Lagura Vermögensverwaltung GmbH v Hauptzollamt Hamburg-Hafen.
Date: 2012-11-08
14. The Finanzgericht Hamburg is uncertain as to which party must bear the burden of proving that the certificate of origin was based on a correct or incorrect account of the facts by the exporter. In that regard, it points out that, in Case C‑293/04 Beemsterboer Coldstore Services [2006] ECR I‑2263, the Court of Justice ruled that the burden of proving that the certificate issued by the authorities of the non‑member country was based on a correct account of the facts lies with the person liable for the duty, notwithstanding generally accepted rules on the allocation of the burden of proof according to which that burden rests with the customs authorities which wish to rely on the third subparagraph of Article 220(2)(b) of the Customs Code. Referring to paragraph 43 of Beemsterboer Coldstore Services , according to which the European Union cannot be made to bear the adverse consequences of the wrongful acts of the suppliers of importers, the referring court asks whether the burden of proof must perhaps be borne by the person liable for payment only in cases where the exporter has done something wrong.
17. At the outset, it should be noted in this connection that the purpose of the subsequent verification is to check the accuracy of the origin indicated in the certificate of origin Form A (see, by analogy, concerning movement certificates EUR.1, Case C‑12/92 Huygen and Others  [1993] ECR I‑6381, paragraph 16; Case C–97/95 Pascoal & Filhos  [1997] ECR I‑4209, paragraph 30; Beemsterboer Cold Services , paragraph 32; and Case C‑409/10 Afasia Knits Deutschland [2011] ECR I‑13331 paragraph 43).
18. However, if subsequent verification does not confirm the origin of the goods as stated in the certificate of origin Form A, it must be concluded that those goods are of unknown origin and that, in consequence, the certificate of origin and the preferential tariff were wrongly granted (see, by analogy, Huygen and Others , paragraphs 17 and 18; Joined Cases C‑153/94 and C‑204/94 Faroe Seafood and Others  [1996] ECR I‑2465, paragraph 16; Beemsterboer Cold Services , paragraph 34; and Afasia Knits Deutschland , paragraph 44).
19. Accordingly, if the authorities of the exporting State have issued incorrect certificates of origin Form A, the issue of those certificates must, under the second and third subparagraphs of Article 220(2)(b), be regarded as an error on the part of those authorities, unless it transpires that the certificates were based on an incorrect account of the facts provided by the exporter. If those certificates were issued on the basis of false statements by the exporter, post-clearance recovery of the import duties must be carried out as a consequence, 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 receive preferential treatment (see, by analogy, Afasia Knits Deutschland , paragraph 48).
21. It should be noted in this respect that, regarding allocation of the burden of proof, the Court has ruled that it is for the person liable for payment to prove that the EUR.1 movement certificate issued by the authorities of the non-member country was based on a correct account of the facts by the exporter, where it is impossible, as a result of negligence wholly attributable to the exporter and, in particular, if the exporter has failed to meet the obligation laid down in the applicable rules to keep the supporting documents for at least three years, for the customs authorities to adduce the necessary evidence themselves that the EUR.1 certificate was based on the accurate or inaccurate account of the facts provided by the exporter (see, to that effect, Beemsterboer Coldstore Services , paragraphs 40 and 46).
22. In placing on the person liable for payment the burden of proving that the exporters gave the competent authorities a correct account of the facts, such a requirement constitutes a derogation from the generally accepted rules on the allocation of the burden of proof, under which it is, in principle, for the customs authorities, who wish to rely on Article 220(2)(b) in order to carry out post‑clearance recovery, to adduce in support of their claim the evidence that the incorrect certificates were issued because of the inaccurate account of the facts provided by the exporter (see Beemsterboer Coldstore Services , paragraphs 39 and 46).
30. As the Court has repeatedly held, it is 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 ( Pascoal & Filhos , paragraph 60; order in Case C‑299/98 P CPL Imperial 2 and Unifrigo  v Commission  [1999] ECR I‑8683 paragraph 38; and Beemsterboer Coldstore Services , paragraph 41).
31. In particular, where the person liable for payment obtains 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’ vis-à-vis the generalised tariff preferences scheme, including documents establishing that origin, this can constitute prevention of the risk of an action for post-clearance recovery.
33. However, it is established that the European Union cannot be made to bear the adverse consequences of the wrongful acts of suppliers of importers ( Pascoal & Filhos , paragraph 59, and Beemsterboer Coldstore Services , paragraph 43).
34. Also, as regards the argument that the certificates of origin in question have not been invalidated by the competent Macao authorities, it should be noted that it is undoubtedly true that, in relation to agreements between the European Union and non-member countries, such as association agreements or free trade agreements, the Court has held that the system of administrative cooperation can function only if the customs authorities of the State of import accept the determinations legally made by the authorities of the State of export (see Case 218/83 Les Rapides Savoyards and Others  [1984] ECR 3105, Articles 27; Joined Cases C‑23/04 to C‑25/04 Sfakianakis  [2006] ECR I‑1265, paragraph 23; Case C‑442/08 Commission  v Germany  [2010] ECR I‑6457, paragraph 72; and Afasia Knits Deutschland, paragraph 29).
35. However, the fact remains that the requirement for the customs authorities of the Member States to take into account the assessments made by the customs authorities of the exporting country does not arise in the same way where the preferential scheme is established not by an international agreement binding the European Union to a non-member country on the basis of reciprocal obligations, but by a unilateral EU measure ( Faroe Seafood and Others , paragraph 24).
36. Accordingly, it must be held that, under the scheme of generalised tariff preferences established unilaterally by the European Union, the assessment made by the authorities of the exporting State as to the validity of certificates of origin Form A cannot be binding upon the European Union and its Member States when, as in circumstances akin to those of the case before the referring court, the customs authorities of the importing State continue to harbour doubts as to the true origin of the goods, despite the fact that those certificates of origin have not been invalidated.
40. However, it should be borne in mind that a prudent trader aware of the rules must, in calculating the benefits from trade in goods likely to enjoy tariff preferences, assess the risks inherent in the market which he is considering and accept them as normal trade risks (see Case 827/79 Acampora  [1980] ECR 3731, paragraph 8; Pascoal & Filhos , paragraph 59; and the order in CPL Imperial 2 and Unifrigo  v Commission , paragraph 37).