1 This reference for a preliminary ruling concerns, first, the validity of Commission Decision COM(2008) 6317 final of 3 November 2008 finding that post-clearance entry in the accounts of import duties is justified and remission of those duties is not justified in a particular case (Case REM 03/07) (‘Decision REM 03/07’) and, second, the interpretation of Article 220(2)(b) and Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the customs code’), and also of Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003 (OJ 2003 L 187, p. 16) (‘the implementing regulation’).
2 This request was submitted in the context of a dispute between Prenatal SA and the Tribunal Económico Administrativo Regional de Cataluña (TEARC) (the Regional Tax Administrative Court, Catalonia (TEARC), Spain) concerning Prenatal’s request for repayment of import duties.
3 The Partnership Agreement between the African, Caribbean and Pacific Group of States, of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000 (OJ 2000 L 317, p. 3), was approved on behalf of the European Community by Council Decision 2003/159/EC of 19 December 2002 (OJ 2003 L 65, p. 27) (‘the Cotonou Agreement’). As the Cotonou Agreement entered into force on 1 April 2003, it was the subject of anticipated application from 2 August 2000 in accordance with Decision No 1/2000 of the ACP-EC Council of Ministers of 27 July 2000 regarding transitional measures valid from 2 August 2000 until the entry into force of the ACP-EC Partnership Agreement (OJ 2000 L 195, p. 46), as extended by Decision No 1/2002 of ACP-EC Council of Ministers of 31 May 2002 (OJ 2002 L 150, p. 55).
4 In accordance with Article 3 of the Cotonou Agreement, ‘[t]he Parties shall … take all appropriate measures … to ensure the fulfilment of the obligations arising from this Agreement and to facilitate the attainment of the objectives thereof’.
5 Article 36(1) of Annex IV to that agreement provides: ‘The Commission shall be represented in each ACP [Africa, Caribean and Pacific] State or in each regional grouping, which expressly so requests, by a delegation under the authority of a Head of Delegation, with the approval of the ACP State or States concerned. Where a Head of Delegation is appointed to a group of ACP States, appropriate steps shall be taken to ensure that the Head of Delegation is represented by a deputy resident in each of the States in which the Head of Delegation is not resident. The Head of Delegation shall represent the Commission in all spheres of its competence and in all its activities.’
6 Article 1 of Annex V to that agreement provides for preferential tariff treatment of imports into the European Union of products ‘originating in the ACP States’, in that those products are to be imported into the Union free of customs duties and charges having equivalent effect.
7 Protocol 1 to Annex V (‘Protocol 1’), which forms an integral part of that annex, concerns the definition of the concept of ‘originating products’ and methods of administrative cooperation. It includes Article 15, entitled ‘Procedure for the issue of a movement certificate EUR.1’, which provides: ‘1. A movement EUR.1 certificate shall be issued by the customs authorities of the exporting country on application having been made in writing by the exporter or, under the exporter’s responsibility, by his authorised representative. 2. For this purpose, the exporter or his authorized representative shall fill out both the movement EUR.1 certificate and the application form, specimens of which appear in Annex IV. These forms shall be completed in accordance with the provisions of this Protocol. If they are handwritten, they shall be completed in ink in printed characters. The description of the products must be given in the box reserved for this purpose without leaving any blank lines. Where the box is not completely filled, a horizontal line must be drawn below the last line of the description, the empty space being crossed through. 3. The exporter applying for the issue of a movement EUR.1 certificate shall be prepared to submit at any time, at the request of the customs authorities of the exporting ACP State where the movement EUR.1 certificate is issued, all appropriate documents proving the originating status of the products concerned as well as the fulfilment of the other requirements of this Protocol. 4. A movement EUR.1 certificate shall be issued by the customs authorities of the exporting ACP State if the products concerned can be considered as products originating in the ACP States or in one of the other countries referred to in Article 6 and fulfil the other requirements of this Protocol. 5. The issuing customs authorities shall take any steps necessary to verify the originating status of the products and the fulfilment of the other requirements of this Protocol. For this purpose, they shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate. …’
8 Article 31 of that protocol, entitled ‘Mutual assistance’, provides, in paragraph 2: ‘In order to ensure the proper application of this Protocol, the Community, the [Overseas Countries and Territories (‘OCT’)], the ACP States shall assist each other, through the competent customs administrations, in checking the authenticity of the movement EUR.1 certificates, the invoice declarations or supplier’s declarations and the correctness of the information given in these documents. The authorities consulted shall furnish the relevant information concerning the conditions under which the product has been made, indicating especially the conditions in which the rules of origin have been respected in the various ACP States, Member States, OCT concerned.’
9 Article 32 of that Protocol, entitled ‘Verification of proofs of origin’, provides, in paragraphs 1, 3 and 7: ‘1. Subsequent verifications of proofs of origin shall be carried out at random or whenever the customs authorities of the importing country have reasonable doubts as to the authenticity of such documents, the originating status of the products concerned or the fulfilment of the other requirements of this Protocol. … 3. The verification shall be carried out by the customs authorities of the exporting country. For this purpose, they shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate. … 7. Where the verification procedure or any other available information appears to indicate that the provisions of this Protocol are being contravened, the ACP State on its own initiative or at the request of the Community shall carry out appropriate enquires or arrange for such enquiries to be carried out with due urgency to identify and prevent such contraventions and for this purpose the ACP State concerned may invite the participation of the Community in these enquiries.’
