Opinion of the Advocate-General
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Mr President,
Members of the Court,
1. The question referred to the Court by the Cour d' Appel, Toulouse, arises from a dispute between the French Customs Authorities and a customs agent and concerns the conditions for obtaining exemption from duties on the importation of certain goods from India.
2. The relevant provisions on exemption from duties are part of the European Community' s generalized tariff preferences for goods originating in developing countries. As is well known, the generalized system of preferences - GSP - has its background in the Resolution adopted by UNCTAD' s Second Conference in 1968 whereby the industrial countries are to grant generalized tariff preferences to developing countries. The system is now adapted to the individual developing country' s economic circumstances and to a certain extent different rules apply to different types of goods. In the present case it is significant that the conditions governing entitlement to exemption from duties under the system of preferences are laid down separately by the individual industrial countries.
3. It is common ground between the parties that the goods which the customs agent imported in 1987 and 1988 on behalf of a French client are entitled to exemption from duties under the Community rules in force if the French customs authorities accept that there is proper documentation to show that the goods originate from India.
In connection with the customs declaration, the customs agent produced a number of certificates of origin certified by the Indian authorities. Box 12 of the certificates of origin, which is completed by the exporter, states in the English version used in the case:
"The undersigned hereby declares that the above details and statements are correct; that all the goods were produced in ..., and that they comply with the origin requirements specified for those goods in the generalized system of preferences for goods exported to ...". (1)
It appears from the certificates of origin produced by the customs agent that the goods originated in India; in some of the certificates it is stated that they are to be exported to the Czechoslovak Socialist Republic and in other certificates to the Polish People' s Republic.
In Box 11 it is certified by the competent Indian authorities "on the basis of control carried out, that the declaration by the exporter is correct". (2)
4. It appears from the Community rules applicable in 1987 and 1988 in connection with the exemption from duties of the goods in question (3) that Box 12 in the certificate of origin should properly be completed by indicating "European Economic Community" or one of the Member States. (4) Since neither the European Economic Community nor a Member State was indicated by the customs agent in the certificates of origin as the country to which the goods were to be exported, the French Customs Authorities took the view that the conditions for granting exemption from duties were not fulfilled and issued a demand inter alia for payment of the 7% duty normally applicable to goods of the kind in question.
5. The customs agent had informed the French authorities that Box 12 was completed as it was because compensatory purchases between East European countries and India were involved. According to the information supplied by the agent, this arose because the East European countries sold material to India where purchasers, who did not have foreign exchange available, paid in goods, inter alia skins and clothes, and since the East European countries did not need those goods they sold them on other markets, for example, France, and the goods were sent directly to the purchasers.
6. The customs agent, which considers that it is entitled to exemption from duties, claims that the customs debt arises solely as a consequence of the movement of goods - it is quite clear that the goods originate from India - and not as a consequence of the certificates. It considers that the French Customs Authorities, in line with earlier cases, should enable exemption from duties to be granted by means of allowing the certificates to be rectified.
7. The Cour d' Appel, which inter alia must decide whether exemption from duties may be granted, referred the following question to the Court for a preliminary ruling:
"Is the benefit of the preferential treatment granted by the EEC to developing countries, resulting in exemption from customs duties, necessarily lost when the certificate of origin Form A issued on the export of the products refers to a State other than a Member State of the EEC?"
In connection with that question the Cour d' Appel referred to various provisions in the relevant Community regulations which might empower the customs authorities to rectify the certificates of origin or provide a basis for accepting exemption from duties in some other way.
The question whether the French Customs Authorities can ignore the fact that Box 12 in the certificates of origin is not completed properly
8. The customs agent is, as stated, basically of the opinion that what is involved is a mistake of form, which can be rectified.
The Commission and the French, Belgian and UK Governments contest that view.
9. In my opinion there is no ground for doubting that the Community rules in question must be understood as meaning that there is no basis for the French Customs Authorities to grant exemption from duties in a case where Box 12 is completed with an indication that export is to take place to a country other than a European Community Member State.
Exemption from duties is granted under the Community rules provided there is documentary proof that the goods originate in the country to which the European Community grants exemption from duties. It is the European Community which independently lays down the criteria for deciding whether goods are to be regarded as originating in the State to whose goods the European Community grants exemption from duties. The certificates of origin produced in the case contain information from the exporter that the goods are to be exported to two countries which are not members of the European Community and it is that information which is certified by the competent Indian authorities. It is thus clear that on the basis of the certificates of origin produced there is no certainty that the Community origin rules have been complied with. The certificates of origin are therefore defective and the defect involved is not merely of a formal kind, since it cannot be excluded that the origin rules in the countries to which, according to the certificates, the goods are to be exported, may be different from the Community origin rules. Furthermore, according to the information available, it appears that in fact the origin rules of Czechoslovakia at least were different from the Community rules.
