OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 8 September 2005 ¹(1)

Case C-293/04

Beemsterboer Coldstore Services BV

(Reference for a preliminary ruling from the Gerechtshof te Amsterdam, (Netherlands))

(Community Customs Code – Subsequent entry in the accounts of chargeable amounts of duty – Retroactive application of the new version of Article 220(2)(b) of the Customs Code – EUR.1 movement certificate – Preferential treatment of products from third countries under a free trade agreement – Importation of butter of undeclared origin – Burden of proof where appropriate documents are not kept)

I –  Introduction

1.        The present reference for a preliminary ruling concerns aspects of customs law arising in connection with the importation of butter of undeclared origin into the customs territory of the Community in 1997. The question is essentially whether Article 220(2)(b) of the Community Customs Code, (2) in the wording following from Regulation No 2700/2000, (3) may be applied retroactively and how that provision is to be interpreted. (4) It specifies the circumstances in which debtors acting in good faith are to be spared the post-clearance recovery of import duties legally owed if the customs authorities have made an error with regard to the preferential status of goods imported from a third country.

II –  Legislative background

A –    The Community Customs Code

2.        The provisions of Community law which form the background to the present case are the provisions of the Customs Code on the entry of customs debts in the accounts and the communication to the debtor (Article 217 et seq. of the Customs Code).

3.        The relevant provisions of the original version of Article 220, which applied from 1 January 1994, read as follows:

‘1.      Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time-limit may be extended in accordance with Article 219.

2.      Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts shall not occur where:

…

(b)      the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.’

4.        Regulation No 2700/2000, which entered into force on 19 December 2000, amended Article 220(2)(b) of the Customs Code to read as follows (also referred to as ‘the new version of Article 220(2)(b) of the Customs Code’): (5)

‘2.      Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts shall not occur where:

…

(b)      the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of the first subparagraph.

The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment.

The person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled.

The person liable may not, however, plead good faith if the European Commission has published a notice in the Official Journal of the European Communities, stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country.’

B –    The free trade agreement between the European Communities and the Republic of Estonia

5.        Attached to the free trade agreement between the European Communities and the Republic of Estonia (6) signed in Brussels on 18 July 1994 is Protocol 3 concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation, which was amended with effect from 1 April 1997 (7) (Protocol 3’).

6.        If products originating in Estonia are to enjoy the benefits of the free trade agreement on their importation into the Community, Article 16 of Protocol 3 requires, as a rule, the submission of a movement certificate EUR.1 as shown in Annex III (‘an EUR.1 certificate’).

7.        Paragraph 3 of Article 17 of Protocol 3, which is entitled ‘Procedure for the issue of a movement certificate EUR.1’, provides as follows:

‘The exporter applying for the issue of [an EUR.1 certificate] shall be prepared to submit at any time, at the request of the customs authorities of the exporting State where the [EUR.1 certificate] is issued, all appropriate documents proving the originating status of the products concerned as well as the fulfilment of the other requirements of this Protocol.’

8.        Paragraphs 1 and 3 of Article 28 of Protocol 3 provide:

‘1.      The exporter applying for the issue of [an ‘EUR.1 certificate] shall keep for at least three years the documents referred to in Article 17(3).

…

3.      The customs authorities of the exporting country issuing [an EUR.1 certificate] shall keep for at least three years the application form referred to in Article 17(2).’

9.        Paragraphs 1 and 3 of Article 32 of Protocol 3, entitled ‘Verification of proofs of origin’, provide as follows:

‘1.      Subsequent verifications of proofs of origin shall be carried out at random or whenever the customs authorities of the importing country have reasonable doubts as to the authenticity of such documents, the originating status of the products concerned or the fulfilment of the other requirements of this Protocol.

…

3.      The verification shall be carried out by the customs authorities of the exporting country. For this purpose, they shall have the right to call for any evidence and to carry out any inspection of the exporter’s accounts or any other check considered appropriate.’

