OPINION OF ADVOCATE GENERAL
GULMANN
delivered on 18 May 1993 ( *1 )
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. ( 1 )
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)).
The EUR.l certificate is issued by the customs authorities of the exporting State (sec Article 9(1)). The customs authorities in Austria for example are authorized to issue the EUR.l certificate not only for products originating in Austria (see Article 9(2)), but also for goods in Austria which originate in the Community or in one of the other EFTA countries with which agreements have been concluded corresponding to the agreement between the Community and Austria (sec Article 9(3)).
The EUR.l certificate is issued upon written application from the exporter (Article 10(1)), who is to submit with his request any appropriate supporting documents proving that the goods to be exported qualify for the issue of an EUR.l certificate (Article 10(4)). If a product has previously been in circulation within the EC/EFTA free-trade area the EUR.l certificates issued previously must be presented (second subparagraph of Article 9(3)). It is the responsibility of the customs authorities of the exporting country to take any steps necessary to verify the origin of the goods and to check the other information on the certificate (Article 10(3)). Applications for EUR.l certificates and the certificates issued previously, upon presentation of which they are issued, must be preserved for at least two years by the customs authorities of the exporting country (Article 10(6)).
The EUR.l certificate is made available for the exporter as soon as actual exportation has been effected (Article 9(1)) and must within four months be submitted to the customs authorities of the importing State (Article 12(1)), whereafter the preferential tariff and quota arrangements laid down in the agreement may be applied (Articles 8(1) and 10(3)).
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)).
In such cases, where any disputes cannot be settled between the customs authorities of the importing State and those of the exporting State they are to be submitted to the Customs Committee of the Joint Committee (Article 17(3)).
The Commission has stated that for administrative reasons it is not possible to carry out systematic verifications beforehand, so that Protocol 3 attaches great importance to the possibility of carrying out subsequent verifications.
Protocol 3 provides for penalties to be imposed on any person who draws up, or causes to be drawn up, a document which contains incorrect particulars for the purpose of obtaining preferential treatment for goods (Article 16(4)).
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. ( 2 ) The background to the case is as follows:
In connection with the export of the machine to Belgium the Austrian authorities issued an EUR.l certificate stating that the machine originated in West Germany. The certificate was submitted to the Belgian authorities by the accused persons with a view to obtaining preferential customs treatment.
The Belgian authorities subsequently asked the Austrian customs authorities to check the accuracy of the EUR.l certificate. By a letter of 26 March 1987 the Austrian authorities stated that the results of the subsequent verification had shown the following:
‘The machine for assembling cardboard boxes, complete but used, to which the movement certificate relates, was supplied by the Jagenberg company, Düsseldorf, which had also manufactured the machine, in 1970 — that is, before the EEC-Austria free-trade agreement had come into force. Following your request for a subsequent check, the Schausberger company (that is, the Austrian exporter) tried to obtain supporting documents from the original exporter (that is, the Jagenberg company in West Germany) from which it might be deduced that the machine, regard being had to the production conditions at that time, might at least notionally be recognized as having originated in the Federal Republic of Germany, as would have been the case if the machine were produced today under the same conditions. Flowever, as the Jagenberg company, Düsseldorf, stated, all the relevant evidence had already been destroyed.’
The conclusion of the Austrian authorities was accordingly as follows:
‘Concrete evidence can no longer be provided by the ... German exporter. The goods must therefore be regarded as being of such uncertain origin that the movement certificate can no longer be regarded as valid.’
In those circumstances the Belgian authorities decided to demand duty on the ground that the machine was of unknown origin so that the preferential arrangements could not be applied. In addition the persons mentioned above were prosecuted for ‘importing into Belgium goods declared for direct consumption by submitting or causing to be submitted false, misleading or inaccurate documents, namely an EUR.l certificate wrongly issued by the Austrian customs authorities ...’
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:
‘1.
If the Stale granted the preferential tariff (in this case, Austria), which is asked to check the “KUR.l” certificate of origin, cannot determine the correct origin ol the goods, must it decide that the goods are of unknown origin, which would mean that the “EUR.1” certificate and the preferential tariff were wrongly granted?
2.
