Criminal proceedings against Edmond Huygen and others.
Date: 1993-12-07
16 It follows from the provisions of the Agreement and of the protocol mentioned above that only goods originating in the EEC or Austria benefit from the preferential arrangements laid down by the Agreement and that the EUR.1 certificate constitutes proof of such origin. 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.
17 It follows that, when such a check does not make it possible to confirm the origin of the goods indicated in the EUR.1 certificate, the conclusion must be drawn that the certificate was wrongly issued by the exporting State and that accordingly those goods cannot benefit from the preferential arrangements laid down by the Agreement.
18 The answer to the first question must therefore be that Protocol 3 to the EEC-Austria Agreement is to be interpreted as meaning that where the exporting State, having been requested to check the EUR.1 certificate of origin, does not succeed in establishing the correct origin of the goods, it must conclude that they are of unknown origin and therefore that the EUR.1 certificate and the preferential tariff have been wrongly granted.
The second question
19 The first point to note is that, in principle, if the outcome of subsequent verification proves negative the normal consequence is for the importing State to demand payment of the customs duties not paid at the time of importation.
24 As the Court stated in the context of the interpretation of the free-trade Agreement between the European Economic Community and the Swiss Confederation signed in Brussels on 22 July 1972 and concluded and approved on behalf of the Community by virtue of Council Regulation (EEC) No 2840/72 of 19 December 1972 (OJ, English Special Edition 1972 (31 December) L 300, p. 286), which contains a Protocol 3 similar to that appended to the EEC-Austria Agreement, the determination of the origin of goods is based on a division of powers between the customs authorities of the parties to the Agreement inasmuch as origin is established by the authorities of the exporting State and the proper working of that system is monitored jointly by the authorities concerned on both sides (Case 218/83 Les Rapides Savoyards [1984] ECR 3105, paragraph 26).
30 The Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate (see, most recently, Case C-124/92 An Bord Bainne Co-operative & Compagnie Inter-Agra SA [1993] ECR I-5061, paragraph 10).
31 On the one hand, force majeure is expressly referred to in Protocol 3 only in Article 12 thereof regarding the time-limit for submission of the EUR.1 certificate and, on the other, neither the Agreement nor the protocol makes provision for the consequences of irregularities of the kind determined by the national court. In the absence of specific provisions, recognition of circumstances constituting force majeure presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively impossible for the persons concerned to comply with their obligations (Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Valsabbia and Others v Commission [1980] ECR 907, paragraph 140). The concept of force majeure must be understood as meaning abnormal and unforeseeable circumstances beyond the control of the trader concerned, whose consequences could not have been avoided despite the exercise of all due care, so that conduct of the public authorities may, according to the circumstances, constitute a case of force majeure (see, in particular, Case C-50/92 Firma Molkerei-Zentrale Sued [1993] ECR I-1035).
32 In the context of Protocol 3 and, more particularly, of subsequent verification, the fact that the customs authorities of the exporting State are not in a position to establish the correct origin of goods constitutes in principle an abnormal, unforeseeable circumstance beyond the control of the importer.