1 This request for a preliminary ruling concerns the interpretation of Article 220(2)(b) 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 2005 L 311, p. 17) (‘the Customs Code’).
2 The request has been made in proceedings between the Valsts ieņēmumu dienests (the Latvian tax authority) (‘the tax authority’) and ‘Veloserviss’ SIA concerning the charging of import duties and value added tax (VAT), together with interest for late payment, during a post-clearance examination of a customs declaration.
3 Article 78(3) of the Customs Code, entitled ‘Post-clearance examination of declarations’, provides: ‘Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularize the situation, taking account of the new information available to them.’
4 Under Article 220(2) of that code: ‘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. The person liable for payment may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled. The person liable for payment may not, however, plead good faith if the European Commission has published a notice in the Official Journal of the European [Union], stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country; …’
5 Under Article 72a(4) 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 (EEC) No 1602/2000 of 24 July 2000 (OJ 2000 L 188, p. 1): ‘Proof of the originating status of goods exported from a country of a regional group to another country of the same group to be used in further working or processing, or to be re-exported where no further working or processing takes place, shall be established by a certificate of origin Form A issued in the first country.’
6 On 17 May 2007, Veloserviss imported into the European Union bicycles originating in Cambodia, for release for free circulation. In accordance with the certificate of origin issued by the Cambodian Government on 16 February 2007, Veloserviss paid neither customs duties nor VAT.
7 In 2008, the tax authority undertook a first post-clearance examination relating to the period when the bicycles at issue were imported. Since no irregularity was found in relation to them, Veloserviss complied with the decision made following that examination.
8 In 2010, the tax authority received information from the European Anti-Fraud Office (OLAF) to the effect that the certificate of origin issued by the Cambodian Government in respect of the goods at issue did not comply with EU law.
9 On the basis of that information, the tax authority conducted a second post-clearance examination of the single administrative document completed by Veloserviss, and found that customs duty exemptions had been unduly granted in respect of those goods.
10 Consequently, by decision of 23 July 2010, the tax authority ordered Veloserviss to pay the relevant customs duties and VAT, together with interest for late payment.
11 Veloserviss subsequently brought an action for the annulment of that decision.
12 Following the appeal proceedings, the Administratīvā apgabaltiesa (Regional Administrative Court, Latvia), by judgment of 27 March 2014, upheld the annulment of the decision of the tax authority of 23 July 2010, holding, in particular, that, under Article 23(1) of the national legislation on duties and taxes, the tax authority was not empowered to conduct a fresh post-clearance examination of the declared goods in question, as the first examination had given rise to a legitimate expectation on the part of Veloserviss and Veloserviss had complied with all requirements relating to the filing of the customs declaration, in that it could not objectively know that the competent Cambodian authority had issued a certificate which did not comply with the requirements of EU law. Consequently, Veloserviss had acted in good faith.
13 The tax authority appealed against that judgment before the referring court.
14 By decision of 11 September 2014, that court made a first request for a preliminary ruling concerning, in essence, the question whether Article 78(3) of the Customs Code allows a restriction of the possibility for the customs authorities to undertake a post-clearance examination for a second time, as is provided by the Latvian legislation on duties and taxes.
15 The Court answered that question in the negative in its judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803).
16 The referring court considers, however, in the context of the same appeal before it, that the latter raises further questions relating to the concept of ‘good faith’ of the person liable for payment, within the meaning of Article 220(2)(b) of the Customs Code.
17 In that context, the tax authority maintains, according to that court, that the Administratīvā apgabaltiesa (Regional Administrative Court) held without any basis that Veloserviss had acted in good faith, so that it could not rely on Article 220(2)(b) of the Customs Code. In paragraphs 36 and 40 of the judgment of 8 November 2012, Lagura Vermögensverwaltung (C‑438/11, EU:C:2012:703), the Court held that the assessment made by the authorities of the exporting country as to the validity of Form A certificates of origin cannot be binding upon the European Union and its Member States when the customs authorities of the importing country have doubts as to the true origin of the goods.