10.      Further provision is made, in Article 31(2) of Protocol 3, for the Community and Estonia to assist each other through their customs administrations in checking the authenticity of the EUR.1 certificates and the invoice declarations and the correctness of the information given in these documents.

III –  Facts of the case and the main action

11.      In 1997, and thus before the accession of the Republic of Estonia to the European Union, butter was shipped from Estonia to the Community and imported at a preferential rate of duty. This preferential treatment was based on the free trade agreement between the European Community and the Republic of Estonia.

12.      The Dutch firm Beemsterboer Coldstore Services BV (‘Beemsterboer’), a customs agent, ‘cleared’ the butter through customs and, to this end, submitted to the appropriate Dutch authorities on behalf of Hoogwegt International BV (‘Hoogwegt’) a number of declarations for the release of the goods for home use (‘free circulation’).

13.      The customs declarations all referred to Estonia as the country of origin of the butter. Attached to each declaration as evidence of origin was an EUR.1 certificate, issued by the Estonian customs authorities at the request of the exporter, the Estonian firm AS Lacto Ltd (‘Lacto’).

14.      According to the information provided by the referring court, representatives of Hoogwegt had visited Lacto on a number of occasions before business relations were established in order to verify Lacto’s reliability. Hoogwegt also stipulated in the contracts which it concluded with Lacto that the butter to be exported must always be transported with documents showing its Estonian origin, that it must be accompanied by an EUR.1 certificate and that the Estonian origin of the butter must be clearly shown on the packaging.

15.      However, following indications of a ‘carousel fraud’ (8) involving butter moving between the European Community and Estonia, a Community delegation visited Estonia in March 2000 to carry out an inspection in cooperation with the Estonian customs authorities. One of the firms inspected was Lacto. The inspection concerned inter alia the correctness of the EUR.1 certificates submitted by Beemsterboer.

16.      It emerged during this inspection that Lacto was no longer able to prove that the butter exported to the Community was of Estonian origin; in particular, it had not kept the original documents which could have confirmed the origin of the butter. It also transpired that the Estonian customs authorities had never carried out a proper inspection of Lacto, but had merely requested from time to time in connection with the issue of EUR.1 certificates the presentation of such general documents as contracts on the procurement of milk and the corresponding figures.

17.      By decision of 14 July 2000, the Tallinn (Estonia) customs inspectorate declared the EUR.1 certificates to be void and withdrew them. On 11 September 2000, however, following an objection lodged by Lacto, the Estonian Customs Board declared that administrative decision to be unlawful on formal grounds. (9)

18.      Subsequently, the Dutch customs authorities sought recovery from Beemsterboer of a total of NLG 1 697 095.50 (EUR 770 107.36) in duties. Beemsterboer thereupon lodged an objection against the notice for recovery, unsuccessfully, and has now brought an appeal before the Gerechtshof te Amsterdam (Amsterdam Regional Court of Appeal; ‘the referring court’ or ‘the national court’).

IV –  Reference for a preliminary ruling and proceedings before the Court

19.      By order of 14 June 2004 the Chamber for Customs Matters of the Gerechtshof te Amsterdam stayed the proceedings and referred the following questions to the Court for a preliminary ruling:

‘1.      Is the new text of Article 220(2)(b) of the … [Customs Code] applicable to a case in which the customs debt was incurred and post-clearance recovery undertaken before the provision entered into force?

2.      If the first question is answered in the affirmative: is an EUR.1 certificate which cannot be shown actually to be incorrect because the origin of the goods for which the certificate was issued could not be ascertained upon subsequent verification, the goods being denied preferential treatment solely for that reason, an “incorrect certificate” within the meaning of the new text of Article 220(2)(b) of the … [Customs Code] and, if such is not the case, can an interested party still usefully rely on that provision?

3.      If the second question is answered in the affirmative: who bears the burden of proving that the EUR.1 certificate is based on an incorrect account of the facts provided by the exporter or, alternatively, who must prove that evidently the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment?’

