SIA „Aqua Pro” v Valsts ieņēmumu dienests.
Date: 2017-10-26
26


It should be observed as a preliminary point that, according to the Court’s settled case-law, in the procedure laid down by Article 267 TFEU, providing for cooperation between national courts and the Court, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to determine the case before it. With that in mind, the Court may have to reformulate the questions referred to it. Further, the Court may decide to take into consideration rules of EU law to which the national court has made no reference in the wording of its question (judgment of 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 20 and the case-law cited).
30


However, as regards the matter of the time at which the amount of duty to be recovered must be regarded as actually entered in the accounts, it follows from Article 217(1) of the Customs Code that, according to settled case-law, entry in the accounts consists of the entry, by the customs authorities, of the amount of import duty or export duty resulting from a customs debt in the accounting records or on any other equivalent medium (see, inter alia, judgments of 16 July 2009, Distillerie Smeets Hasselt and Others, C‑126/08, EU:C:2009:470, paragraph 22, and of 8 November 2012, KGH Belgium, C‑351/11, EU:C:2012:699, paragraph 21).
33


That interpretation is, inter alia, supported by the fact that the lodging of an appeal pursuant to Article 243 of the Customs Code does not, under the first subparagraph of Article 244 of that code, in principle, cause implementation of the disputed decision to be suspended and that such an appeal does not therefore preclude the immediate implementation of that decision (see, to that effect, judgment of 3 July 2014, Kamino International Logistics andDatema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 56).
37


In order to answer that question, it should, first of all, be noted that Article 220(2)(b) of the Customs Code is intended to protect the legitimate expectations of the person liable for payment as to the soundness of all the factors on which the decision to recover or not to recover customs duties is based (see, inter alia, judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 31, and of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 43).
57


However, as also follows from the judgment of 16 March 2017, Veloserviss (C‑47/16, EU:C:2017:220), in so far as such a report contains only a general description of the situation at issue, which is to be determined by the referring court, that report cannot, on its own, suffice for the purposes of establishing whether those conditions are satisfied in all respects, in particular as regards the relevant conduct of the exporter or, where relevant, of the customs authorities of the exporting State (see, to that effect, judgment of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraphs 49 and 50).
58


In those circumstances, and in accordance with that case-law, it is in principle for the customs authorities of the importing State to prove, by means of additional evidence, that the issue, by the customs authorities of the exporting State of an incorrect ‘Form A’ certificate of origin is attributable to an incorrect statement of the facts by the exporter (see judgment of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraphs 47 and 50).
61


In that regard, it is settled case-law that the authorities enjoy broad discretion in carrying out subsequent checks (see, to that effect, judgments of 12 July 2012, Südzucker and Others, C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraphs 48 and 50, and of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraphs 27 and 28).
69


It follows that a Member State, and more particularly its administrative and judicial bodies (see, to that effect, judgment of 20 November 2008, Heuschen & Schrouff Oriëntal Foods Trading, C‑375/07, EU:C:2008:645, paragraph 64), is bound, under the conditions specified by the Commission, by the findings of a Commission decision adopted under Article 873 of the Implementing Regulation in respect of another Member State in cases involving comparable issues of fact and of law.
73


As stated in paragraph 61 above, customs authorities enjoy broad discretion in conducting subsequent checks and in regularising the situation appropriately (see, inter alia, judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraphs 27 and 28).
79


Those conditions, in essence, spread the risk of errors or irregularities vitiating a customs declaration on the basis of the conduct and diligence of each of the parties involved, namely the competent authorities of the exporting and importing States, the exporter and the importer (judgment of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraph 25).
82


In that regard, it should be noted that the Court has repeatedly held that it is the responsibility of economic operators to make the necessary arrangements in their contractual relations in order to guard against the risks of an action for post-clearance recovery, and that prevention of risks may consist inter alia in the person liable for payment obtaining from the other contracting party, on or after conclusion of the contract, all the necessary evidence confirming that the goods come from the State which is a ‘beneficiary country’ under the generalised tariff preferences scheme, including documents establishing that origin (see, inter alia, judgments of 8 November 2012, Lagura Vermögensverwaltung, C‑438/11, EU:C:2012:703, paragraphs 30 and 31, and of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraph 38).
83


The Court has also held that it is the duty of economic operators, where they have doubts as to the exact application of provisions non-compliance with which may result in a customs debt being incurred, or as to the definition of the origin of the goods, to make enquiries and seek all possible clarification in order to ascertain whether those doubts are well founded (see, to that effect, inter alia, judgments of 14 May 1996, Faroe Seafoodand Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 100; of 11 November 1999, Söhl & Söhlke, C‑48/98, EU:C:1999:548, paragraph 58; and of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraph 37).
84


In that regard, the Court has furthermore previously held that it is for an importer, in the context of his duty of diligence, where he has clear reasons for doubting the accuracy of a ‘Form A’ certificate of origin, to obtain, using his best efforts, information concerning the circumstances of the issue of that certificate (see, to that effect, judgment of 16 March 2017, Veloserviss, C‑47/16, EU:C:2017:220, paragraphs 39 and 43).