In the present case, must the importing Member State (Belgium) then demand payment of the customs duties which were not paid upon importation?
3.
Does the fact that it was impossible for the Austrian authorities, owing to their own neglect, “wilful” or otherwise, to establish that the origin notified on the “EUR.1” certificate issued by them was correct constitute a situation of force majeure for the importer in the Member State into which the goods were imported (in this case, Belgium)?’
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
—
as the Commission has also pointed out, it does not seem to be denied that the machine imported did in fact originate in West Germany; and that
—
the Hof van Beroep regarded it as established that the Austrian customs authorities did not give the Austrian exporter the opportunity as regards the subsequent verification to provide evidence of the origin of the goods.
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. ( 3 )
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.
That idea however was not, as far as can be seen, put forward either during the proceedings before the Belgian courts or in the written or oral observations submitted to the Court of Justice. It may be seen on the other hand that the questions referred to the Court call for an opinion on several questions of principle such as whether the customs authorities of the importing country arc obliged to take as their basis the result of a subsequent verification communicated to them by the customs authorities of the exporting country, whether an invoice constitutes sufficient documentary evidence for the purposes of Protocol 3 and whether an obligation for the importer of goods to be in a position to prove their origin may be deduced from Protocol 3.
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.
If it emerges from the subsequent verification that, contrary to what is stated in the EUR.l certificate, it is not in fact possible to determine the origin of a product, that means that the EUR.l certificate was wrongly issued and that the preferential treatment was therefore also wrongly granted. The customs authorities of the importing country must consequently be authorized to draw the conclusions of that finding in the form of a post-clearance collection of the unpaid duty. ( 4 )
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.
If the answer to that question is to be that the customs authorities in the importing country are free, at least in certain circumstances, to take no action on the basis of the result of the subsequent verification communicated to them by the authorities of the exporting country, there arises, as pointed out by the Commission in its written observations and as discussed during the oral procedure before the Court, a question as to the importance to be attached for the purpose of this decision to an invoice as proof of the origin of a product.
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.
In answer to a question on this matter by the Court, the Commission made its point of view clear during the oral procedure as follows: The customs authorities of the importing country, in deciding whether preferential treatment may be granted, are in principle dependent on the information provided by the authorities of the exporting country. It may be seen from Article 17(3) of the protocol that the results of a subsequent verification are to be communicated to the import ing country as soon as possible and that on that basis it should be possible to decide whether the preferential arrangements may be applied. Accordingly it is for the authorities of the importing country to decide whether the conditions for allowing preferential treatment are satisfied and whether the information provided confirms the validity of the certificate and removes any doubt as to the origin of the goods. The Commission states in conclusion that in its view the importing country can in fact exercise a certain discretion, which is of course limited, as regards the granting of preferential treatment unless the exporting country is subsequently able to confirm with sufficient certainty the validity of the EUR.l certificate.
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.
As the Commission has stated, Article 17(3) provides that ‘the customs authorities of the importing State shall be informed of the results of the verification as soon as possible’ and that ‘these results must be such as to make it possible to determine whether the disputed EUR.l certificate ... applies to the goods actually exported, and whether these goods can, in fact, qualify for application of the preferential arrangements’. The wording of this provision can presumably be taken as confirmation that the final decision as to whether the EUR.l certificate is applicable is in all circumstances the responsibility of the customs authorities of the importing country. In this case the Austrian authorities stated that the EUR.l certificate which had been issued was inapplicable, but Article 17(3) itself does not seem to contain anything to suggest that the customs authorities of the exporting country must or can take the final decision.
Reasonable and practical considerations with regard to the traders concerned also argue in favour of such an interpretation. If for example the position is, when a subsequent verification is being carried out, that the authorities of the importing country receive direct from the importer documentary evidence which they regard as sufficient to establish that the EUR.l certificate is correct, it can hardly be the purpose of the rules to prevent those documents from being taken into account as a basis for preferential treatment on the ground that they have not been pro duccd and appraised by the authorities of the exporting country. It may be deduced from Article 16(1) on the contrary that the purpose of the rules on administrative cooperation must be to ensure both that preferential treatment is not given where the relevant conditions are not satisfied and that such treatment shall be given where the conditions are in practice fulfilled.
