1 By order of 29 November 1994, received at the Court on 27 March 1995, the Tribunal Tributário de Segunda Instância (Fiscal Court of Second Instance) referred for a preliminary ruling under Article 177 of the EC Treaty seven questions on the interpretation of Council Decision 86/283/EEC of 30 June 1986 on the association of the overseas countries and territories with the European Economic Community (OJ 1986 L 175, p. 1) and Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, hereinafter `the Customs Code').
2 Those questions have arisen in a dispute between Pascoal & Filhos Ld.°, a company established under Portuguese law (hereinafter `Pascoal'), and the Fazenda Pública (Public Exchequer) concerning post-clearance recovery of customs duties on imports of cod. The Community rules
3 Pursuant to Article 70(1) of Decision 86/283, fishery products originating in Greenland are to be imported into the European Community free of customs duties.
4 Article 6(1)(a) of Annex II to that decision (hereinafter `Annex II') provides that evidence of products' originating status is given by presentation to the customs authorities of the Member State of importation of an EUR.1 movement certificate (hereinafter `EUR.1 certificate').
5 Under Article 10(1) of Annex II, it is for the exporter to request, under his own responsibility, the customs authorities of the country of exportation to issue the EUR.1 certificate. Article 10(2) requires the exporter to submit with his request any appropriate supporting document proving that the goods to be exported are such as to qualify for the issue of that certificate.
6 According to Article 8(1) of Annex II, the customs authorities of the country of exportation are to issue the EUR.1 certificate if the goods to which it relates can be considered as products originating in the overseas country concerned. In order to determine whether that is so, those authorities may, under Article 8(2), call for any documentary evidence or carry out any check which they consider appropriate.
7 Article 25(1) of Annex II provides that, in cases where the customs authorities of the Member State of importation have reasonable doubt as to the authenticity of an EUR.1 certificate or the accuracy of the information regarding the true origin of the goods in question, they are to request the customs authorities of the country of exportation to carry out subsequent verification of the certificate concerned.
8 In accordance with Article 25(3), the results of this verification are to be notified to the customs authorities of the Member State of importation. Those results must be such as to make it possible to determine whether the disputed EUR.1 certificate applies to the goods actually exported and whether those goods can in fact qualify for application of the preferential arrangements.
9 Article 2(1) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1) states that, where the competent authorities of a Member State find that all or part of the amount of import duties legally due has not been required of the person liable for payment, they shall take action to recover the duties not collected.
10 According to Article 2(a) of Council Directive 79/623/EEC of 25 June 1979 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (OJ 1979 L 179, p. 31), a customs debt on importation is incurred by the placing of goods liable to import duties in free circulation in the customs territory of the Community. Article 3(a) of that directive provides that the moment when a customs debt on imports is incurred is deemed to be that, inter alia, when the competent authorities accept the entry of the goods for free circulation.
11 With effect from 1 January 1989, Directive 79/623 was repealed by Council Regulation (EEC) No 2144/87 of 13 July 1987 on customs debt (OJ 1987 L 201, p. 15), which, however, reintroduced, in Articles 2(1)(a) and 3(a), the same provisions as those contained in Articles 2(a) and 3(a) of Directive 79/623.
12 Finally, Regulation No 2144/87 was repealed by the Customs Code, which came into force on 22 October 1992 and has been applicable since 1 January 1994. Article 201 of that Code provides as follows: `1. A customs debt on importation shall be incurred through: (a) the release for free circulation of goods liable to import duties, or (b) the placing of such goods under the temporary importation procedure with partial relief from import duties. 2. A customs debt shall be incurred at the time of acceptance of the customs declaration in question. 3. The debtor shall be the declarant. In the event of indirect representation, the person on whose behalf the customs declaration is made shall also be a debtor. Where a customs declaration in respect of one of the procedures referred to in paragraph 1 is drawn up on the basis of information which leads to all or part of the duties legally owed not being collected, the persons who provided the information required to draw up the declaration and who knew, or who ought reasonably to have known, that such information was false, may also be considered debtors in accordance with the national provisions in force.' The dispute in the main proceedings
13 Pascoal imported four consignments of cod into Portugal, two in 1988 and two in 1989. Each of those consignments was accompanied by an EUR.1 certificate attesting that the goods originated in Greenland. The Portuguese customs authorities accordingly allowed all of the consignments to be imported without payment of customs duties.
14 However, they requested the Greenland authorities to carry out, in collaboration with the Commission, subsequent verification of the four EUR.1 certificates submitted at the time of importation.