18 Veloserviss contends, before the referring court, that the Administratīvā apgabaltiesa (Regional Administrative Court) was correct to apply that provision, given that, first, neither the customs authorities of the importing country nor itself, in its capacity as importer, could determine that the services of the exporting country had committed an error and, secondly, that Veloserviss had acted in good faith when providing to the tax authority the information in its possession and about which it had knowledge. To that effect, the Administratīvā apgabaltiesa (Regional Administrative Court) was entitled to rely on Commission Decision C(2012) 8694 of 30 November 2012, finding that it is justified in dispensing with post-clearance recovery in a particular case (file REC 01/2011), since the factual circumstances which led the Commission to adopt that decision are effectively the same as those of the case at issue in the main proceedings.
19 In that regard, the referring court considers that it follows from the Court’s case-law relating to Article 220(2)(b) of the Customs Code, that where the exporter committed an error when providing information, it is possible to proceed to the post-clearance recovery. By contrast, if the error was committed by the customs authorities of the exporting country, which knew or should have known that the goods at issue did not satisfy the requisite conditions, the issue of an incorrect certificate must not, according to that court, cause prejudice to the importer.
20 That court seeks clarification, however, concerning the application of Article 220(2)(b) of the Customs Code, in a case such as that before it, where an OLAF report emphasises the fact not only that the exporter provided inaccurate information to the customs authorities of the exporting country, but also that the customs authorities of the exporting country committed errors when issuing the Form A certificate of origin. It also questions to what extent it is necessary to take into consideration the legal and factual assessment carried out by OLAF.
21 In those circumstances, the Augstākās tiesas Administratīvo lietu departaments (Administrative Chamber of the Supreme Court, Latvia) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Should the importer’s obligation to act in good faith, laid down in Article 220(2)(b) of [the Customs Code], be defined as meaning that: (a) it includes an obligation on the importer to verify the circumstances in which the Form A certificate granted to the exporter was issued (certificates regarding the parts which constitute the goods, the role of the exporter in the manufacture of the goods, etc.)? (b) the importer acted in bad faith for no other reason than that the exporter acted in bad faith (for example, where the exporter failed to reveal the true origin of the costs, the value of the parts which constitute the goods, etc., to the customs authorities of the exporting country)? (c) the obligation to act in good faith has not been fulfilled for no other reason than that the exporter submitted incorrect information to the customs authorities of the exporting country, and that is so even where the customs authorities themselves committed errors in issuing the certificate? (2) May the importer’s obligation to act in good faith, laid down in Article 220(2)(b) of [the Customs Code] be deemed to be sufficiently proved by virtue of the general description of the situation set out in the communication from OLAF and by virtue of OLAF’s findings, or should the national customs authorities nevertheless obtain additional evidence regarding the conduct of the exporter?’
22 By its first question, the referring court asks, in essence, whether Article 220(2)(b) of the Customs Code must be interpreted as meaning that an importer may rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties, submitting that he acted in good faith, either where not only the exporter provided incorrect information to the customs authorities of the exporting country, in particular concerning the true origin of the costs or the value of the parts which constitute the goods at issue, but also that those authorities themselves committed an error by issuing the Form A certificate of origin at issue, or where that importer failed to verify the circumstances giving rise to the issue, by the customs authorities of the exporting country, of that certificate, such as the certificates regarding the parts which constitute the goods or the role of the exporter in the manufacture of those goods.
23 For the purposes of answering that question, it should be noted, first of all, that Article 220(2)(b) of the Customs Code is intended to protect the legitimate expectation of the person liable for payment that all the information and criteria on which the decision to recover or not to recover customs duties is based is correct (judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 31, and of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 43).