4.      If the first question is answered in the negative: can an interested party usefully appeal against Article 220(2)(b) of the … [Customs Code], as this provision read prior to 19 December 2000, in a situation in which it cannot subsequently be ascertained whether, at the time of issue, the customs authorities had good grounds for issuing an EUR.1 certificate and were right to issue one?’

20.      In the proceedings before the Court, Beemsterboer and Hoogwegt have submitted joint written observations. The Netherlands Government, the Italian Government and the Commission have also submitted written observations.

V –  Assessment

A –    The first question: retroactive application of the new version of Article 220(2)(b) of the Customs Code

21.      By its first question, the referring court seeks to establish whether the new version of Article 220(2)(b) of the Customs Code can also be applied to customs debts which were incurred, and in respect of which post-clearance recovery was sought, before it entered into force. In other words, the referring court is seeking information on the question of the possible retroactive effect of the new version of Article 220(2)(b) of the Customs Code.

22.      Regulation No 2700/2000, which inserted the new text of Article 220(2)(b) into the Customs Code with effect from 19 December 2000, does not provide for any transitional measures. The question whether this new version may be applied retroactively must therefore be determined on the basis of interpretation. This will largely depend, according to settled case-law, on whether Article 220(2)(b) lays down a procedural rule or a substantive rule. Procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force. (10)

23.      In the former versions of Articles 217 to 221 of the Customs Code, as set out in Regulation No 1697/79, (11) procedural and substantive elements were deemed to be inseparably linked. In the Court’s view, they formed an indivisible whole and could not, depending on the time at which they respectively took effect, be considered in isolation. (12) Whether Articles 217 to 221 of the Customs Code continue to form such an indivisible whole or whether each of these provisions is open to consideration in isolation, (13) is debatable in the present case. At any rate, the provision of specific relevance here, Article 220 of the Customs Code, is characterised by a juxtaposition of procedural and substantive elements.

24.      At first glance it might be assumed from its wording and legislative content that that provision is primarily procedural: Article 220 of the Customs Code concerns ‘entry in the accounts’, sets a time-limit and does not lay down any autonomous rules with regard to the size of the customs debt, merely referring to the ‘amount legally owed’. However, when it is remembered that that provision, even in its amended form, seeks to strike a balance between the budgetary interests of the public authorities and the debtor’s legitimate expectations, it becomes clear that, at the very least, it also has a substantive content: Article 220 of the Customs Code serves, in the final analysis, to clarify the question whether or not a debtor still has to pay an amount legally owed.

25.      As, then, the rule concerned is not purely procedural, the original version – not the new version – of Article 220(2)(b) of the Customs Code is in principle applicable to circumstances such as those in the case before the referring court, where the customs debt was incurred, and post-clearance recovery undertaken, before 19 December 2000. (14)

26.      However, according to settled case-law, provisions with a substantive content may, exceptionally, be interpreted as applying to situations existing before their entry into force ‘in so far as it follows clearly from their terms, objectives or general scheme that such effect must be given to them’. (15) The decisive factor in this context is that no harm is done to the principles of legal certainty and the protection of legitimate expectations, on which the prohibition of the retroactive application of substantive provisions is ultimately based. (16) In fact, the retroactive application of provisions of substantive Community law is admissible only ‘where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected’. (17)

27.      Both the principle of legal certainty and that of the protection of legitimate expectations are satisfied in the present case. Neither principle precludes the retroactive application of the new version of Article 220(2)(b) of the Customs Code.

28.      The principle of legal certainty is a fundamental principle of Community law and calls, in particular, for legal clarity. In other words, a rule must be framed in clear terms so that the person liable for payment is fully aware of his rights and obligations and is able to take precautions. (18)

29.      The aim of the new version of Article 220(2)(b) of the Customs Code was, in essence, precisely to achieve greater legal clarity through the codification and more precise definition of the pre-existing legal situation as regards the post-clearance recovery of customs duties. As the Commission rightly comments, it was not intended to change, but merely to clarify, the specific situation where goods from third countries benefit from preferential treatment. The Community legislature saw the need in this context to provide a more accurate definition of the terms ‘error by the customs authorities’ and ‘good faith of the person liable for payment’ already used in that provision. (19)

