Beemsterboer Coldstore Services BV v Inspecteur der Belastingdienst - Douanedistrict Arnhem.
Date: 2006-03-09
19. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force (see Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux  v Commission  [1993] ECR I-3873, paragraph 22; Case C-61/98 De Haan  [1999] ECR I-5003, paragraph 13; Case C-251/00 Ilumitrónica  [2002] ECR I-10433, paragraph 29; and Joined Cases C-361/02 and C-362/02 Tsapalos and Diamantakis  [2004] ECR I-6405, paragraph 19).
21. However, the substantive rules of Community law may exceptionally be interpreted as applying to situations existing before their entry into force in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them (see Joined Cases 212/80 to 217/80 Salumi and Others  [1981] ECR 2735, paragraph 9; Case C-34/92 GruSa Fleisch  [1993] ECR I‑4147, paragraph 22; and Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 119).
22. It is apparent from recital (11) in the preamble to Regulation No 2700/2000 that the purpose of the amendment of Article 220(2)(b) of the Customs Code was to define, for the particular case of preferential arrangements, the concepts of error by the customs authorities and good faith of the person liable for payment. Thus, without having recourse to an amendment of the substance, the aim of that article is t o explain the above concepts, which were already contained in the initial version of Article 220 and defined by the case-law of the Court (see, inter alia, Joined Cases C‑153/94 and C-204/94 Faroe Seafood and Others  [1996] ECR I‑2465, paragraphs 92 and 97; Case C‑15/99 Sommer  [2000] ECR I‑8989, paragraphs 35 to 37; order in Case C‑30/00 William Hinton & Sons  [2001] ECR I‑7511, paragraphs 68 to 73, and Ilumitrónica , paragraphs 42 and 43).
24. However, acknowledging that a provision of substantive law has such an effect must not undermine the fundamental principles of the Community, in particular the principles of legal certainty and the protection of legitimate expectations, by virtue of which the effect of Community legislation must be clear and predictable for those who are subject to it (see, to that effect, Salumi and Others , paragraph 10; Case 21/81 Bout  [1982] ECR 381, paragraph 13; GruSa Fleisch , paragraph 22; and Case C-376/02 ‘Goed Wonen’  [2005] ECR I-3445, paragraph 33).
32. In this connection, the Court has already held that the aim of subsequent verification is to check whether the statement of origin in an EUR.1 certificate which has been issued is correct (Case C‑12/92 Huygen and Others  [1993] ECR I‑6381, paragraph 16, and Case C‑97/95 Pascoal & Filhos  [1997] ECR I‑4209, paragraph 30).
33. The person liable cannot entertain a legitimate expectation with regard to the validity of EUR.1 certificates by virtue of the fact that they were initially accepted by the customs authorities of a Member State, since the role of those authorities in regard to the initial acceptance of declarations in no way prevents subsequent verifications from being carried out ( Faroe Seafood and Others , paragraph 93).
34. Therefore, where a subsequent verification does not confirm the origin of the goods as stated in the EUR.1 certificate, it must be concluded that the goods are of unknown origin and that the EUR.1 certificate and the preferential tariff were thus wrongly granted ( Huygen and Others , paragraphs 17 and 18, and Faroe Seafood and Others , paragraph 16).
39. It must be stated in this respect that, in accordance with generally accepted rules on the allocation of the burden of proof, it is the responsibility of the customs authorities which wish to rely on the beginning of the third subparagraph of Article 220(2)(b) of the Customs Code to carry out post-clearance recovery to adduce, in support of their claim, evidence that the issue of incorrect certificates was due to an inaccurate account of the facts provided by the exporter.
40. However, as appears from the findings made by the national court in the decision making the reference, it was impossible in the present case for the customs authorities to establish whether the information provided for the issue of an EUR.1 certificate was correct or not, since the exporter had not retained possession of the supporting documents, notwithstanding the obligation flowing from Article 28(1) of Protocol 3 to keep for at least three years the appropriate documents proving the originating status of the products concerned.
41. 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).
43. It is settled case-law, in any event, that the European Community cannot be made to bear the adverse consequences of the wrongful acts of the suppliers of importers ( Pascoal & Filhos , paragraph 59).
45. Suffice it to hold in that regard that the person who relies on the exception set out at the end of the third subparagraph of Article 220(2)(b) of the Customs Code bears the burden of proving that it was evident that the authorities which issued that certificate were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment.
46. In the light of the foregoing, the answer to the third question must be that the person who relies on the third subparagraph of Article 220(2)(b) of the Customs Code, as amended by Regulation No 2700/2000, must adduce the evidence necessary for his claim to succeed. It is therefore in principle for the customs authorities which wish to rely on the beginning of the third subparagraph of that Article 220(2)(b) in order to carry out post-clearance recovery to adduce evidence that the incorrect certificates were issued because of the inaccurate account of the facts provided by the exporter. Where, however, as a result of negligence wholly attributable to the exporter, it is impossible for the customs authorities to adduce the necessary evidence that the EUR.1 certificate was based on the accurate or inaccurate account of the facts provided by the exporter, the burden of proving that that certificate issued by the authorities of the non-member country was based on an accurate account of the facts lies with the person liable for the duty.
The fourth question