10. Accordingly it is also clear that the possibility accorded in Article 12 of the two relevant regulations to the customs authorities in the Member States of rectifying the information in certificates of origin cannot be used in the present case. Article 12 provides that "slight discrepancies between the statements made in the certificate and those made in the documents produced to the customs office for the purpose of carrying out the formalities for importing the products shall not ipso facto render the certificate null and void, provided it is duly established that the certificate corresponds to the products concerned". In the circumstances described it is not a question of "slight discrepancies".
11. It appears equally clear to me that the special provision concerning the replacement of certificates of origin contained in Article 22 of the regulation cannot be applied in connection with the present case. According to the provision it shall "always be possible to replace one or more certificates of origin Form A by one or more other such certificates, provided that this is done at the customs office in the Community where the products are located". It is claimed by the UK and French Governments, and undisputed in the course of the proceedings, that Article 22 concerns the situation where a consignment originally destined for a Member State is to be sent on in whole or in part to one or several other Member States before it is released into free circulation.
The question whether the exporting country can retrospectively issue new certificates of origin
12. There is disagreement between the French Government on the one hand and the Commission and UK and Belgian Governments on the other on the point whether the provision laid down in Article 23 of the relevant regulations also authorizes the retrospective issue of fresh certificates of origin by which the Indian authorities would confirm the Indian origin of the goods in a case where the export referred to in Box 12 is to one of the Member States of the European Community.
13. Article 23 provides:
"1. In exceptional cases, a certificate may be issued after the actual exportation of the products to which it relates, if it was not issued at the time of exportation as a result of errors involuntarily made or omissions or other special circumstances, and provided that the goods were not exported before the communication to the Commission of the European Communities of the information required by Article 26.
2. The appropriate governmental authority may issue a certificate retrospectively only after verifying that the particulars contained in the exporter' s application agree with those contained in the corresponding export documents and that no certificate of origin was issued when the products in question were exported."
14. The French Government claims that in the present situation that provision does not afford a basis for the retrospective issue of the certificate of origin. It refers to the fact that the provision lays down that certificates of origin should not previously have been issued at the time of exportation of the goods in question and claims, moreover, that it would be difficult for the Indian authorities in a situation such as this to certify that the goods originated in India under the Community' s origin rules.
15. The Commission and the other two Governments consider that it may be possible in a situation such as the present to obtain customs exemption on the basis of properly completed certificates of origin even if they are issued retrospectively, that is to say after the importation of the goods into the Community. It is claimed that the certificates of origin produced in the case may be regarded as non-existent in relation to the Community rules.
16. In my opinion it is quite clear that retrospective issue of certificates of origin may only take place when the competent authorities in the exporting country are in a position, on the basis of the information available, to certify the information which the exporter has provided in that connection in Box 12. It is also clear that such retrospectively-issued certificates may only give entitlement to exemption from duties if the certificates are issued within any applicable time-limits and it is possible to import the goods within any applicable tariff quotas.
Once those conditions are satisfied, however, in my view it is proper to adopt the UK and Belgian Government' s interpretation of Article 23, and allow that that provision provides a basis for accepting retrospectively-issued certificates of origin in a situation such as that before the Court. There do not appear to be any fundamental reasons relating to customs administration militating against such an interpretation and there do not seem to be any grounds for interpreting the Community rules in such a way as to prevent exemption from duties being obtained on the importation of goods from developing countries. Such a restrictive interpretation would run counter to the considerations underlying the generalized preference system. It is in my view correct to state, as the UK Government does, that a restrictive interpretation would mean that the importer had no legal remedy and that such a result would be disproportionate to the purpose of the regulations which is to grant exemption for certain goods originating in developing countries.
Conclusion
17. On the above grounds, I would suggest that the Court reply as follows to the question referred to it:
Entitlement to exemption from duties in connection with the system of preferences granted by the European Community to developing countries is lost where, in the certificate of origin Form A, a country of destination other than a Member State of the European Community is indicated.
The authorities of the importing State may not, however, refuse exemption from duties when, after importation, a properly completed certificate of origin Form A is presented, even if, because of special circumstances, a certificate produced earlier indicated a country of destination other than a Member State of the European Community.
(*) Original language: Danish.
(1) - The certificates, which are set out on standard forms, are drawn up in English or French.
(2) - The French version reads Il est certifié, sur la base du contrôle effectué, que la déclaration de l' exportateur est exacte .
(3) - The relevant regulations are, respectively, Regulation No 3749/83 (Official Journal 1983 L 372, p. 1) and Regulation No 693/88 (Official Journal 1988 L 77, p. 1), both being regulations on the definition of the concept of originating products for purposes of the application of tariff preferences granted by the European Economic Community in respect of certain products from developing countries . The 1983 regulation is applicable to imports in 1987 whereas the 1988 regulation is applicable to imports in 1988. The provisions that are relevant as far as the reply to the question referred to the Court is concerned are identical in both regulations.
(4) - See Note 8 in Annex I to the 1983 Regulation and Note 9 in Annex I to the 1988 Regulation.
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