Opinion of Advocate General
Mr President,
Members of the Court,
1. The Belgian Hof van Cassatie has requested the Court in this case for an interpretation of the Agreement of 22 July 1972 between the European Economic Community and the Republic of Austria, in particular Protocol 3 thereto, which lays down rules governing the definition of the concept of Originating products' and methods of administrative cooperation.
Legislative background
2. The agreement establishes preferential tariff arrangements for products originating in Austria or in the Community. Protocol 3 lays down rules of origin and prescribes that the origin of a product shall be proved by the submission of an EUR.l movement certificate (see Article 8(1)).
3. Apart from the check carried out by the authorities of the exporting country in connection with the issue of the EUR.l certificate, Protocol 3 provides for the possibility of a subsequent verification of the accuracy of the certificate (Article 17(1)). The subsequent verification is carried out at the request of the customs authorities of the importing country to the customs authorities of the exporting country, who are to inform the customs authorities of the importing country as soon as possible of the results. Those results must be such as to make it possible to determine whether the EUR.l certificate, the accuracy of which is in doubt, applies to the goods actually exported and whether the goods qualify for application of the preferential arrangements (Article 17(3)).
The facts and the questions referred to the Court
4. The questions referred to the Court arose in the course of criminal proceedings brought by the Belgian State against the director of a Belgian company, which imported from Austria in 1985 a machine for assembling cardboard boxes, and against two of the company's employees who carried out the relevant import formalities. The background to the case is as follows:
5. The judgment at first instance acquitted the accused and an appeal was entered before the Hof van Beroep, Ghent, which confirmed the judgment. It may be seen from the order for reference that the Flof van Beroep found that the Austrian authorities had not, as stated in the abovementioned letter, approached the Austrian exporter to obtain the necessary documentation. That finding was based partly on information provided by telephone by the Austrian exporter on 9 December 1987 during the hearing by the Belgian customs authorities of one of the accused, and partly on the fact that the prosecution had been able to produce during the proceedings an invoice sent by the Jagenberg company to the Schausberger company on 25 January 1970 from which it appears that the machine was of West German origin. In those circumstances the Hof van Beroep decided that the fact that the subsequent verification had not been able to prove that the information in the EUR.l certificate was correct was due to the Austrian authorities' negligence, whether or not wilful. In its judgment the appeal court stated that the failure to act by the public authorities of one of the parties to the agreement must be regarded as force majeure as far as the accused were concerned, since they ought not to be the victims of the authorities' fail ure to act.
6. The Belgian State appealed against the judgment to the Hof van Cassatie, which referred the following three questions to the Court of Justice:
Introductory observations
7. For a consideration of this case which, according to the information available, does not seem to have been dealt with by the authorities concerned in the best possible way, it is important to note that
8. As regards the first point it is worth noting that it emerges from the said letter of 26 March 1987 from the Austrian authorities that they have no specific grounds for doubting the origin of the machine but think it should be regarded as of unknown origin because it has not been possible to obtain documentary evidence that the goods originated in West Germany. However, as I mentioned, an invoice was produced during the proceedings, the authenticity of which the Belgian authorities do not seem to doubt and from which it appears that the machine is of West German origin. It is not possible, according to the information available, to state with certainty when this invoice appeared, but in my view it is entirely probable that it was produced by the importer in connection with the hearings conducted by the Belgian customs authorities in the matter. Thus the Hof van Beroep stated in its judgment that the invoice was with the documents in the case produced by the prosecution during the proceedings.
9. As regards the second of the points mentioned it is worth noting that it may be seen from the judgment of the Hof van Beroep that the information that the Austrian authorities had not, during the subsequent verification, given the Austrian exporter the opportunity to provide evidence of the origin of the goods, was already available on 9 December 1987 in connection with the Belgian customs authorities' hearing of one of the persons accused.
10. That information ought to have led the Belgian authorities to make contact with the Austrian authorities to clear up the doubt which had arisen as to the correctness of the result of the Austrian customs authorities' subsequent verification. According to the evidence during the proceedings the Belgian authorities did not contact the Austrian authorities and in my view those circumstances make it doubtful whether the Belgian authorities had sufficient grounds for going ahead with customs clearance under the impression that the goods were of unknown origin. As that result reported by the Austrian authorities to the Belgian authorities did not at first sight seem capable of serving as the basis for customs clearance of the goods it might therefore be claimed that the basis for such clearance ought to have been the EUR.l certificate originally issued by the Austrian authorities.
11. To end these introductory remarks perhaps I may draw attention to the fact that the questions referred to the Court arose in a criminal case and that the Commission has, quite rightly in my view, stated that Protocol 3 must certainly be interpreted as meaning that the authorities of the importing country must claim duty from the importer if it must be accepted that imported goods are of unknown origin, but that the agreement and the protocol do not require a penalty to be imposed on the importer in all circumstances. It is true that Article 16(4) of the protocol provides for the imposition of penalties if documents arc drawn up with incorrect particulars for the purpose of obtaining preferential treatment for goods, but in my view that obligation applies only in relation to persons who meet the usual subjective conditions for criminal liability.
