European Commission v Combaro SA.
Date: 2018-07-25
44


As a preliminary matter, it should be noted that Article 239 of the Customs Code constitutes, in conjunction with Article 905 of the implementing regulation, a general fairness clause intended to cover the exceptional situation in which a declarant might find himself in comparison with other operators engaged in the same business (see, to that effect, judgments of 17 February 2011, Bolton Alimentari, C‑494/09, EU:C:2011:87, paragraph 54, and of 22 March 2012, Portugal v Transnáutica, C‑506/09 P, EU:C:2012:156, paragraph 65).
45


That general fairness clause entails the remission of import duties where two conditions are met, namely the existence of a special situation and the absence of obvious negligence or deception on the part of the liable person (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 86).
50


It should be noted that, as the Commission points out, it is apparent from the Court’s settled case-law, referred to in paragraph 86 of the judgment under appeal, that 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 (see, to that effect, judgments of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 28, and of 24 October 2013, Sandler, C‑175/12, EU:C:2013:681, paragraph 49).
51


The Court deduced from the above, with regard more particularly to the post-clearance check of the EUR.1 certificates issued by the exporting country, that the findings and determinations legally made by the authorities of that latter country apply, in principle, to the authorities of the Member State of import (see, to that effect, judgments of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraphs 62 and 63, and of 15 December 2011, C‑409/10, EU:C:2011:843, paragraph 29).
54


In this specific case, the Commission is required, for the purposes of taking a decision on the repayment or remission of import duties, to examine, in lieu of the customs authorities of the Member State of import, the import conditions of certain goods and the application of the relevant customs rules, in particular those relating to the authenticity of movement certificates (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 90).
55


In that context, the main grounds put forward, in the Court’s case-law, to justify the administrative cooperation mechanism based on trust in the results of the post-clearance check carried out by the authorities of the country of export, namely the fact that the latter are the best placed to carry out that check, the fact that such a system has the advantage of producing certain and uniform results and the need to ensure mutual recognition of the decisions taken by the EU authorities (see, to that effect, judgments of 12 July 1984, Les Rapides Savoyards and Others, 218/83, EU:C:1984:275, paragraphs 26 and 27, and of 17 July 1997, Pascoal & Filhos, C‑97/95, EU:C:1997:370, paragraph 28), mean that the conclusions reached by the authorities of the country of export apply, in principle, to the Commission where that institution assesses the existence of a special situation, for the purposes of Article 239 of the Customs Code.
59


However, in the case which gave rise to that judgment, the obligation to thereby conduct detailed investigations of such certificates, in the context of the Commission’s general task of supervision and monitoring of the application of an Association Agreement, was justified by very specific circumstances, relating to the fact that the customs authorities of the country of export had formulated assessments concerning those certificates which were ambiguous and inconsistent (see, to that effect, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraph 111).
72


The fact that the letters of 2003 are limited to brief assertions and that it is not established that the confirmation made in 2007 was the result of new investigations cannot render the positions adopted by those authorities devoid of value, since the Association Agreement does not provide for any particular formalities in that regard and it is apparent from the Court’s case-law that the customs authorities of the Union are bound by the results of a post-clearance check, even where those results are sent without any reasoning or in the form of a signature on a record drawn up by OLAF following an investigation (see, to that effect, judgments of 17 July 1997, Pascoal & Filhos, C‑97/95, EU:C:1997:370, paragraphs 30 to 33, and of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 40).
83


First of all, it must be noted that, although Combaro relies, in order to establish those various infringements, on findings made, according to it, by a national court, it follows from the Court’s case-law that, where the Commission takes a decision on a particular case under Article 239 of the Customs Code, it cannot be bound by a decision given previously by such a court (see, to that effect, judgment of 20 November 2008, Heuschen & Schrouff Oriëntal Foods Trading, C‑375/07, EU:C:2008:645, paragraph 69), a fortiori where that decision seeks solely to determine whether the customs authorities of the Member State of import must refer a case to the Commission for it to decide on a possible application of that provision.