10 According to Article 37 of Protocol 1: ‘1. A Customs Cooperation Committee, hereinafter referred to as “the Committee”, shall be set up and charged with carrying out administrative cooperation with a view to the correct and uniform application of this Protocol and with carrying out any other task in the customs field which may be entrusted to it. 2. The Committee shall examine regularly the effect on the ACP States and in particular on the least developed ACP States of application of the rules of origin and shall recommend to the Council of Ministers appropriate measures. 3. The Committee shall take decisions on cumulation under the conditions laid down in Article 6. 4. The Committee shall take decisions on derogations from this Protocol, under the conditions laid down in Article 38. … 6. The Committee shall be composed on the one hand of experts from the Member States and of Commission officials responsible for customs questions, and on the other hand of experts representing the ACP States and of officials of regional groupings of the ACP States who are responsible for customs questions. The Committee may call upon appropriate expertise where necessary.’
11 Article 220(2)(b) of the Customs Code disposes: ‘Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts shall not occur where: … b) the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration. Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of the first subparagraph. The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment. …’
12 According to Article 239 of that Code: ‘1. Import duties or export duties may be repaid or remitted in situations other than those referred to in Articles 236, 237, and 238: - to be determined in accordance with the procedure of the committee; - resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special condition. 2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. …’
13 Under Part IV of the implementing regulation, concerning customs debt, is Title III of that regulation, entitled ‘Recovery of the amount of the customs debt’. That title includes Articles 868 to 876a of that regulation, which govern requests submitted pursuant to Article 220(2)(b) of the Customs Code. Article 871 of that regulation provides: ‘1. The customs authority shall transmit the case to the Commission to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in Article 220(2)(b) of the Code are fulfilled and: - it considers that the Commission has committed an error within the meaning of Article 220(2)(b) of the Code, - the circumstances of the case are related to the findings of a Community investigation carried out under Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters (OJ 1997 L 82, p. 1)) or under any other Community legislation or any agreement concluded by the Community with a country or group of countries in which provision is made for carrying out such Community investigations, or … 2. However, the cases referred to in paragraph 1 shall not be transmitted where: … - the Commission is already considering a case involving comparable issues of fact and of law. 3. The dossier submitted to the Commission shall contain all the information required for full consideration. … … 6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 872 to 876 shall be deemed never to have been initiated: … - under paragraphs 1 and 2, the dossier should not be transmitted, …’
14 The first paragraph of Article 873 of the implementing regulation provides: ‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the Committee to consider the case in question, the Commission shall decide whether the circumstances under consideration are such that the duties in question need not be entered in the accounts.’
15 In Chapter 3 of the implementing regulation, entitled ‘Specific provisions relating to the application of Article 239 of the Code’, which appears under Title IV of Part IV of that regulation, Article 905 of the regulation provides: ‘1. Where the application for repayment or remission submitted under Article 239(2) of the Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where: … - the circumstances of the case are related to the findings of a Community investigation carried out under Regulation (EC) No 515/97, or under any other Community legislation or any agreement concluded by the Community with countries or groups of countries in which provision is made for carrying out such Community investigations, or … 2. However, the cases referred to in paragraph 1 shall not be transmitted where: … - the Commission is already considering a case involving comparable issues of fact and of law. 3. The dossier submitted to the Commission shall contain all the information required for full consideration. … … 6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 906 to 909 shall be deemed never to have been initiated: … - under paragraphs 1 and 2, the dossier should not be transmitted, …’
16 According to the first paragraph of Article 907 of the implementing regulation: ‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the Committee to consider the case in question, the Commission shall decide whether or not the situation which has been considered justifies repayment or remission.’
17 Decision REM 03/07 concerns a request for the remission of import duties relating to textile products benefiting from EUR.1 movement certificates (‘EUR.1 certificates’) issued by the Jamaican custom authorities, products which were imported into the European Union between 2002 and 2005.
18 The Commission observed in that decision that the products in question were at the material time imported into the Union free of import duties, since they were covered by EUR.1 certificates showing that they were of Jamaican origin. Following a mission carried out in March 2005 with a view to determining their origin, the Commission considered that their origin and the resulting preferential tariff treatment had been granted on the basis of an incorrect account of the facts by the Jamaican exporters.
19 By that decision, the Commission considered, in the first place, that in this instance the Jamaican customs authorities had not made an error within the meaning of Article 220(2)(b) of the Customs Code and, in the second place, that there was no special situation, within the meaning of Article 239 of that code. Therefore, without examining the other conditions laid down in those provisions, it decided that it was justified in proceeding with post-clearance recovery of the import duties and in not remitting those duties in the particular case forming the subject matter of that decision.
20 Decision REM 03/07 was the subject of an action for annulment before the General Court of the European Union, brought by a company which had requested remission of import duties in the special case that had led to the adoption of that decision. By order of 9 December 2013, El Corte Inglés v Commission (T‑38/09, not published, EU:T:2013:675), the General Court held that there was no need to adjudicate on that action, as it considered that the action had become devoid of purpose following the annulment of the import duties recovery notice and that Decision REM 03/07 could not have legal effects on that company’s legal position.
21 In 2003 and 2004 Prenatal imported clothing into Spain, submitting EUR.1 certificates issued by the Jamaican authorities, mentioning the preferential origin ‘Jamaica’. On the basis of those certificates, the Spanish customs authorities granted those imports a preferential tariff treatment on the basis of Article 1 of Annex V to the Cotonou Agreement.