24 In that regard, it follows from the Court’s settled case-law that an importer may validly claim a legitimate expectation pursuant to that provision, and thus benefit from the waiver of post-clearance recovery provided for therein, only if three cumulative conditions are fulfilled. First, it is necessary that the duties were not levied as a result of an error on the part of the competent authorities themselves, secondly, that the error committed by those authorities was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that the latter complied with all the provisions laid down by the legislation in force as regards the customs declaration (see, inter alia, judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 35, and of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 47).
25 Those conditions, in essence, spread the risk of errors or irregularities vitiating a customs declaration on the basis of the conduct and diligence of each of the parties involved, namely the competent authorities of the exporting and importing countries, the exporter and the importer.
26 It is necessary to examine, in the first place, whether an importer may rely on a legitimate expectation, in accordance with Article 220(2)(b) of the Customs Code, pleading his good faith, where not only the exporter provided incorrect information to the customs authorities of the exporting country, in particular concerning the true origin of the costs or the value of the parts which constitute the goods at issue, but also where those authorities themselves committed an error by issuing the Form A certificate of origin at issue.
27 In that regard, it should be noted that, in accordance with the first of the conditions referred to in paragraph 24 of the present judgment, the legitimate expectations of the person liable for payment attract the protection provided for by that provision only if it was the competent authorities‘themselves’ which created the basis for those expectations (see judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 31, and of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 44).
28 Therefore, only errors attributable to acts of the competent authorities confer entitlement to the waiver of post-clearance recovery of customs duties (see judgments of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 31, and of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 54).
29 It follows from the Court’s case-law that the third subparagraph of Article 220(2)(b) of the Customs Code cannot be interpreted as meaning that the issue of an incorrect Form A certificate of origin, by the customs authorities of the exporting country, constitutes an error on the part of those authorities ‘themselves’ where those certificates were based on an incorrect account of the facts provided by the exporter, unless, inter alia, it is clear that those authorities knew, or ought to have known, that the goods did not meet the conditions necessary in order for them to receive preferential treatment (see, to that effect, judgment of 8 November 2012, Lagura Vermögensverwaltung, C‑438/11, EU:C:2012:703, paragraph 19).
30 In this case, it should be noted that, although it is apparent from the order for reference and, in particular, the wording of question 1(c), that the referring court starts from the assumption that the customs authorities of the exporting country committed an error by issuing the certificate of origin at issue in the main proceedings, the Court is not able to determine the precise nature of that error, or the extent to which the competent authorities of the exporting country were, or could have been, misled by the exporter’s inaccurate declaration.
31 Therefore, it is for the referring court to establish whether, in the main proceedings, the incorrect Form A certificate of origin was issued as a result of an error attributable to the customs authorities of the exporting country themselves or as a result of the exporter’s declarations, the inaccuracy of which was not, and could not have been, detected by those authorities.
32 If it emerges that the irregularity affecting the Form A certificate of origin results from misconduct on the part of the exporter and that the competent authorities of the exporting country were not able, or obliged, to detect that the goods did not satisfy the conditions required to benefit from preferential treatment, it is the importer who bears the consequences linked to the issue of a commercial document which is found to be false when subsequently checked, so that that importer may not, in those circumstances, object to the post-clearance recovery of the customs duties (see, to that effect, judgments of 14 May 1996, Faroe Seafood and Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 92, and of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 43).
33 Therefore, where the customs authorities of the exporting country committed an error in issuing a Form A certificate of origin and that error results from the inaccuracy of information provided by the exporter to those authorities, in particular regarding the true origin of the costs or the value of the parts which constitute the goods at issue, an importer may not claim a legitimate expectation, under that provision, in order to object to a post-clearance incurring of liability for import duties, relying on its good faith, unless it is clear that the customs authorities of the exporting country knew or should have known that the goods at issue did not satisfy the conditions required to benefit from preferential treatment, which is a matter for the national court to determine.