30.      Substantively, however, the interpretation of Article 5(2) of Regulation No 1697/79, the precursor of Article 220(2)(b) of the Customs Code, yielded essential elements of what is now explicitly laid down in the text of the regulation as a result of the amendment of that provision. Even at that time, for example, the issue of an incorrect EUR.1 certificate did not constitute an error where that certificate was based on incorrect information provided by the exporter, unless the issuing authorities were aware or should have been aware that the goods concerned did not satisfy the conditions laid down for entitlement to preferential treatment. (20) The new version of Article 220(2)(b) of the Customs Code was thus meant not to change the legal situation but to bring about legal clarity and so helped to improve legal certainty.

31.      The principle of the protection of legitimate expectations is another of the Community’s fundamental principles. According to settled case-law, any trader on the part of whom a Community institution has promoted reasonable expectations may rely on the principle of the protection of legitimate expectations. (21)

32.      With the amendment of Article 220(2)(b) of the Customs Code the protection of the legitimate expectations of the traders concerned with respect to errors on the part of the customs authorities relating to the preferential status of goods from third countries is not weakened but, if anything, strengthened. Already, the provision made in relation to the possibility of an error on the part of the customs authorities addressed the question as to the conditions under which post-clearance recovery of duties legally owed could no longer be undertaken because of the protection of the legitimate expectations of a person liable acting in good faith, (22) and errors even within the meaning of the original version of that provision included the issue of incorrect certificates in connection with the preferential status of goods from third countries. The amendment of the provision serves, as has already been pointed out, merely to codify and define more precisely the pre-existing legal situation for just that specific case.

33.      Nor – since the pre-existing legal situation has been essentially clarified, but not fundamentally altered, by the amendment of Article 220(2)(b) of the Customs Code – does retroactive application of the new version give rise to any danger of unjustified unequal treatment of traders, (23) depending on whether the competent authority undertook before or after the new version entered into force the post-clearance recovery of duties legally owed from the time before 19 December 2000.

34.      Thus neither the principles of legal certainty and the protection of legitimate expectations nor the principle of equal treatment preclude retroactive application of the new version of Article 220(2)(b) of the Customs Code.

35.      That being so, I come to the general conclusion that the new version of Article 220(2)(b) of the Customs Code also applies to customs debts incurred and recovered before its entry into force.

B –    The second question: treatment of EUR.1 certificates which cannot be shown to be incorrect

The first part of the second question: the concept of ‘incorrect certificate’

36.      By the first part of its second question, the referring court seeks information on the interpretation of the term ‘incorrect certificate’ within the meaning of the new version of Article 220(2)(b) of the Customs Code. In essence, it would like to know whether an EUR.1 certificate is to be treated as an incorrect certificate whenever the origin of the goods indicated therein cannot be confirmed by subsequent verification.

37.      The background to this part of the question is that in the present case it can no longer be unequivocally determined from the situation described by the national court whether the EUR.1 certificates at issue were correct or incorrect. Although, according to the national court, there is no unequivocal evidence of the incorrectness of those certificates, their correctness cannot be confirmed because the exporter, Lacto, failed to keep the documents required for this purpose.

38.      Under Article 16 of Protocol 3 to the free trade agreement, the Estonian origin of goods imported into the Community from Estonia is demonstrated by the submission of an EUR.1 certificate. A certificate of this kind thus constitutes proof of the origin of imported goods (24) and is to be submitted to the competent customs authorities with a view to the grant of preferential treatment under customs law.