22 In March 2005, the European Anti-Fraud Office (OLAF) conducted an investigation jointly with the representatives of a number of Member States in order to verify the origin of clothing brought into the European Union under those EUR.1 certificates. In its mission report (‘the 2005 Olaf report’), OLAF stated that the clothing imported by Prenatal had been manufactured from items imported from China or Hong Kong and that it could not therefore be regarded as originating in Jamaica, within the meaning of the rules of the Cotonou Agreement.
23 The conclusions reached in that investigation led the Jamaican authorities to invalidate the EUR.1 certificates at issue for the period concerned. Following the invalidation of the certificates, the Spanish authorities proceeded with post-clearance recovery of the customs duties payable by Prenatal on those imports.
24 On 10 May 2006, Prenatal requested the Dependencia Regional de Aduanas de la Delegación Especial de Cataluña (Regional Customs Office of the Special Delegation of Catalonia, Spain) (‘the Regional Customs Office) to repay those customs duties on the basis of Article 239 of the Customs Code.
25 The Regional Customs Office, having taken the view that Prenatal was calling in question, by the arguments submitted in support of that request, the conclusions set out in the 2005 Olaf report, transmitted that request and the associated dossier to the Commission, in application of Article 905(1) of the Implementing Regulation. The Commission considered that Prenatal’s case was comparable, in law and in fact, to another case, namely the case forming the subject matter of Case REM 03/07, and returned the dossier, in accordance with Article 905(6) of the implementing regulation.
26 Following the adoption by the Commission of Decision REM 03/07, Prenatal’s request for repayment was rejected by the Regional Customs Office, and the complaint which it subsequently lodged with the TEARC was likewise rejected. Prenatal therefore brought an action before the Tribunal Superior de Justicia de Cataluña (Higher Court of Justice, Catalonia, Spain).
27 Before the referring court, Prenatal expressed doubts as to the validity of Decision REM 03/07, on the ground that the Commission made an error of law when it concluded that there was no error on the part of the Jamaican customs authorities, within the meaning of Article 220(2)(b) of the Customs Code, and that there was no special situation, within the meaning of Article 239 of that code. The TEARC disputed those arguments.
28 In those circumstances, the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is [Decision REM 03/07] finding that post-clearance entry in the accounts of import duties is justified and remission of those duties is not justified in a particular case contrary to EU law, particularly Article 220(2)(b) and Article 239 of the [customs code]? (2) Where an application for remission has been made and the Commission notifies its decision that the present case has elements of fact and law similar to a previous case already resolved by the Commission or its decision that there is a comparable case pending resolution, is either of those decisions to be regarded as an act with legal content which is binding on the authorities of the Member State in which application for remission is made and is therefore open to appeal by the person seeking remission (Article 239 of the [customs code]) or requesting that there be no entry in the accounts (Article 220(2)(b) [of that code])? (3) If it is not to be regarded as a Commission decision with binding legal content, is it then for the national authorities to evaluate whether there are comparable elements of fact or law in the case? (4) In the event of an affirmative reply, if that analysis has been made and led to the conclusion that such elements are not present, is it necessary to apply Article 905(1) of [the implementing regulation], therefore, must the Commission issue a decision with a legal content binding on those national authorities?’
29 By a document lodged at the Court Registry on 15 February 2019, Prenatal asked the Court to order the reopening of the oral procedure, in application of Article 83 of the Rules of Procedure of the Court, on the ground that the Advocate General’s Opinion failed to take account of the elements of fact which in its view are decisive for the assessment of the validity of Decision REM 03/07.
30 In that regard, it should be borne in mind that, under the second paragraph of Article 252 TFEU, the Advocate General, acting with complete impartiality and independence, is to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. The Court is not bound either by the Advocate General’s conclusion or by the reasoning which led to that conclusion. Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (judgment of 21 March 2019, Verkehrsbetrieb Hüttebräucker and Rhenus Veniro, C‑266/17 and C‑267/17, EU:C:2019:241, paragraph 55 and the case-law cited).
31 In contrast, the Court may at any time, after hearing the Advocate General, order the reopening of the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.
32 In this instance, by its request that the oral part of the procedure be reopened, Prenatal, in essence, merely expresses its disagreement with the Advocate General’s Opinion and does not mention any new argument on the basis of which the case should be decided. Thus, the Court considers, after hearing the Advocate General, that it has all the necessary material to rule on the request for a preliminary ruling submitted to it and that the request must not be considered in the light of an argument which has not been debated before it.
33 Consequently, the request to reopen the oral part of the procedure must be rejected.
34 By its first question, the referring court asks the Court to assess the validity of Decision REM 03/07 in the light of Article 220(2)(b) of the Customs Code and of Article 239 of that code.
35 As a preliminary point, it should be observed that, by Decision REM 03/07, the Commission rejected a request for the remission of import duties in a special case, on the basis of the Customs Code and of the implementing regulation, in particular, first, of Article 220(2)(b) of that code read with Articles 871 and 873 of the implementing regulation and, second, of Article 239 of that code read with Articles 905 and 907 of that regulation. When the Commission rules on such a request on the basis of those provisions, it is required 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 (see, to that effect, judgment of 25 July 2018, Commission v Combaro, C‑574/17 P, EU:C:2018:598, paragraph 54 and the case-law cited).
36 In addition, it should be borne in mind that, according to the first subparagraph of Article 220(2)(b) of the Customs Code, subsequent entry in the accounts is not to occur where ‘the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration’. The conditions laid down in that provision are cumulative (see, to that effect, judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 30 and the case-law cited, and of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 47).