34 It is necessary, in the second place, to determine whether an importer may rely on a legitimate expectation, under Article 220(2)(b) of the Customs Code, in order to object to a post-clearance incurring of liability for import duties, relying on its good faith, although it failed to verify the circumstances giving rise to the issue, by the customs authorities of the exporting country, of the Form A certificate of origin, such as certificates regarding the parts which constitute the goods or the role of the exporter in the manufacture of those goods.
35 That question concerns, more specifically, the degree of care which must be taken by an importer in order to be considered to have acted in good faith, within the meaning of that provision.
36 In that regard, it should be noted, first, that, even if, in this case, an error could be imputed to conduct on the part of the customs authorities of the exporting country, it is still necessary, in accordance with the case-law cited in paragraph 24 of the present judgment, inter alia, that it concerns an error of a nature such that a competent person, acting in good faith, could not reasonably have been able to detect it in spite of his professional experience and exercise of due care required of him (see, inter alia, judgment of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 38).
37 In that regard, the Court has held that it is the duty of traders, where they have doubts as to the exact application of the provisions non-compliance with which may result in a customs debt being incurred or as to the definition of the origin of the goods, to make enquiries and seek all possible clarification in order to ascertain whether those doubts are well founded (see, to that effect, inter alia, judgments of 14 May 1996, Faroe Seafood and Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 100, and of 11 November 1999, Söhl & Söhlke, C‑48/98, EU:C:1999:548, paragraph 58).
38 The Court has also held that 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, and that such prevention may, in particular, consist, for the person liable for payment, in the receipt from the other contracting party, on or after the conclusion of the contract, of all the necessary evidence confirming that the goods come from the State which is a ‘beneficiary country’ vis-à-vis the generalised tariff preferences scheme, including documents establishing that origin (see, to that effect, judgment of 8 November 2012, Lagura Vermögensverwaltung, C‑438/11, EU:C:2012:703, paragraphs 30 and 31).
39 It does not follow, however, that a general obligation is imposed on an importer to verify, systematically, the circumstances of the issue, by the customs authorities of the exporting country, of a Form A certificate of origin, including the role of the exporter in the manufacture of those goods. The importer is subject to such an obligation only if there are clear reasons for doubting the accuracy of a certificate of origin. In that case, where that importer nevertheless failed to obtain, using his best efforts, information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well-founded, it must be considered that the manifest error committed by the customs authorities of the exporting country could or should have been detected by the importer, so that he cannot submit that he acted in good faith in accordance with Article 220(2)(b) of the Customs Code.
40 Such a general obligation imposed on the importer can also not be inferred from the fourth subparagraph of Article 220(2)(b) of the Customs Code, according to which, in order to be able to rely on his good faith, a person liable for payment must show that, ‘during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled’.
41 Moreover, it is necessary to establish, in the third place, whether the person making the declaration indeed supplied the competent customs authorities with all the necessary information as required by European Union law and by the national legislation, which, as the case may be, supplements or transposes it, in relation to the customs treatment requested for the goods in question (see, to that effect, inter alia, judgments of 14 May 1996, Faroe Seafood and Others, C‑153/94 and C‑204/94, EU:C:1996:198, paragraph 108, and of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 33).
42 It is, in this case, for the referring court to establish, on the basis of all the concrete aspects of the case in the main proceedings, whether the conditions for the application of Article 220(2)(b) of the Customs Code, as referred to in paragraph 24 of the present judgment and specified by the Court in the context thereof, are, in this case, met, so that the importer at issue in the main proceedings can rely on a legitimate expectation, in accordance with Article 220(2)(b) of the Customs Code (see, to that effect, judgment of 18 October 2007, Agrover, C‑173/06, EU:C:2007:612, paragraph 34).