15 Following that verification, the Greenland authorities and the Commission drew up a joint report (hereinafter `the mission report'), which includes the following conclusion regarding the four EUR.1 certificates at issue: `... it has been established ... that the quantities of Greenland fresh codfish delivered for further processing on board of the concerned factory ships are not sufficient, according to the communicated processing yield, in order to obtain the quantities of finished products which have been imported into the EEC with the ... movement certificates [at issue]'.
16 On the basis of that report, the Greenland authorities sent to the Portuguese authorities a communication (hereinafter `the communication') worded as follows: `As control examinations - carried out in collaboration with representatives from EEC Commission - have proved that some goods certificates issued on EUR.1 in Greenland do not comply with the regulations laid down in OLT-Agreement's [decision 86/283] annex nº II regarding attainment of status of origin, you are kindly asked to arrange that the following goods certificates are revoked and cancelled.' The mission report on which this communication was based was not forwarded to the Portuguese authorities.
17 Taking the view that they were bound by this communication, and without seeking to establish the true origin of the goods, the Portuguese authorities issued four post-clearance recovery notices, for a total amount of ESC 61 709 940, against Pascoal, in whose name the import declaration had been made. Those notices were issued before the Portuguese authorities had received a copy of the mission report.
18 As soon as it became aware of the communication, Pascoal examined the Portuguese authorities' file regarding those notices. The mission report was not at that time included in the file. According to the national court, Pascoal only became aware of the contents of the report when the statement of defence was lodged during the proceedings at second instance; furthermore, the company had always acted in good faith and in compliance with the rules in force.
19 Believing that the notices were vitiated by defective reasoning and had been unlawfully issued, Pascoal brought an action seeking their annulment before the Tribunal Fiscal Aduaneiro (Customs Court), Oporto. That court, however, took the view that, even considered independently of the mission report, the communication constituted an adequate statement of reasons and that the Portuguese authorities had acted lawfully.
20 Pascoal thereupon appealed to the Tribunal Tributário de Segunda Instância. Since it was uncertain as to the proper construction of certain provisions of Community law, that court decided to stay proceedings and refer the following seven questions to the Court of Justice for a preliminary ruling: `(1) Does the responsibility of the exporter, referred to in Article 10(1) of Annex II to Council Decision 86/283/EEC of 30 June 1986, extend to customs duties resulting from the cancellation of EUR.1 movement certificates issued on the basis of false information as to the origin of the goods? (2) What is the meaning and scope of the adverb "also" used in the second subparagraph of Article 201(3) of the Community Customs Code, in particular where the national customs law provides that responsibility for payment of the duties due in respect of the goods involved in the infringement attaches exclusively to the person who committed the customs infringement? (3) May the rule expressed in the judgment of the Court of Justice of the European Communities of 7 December 1993 in Case C-12/92 Huygen and Others ([1993] ECR I-6381), published at pages 5 and 6 of Proceedings of the Court of Justice No 35/93, although relating to the Free Trade Agreement between the EEC and Austria, apply to the circumstances of this case, which concerns the interpretation and application of Council Decision 86/283/EEC? (4) What is the meaning, purport and scope of the results of the verification referred to by Article 25(3) of Annex II to Council Decision 86/283/EEC? (5) May a procedure for post-clearance recovery in the Member State of importation be commenced and completed before the results of the verification are communicated by the customs authorities in the exporting country to the customs authorities in the importing country and without the importer being aware of the results of the verification? (6) Does the levying on an importer acting in good faith of the duties payable on goods in respect of which an exporter has committed a customs offence, in which the importer was in no way involved, infringe the principles of justice, prohibition of enrichment at the expense of others, proportionality, legal certainty and good faith? (7) Since the customs authorities in the country of exportation neglected to carry out a prior inspection of the exporter's warehouses before issuing the EUR.1 movement certificates, and since the Portuguese importer cannot remedy the situation arising from such negligence, does that situation not constitute a case of force majeure for the importer, precluding post-clearance recovery from it?'
21 It is appropriate to begin by examining the second question; following that, the third, fourth and fifth questions will be answered jointly, then the first question, the sixth question, and finally the seventh. The second question
22 The second question posed by the national court concerns the interpretation of the second subparagraph of Article 201(3) of the Customs Code. The Tribunal Tributário de Segunda Instância takes the view that, even though it was not yet in force when the four consignments in question were imported, the Customs Code is relevant for the resolution of the dispute in the main proceedings since it re-enacts the legislation previously in force.