37 As for Article 239 of the Customs Code, that provision is, according to the Court’s case-law, a general fairness clause entailing 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 (judgment of 25 July 2018, Commission v Combaro, C‑574/17 P, EU:C:2018:598, paragraph 45 and the case-law cited).
38 In this instance, the Commission considered that the Jamaican customs authorities had not made an error, within the meaning of Article 220(2)(b) of that code, when they issued the EUR.1 certificates at issue and, furthermore, that no special situation within the meaning of Article 239 of that code existed that could justify the remission of the import duties which had been paid. Thus, it decided, without examining the other conditions laid down in those provisions, that the remission of import duties requested in the case forming the subject matter of Decision REM 03/07 should not be granted.
39 Before the referring court, Prenatal claims that the Commission made an error of law in concluding, in that decision, that there had been no error within the meaning of Article 220(2)(b) of the Customs Code and that no special situation within the meaning of Article 239 of that code existed. The referring court now asks the Court about the validity of that decision by reference to the requirements laid down by those provisions.
40 In accordance with the second subparagraph of Article 220(2)(b) of the Customs Code, the issue of an incorrect EUR.1 certificate by the competent customs authorities of a third country constitutes, in principle, an ‘error which could not reasonably have been detected’ by the liable person, within the meaning of the first subparagraph of that provision. However, the third subparagraph of that provision states that ‘the issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment’.
41 As regards the existence of an error, within the meaning of that provision, in a situation such as the one that gave rise to the adoption of Decision REM 03/07, it is common ground that the EUR.1 certificates in question issued by the Jamaican customs authorities were incorrect, since the products concerned had been manufactured, in Jamaica, not exclusively from yarn but from clothing from China and therefore did not satisfy the conditions laid down for entitlement to the preferential tariff treatment of products originating in the ACP States under the Cotonou Agreement. It is also common ground that those certificates were based on an incorrect account of the facts provided by the exporter of the products concerned and its supplier, established in one of the free zones in Jamaica.
42 In those circumstances, it is appropriate to ascertain whether, as the third subparagraph, in fine, of Article 220(2)(b) of the Customs Code requires, it was evident that the Jamaican customs authorities were aware or should have been aware that the goods concerned did not satisfy the conditions laid down for entitlement to preferential treatment under the Cotonou Agreement.
43 In that regard, according to the Court’s case-law, it is for the person who relies on the exception set out at the end of that provision to prove that the conditions laid down for its application are satisfied (see, to that effect, judgment of 9 March 2006, Beemsterboer Coldstore Services, C‑293/04, EU:C:2006:162, paragraph 45, and order of 1 July 2010, DSV Road v Commission, C‑358/09 P, not published, EU:C:2010:398, paragraph 58). Thus, it is for any person authorised to challenge the legality or the validity of a Commission decision based on the third subparagraph of Article 220(2)(b) of the Customs Code to establish that it was evident that the authorities which issued the EUR.1 certificate were aware or should have been aware that the goods at issue did not satisfy the conditions laid down for entitlement to the preferential tariff treatment.
44 To that end, it is for the Commission, in the exercise of the power conferred on it by the EU legislature, to evaluate the conditions in which the goods concerned were exported and the way in which the relevant customs rules were applied by the authorities that issued the certificate, on the basis of the evidence produced before it, in order to determine whether it was evident that those authorities were aware or should have been aware that the relevant conditions were not satisfied. For the purposes of that evaluation, the Commission enjoys a broad discretion (see, by analogy, as regards post-clearance control by the national customs authorities, judgment of 26 October 2017, Aqua Pro, C‑407/16, EU:C:2017:817, paragraphs 61 and 73 and the case-law cited).
45 In those circumstances, the Courts of the European Union cannot substitute their own assessment for the Commission’s, but must confine themselves to examining whether the Commission exceeded its discretion when it concluded, on the basis of the evidence submitted to it, that it was not evident that the authorities that issued the certificate were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential tariff treatment.
46 In that regard, it should be borne in mind that when the Commission enjoys a broad discretion, the Court must, in particular, not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the relevant information that had to be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions reached (see, to that effect, judgments of 15 March 2017, Stichting Woonlinie and Others v Commission, C‑414/15 P, EU:C:2017:215, paragraph 53, and of 14 December 2017, EBMA v Giant (China), C‑61/16 P, EU:C:2017:968, paragraphs 68 and 69).
47 It is in the light of those considerations that the Court must consider whether the Commission could, without making an error of law, conclude in Decision REM 03/07 that there was no error, within the meaning of the third subparagraph of Article 220(2)(b) of the Customs Code, on the part of the Jamaican customs authorities.
48 In the first place, Prenatal claims that the Commission made an error of law in that decision by considering that it was not evident that the Jamaican customs authorities were aware that the goods in question did not satisfy the conditions laid down for entitlement to the preferential tariff treatment under the Cotonou Agreement.