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 ( 5 ) the Court described as follows the system of the corresponding Protocol 3 to the agreement between the Community and Switzerland:
‘It follows from all those provisions that the determination of the origin of goods according to Protocol 3 is based on a division of powers between the customs authorities of the parties to the free-trade agreement inasmuch as origin is established by the authorities of the exporting country and the proper working of that system is monitored jointly by the authorities concerned on both sides.
....
However, 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. Recognition of such decisions by the customs authorities of the Member States is necessary in order that the Community can, in turn, demand that the authorities of other countries with which it has concluded free-trade agreements accept the decisions taken by the customs authorities of the Member States concerning the origin of products exported from the Community to those nonmember countries.
There is no danger that the application of those provisions may encourage abuses, in view of the fact that Article 16 and 17 of Protocol 3, in particular in their new version, have set out in detail the methods of cooperation between the customs authorities concerned, where the origin is contested or where the exporters or importers have acted fraudulently.’ ( 6 )
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.
In the converse situation, in which the authorities in the exporting country do not think they can obtain sufficient evidence that the EUR.l certificate originally issued is correct, whereas the authorities in the importing country think they have sufficient evidence in that respect, the same consideration docs not, in my view, apply. Here the position is that the importing country may possibly intend to grant goods from the exporting country more favourable treatment than the exporting country, it may be, thinks the importing country is required to grant. If the authorities of the exporting country, contrary to expectations, wish to dispute such favourable treatment, they have the opportunity to bring the matter before the Customs Committee. That solution seems to me more appropriate than preventing the authorities of the importing country as a general rule from taking decisions as to the accuracy of the EUR.l certificate.
The provision in Article 17 that the subsequent verification is to be carried out by the authorities of the exporting country is therefore, in my view, intended chiefly to lay the foundation for practical cooperation between the authorities concerned. On the other hand I do not think that that rule can be interpreted as meaning that the importing country is then prevented from taking an independent decision to allow the EUR.l certificate to take effect.
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. ( 7 ) 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, ( 8 ) 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. ( 9 )
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.
It is possible however that the court of reference may for procedural reasons be required to decide whether the Austrian authorities' conduct, as determined by the Hof van Beroep, constitutes a case of force majeure and I shall therefore consider that question.
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.
The Court has never expressly decided that force majeure is one of the general principles of Community law but on the contrary has in certain cases refused to recognize force majeure without an express provision in that respect. ( 10 ) That does not however exclude the possibility that even without an express provision a clause on force majeure may in certain circumstances be recognized. In that connection it is important that the clause may as far as can be seen be regarded as a specific instance of the principle of proportionality, which is undeniably one of the general principles of Community law. The Court has also recognized that even without an express legal basis a trader may be exempted from certain obligations where the failure to comply with such obligations has been due to circumstances which may be equated with force majeure and where exemption did not conflict with the essential purpose of the provisions in question. ( 11 )
My view is therefore that in this situation it ought to be possible to apply such an unwritten clause of force majeure. The purpose of the agreement is to give preferential customs treatment to goods which satisfy the material criteria therefor, which originate, that is to say, in the Community or in Austria. The purpose of the rules of Protocol 3 is to lay the basis for the practical implementation of that objective. In my view it would not be contrary to the purpose behind these rules to provide for the possibility of correcting, by means of a force majeure clause, materially incorrect decisions arrived at as a consequence of circumstances which may be compared to force majeure.
27.
I shall therefore consider whether the conditions for force majeure are satisfied in this case.
In its written observations the Belgian Government has claimed that the Belgian importer could not rely on force majeure because it is not only the exporter but also the importer who, ‘at the time of the initial contract ... was required to take into account the need to collect the supporting documents proving the origin of the goods’. For that reason the Belgian Government concludes that ‘any difficulties or evasive replies at the time of the subsequent verification cannot be regarded as “objective”force majeure’ and that ‘both parties to the original commercial negotiations must recognize their obligation to supply evidence and to provide themselves ab initio with the necessary supporting documents’, so that ‘in this case the subjective element of force majeure is not present either’. In its suggested reply to the third question the Belgian Government states that, by reason of this obligation for the parties to be in possession of the necessary supporting documents, ‘the negligence (whether “wilful” or not) of the administrative authorities arising from the fact that they had the opportunity at the time to check the real origin of the goods does not constitute a situation of force majeure for the importer in the importing Member State’. During the hearing the Belgian Government maintained that the parties had a joint obligation towards the customs authorities to provide proof but nevertheless stated that ‘that evidence ought normally to come from the Austrian exporter but ... it is the Belgian importer who is going to have to pay the duties. They have therefore a common commercial interest to safeguard’.