23 Referring to the judgment in Case C-343/90 Lourenço Dias v Director da Alfândega do Porto [1992] ECR I-4673, the Portuguese Government submits that the Court does not have jurisdiction to answer this question in view of the fact that the Customs Code was not applicable when the facts which gave rise to the dispute in the main proceedings occurred.
24 The Commission considers that the second question is inadmissible on the same grounds.
25 Suffice it to note that although the Customs Code re-enacted in large measure the Community legislation in force before it was adopted, the second subparagraph of Article 201(3), to which the second question relates, is a new provision. Since the last of the four disputed import declarations was made on 25 July 1989, the interpretation of that provision requested by the national court has no connection with the facts or subject-matter of the dispute.
26 In those circumstances, there is no need to reply to the second question. The third, fourth and fifth questions (commencement of proceedings for recovery on the basis of the results of the verification)
27 It is common ground that, following subsequent verification of the EUR.1 certificates, the Greenland authorities sent the Portuguese authorities only the communication in which they stated that the certificates had been improperly issued and should therefore be cancelled. Subsequently, without having received the mission report, without having requested the Greenland authorities to set out in more detail the grounds justifying such cancellation, and without seeking to determine the true origin of the goods, the Portuguese authorities instituted recovery proceedings against Pascoal. The national court takes the view that, before bringing such an action, the customs authorities of the State of importation ought to have taken `all necessary steps to establish the true origin of the goods'. If they were still in doubt as to the true origin of the goods, they should not have proceeded to an assessment of the customs duties now in dispute.
28 In these circumstances, the point of the third, fourth and fifth questions raised by the national court is, first, whether a communication addressed to the authorities of the State of importation by the authorities of the State of exportation on completion of subsequent verification of an EUR.1 certificate, in which the latter authorities merely confirm that the certificate in question was improperly issued and should therefore be cancelled, without setting out in detail the grounds justifying such cancellation, can be regarded as `results of ... verification' within the meaning of Article 25(3) of Annex II and, second, whether the authorities of the State of importation are entitled to bring proceedings to recover the unpaid customs duties on the basis of such a communication alone, without seeking to establish the true origin of the imported goods.
29 On the first point, Article 25(3) of Annex II must be interpreted in the light of the system of administrative cooperation of which it forms a part.
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).
34 The purpose of the `results of the verification', within the meaning of Article 25(3) of Annex II, is to allow the authorities of the Member State of importation to determine whether the disputed EUR.1 certificate applies to the goods actually exported and whether the goods can in fact qualify for the application of the preferential arrangements. Article 25(3) does not imply any obligation on the part of the authorities of the State of exportation to justify to the importer their conclusions concerning the validity of the certificate.
35 A communication such as that referred to by the question submitted may accordingly be described as `results of the verification' within the meaning of Article 25(3) of Annex II.
36 On the second point, Article 2(1) of Regulation No 1697/79 provides that, where the competent authorities of the State of importation find that all or part of the amount legally due has not been required of the person liable for payment, they shall take action to recover the import duties not collected.
37 Where the competent authorities of the State of exportation declare, following subsequent verification, that an EUR.1 certificate does not apply to the goods actually exported, that is sufficient to enable the authorities of the State of importation to hold that duties legally due have not been required and consequently institute proceedings to recover them. Nothing in the rules obliges the latter authorities to establish the accuracy of the results of the verification or the true origin of the goods.
38 It is true that the system of administrative cooperation incorporates a mechanism for regulating differences arising between the authorities of exporting States and those of importing States, provided for in the second subparagraph of Article 25(3) of Annex II. However, the authorities of the State of importation may always rely on the results of the verification alone, without being obliged to have recourse to that mechanism.
39 As to the fact that the action for recovery was brought before the person liable became aware of the reasons for the cancellation of the EUR.1 certificate, it is sufficient to note that the onus of providing proof as to the origin of the goods rests with the traders concerned.
40 While that proof is, in principle, provided by the EUR.1 certificate, the person liable cannot entertain a legitimate expectation with regard to the validity of such a certificate by virtue of the fact that it was initially accepted by the customs authorities of a Member State, since such initial acceptance does not prevent subsequent checks from being carried out (see, to this effect, Faroe Seafood, paragraph 93).
41 It cannot therefore be argued that, by presenting an EUR.1 certificate, the person liable has provided adequate proof that the goods in question came from the country indicated, such that the authorities of the State of importation would, if necessary, have to prove the contrary.