49 For the purposes of establishing such awareness on the part of the Jamaican customs authorities before the referring court, Prenatal refers to the evidence submitted in the procedure that led to the adoption of Decision REM 03/07 by the Commission. First, it is apparent from a report of the Government agency Jamaica Promotions Corporation (‘Jampro’) that that agency found, in 1998, following an audit of two production factories established in one of the free zones in Jamaica, a significant disparity between the production capacity of those factories and the quantity of finished products subsequently exported to the European Union. Second, OLAF, by letter of September 2004, informed the Jamaican customs authorities of its suspicions that certain textile products exported from those free zones did not comply with the rules relating to preferential origin. Third, the Jamaican official statistics on imports and exports show that imports of yarn into Jamaica were not sufficient to manufacture the quantity of finished products exported to the European Union. Fourth, the Jamaican customs authorities identified on several occasions a discrepancy between the descriptions of products imported from China, as stated on the import declarations, and the actual content of the containers. Fifth, and last, a number of officials in those free zones referred to the lack of relevant transformation in Jamaica of the products imported from China before they were re-exported to the European Union.
50 By Decision REM 03/07, the Commission concluded, after examining all of that evidence, that the evidence was not capable of showing that the Jamaican customs authorities were aware of the irregularities in question.
51 As regards the Jampro report, the Commission took the view that that report, drawn up in 1998, provided no information about those authorities’ state of awareness during the period from January 2002 to March 2005, to which the imports at issue relate. The letter of September 2004 to those authorities informed them only of the existence of suspicions about the validity of the EUR.1 certificates in question, which still had to be substantiated by a future investigation.
52 As regards the Jamaican official import and export statistics, the Commission observed that goods placed in the free zones in Jamaica were not included in statistics, so that those official statistics did not support the conclusion that imports of Chinese yarn into Jamaica were not sufficient to manufacture the quantity of finished products subsequently exported from those free zones into the European Union. In order to arrive at such a conclusion, OLAF had to use the official Chinese statistics, of which the Jamaican customs were not aware.
53 As for the irregularities found by those authorities, the Commission emphasised that although those authorities had in fact found in certain cases that the goods described in the import declarations did not correspond with the goods in the containers, those irregularities did not relate to the importer involved in the situation that gave rise to the adoption of Decision REM 03/07 and, moreover, are the subject of credible explanations about the circumstances of the infringement in a letter from that importer.
54 As regards, last, the statements of the officials working in one of the free zones in Jamaica, the Commission stated that they were made by two security agents responsible for checking goods entering and leaving those free zones, whose testimony, according to the Commission, did not make it possible to draw conclusions as to the Jamaican customs authorities’ actual awareness of the actual activities of the undertakings concerned. The Commission also observed that those statements had been contradicted by the person in charge of one of those free zones.
55 It must be stated, first of all, that there is nothing in the file submitted to the Court to invalidate the Commission’s assessment that the Jampro report related to a different period from that at issue in the procedure that gave rise to the adoption of Decision REM 03/07, the letter of September 2004 mentioned only suspicions about possible irregularities and the Jamaican official import and export statistics did not concern goods placed in the free zones in Jamaica.
56 In particular, as the Jampro report related to a different period from that at issue in the procedure that gave rise to the adoption of Decision REM 03/07, the Commission cannot be criticised for having considered that the results of that report could not be projected onto the period at issue in that procedure and that that report therefore did not in itself provide any conclusive evidence of the actual knowledge of the Jamaican authorities during the period at issue in that procedure.
57 As regards, next, the Commission’s findings that the irregularities found by the authorities were committed by an importer other than the one involved in the procedure that gave rise to the adoption of that decision and were the subject of credible explanations provided by that importer, there is nothing in the file submitted to the Court to invalidate those findings.
58 The same applies, last, to the Commission’s finding that the statements of two security agents working in one of those free zones were contradicted by the person in charge of another of those free zones.
59 In the light of those findings and those assessments of the Commission, it must be considered that there is nothing in the file submitted to the Court to show that the Commission exceeded its discretion when it considered that the items of evidence submitted in the procedure that led to the adoption of Decision REM 03/07, as summarised in paragraph 49 of this judgment, were not, either individually or as a whole, capable of establishing that it was evident that the Jamaican customs authorities were aware that the goods concerned by that decision did not satisfy the conditions laid down for entitlement to the preferential tariff treatment under the Cotonou Agreement.
60 It cannot therefore be stated that the Commission made an error of law in concluding that it was not evident that the Jamaican customs authorities were aware that the goods concerned by Decision REM 03/07 did not satisfy the conditions laid down for entitlement to the preferential tariff treatment under the Cotonou Agreement.
61 In the second place, Prenatal claims that the Commission made an error of law by failing to find that the Jamaican customs authorities should have been aware of those irregularities, if they had not failed to fulfil their obligation to carry out physical checks.
62 For the purposes of establishing before the referring court that the Jamaican customs authorities should have been aware of those irregularities, Prenatal refers to the items of evidence submitted in the procedure that led to the adoption of Decision REM 03/07 by the Commission, according to which it was only in rare cases that the Jamaican customs authorities had broken the seals of the containers containing the raw materials or checked at the undertakings producing textiles in the free zones in Jamaica whether the weaving of the yarn was actually taking place in the undertakings established in those zones.
63 In Prenatal’s submission, the findings set out in the Jampro report, the large number of requests for post-clearance control of the EUR.1 certificates and the Jamaican official statistics on imports of yarn and exports of finished products ought to have led those authorities, in accordance with Article 15(5) and Article 32 of Protocol 1, to carry out physical checks and to draw reports on the activities carried out in the free zones in Jamaica. However, the findings set out in the minutes of the meetings of the Jamaican Trade Board held in January 2006 confirm that those authorities have still not established a system of physical checks in order to be satisfied of the originating status of the clothing exported from those free zones.