43 In the light of the foregoing considerations, the answer to the first question is that Article 220(2)(b) of the Customs Code must be interpreted as meaning that an importer may not rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties, submitting that he acted in good faith, unless three cumulative conditions are met. It is necessary, first of all, that those duties were not levied as a result of an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards his customs declaration. Such a legitimate expectation is lacking, in particular, where, although there are clear reasons for doubting the accuracy of a Form A certificate of origin, an importer failed to obtain, using his best efforts, information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well founded. Such an obligation does not however mean that an importer is required, in general, to systematically verify the circumstances of the issue, by the customs authorities of the exporting country, of a Form A certificate of origin. It is for the referring court to determine, taking into account all of the specific facts of the dispute in the main proceedings, whether those three conditions are met in this case.
44 By its second question, the referring court asks, in essence, whether Article 220(2)(b) of the Customs Code must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it can be deduced solely from the information contained in an OLAF report that an importer may not rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties, or whether the competent customs authorities are obliged to obtain additional evidence regarding the conduct of the exporter.
45 In that regard, it should be noted that the question whether an importer may, under Article 220(2)(b) of the Customs Code, object to a post-clearance recovery of import duties, must be assessed in the light of three cumulative conditions for the application of that provision, set out in paragraph 24 of the present judgment and the scope of which was specified in the context of the answer to the first question, based on all of the specific facts of this case.
46 As regards, more particularly, the conduct of the exporter, it is apparent from paragraphs 27 to 32 of the present judgment that an importer may rely on a legitimate expectation and, on that basis, avoid post-clearance recovery of the customs duties, where the issue, by the customs authorities of the exporting country, of an incorrect Form A certificate of origin can be imputed to the conduct of the exporter (see, to that effect, inter alia, judgment of 15 December 2011, Afasia Knits Deutschland, C‑409/10, EU:C:2011:843, paragraph 54).
47 As is apparent from the Court’s case-law relating to the rules on the apportion of the burden of proof in such cases, it is, in principle, for the customs authorities of the importing country intending to effect a post-clearance recovery of the customs duties, to adduce evidence of the fact that the issue, by the customs authorities of the exporting country, of an incorrect Form A certificate of origin is attributable to an incorrect statement of the facts by the exporter. However, where, in particular, as a result of negligence wholly attributable to the exporter, the customs authorities of the exporting country are unable to adduce that evidence, it is, as the case may be, for the importer to prove that that certificate was issued on the basis of a correct statement of the facts by the exporter (see, to that effect, inter alia, judgments of 9 March 2006, Beemsterboer Coldstore Services, C‑293/04, EU:C:2006:162, paragraphs 39 and 46, and of 8 November 2012, Lagura Vermögensverwaltung, C‑438/11, EU:C:2012:703, paragraph 41).
48 In that regard, to the extent that it contains relevant information for that purpose, an OLAF report can be taken into consideration in order to establish whether the conditions for an importer to rely on a legitimate expectation, in accordance with Article 220(2)(b) of the Customs Code, are satisfied.
49 However, in so far as such a report contains only a general description of the situation at issue, which is to be determined by the referring court, that report cannot, on its own, suffice for the purposes of establishing whether those conditions are satisfied in all respects, in particular as regards the relevant conduct of the exporter.
50 In the light of the foregoing considerations, the answer to the second question is that Article 220(2)(b) of the Customs Code must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it can be deduced from the information contained in an OLAF report that an importer may not rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties. To the extent, however, that such a report contains only a general description of the situation at issue, which it is for the national court to determine, it cannot, on its own, suffice in order to show to the requisite legal standard that those conditions are indeed met in all respects, in particular as regards the relevant conduct of the exporter. In those circumstances, it is, in principle, for the customs authorities of the importing country to prove, by means of additional evidence, that the issue, by the customs authorities of the exporting country, of an incorrect Form A certificate of origin is attributable to an incorrect statement of the facts by the exporter. However, where the customs authorities of the importing country are unable to adduce that evidence, it is, as the case may be, for the importer to prove that that certificate was issued on the basis of a correct statement of the facts by the exporter.
51 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.