The first and second questions
12. The first and second questions raised by the court of reference are closely connected and I therefore think it is appropriate to consider them together.
13. The fact that Protocol 3 expressly mentions and prescribes the methods for carrying out a subsequent verification of the accuracy of the information given in an EUR.l certificate is in my view sufficient to show that the EUR.l certificate does not constitute incontrovertible evidence that a product has the origin shown therein and is thus entitled to preferential customs treatment.
14. As I emphasized in my introductory remarks, however, the striking feature in this case is that only the Austrian authorities seemed to think that the machine must be regarded as being of uncertain origin simply because it had not been possible to produce specific documentary evidence, whereas the Belgian authorities have in fact obtained documentary evidence, namely the invoice, but in spite of that maintain that the machine is of unknown origin as was stated by the Austrian authorities. In those circumstances it may be seen that the central feature in the first question from the court of reference is whether the State granted the preferential tariff (in this case Austria) ... must ... decide that the goods are of unknown origin, which would mean that the EUR.l certificate was wrongly granted (my emphasis). In other words the answer to that question is meant to make it clear whether the customs authorities of the importing country are obliged in all circumstances to take as their basis the result of the subsequent verification communicated to them by the customs authorities of the exporting country.
The extent to which the customs authorities of the importing country are required to act on the basis of the result of the subsequent verification communicated to them by the authorities of the exporting country
15. In its written observations the Commission has stated that it would be unreasonable to refuse preferential treatment for the machine in view of the fact that it does not actually seem to be contested that the origin of the machine is within the Community and that the invoice produced supports such an assumption. In those circumstances the Commission suggests that the answer to the question from the court of reference should be that the authorities of the importing country are justified in demanding customs duty for goods of unknown origin where the exporter of goods cannot after a subsequent verification supply proof of their origin unless it is nevertheless possible subsequently to establish the preferential origin of the goods with sufficient certainty.
16. In my view there arc a number of reasons for agreeing with the Commission that the customs authorities of the importing country must have a certain independent authority to consider whether a subsequent verification lias produced sufficient documentary evidence of the accuracy of the data in an EUR.l certificate.
17. It is however important to remember, when the scope of the independent powers of the authorities of the importing country are to be determined, that the methods of administrative cooperation in Protocol 3 are based on a system of mutual respect for the decisions taken by the customs authorities concerned. If the authorities in one State wish to contest decisions taken by the authorities in another State that must in principle be effected by referring the question to the Customs Committee. In its judgment in Case 218/83 Les Rapides Savoyards the Court described as follows the system of the corresponding Protocol 3 to the agreement between the Community and Switzerland:
18. The purpose of the Court's declaration in that judgment was in particular to establish that the customs authorities of the importing country are required to respect EUR.l certificates issued by the customs authorities of the exporting country. The Court thus expressly stated that control of the proper working of the system was to be ensured by means of mutual cooperation and that the possibility of carrying out a subsequent verification means that there is no reason to fear that a system of mutual recognition of decisions adopted should encourage abuses. In so far as the considerations put forward by the Court with regard to the importance of decisions adopted being mutually respected may nevertheless be accepted as applying also to the result of a subsequent verification communicated by the exporting country, it is in my view important to stress that the need to recognize decisions of this type manifests itself first and foremost where the importing country, in contrast to the exporting country, does not think that sufficient proof of the accuracy of the EUR.l certificate has been adduced and does not therefore wish to grant preferential treatment. In such a case concern for the operation of the arrangements and for an appropriate division of powers between the customs authorities implies that the importing country is obliged to respect the assessment of the exporting country unless the question is brought before the Customs Committee, which comes to a different decision.
19. Even if the Court does not agree with that interpretation according to which the customs authorities of the importing country must in general be conceded independent power to take positive decisions to allow the EUR.l certificate to take effect, I do not in any case think there can be any hesitation in conceding such powers to the authorities where, as in this case, it is not a matter of the customs authorities of the importing country altering or setting aside an assessment of the evidence made by the authorities of the exporting country but rather where the authorities of the importing country have the opportunity to take into account further evidence laid before them.
20. In those circumstances I shall propose that the Court should declare that the customs authorities of the importing country are entitled to take into consideration documentary evidence laid before them and on that basis to decide to allow the EUR.l certificate to take effect irrespective of the possibility that the authorities may thereby in certain circumstances be failing to take as their basis the result of the subsequent verification communicated to them by the authorities of the exporting country.
Whether an invoice constitutes sufficient documentary evidence for the purpose of Protocol 3
21. Since the customs authorities of the importing country have the opportunity to take into consideration documentary evidence laid before them and as, in this case, an invoice has been produced to the Belgian authorities, a full reply to the questions raised involves an answer to the question whether an invoice is sufficient evidence for the purpose of Protocol 3.