39.      However, the correctness of the origin certified in an EUR.1 certificate can be verified – as occurred in the present case – by means of subsequent checks, including Community inquiry delegations. (25) As regards the consequences of such verification, the Court states in Faroe Seafood that:

‘… where a subsequent verification does not confirm the origin of the goods as stated in the EUR.1 certificate, it must be concluded that the goods are of unknown origin and that the EUR.1 certificate and the preferential tariff were thus wrongly granted. In principle, therefore, the customs authorities of the importing Member State must carry out post-clearance recovery of the customs duties which were not levied on importation.’ (26)

40.      The probative force of an EUR.1 certificate can therefore be unsettled later by a subsequent verification. (27) Where such subsequent verifications lead to the conclusion that the goods in question are of unknown origin, the consequence is inevitably that the EUR.1 certificate has proved to be incorrect since it refers to a specific country as the origin of the goods. In other words, the unknown origin of the goods and the incorrectness of the EUR.1 certificate are nothing other than two sides of the same coin.

41.      If the EUR.1 certificate continued to be regarded as correct in a case such as this, it could continue to be used as proof of the origin of the product concerned and the preferential arrangement would have to continue to be applied to that product even though a subsequent verification had led to the conclusion that it was of unknown origin. The competent authorities might then have to look on while a product continued to benefit from preferential treatment although it did not satisfy the attendant conditions. This would also encourage import irregularities and fraud.

42.      The first part of the second question should therefore be answered as follows:

If the origin of the goods covered by an EUR.1 certificate cannot subsequently be determined with certainty, the certificate is incorrect within the meaning of the second subparagraph of Article 220(2)(b) of the Customs Code as amended by Regulation No 2700/2000.

The second part of the second question: applicability of the new version of Article 220(2)(b) of the Customs Code in the absence of an ‘incorrect certificate’

43.      By the second part of its second question, the referring court seeks information as to whether it is possible to rely on the new version of Article 220(2)(b) of the Customs Code even if there is no ‘incorrect certificate’ within the meaning of the second subparagraph of that provision.

44.      In circumstances such as those obtaining in the main action, an incorrect certificate is, as has just been stated, deemed to exist. An answer to the second part of the second question is therefore superfluous.

C –    The third question: allocation of the burden of proof

45.      By its third question, the referring court seeks to establish who bears the burden of proving that an EUR.1 certificate is based on an incorrect account of the facts provided by the exporter and who must prove that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to preferential treatment. The national court is thus referring to the burden of proof in respect of the conditions laid down in the third subparagraph of the new version of Article 220(2)(b) of the Customs Code.

The first part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code: burden of proof in respect of incorrect information provided by the exporter

46.      The first part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code provides for an exception to the legal presumption, arising on the basis of the second subparagraph, of error. Thus, exceptionally, the issue of an incorrect EUR.1 certificate does not constitute an error on the part of the customs authorities if that certificate is based on an incorrect account of the facts provided by the exporter.

47.      Under the generally accepted rules of procedural law, the party relying on the conditions laid down in a provision must as a general rule prove that they have been satisfied.

48.      Normally, the authority responsible for the subsequent entry in the accounts of the amount legally owed will rely on the derogation laid down in the first part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code. In principle, then, that authority – as a rule, the customs authority of the importing Member State – bears the burden of proving that the exporter has indeed provided an incorrect account of the facts and that the incorrectness of the certificate arose as a result of that account.

49.      Allocation of the burden of proof along those lines is also justified, since, as a general rule, the authority is better able to provide evidence than, say, the importing undertaking. Through administrative cooperation with the authorities of the third country, it can establish what statements were actually made during the procedure there and on what, in the final analysis, the contents of the EUR.1 certificate werebased. To this end, Article 28(3) of Protocol 3 to the free trade agreement explicitly provides that the application forms are to be kept for at least three years. Whether, in addition to this, the information provided by the exporter in his application was correct or incorrect must then be assessed on the basis of all the factual elements which are contained in the application, (28) the customs authorities of the exporting country having the right, pursuant to Article 32(3) of Protocol 3, to carry out any checks which they consider appropriate. (29) Pursuant to Article 28(1) of Protocol 3, the exporter for his part is required to keep for at least three years the documents proving the originating status of the goods exported by him.