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. ( 12 )
The Belgian Government bases its arguments relating to the importer's obligation to provide proof on Article 12(1) of Protocol 3, which provides: ‘An EUR.l certificate must be submitted, within four months of the date of issue by the customs authorities of the exporting State, to the customs authorities of the importing State where the goods arc entered ... The said authorities ... may also require the import declaration to be accompanied by a statement from the importer to the effect that the goods meet the conditions required for the implementation of the agreement.’ However, that provision in no way changes the fact that, as the Commission has pointed out, it is the exporter who has the duty, under the protocol, of producing the documentary evidence of the origin of the goods. I cannot therefore find any basis for assuming that a statement from the importer in the terms mentioned above would imply that the importer is assuming that duty. The Belgian Government has not pointed to any other provisions which might lead to the conclusion that the importer has any duty of proof.
In this connection it is important to stress that the question whether the importer has an actual obligation must not be confused with his natural interest in being in a position to produce the necessary documents. The importer must of course be aware that he is taking a risk when he makes a contract with an exporter without making sure beforehand that the latter is in possession of the documents proving the origin of the goods. If the exporter, in breach of his obligations under Protocol 3, cannot submit the necessary documents, it is the importer who must take the consequences by paying the customs duty. ( 13 )
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.
The Court has established in its case-law that ‘... the concept of force majeure must be understood as meaning 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 ...’. ( 14 )
It may be seen from the case-law of the Court that measures adopted by public authorities may, according to the circumstances, constitute force majeure. In the judgment in Case C-50/92 Firma Molkerei-Zentrale Süd [1993] ECR I-1035, ( 15 ) the Court declared, in paragraphs 12 and 13:
‘The delay taken by an administration of a Member State in verifying the processing of the butter and returning the control document to the authorities in the country of origin constitutes a circumstance beyond the control of the trader inasmuch as the latter has no power to intervene in the performance of those operations.
The requirement for the circumstances from which the damaging consequences for the trader stem to be abnormal and unforeseeable is satisfied where, in the context of a system for the management of agricultural markets, the conduct of an administration whose services the trader is required to use makes it impossible for the latter to perform his obligations under the Community rules.’
As we know, the Hof van Beroep, Ghent, found in its judgment that the Austrian authorities had in this case neglected their obligation to carry out a subsequent verification and that in addition they had provided wrong and misleading information. Such a situation corresponds, in my view to altogether abnormal circumstances beyond the control of the trader.
As regards the question whether the Belgian importer has exercised sufficient care, I think that, as far as the available information goes, no blame can be attached to him. As we know, the accused persons telephoned the Austrian exporter as soon as they had been heard by the Belgian customs authorities to find out what had happened. I think, however, that the final answer to this question must be left to the national court. ( 16 )
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.
( 1 ) 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)
( 2 ) The two companies were involved in the proceedings as parties with civil liability.
( 3 ) 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’.
( 4 ) 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.’
( 5 ) [1984] ECR 3105.
( 6 ) Paragraphs 26, 27 and 28.
( 7 ) 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.
( 8 ) OJ 1988 L 381, p. 1.
( 9 ) 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.
( 10 ) Sec for example inter aha the Court's judgment in Case 38/79 Nordmark [1980] ECR 643, paragraphs 7, 8 and 9.
( 11 ) 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.
( 12 ) 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.
( 13 ) 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.
( 14 ) 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.
( 15 ) See also Advocate General Lenz's Opinion in the same case, delivered on 9 February 1993.
( 16 ) Sec, in the same sense, the judgment given by the Court in Case C-50/92, paragraph 15.
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