not allow confirmation of the origin of the goods as stated in the EUR.1 certificate, 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 (Case C‑12/92 Huygen and Others  [1993] ECR I-6381, paragraphs 17 and 18; Joined Cases C‑153/94 and C‑204/94 Faroe Seafood and Others  [1996] ECR I‑2465, paragraph 16; and Beemsterboer Coldstore Services , paragraph 34).
46. On the contrary, it follows from the case-law that the post-clearance recovery of import duties unpaid at the time of importation is the normal consequence where a subsequent verification does not allow confirmation of the origin of the goods as stated in the EUR.1 certificate ( Huygen and Others , paragraph 19, and Faroe Seafood and Others , paragraph 16).
47. For an importer to be able validly to claim a legitimate expectation pursuant to Article 220(2)(b) of the Customs Code and thus to benefit from the waiver of post-clearance recovery provided for by that provision, three cumulative conditions must be met. It is necessary, first, that the irregular issuing of the EUR.1 certificates must have been due to an error on the part of the competent authorities themselves, second, that that error must have been such that it could not reasonably have been detected by the person liable for payment acting in good faith, and, finally, that that person must have complied with all the provisions laid down by the legislation in force (see, inter alia, Faroe Seafood and Others , paragraph 83; Case C‑499/03 P Biegi Nahrungsmittel and Commonfood  v Commission  [2005] ECR I‑1751, paragraph 46; and Case C‑173/06 Agrover  [2007] ECR I‑8783, paragraph 30).
48. Where, as in the case in the main proceedings, the authorities of the exporting State issued incorrect EUR.1 certificates in the context of a system of administrative cooperation, the issue of those certificates must, pursuant to the second and third subparagraphs of Article 220(2)(b), be considered to be an error on the part of those authorities unless it transpires that those certificates were issued on the basis of an incorrect presentation of the facts by the exporter. If those certificates were issued on the basis of false declarations by the exporter, the first of the three cumulative conditions referred to above will not have been fulfilled and post-clearance recovery of the import duties must, consequently, be carried out, unless, inter alia, it is clear that the authorities which issued those certificates knew, or ought to have known, that the goods did not meet the conditions necessary in order for them to benefit from preferential treatment.
51. In that judgment, the Court held that the customs authorities of the importing State cannot be required to prove that the exporter made false declarations when it transpires that the latter has not kept the documents relating to the goods in question for at least three years, notwithstanding the obligation laid down in the applicable rules. In such circumstances, it is impossible for those authorities to establish whether the information provided by the exporter for the issue of the EUR.1 certificates was correct or not ( Beemsterboer Coldstore Services , paragraph 40).
54. As the Italian Government and the Commission have correctly observed, where 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. In this respect, it follows from well-established case-law that only errors that are attributable to acts of the competent authorities confer entitlement to the waiver of post-clearance recovery of customs duties. In the absence of such an error, Article 220(2)(b) of the Customs Code does not allow the person liable to claim a legitimate expectation (see, inter alia, Faroe Seafood and Others , paragraphs 91 and 92, and Agrover , paragraph 31). In those circumstances, Afasia’s arguments alleging a case of force majeure serve no purpose.