50.      It is also evident from the obligation on the exporter to keep his documents, however, that the production of proof by the competent authorities depends on the exporter’s cooperation. If, despite his obligation, the exporter does not keep the documents needed to verify the originating status of the exported goods, it becomes impossible for the customs authorities – for reasons beyond their control – to demonstrate whether correct or incorrect information has been provided. In such circumstances, it would be unfair to place the burden of proof on the customs authorities. According to settled case-law, the Community cannot be made to bear the adverse consequences of the wrongful acts of the suppliers of importers. (30)

51.      If, then, the information originally provided by the exporter cannot be verified because he himself has not kept the appropriate documents, despite his obligation to do so, it is reasonable to reverse the burden of proof. The burden of proof in the context of the first part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code must then be placed on the debtor (the person liable for payment). In other words, it is then for the debtor to prove that the EUR.1 certificate issued by the third-country authorities was based on a correct account of the facts, since misconduct or error on the part of the exporter are among the normal commercial risks to which the person liable for payment is exposed and cannot be regarded as unforeseeable in the context of his commercial relations. Although the person liable has no influence on the conduct of his contractual partners, he is free to choose them and must take suitable precautions against the risk of misconduct on their part, for example by including appropriate clauses in the contracts with them or taking out special insurance. (31) Nor, to this extent, is the person liable ‘held responsible for a malfunction of the system’ as a result of the reversal of the burden of proof. (32)

52.      Moreover, a reversal of the burden of proof in the event of failure by the exporter to fulfil his obligation to keep his documents reflects the concern of the Community legislature to prevent irregularities and fraud where goods are imported under a preferential system. (33) There might otherwise be an incentive to abuse the preferential system to the detriment of the Community budget and to conceal such abuse through the destruction of the documents which should be kept. Reference to that possibility has rightly been made during the proceedings before the Court, not least by the Netherlands and Italian Governments.

The second part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code: burden of proof in respect of the condition relating to awareness

53.      The second part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code contains a subsidiary exception to the first part of that subparagraph. Accordingly, the legal presumption of error, for which provision is made in the second subparagraph, is upheld particularly if it is clear that the authorities who issued an EUR.1 certificate were aware or should have been aware that the goods concerned did not satisfy the conditions for entitlement to preferential treatment.

54.      As a rule, the person liable for payment, from whom import duties are to be recovered, will rely on this subsidiary exception. Thus, under the generally accepted rules of procedural law, that person must bear the burden of proof in respect of the second part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code.

55.      It is true, of course, that it is difficult for a person liable for payment who is resident in the Community to assess, let alone prove, the information internally available to the competent authorities of a third country at the time of the issue of an EUR.1 certificate, since that person, like every outsider, lacks the necessary access to knowledge of the internal affairs of those authorities.

56.      It should be remembered, however, that the second part of the third subparagraph of the new version of Article 220(2)(b) of the Customs Code caters for cases where it is clear that the third-country authorities were aware or should have been aware of certain circumstances. They can only be circumstances which can also be proved without access to the information internally available or into the internal organisation of the third-country authorities. If, for example, the third country concerned does not have any facilities for manufacturing the product in question, it is clear that that product cannot be certified as originating in that third country. (34) Evidence of such or similar facts can thus be required of the person liable for payment without qualification. (35)

57.      In these circumstances, the burden of proof can remain allocated in accordance with the generally accepted rules of procedural law: a reversal of the burden of proof is unnecessary.

Interim conclusion

58.      The answer to the third question from the referring court should therefore be as follows:

The burden of proving that the conditions laid down in the third subparagraph of the new version of Article 220(2)(b) of the Customs Code have been satisfied is borne by the party who relies on that provision.

If, however, the exporter has not fulfilled his obligation to keep appropriate documents which would serve to prove the originating status of the products exported by him, the person liable for payment bears the burden of proving that the EUR.1 certificate issued by the third-country authorities is based on a correct account of the facts.

D –    The fourth question: interpretation of the original text of Article 220(2)(b) of the Customs Code

59.      By its fourth question, the referring court seeks information on the interpretation of the original version of Article 220(2)(b) of the Customs Code. This question is asked only in case the answer to the first question is in the negative. Since, however, it is proposed here that the first question be answered in the affirmative and, accordingly, the new version of Article 220(2)(b) of the Customs Code applies to a situation such as that obtaining in the case before the referring court, the fourth question need not be answered.

