Opinion of Advocate General Gulmann delivered on 18 May 1993

1 Original language Danish.

2 The agreement, including Protocol 3. is published as an annex to Regulation (ERC) No 2836/72 of the Council of 19 December 1972 (OJ, English Special Edition 1972 (31 December) L 300, p. 3. Protocol 3 has been amended several times The version applicable in this case is published as an annex to Council Regulation (EEC) No 3386/84 of 3 October 1984 (OJ 1984 L. 323, p. 1)

3 The two companies were involved in the proceedings as parties with civil liability.

4 It cannot therefore be correct that, as stated by the Belgian Government during the oral procedure, it is no longer possible to find out where and now the invoice appeared but that it must necessarily have been during the proceedings before the criminal court concerning the infringement of the customs provisions which were the subject of the prosecution.

5 Amministrazione delle Finanze v Acampora [1980] ECR 3731 which concerned a system of tariff preferences for goods originating in developing countries. In paragraph 8 the Court declared: It must be recognized that the possibility of checking after importation without the importer's having been previously warned may cause him difficulties when in good faith he has thought he was importing goods benefiting from tariff preferences in reliance on certificates which, unbeknown to him, were incorrect or falsified. It must however be pointed out that in the first place the Community docs not have to bear the adverse consequences of the wrongful acts of the suppliers of its nationals, in the second place the importer can attempt to obtain compensation from the perpetrator of the fraud and in the third place, in calculating the benefits from trade in goods likely to enjoy tariff preferences, a prudent trader aware of the rules must be able to assess the risks inherent in the market which he is considering and accept them as normal trade risks.

6 [1984] ECR 3105.

7 Paragraphs 26, 27 and 28.

8 The second subparagraph of Article 9(3) provides: Where Article 2 and, where appropriate, Article 3 of this protocol arc applied, the EUR.l certificates shall be issued by the customs authorities of each of the countries concerned where the goods have ... been held before their re-exportation in the same state ..., upon presentation of the EUR.l certificate issued previously. Although that reference to Articles 2 and 3, which concern trade between the Community and Austria on the one hand and the six other EFTA countries on the other hand, I think the provision must be interpreted as meaning that the requirement for the presentation of EUR.1 certificates issued previously applies equally where a product has been exported from the Community to Austria, whence it is desired to re-export it.

9 OJ 1988 L 381, p. 1.

10 During the oral procedure the Belgian Government put forward the point of view that the invoice cannot be recognized as sufficient documentary evidence because it docs not sufficiently show that the machine is identical with that originally exported to Austria or that it has not been altered or had significant additions made to it. I do not think any importance can be attached to that point of view. On the one hand it presents the exporter with an impossible demand for proof, as it is hard to sec what further or other documents could establish that the machine has not undergone substantial changes in Austria. On the other hand I think that in this respect there is no difference between the probative value of an invoice and that of any EUR.1 certificate issued previously.

11 Sec for example inter aha the Court's judgment in Case 38/79 Nordmark [1980] ECR 643, paragraphs 7, 8 and 9.

12 Sec in this connection inter alta the judgment of the Court in Case 71/87 Inler-Kom [1988] ECR 1979, where the Court declared in paragraphs 10 and 11 that even if the Community provisions in question did not expressly contain a reference lo force majeure it was appropriate to consider in the light of the structure and purposes of the pro vision in question whether or not the existence of an implied force majeure clause might be rccognÌ7cd.

13 As may be seen from the Commission's written observa lions. Council Regulation (EEC) No 1598/88 of 24 May 1988 (OJ 1988 L 149, p. 1) inserted in Protocol 3 a new Article 15(2) under which the exporter is required to keep for at least two years the documentary evidence as to the origin of the goods. In my view however it is already implied by the rules of the version of Protocol 3 applicable in this case, and particularly of Article 10(4), that the exporter must be in a position, at the time of a subsequent verification, to provide the relevant documentary evidence at once. As regards the obligation for the customs authori tics of the exporting Stale to keep the necessary documents, see Article 10(6) and the last subparagraph of Article 17(3) of Protocol 3.

14 It may be seen from the case-law of the Court that the importer cannot rely on force ma/cure where the failure to produce proof may be attributed to tbe exporter. The Court nas made it clear that the actions of other contracting par tics cannot be regarded as being outside the trader's control. That seems to imply that it is the responsibility of the trader to choose his commercial partners carefully and require them in sufficiently compelling terms in the contract to comply with its conditions and where appropriate to provide penalties for failure to comply with them. Sec in particular the judgments of the Court in Case 42/79 Eierkontor [1979] ECR 3703, paragraph 10, and in Joined Cases 98/83 and 230/83 Van Cend en Loos [1984J ECR 3763, paragraph 16.

15 See most recently the Court's judgment in Case 50/92 Firma Molkerei-Zentrale Süd [1993] I-1035, paragraph 11. See also the judgments in Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, in Case 266/84 Denkavit France [1986] ECR 149 and in Case C-338/89 Danske Slagterier [1991] ECR I-2315.

16 See also Advocate General Lenz's Opinion in the same case, delivered on 9 February 1993.

17 Sec, in the same sense, the judgment given by the Court in Case C-50/92, paragraph 15.