64 In Decision REM 03/07, the Commission concluded, after examining all of that evidence, that it was not capable of establishing that the Jamaican customs authorities had failed to fulfil their obligation with regard to checks by conducting mainly documentary checks and carrying out physical checks only occasionally.
65 In order to ascertain whether the Commission was entitled to arrive at that conclusion, it is appropriate to examine, first of all, the obligations of those authorities arising under Protocol 1.
66 In that regard, the first sentence of Article 15(5) of that protocol provides that the customs authorities issuing the EUR.1 certificates ‘shall take any steps necessary to verify the originating status of the products and the fulfilment of the other requirements of this Protocol’, but does not specify the circumstances in which checks must be carried out or, more particularly, the actual measures that should be taken for that purpose. In the words of the second sentence of that provision, those authorities ‘shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate’. Those authorities therefore have a broad discretion when determining the checks that are necessary.
67 Thus, the wording of that provision does not require the customs authorities issuing the EUR.1 certificates to conduct physical checks systematically, which is borne out by the context of that provision. According to Article 15(1) and (2) of Protocol 1, the customs authorities of the exporting country are to issue the EUR.1 certificates ‘on application … in writing’ by the exporter or his authorised representative, such application being required to include the EUR.1 certificate and the application form, specimens of which are set out in Annex IV to the Cotonou Agreement, duly completed by the exporter or his authorised representative. In addition, paragraph 3 of Article 15 provides that the exporter applying for the issue of such a certificate is, in particular, to be prepared to submit at any time, at the request of those customs authorities, ‘all appropriate documents proving the originating status of the products concerned’.
68 It follows from those provisions that the procedure for the issue of EUR.1 certificates is an essentially written procedure, based on the production of documents. It is therefore apparent when paragraphs 1 to 3 and 5 of Article 15 of Protocol 1 are read together that the authorities responsible for issuing EUR.1 certificates may confine themselves to carrying out a documentary check if they consider that the documents submitted to them are sufficient and appropriate for proving the originating status of the products concerned and fulfilment of the other conditions laid down in Protocol 1. Those authorities cannot therefore be required to conduct systematically a physical check of all the goods forming the subject matter of an application for the issue of a EUR.1 certificate.
69 As regards Article 32 of that protocol, it should be borne in mind that it provides that subsequent verifications or proofs of origin are to be carried out ‘at random or whenever the customs authorities of the importing country have reasonable doubts as to the authenticity of such documents, the originating status of the products concerned or the fulfilment of the other requirements of [that] Protocol’. However, that article does not specify the measures which the authorities of the exporting country are required to take for that purpose, but provides, in paragraph 3, that those authorities ‘shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate’. Thus, as the Advocate General observes in point 51 of her Opinion, that provision does not impose an obligation on those authorities to carry out physical inspections or to do so with any particular regularity, in so far as they consider that other control measures, such as a documentary check, are sufficient and appropriate for proving the originating status of the products concerned and fulfilment of the other conditions laid down in Protocol 1.
70 Nonetheless, Article 32 of that protocol provides in paragraph 7 that ‘where the verification procedure or any other available information appears to indicate that the provisions of this Protocol are being contravened, the ACP State on its own initiative or at the request of the [Union] shall carry out appropriate enquires or arrange for such enquiries to be carried out with due urgency to identify and prevent such contraventions and for this purpose the ACP State concerned may invite the participation of the [Union] in these enquiries.’
71 It follows that the exporting ACP State is required to conduct the necessary investigations to detect or prevent contraventions of the provisions of Protocol 1, when there are indications which point to an irregularity in regard to the origin of the goods concerned (see, to that effect, judgment of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraphs 31 and 32). Those measures of investigation may include physical checks.
72 In the absence of such indications, in contrast, the authorities issuing the EUR.1 certificates may, essentially, confine themselves to documentary inspections and carry out physical checks only occasionally.
73 It is in the light of those considerations that it is appropriate to examine whether, in Decision REM 03/07, the Commission could, without making an error of law, conclude that the Jamaican customs authorities fulfilled their obligations to carry out inspections under Protocol 1.
74 In that regard, it follows from the actual wording of the third paragraph of Article 220(2)(b) of the Customs Code that the Commission’s inspection is limited to verifying whether the evidence provided establishes the existence of clear indications of failure by the Jamaican customs authorities to comply with the provisions of that protocol.
75 As regards the evidence summarised in paragraphs 62 and 63 of this judgment, the Commission took into account, in Decision REM 03/07, the findings set out in the Jampro report of the existence of significant differences between the production capacities of the undertakings established in one of the free zones in Jamaica and the level of exports of finished clothing. It observed, however, that those differences related to a different period from that at issue and that the differences could not be projected onto the latter period. It added that the Jamaican authorities took the view that those differences were the consequence of the fact that the actual working hours in the undertakings concerned had not been fully taken into account in that report.
76 As regards the requests for post-clearance checks submitted to the Jamaican customs authorities, the Commission emphasised that a large number of those requests concerned the validity of the stamps on the EUR.1 certificates and not the application of rules on preferential origin. It stated that although in two cases the Jamaican authorities’ replies to such requests mentioned differences between the production capacities of the undertakings established in the free zones in Jamaica and the level of exports of finished products, those replies related to a period earlier than the period at issue in the procedure that led to the adoption of Decision REM 03/07. Last, in Decision REM 03/07, the Commission set out the reasons, referred to in paragraph 52 of this judgment, why the Jamaican official import and export statistics did not show that imports of Chinese yarn into Jamaica were not sufficient to manufacture the quantity of finished products that were subsequently exported into the Union from those free zones.