VI –  Conclusion

60.      In the light of the foregoing, I propose that the Court should answer the questions referred by the Gerechtshof te Amsterdam as follows:

(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 also applies to customs debts incurred and recovered before its entry into force.

(2)      If the origin of the goods covered by an EUR.1 certificate cannot subsequently be determined with certainty, the certificate is incorrect within the meaning of the second subparagraph of Article 220(2)(b) of the Customs Code as amended by Regulation (EC) No 2700/2000.

(3)      The burden of proving that the conditions laid down in the third subparagraph of the new version of Article 220(2)(b) of the Customs Code have been satisfied is borne by the party who relies on that provision.

If, however, the exporter has not fulfilled his obligation to keep appropriate documents which would serve to prove the originating status of the products exported by him, the person liable for payment bears the burden of proving that the EUR.1 certificate issued by the third-country authorities is based on a correct account of the facts.

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1 – Original language: German.

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2 – Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the Customs Code’).

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3 – Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2000 L 311, p. 17, ‘Regulation No 2700/2000’).

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4 – Similarly, Case C-311/04 Algemene Scheeps Agentuur Dordrecht, still pending, concerns the interpretation of Article 220(2)(b) of the Customs Code.

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5 – See Article 1(16) and Article 2 of Regulation No 2700/2000.

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6 – Agreement on free trade and trade-related matters between the European Community, the European Atomic Energy Community and the European Coal and Steel Community, of the one part, and the Republic of Estonia, of the other part (OJ 1994 L 373, p. 2, ‘the free trade agreement’). The free trade agreement was subsequently replaced by the Europe Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Republic of Estonia, of the other part (signed in Luxembourg on 12 June 1995, OJ 1998 L 68, p. 3). Chronologically, however, the free trade agreement remains applicable to the present case.

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7 – Decision No 1/97 of the Joint Committee, between the European Communities, of the one part, and the Republic of Estonia, of the other part of 6 March 1997 amending Protocol 3 to the Agreement on free trade and trade-related matters between the European Community, the European Atomic Energy Community and the European Coal and Steel Community, of the one part, and the Republic of Estonia of the other part (OJ 1997 L 111, p. 1). This decision entered into force on 1 April 1997, in accordance with Article 2 thereof.

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8 – Exportation of butter from the Community to Estonia and its subsequent re-importation into the Community.

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9 – According to Beemsterboer and Hoogwegt, the decision was found to be unlawful for lack of jurisdiction.

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10 – See, for example, Joined Cases 212/80 and 217/80 Salumiand Others (also known as ‘Salumi II’) [1981] ECR 2735, paragraph 9; Joined Cases C-121/91 and C-122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I-3873, paragraph 22; Case C-61/98 De Haan [1999] ECR I-5003, paragraph 13; Case C-251/00 Ilumitrónica [2002] ECR I‑10433, paragraph 29; and Joined Cases C-361/02 and C-362/02 Tsapalos and Diamantakis [2004] ECR I‑6405, paragraph 19.

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11 – Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1).

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12 – See Salumi II, cited in footnote 10, paragraph 11, and Case C-261/96 Conserchimica [1997] ECR I-6177, paragraph 17.

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13 – Such consideration of the various provisions of the Customs Code in isolation is endorsed, in particular, by Advocate General Jacobs in his Opinion in Case C-201/04 Molenbergnatie [2006] ECR I‑2049, paragraph 40 et seq. The judgment in Case C-156/00 Netherlands v Commission [2003] ECR I-2527, paragraphs 35, 36 and 62 to 67, can similarly be understood to mean that the various provisions of the Customs Code are to be considered not as a whole, but in isolation.

