Case C‑47/16

Valsts ieņēmumu dienests

v

‘Veloserviss’ SIA

(Request for a preliminary ruling
from the Augstākā tiesa Administratīvo lietu departaments)

Reference for a preliminary ruling — Customs union — Community Customs Code — Article 220(2)(b) — Post-clearance recovery of import duties — Legitimate expectations — Conditions under which applicable — Error of the customs authorities — Obligation imposed on the importer to act in good faith and to verify the circumstances of the issue of the Form A certificate of origin — Means of proof — Report of the European Anti-Fraud Office (OLAF))

Summary — Judgment of the Court (Sixth Chamber), 16 March 2017

1. Own resources of the European Union—Post-clearance recovery of import or export duties—Conditions for non-entry of import duties in the accounts set out in Article 220(2)(b) of Regulation No 2913/92—Cumulative nature—Error of the competent authorities themselves—Obligation imposed on the importer to act in good faith and to verify the circumstances of the issue of the Form A certificate of origin—Scope—Obligation to systematically verify the circumstances of the issue—Absence

   (Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

2. Own resources of the European Union—Post-clearance recovery of import or export duties—Conditions for non-entry of import duties in the accounts set out in Article 220(2)(b) of Regulation No 2913/92—Burden of proof—Means of proof—Report of the European Anti-Fraud Office (OLAF)—Included—Conditions

   (Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b))

1.  Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 must be interpreted as meaning that an importer may not rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties, submitting that he acted in good faith, unless three cumulative conditions are met. It is necessary, first of all, that those duties were not levied as a result of an error on the part of the competent authorities themselves, secondly, that that error was such that it could not reasonably have been detected by a person liable for payment acting in good faith and, finally, that that person complied with all the provisions laid down by the legislation in force as regards his customs declaration. Such a legitimate expectation is lacking, in particular, where, although there are clear reasons for doubting the accuracy of a Form A certificate of origin, an importer failed to obtain, using his best efforts, information concerning the circumstances of the issue of that certificate in order to verify whether those doubts were well founded. Such an obligation does not however mean that an importer is required, in general, to systematically verify the circumstances of the issue, by the customs authorities of the exporting country, of a Form A certificate of origin. It is for the referring court to determine, taking into account all of the specific facts of the dispute in the main proceedings, whether those three conditions are met in this case.

   (see para. 43, operative part 1)

2.  Article 220(2)(b) of Regulation No 2913/92, as amended by Regulation No 2700/2000, must be interpreted as meaning that, in a case such as that at issue in the main proceedings, it can be deduced from the information contained in an European Anti-fraud Office (OLAF) report that an importer may not rely on a legitimate expectation, in accordance with that provision, in order to object to a post-clearance incurring of liability for import duties. To the extent, however, that such a report contains only a general description of the situation at issue, which it is for the national court to determine, it cannot, on its own, suffice in order to show to the requisite legal standard that those conditions are indeed met in all respects, in particular as regards the relevant conduct of the exporter. In those circumstances, it is, in principle, for the customs authorities of the importing country to prove, by means of additional evidence, that the issue, by the customs authorities of the exporting country, of an incorrect Form A certificate of origin is attributable to an incorrect statement of the facts by the exporter. However, where the customs authorities of the importing country are unable to adduce that evidence, it is, as the case may be, for the importer to prove that that certificate was issued on the basis of a correct statement of the facts by the exporter.

   (see para. 50, operative part 2)