77 It should be born in mind, first of all, that, as is apparent from paragraph 55 of this judgment, there is nothing in the file submitted to the Court to invalidate the finding that the significant differences found in the Jampro report between the production capacities of the undertakings concerned established in one of the free zones in Jamaica and the quantity of finished clothing exported from that zone to the Union related to a period other than that at issue in the procedure that gave rise to the adoption of Decision REM 03/07. The Commission cannot therefore be criticised for having considered that those differences could not be projected onto the period at issue in that procedure.
78 Furthermore, those differences could result not from the fact that finished clothing imported from China into Jamaica had been fraudulently exported from Jamaica as a product originating in Jamaica, but from the fact that that report had not taken account of the actual working hours in those undertakings.
79 As regards, next, the requests for post-clearance checks submitted to the Jamaican customs authorities, it should be observed that, in so far as those authorities’ replies related to the production capacities of certain Jamaican undertakings, there is nothing in the file submitted to the Court to invalidate the Commission’s finding that they related to a period other than the period at issue in the procedure that gave rise to the adoption of Decision REM 03/07.
80 Last, the same applies as regards the findings summarised in paragraphs 52 and 76 of this judgment, according to which the Jamaican official statistics could not provide any indication of the goods placed in the free zones in Jamaica.
81 In so far as Prenatal claims before the Court, with respect to the differences found in the Jampro report between the production capacities of the undertakings concerned and the level of exports of finished clothing, that the failure to take the actual working hours in those undertakings into account could not explain those differences, it must be stated that Prenatal does not deny that that report related to a period other than the period at issue in the procedure that gave rise to the adoption of Decision REM 03/07 and that it has not established that that report would nonetheless be relevant for the period at issue in the main proceedings. That argument must therefore be rejected as ineffective.
82 As regards the documents submitted by Prenatal concerning the Jamaican customs authorities’ replies to the requests for post-clearance checks, it should be observed that those documents do not specify the goods confirmed by those authorities as being of Jamaican origin and therefore do not allow any conclusions relevant for the purposes of the examination of Decision REM 03/07 to be drawn.
83 Accordingly, neither Prenatal’s arguments nor the evidence to which it refers, which is summarised in paragraphs 62 and 63 of this judgment, is capable of invalidating the findings and assessments made by the Commission in Decision REM 03/07 or of establishing, individually or taken as a whole, the existence of clear indications showing that the goods concerned by Decision REM 03/07, coming from undertakings in those free zones, did not satisfy the conditions laid down for entitlement to preferential treatment under the Cotonou Agreement.
84 In those circumstances, it must be considered that the file submitted to the Court reveals no error of law made by the Commission when it concluded, in the exercise of the discretion conferred on it, that it was not clear that the Jamaican customs authorities had failed to fulfil their inspection obligations under Article 15(5) and Article 32 of Protocol 1.
85 Having regard to all of the foregoing considerations, it must be concluded that examination of Decision REM 03/07, in the light of Article 220(2)(b) of the Customs Code, has disclosed no factor of such a kind as to affect the validity of that decision.
86 According to the information provided in the request for a preliminary ruling, Prenatal maintains that the Commission failed to fulfil its obligation to ensure the correct application of the Cotonou Agreement by failing to use the instruments provided for that purpose in Article 31(2) and Article 37(2) of Protocol 1 and that such failure constitutes a special situation within the meaning of Article 239 of the Customs Code, as referred to in paragraph 37 of this judgment.
87 In that regard, it should be borne in mind that inadequate monitoring by the Commission of the proper implementation of the Cotonou may constitute a special situation within the meaning of Article 239 of the Customs Code. As is clear from Article 17(1) TEU, the Commission, as guardian of the Treaties and the agreements concluded under them, must ensure the correct implementation by a third country of the obligations it has assumed under an agreement concluded with the Union, using the instruments provided for by the agreement or by the decisions taken pursuant thereto (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraphs 92 and 95).
88 That obligation, moreover, is also apparent from the Cotonou Agreement itself. Thus, Article 3 of that agreement, read with Article 17(1) TEU, requires that the Commission take all appropriate measures, whether general or particular, to ensure the fulfilment of the obligations arising from that agreement. Furthermore, according to Article 15(1) of the Cotonou Agreement, the Commission is represented, on behalf of the Union, is represented within the Council of Ministers and within the various committees provided for by that agreement. Moreover, under Article 36(1) of Annex IV to that agreement, the Commission is to be represented in each ACP State or in each regional grouping, which expressly so requests, by a delegation, which enables it, at the very least, to be reliably informed of legal developments in those States and, in particular, of the stage which the implementation of the Cotonou Agreement has reached (see, by analogy, judgment of 25 July 2008, C.A.S. v Commission, C‑204/07 P, EU:C:2008:446, paragraphs 96 to 98).
89 In this instance, as regards, in the first place, Article 31(2) of Protocol 1, it must be borne in mind that that provision states that both the Union and the ACP States ‘shall assist each other, through the competent customs administrations, in checking the authenticity of the movement EUR.1 certificates, the invoice declarations or supplier’s declarations and the correctness of the information given in these documents’.
90 Thus, the Commission is required, as the Advocate General observed in point 56 of her Opinion, to be particularly attentive to the correct implementation by the ACP States of their obligations under that agreement, since the agreement establishes a unilateral preferential tariff treatment solely for products originating in those States.
