Pascoal & Filhos Ldª v Fazenda Pública.
Date: 1997-07-17
30 According to that system, traders wishing to benefit from preferential customs arrangements are required to show to the competent authorities that their goods are, by reason of their origin, entitled to be imported into the European Community exempt from customs duties.  As Article 6(1) of Annex II provides, evidence of products' originating status is supplied by an EUR.1 certificate. The main purpose of the subsequent verification procedure is to check whether the statement of origin in a certificate which has been issued is correct (Huygen, cited above, paragraph 16).
31 In its judgments in Case 218/83 Les Rapides Savoyards and Others v Directeur Général des Douanes et Droits Indirects [1984] ECR 3105, Huygen and Others, cited above, Case C-432/92 Anastasiou and Others [1994] ECR I-3087, and in Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, the Court interpreted the provisions of administrative cooperation schemes similar to the one at issue in the present case.  Those judgments concerned, respectively, the Agreement on free trade between the European Economic Community and the Swiss Confederation, signed in Brussels on 22 July 1972 (OJ, English Special Edition 1972 (31 December), p. 191), the Agreement on free trade between the European Economic Community and the Republic of Austria, signed in Brussels on 22 July 1972 (OJ, English Special Edition 1972 (31 December), p. 4), the Agreement of 19 December 1972 establishing an Association between the European Economic Community and the Republic of Cyprus (OJ 1973 L 133, p. 2), and Commission Regulation (EEC) No 3184/74 of 6 December 1974 concerning the definition of the concept of `originating products' and methods of administrative cooperation for the application of the customs procedure applicable to certain products originating in and coming from the Faroe Islands (OJ 1974 L 344, p. 1).
32 It follows from that case-law that determination of the origin of goods is based on an allocation of responsibilities as between the authorities of the exporting country and those of the importing country, origin being established by the authorities of the exporting country, if necessary at the request of the authorities of the importing country, and the proper working of that system being monitored jointly by the authorities concerned on both sides.  That system is justified by the fact that the authorities of the exporting country are in the best position to verify directly the facts which determine origin (Faroe Seafood, cited above, paragraph 19).
33 In the same judgments, the Court also considered that that mechanism can function only if the customs authorities of the importing country accept the determinations legally made by the authorities of the exporting country (Faroe Seafood, paragraph 20).
51 In its order for reference, the national court expresses the view that it would be contrary to the `principle of justice', recognized in Portuguese law, to impose on an importer customs duties `which should lawfully be paid by other persons'.
52 It is not necessary to determine whether this principle is one of the general principles of Community law, since an importer becomes liable for the customs debt only if he has made the import declaration.  That being so, he personally assumes the obligation to pay the debt, which does not therefore rest on a third party.
53 The national court also takes the view that the exporter, as the party responsible for the customs offence, would be unjustly enriched if the importer were to pay the customs debt.
54 However, if the obligation to pay the customs debt rests on the importer, a third party cannot be enriched solely because the importer has paid that debt.  Nevertheless, that payment may give rise to an obligation on the part of the exporter or another person towards the importer, legally distinct from the importer's customs obligation, under which the latter may recover the amount which he has paid to the customs authorities.
55 Nor does the fact of imposing payment of the customs debt on the person who declared the goods, even if he is an importer acting in good faith, constitute an infringement of the principle of proportionality (see, to this effect, Faroe Seafood, paragraph 114).
56 With regard to the principle of legal certainty, suffice it to note that the responsibility of the person liable to pay the customs debt is based on a clearly defined legal situation which thus enables every trader to be aware of the risks inherent in the market.  This situation must be treated as coming within the circumstances on the basis of which an importer such as Pascoal concluded the contract in question.
57 The fact that an importer has been acting in good faith does not release him from his liability to pay the customs debt where it is he who has declared the imported goods (see, to this effect, Case 827/79 Amministrazione delle Finanze v Acampora [1980] ECR 3731, paragraph 8).  If it did, the importer would have an incentive to refrain from verifying the accuracy of the information which the exporter provided to the authorities of the State of exportation and the exporter's good faith, which would give rise to abuse.
59 Admittedly, the possibility of verifying the EUR.1 certificate following importation, without the importer being given prior warning, may cause him difficulties where, in good faith, he has imported goods benefiting from preferential tariffs in reliance on certificates which are incorrect or were falsified without his knowledge.  It must, however, be pointed out, first, that the European Community cannot be made to bear the adverse consequences of the wrongful acts of suppliers of importers, second, that the importer may seek compensation from the perpetrator of the fraud, and, finally, that, in calculating the benefits from trade in goods likely to obtain tariff preferences, a prudent trader aware of the rules must assess the risks inherent in the market which he is considering and accept them as normal trade risks (see, to this effect, Acampora, cited above, paragraph 8).
60 As the Court pointed out in Faroe Seafood, at paragraph 114, 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.
61 It follows that the fact of requiring an importer who has acted in good faith to pay customs duties payable on the importation of goods in respect of which the exporter has committed a customs offence, where the importer has played no part in that offence, is not contrary to the general principles of law which the Court is required to uphold.
The seventh question (negligence on the part of the authorities of the State of exportation)