42 In the light of those considerations, the answer to the third, fourth and fifth questions must be, first, that a communication addressed to the authorities of the State of importation by the authorities of the State of exportation following subsequent verification of an EUR.1 certificate, in which the latter merely confirm that the certificate in question was improperly issued and must therefore be cancelled, without setting out in detail the reasons justifying cancellation, must be regarded as `results of ... verification' within the meaning of Article 25(3) of Annex II, and, second, that the authorities of the State of importation are entitled to bring an action for recovery of the uncollected customs duties on the basis of such a communication alone, without seeking to establish the true origin of the goods imported. The first question (responsibility of the exporter under Article 10(1) of Annex II)
43 The point of the first question is whether the responsibility of the exporter, as referred to in Article 10(1) of Annex II, extends to customs duties which prove to be due in respect of the importation into the European Community of goods which are the subject of an EUR.1 certificate where the latter has been issued on the basis of false information supplied by the exporter as to the origin of the goods and has been cancelled following subsequent verification.
44 Article 10 of Annex II makes the exporter responsible for submitting the request for the EUR.1 certificate, along with, where relevant, any appropriate supporting document proving that the goods to be exported are such as to qualify for the issue of the certificate requested.
45 That article, however, concerns only the procedure for obtaining the EUR.1 certificate and is not intended to identify the person required to pay any customs debt which may be due in the State of importation.
46 Under the Community legislation in force when the goods in question were imported, the creation of the customs debt at the time of importation into the European Community did not depend on the request made by the exporter but resulted from the declaration of release of the goods into free circulation. The person required to pay the customs debt was therefore the person in whose name that declaration had been made.
47 The answer to the first question must therefore be that the responsibility of the exporter, as referred to in Article 10(1) of Annex II, does not extend to customs duties which prove to be due in respect of the importation into the European Community of goods which are the subject of an EUR.1 certificate, even where the latter was issued on the basis of false information supplied by the exporter as to the origin of the goods and was cancelled following subsequent verification. The sixth question (general principles)
48 The sixth question rests on the assumption that the exporter is liable for the customs debt by reason of his fraudulent application for an EUR.1 certificate and that, if the importer were to pay that debt, he would, to his own financial detriment, be paying the debt of a third party, which would be contrary to the principles of justice, prohibition of enrichment at the expense of others, proportionality, legal certainty and good faith.
49 This assumption is incorrect. As the Court noted in paragraph 46 of this judgment, the person required to pay the customs debt is the person in whose name the import declaration was made. Unless that person is also the exporter - which is not the case here - the latter cannot be regarded as liable for the debt.
50 That being so, it is necessary to examine whether, in circumstances such as those in the main proceedings in this case, the obligation placed on the importer to pay the customs debt is consistent with the general principles of law which the Court must uphold.
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.
58 It should be added that, taking account of the information in the case-file, the fact of requiring an importer who has acted in good faith, like Pascoal, to pay the outstanding duties on goods in respect of which the exporter has committed a customs offence does not offend against any general principle of law.
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)
62 The point of the seventh question is whether the fact that the authorities of the State of exportation issued an EUR.1 certificate pursuant to Decision 86/283 without having carried out any prior check to determine the true origin of the goods in question constitutes a case of force majeure preventing post-clearance recovery of customs duties owed by an importer who has acted in good faith.
63 The case of force majeure is not provided for in Decision 86/283. In the absence of specific provisions, this concept must be understood as covering 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 (Huygen, cited above, paragraph 31).
64 According to Article 8(2) of Annex II, in order to verify the origin of goods, the authorities of the State of exportation `have the right to call for any documentary evidence or to carry out any check which they consider appropriate'.
65 It follows that the authorities of the State of exportation are entitled, but not obliged, to carry out such a prior check and that they may, if they consider it appropriate, be satisfied with the information which the exporter has provided in his request.
66 In those circumstances, the fact that those authorities decided, in a specific case, not to exercise that option cannot preclude post-clearance recovery of a customs debt which subsequently proves to be due. Such a situation cannot be described as constituting force majeure, since it is neither abnormal nor unforeseeable.
67 The answer to the seventh question must therefore be that the fact that the authorities of the State of exportation issued an EUR.1 certificate pursuant to Decision 86/283 without having carried out any prior check to determine the true origin of the goods in question does not constitute a case of force majeure preventing post-clearance recovery of customs duties owed by an importer who has acted in good faith.