91 However, it follows from the actual wording of Article 31(2) of Protocol 1 that the ACP States are to share with the Union responsibility for checking the authenticity of those documents and the correctness of the information provided in them. In particular, the checking of the originating status of the products, for the purposes of checking the correctness of the information provided in the documents referred to in Article 31(2) of Protocol 1, is primarily the responsibility of the exporting ACP State and, so far as the Union is concerned, of the importing Member State, in accordance with Article 32 of Protocol 1. Nonetheless, it is for the Commission to obtain information from those States about the development of the situation and, where necessary, to take the appropriate measures to ensure the correct implementation of the Cotonou Agreement.
92 In this instance, it is apparent from the file at the Court’s disposal that, in the course of 2003, the German authorities drew the Commission’s attention to matters which in their view revealed that EUR.1 certificates issued by the Jamaican customs authorities for clothing might not be consistent with Protocol 1. Subsequently, OLAF opened an investigation in March 2004, while the Jamaican authorities were notified of the possible irregularities in September 2004 and on-the-spot visits took place, at the invitation of those authorities, in February and March 2005.
93 It thus appears that the Commission communicated on the matter with the customs authorities of the exporting ACP State and of the importing Member State and that it took measures in good time that permitted the discovery of the irregularities found in the 2005 Olaf report. In addition, it is common ground that that report led the Jamaican authorities to invalidate the EUR.1 certificates issued during the period in question, thus putting an end to the irregularities concerned. In those circumstances, it cannot be maintained that the Commission failed to fulfil its duty to provide assistance under Article 31(2) of Protocol 1.
94 As regards, in the second place, Article 37 of Protocol 1, it should be observed that, although the Commission is part of the Customs Cooperation Committee provided for in that article, it follows from the actual wording of paragraph 1 of that provision that that committee is to be charged with carrying out administrative cooperation with a view to the correct and uniform application of that protocol and not with itself checking such application.
95 That interpretation of that committee’s task is borne out by the other provisions of Article 37. According to Article 37(2), the Customs Cooperation Committee is to examine the effect on, in particular, the least developed ACP States of application of the rules of origin, following which that committee does not adopt decisions but only makes recommendations to the Council of Ministers. Furthermore, although that committee may take decisions, according to paragraph 3 of Article 37, read together with Article 6 of Protocol 1, on the possible application of rules of origin of that protocol to products incorporating materials which combine different origins and also, under Article 37(4) and Article 38 of that protocol, on the adoption of certain derogations from Protocol 1, those provisions do not, however, confer on the Customs Cooperation Committee the power to check itself the correct application of the rules of origin by the ACP States or to decide on consequences of any contravention of those rules. Accordingly, Article 37(1) of Protocol 1 cannot be usefully invoked in order to establish that, in the circumstances that led to the adoption of Decision REM 03/07, the Commission failed to fulfil its obligation to ensure the correct implementation of the Cotonou Agreement.
96 The Commission cannot therefore be criticised for having failed to fulfil its obligation to ensure the correct implementation of the Cotonou Agreement in the situation that led to Decision REM 03/07. Thus, Prenatal has not shown that the Commission made an error of law when it concluded, in Decision REM 03/07, that there was no special situation within the meaning of Article 239 of the Customs Code.
97 Having regard to the foregoing considerations, the answer to the first question must be that examination of that decision in the light of Article 220(2)(b) of the Customs Code and of Article 239 of that code has disclosed no factor of such a kind as to affect the validity of that decision.
98 By its second to fourth questions, which should be examined together, the referring court seeks, in essence, to ascertain whether, when the Commission refers to the national customs authorities the dossier relating to a request for repayment of customs duties, those authorities are bound by the Commission’s assessment, according to which the situation that gave rise to that request has elements of law and of fact comparable to those of the situation at issue in another request already made to the Commission, or whether those authorities may, contrary to the Commission’s assessment, conclude that the situations are not comparable.
99 The Commission maintains that the second to fourth questions are inadmissible, on the ground that the Spanish customs authorities and the referring court are agreed that the situation referred to in the request for repayment of the customs duties at issue in the main proceedings and the situation at issue in the request that gave rise to Decision REM 03/07 present comparable elements of fact and of law, so that an answer to those questions is not necessary in order to settle the dispute in the main proceedings. For the same reasons, Prenatal submits that the fourth question is hypothetical and is therefore inadmissible.
100 In that regard, it should be noted that, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 28 March 2019, Cogeco Communications, C‑637/17, EU:C:2019:263, paragraph 57 and the case-law cited).
101 In this instance, the information provided in the request for a preliminary ruling shows that the national customs authorities have already adopted a decision on Prenatal’s request for repayment of the customs duties by adopting the Commission’s assessment that the situation referred to in that request presents elements of fact and of law comparable with those in the situation at issue in the request that gave rise to Decision REM 03/07, an assessment that is shared by both the referring court and Prenatal. Nor is it apparent from anything in the file submitted to the Court that the national customs authorities might be led, in the context of the dispute in the main proceedings, to consider that the situations in question are not comparable.
102 In those circumstances, it is manifestly clear that an answer to the second to fourth question is not necessary in order to settle the dispute in the main proceedings and that, accordingly, the interpretation of EU law sought is hypothetical within the meaning of the case-law referred to in paragraph 100 of this judgment.
103 The second to fourth questions must therefore be declared inadmissible.
104 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.