22. The Commission has pointed out that it follows in principle from Article 9(3) of the protocol that in a case of re-export to the Community an EUR.l certificate may be issued only against presentation of the EUR.l certificates issued previously. However, the Commission regards such an interpretation as unnecessarily formalistic in a situation like this where the goods were exported from the Community to Austria at a time before the agreement between these parties came into force. Since in this situation it is not possible to adduce proof by presenting an EUR.l certificate issued previously, the Commission's view is that it must be permissible for proof of the Community origin of the goods to be provided by other means, for example by the production of an invoice from the original exporter.
23. On this point I can agree entirely with the Commission. It seems to me that there is no reason to assume that the purpose of Protocol 3 is to exclude preferential treatment of goods originating in the Community but which were exported from there to Austria before the entry into force of the agreement between the Community and Austria. That interpretation is, I think, confirmed by the fact that Article 9(3) was amended by Council Regulation (EEC) No 4271/88 of 21 December 1988, to the effect that presentation of EUR.l certificates issued previously is no longer required but only proof of origin previously issued or drawn up. Moreover I think more specifically that in a situation like this where there seems no reason to doubt that the machine did in fact originate in West Germany, it appears reasonable to accept the invoice issued by the original exporter as being not only relevant but sufficient documentary evidence for that purpose.
24. Having regard to the foregoing considerations, I shall propose that the Court should declare that an invoice is an acceptable and, in certain circumstances, a sufficient proof of the origin of a product in so far as concerns goods exported from the State of origin at a time when the agreement between the Community and Austria had not yet come into force and for which an EUR.l certificate previously issued cannot therefore be presented.
The third question
25. My proposed answer to the first and second questions from the court of reference may to a certain extent be thought to make it superfluous to answer the third question regarding force majeure. If it is accepted that the Belgian customs authorities could in all circumstances take account of documentary evidence put before them as a basis for allowing the EUR.l certificate to take effect and that the invoice produced constitutes in these circumstances acceptable and, as far as can be seen, sufficient documentary evidence of the origin of the machine, such information can presumably constitute a sufficient basis for the court of reference to decide whether the accused persons may be convicted and whether payment of customs duty may be demanded. In other words it does not seem necessary to decide whether the Belgian importer may rely on force majeure because the Austrian authorities were unable by reason of their negligence to determine the accuracy of the information in the EUR.l certificate issued.
26. As Protocol 3 contains no express provision concerning force majeure it must first be decided in order to answer that question whether the Belgian importer is actually able to rely on that principle.
27. I shall therefore consider whether the conditions for force majeure are satisfied in this case.
28. The Commission, supported by the accused in the main proceedings, stated in its written observations that no provision of Protocol 3 gives the importer any part to play in determining and verifying the origin of the goods. The responsibility is that of the exporter, who is deemed to have the necessary documentary evidence ..., and of the customs authorities of the exporting country It is not impossible that the Belgian authorities had lost sight of that point when they decided to initiate criminal and civil proceedings against the importer and certain persons having commercial relations with him.
29. I think it is necessary to uphold the Commission's point of view to the effect that it is impossible to deduce from the rules of Protocol 3 that the importer has an obligation to be himself in possession of the necessary documentary evidence or to have the possibility of obtaining such documents. I think that the obligation to provide the documentary evidence of the origin of the goods, rests under Protocol 3, solely on the exporter and the customs authorities of the exporting State.
30. Next it must be considered whether the fact that the exporter has not had the opportunity, as a result of the Austrian authorities' conduct, to carry out his obligation on the occasion of the subsequent verification to produce proof of the origin of the machine can, according to the circumstances, constitute a case of force majeure on which the Belgian importer may rely.
Conclusion
I propose, having regard to the foregoing considerations, that the Court should reply to the questions referred to it as follows:
First and second questions
If, following a subsequent verification of the accuracy of an EUR.l certificate carried out by the customs authorities of the exporting country in pursuance of Article 17 of Protocol 3 annexed to the Agreement between the European Economic Community and the Republic of Austria (OJ 1984 L 323, p. 1), it appears to be impossible to determine the origin of goods, the EUR.l certificate has been wrongly issued, which implies that the preferential treatment for which the agreement provides has been wrongly granted. In that case the customs authorities of the importing State must then demand payment of the customs duties unpaid at the time of importation.
Even if the customs authorities of the exporting country, which have been requested to carry out the subsequent verification, have informed the customs authorities of the importing country that it is not possible to obtain proof of the actual origin of the goods in question, the customs authorities of the importing country may decide to allow the certificate originally issued to apply for the purpose of preferential customs treatment where those authorities have received fresh documentary evidence of such a nature as to establish the accuracy of the statement of origin on the EUR.l certificate.
In the case of goods exported from the State of origin at a time when the aforesaid agreement had not yet entered into force and for which an EUR.l certificate issued previously cannot therefore be presented in pursuance of Article 9(3) of Protocol 3, an invoice drawn up by the original exporter may, in certain circumstances, constitute sufficient proof of the origin of the goods.
Third question
If the fact that the relevant evidence of the origin of the goods has not been produced by the exporter at the time of the subsequent verification is due to error or negligence on the part of the customs authorities of the exporting State, the importer may rely on force majeure. However, that is the position only where the importer could not, in spite of the exercise of all due care, have avoided the consequences of the error or negligence of the authorities.
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.