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14 – See, to that effect, Netherlands v Commission, cited in footnote 13, paragraph 36, and Ilumitrónica, cited in footnote 10, paragraphs 30 and 36 et seq., with regard to the relationship between the Customs Code and its former rules as follow from Regulation No 1697/79. As regards the relationship between Regulation No 1697/79 and the previously applicable national law, see Salumi II, cited in footnote 10, paragraphs 12, 15 and 16; Conserchimica, cited in footnote 12, paragraphs 18, 21 and 23; and Joined Cases C-31/91 and C-44/91 Lageder and Others [1993] ECR I-1761, paragraph 26.

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15 – See Case C-34/92 GruSa Fleisch [1993] ECR I-4147, paragraph 22; Joined Cases C-74/00 P and C-75/00 P Falck and Others v Commission [2002] ECR I-7869, paragraph 119; Salumi II, cited in footnote 10, paragraph 9; and, similarly, Case 234/83 Gesamthochschule Duisburg [1985] ECR 327, paragraph 20.

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16 – See Salumi II, cited in footnote 10, paragraph 10; GruSa Fleisch, cited in footnote 15, paragraph 22; and Case 21/81 Bout [1982] ECR 381, paragraph 13.

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17 – See Case 98/78 Racke [1979] ECR 69, paragraph 20; Case 99/78 Decker [1979] ECR 101, paragraph 8; Salumi II, cited in footnote 10, paragraph 10; GruSa Fleisch, cited in footnote 15, paragraph 22; Falck, cited in footnote 15, paragraph 119; Case C-459/02 Gerekens and Others [2004] ECR I‑7315, paragraphs 23 and 24; and Case C-376/02 Stichting ‘Good Wonen’ [2005] ECR I‑3445, paragraphs 32 and 33. Although the case-law cited here concerns situations in which it is laid down in the legislature itself that provisions are to be applied retroactively, Salumi II and Falck in particular show that the Court is guided by that case-law even when it is a question of declaring, through interpretation, that a provision of Community law must, exceptionally, apply retroactively.

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18 – Settled case-law; see, for example, Case C-110/03 Belgium v Commission [2005] ECR I‑2801, paragraph 30, and Case C-17/03 Vereniging voor Energie, Milieu en Water and Others [2005] ECR I‑4983, paragraph 80, in each of which further case-law is cited.

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19 – See Recital (11) in the preamble to Regulation No 2700/2000.

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20 – See, on the one hand, Joined Cases C-153/94 and C-204/94 Faroe Seafood and Others [1996] ECR I-2465, paragraphs 91 to 97, especially paragraphs 92, 95 and 97, and, on the other hand, the new version of the third subparagraph of Article 220(2)(b) of the Customs Code.

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21 – Settled case-law; see, for example, Gerekens, cited in footnote 17, paragraph 28; Vereniging voor Energie, Milieu en Water, cited in footnote 18, paragraph 73; and Joined Cases C-37/02 and C-38/02 Di Lenardo and Dilexport [2004] ECR I-6945, paragraph 70, in which further case-law is cited.

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22 – As regards the former provision in Article 5(2) of Regulation No 1697/79, see Case C-250/91 Hewlett Packard [1993] ECR I-1819, paragraph 46.

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23 – Salumi II, cited in footnote 10, paragraph 14, in particular, refers to that danger in connection with the retroactive application of substantive provisions.

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24 – For judgments relating to comparable agreements, see also Case C-12/92 Huygen [1993] ECR I-6381, paragraph 16; Faroe Seafood and Others, cited in footnote 20, paragraph 16; and Case C-334/93 Bonapharma [1995] ECR I-319, paragraph 16.

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25 – See Faroe Seafood, cited in footnote 20, paragraph 16, first sentence; see also Huygen, cited in footnote 24, paragraph 16, and Case C-97/95 Pascoal & Filhos [1997] ECR I-4029, paragraph 30.

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26 –      See Faroe Seafood, cited in footnote 20, paragraph 16, second and third sentences; see Huygen, cited in footnote 24, paragraphs 16 and 17, and Case C-97/95 Pascoal & Filhos, cited in footnote 25, paragraph 30.

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27 – This is also indicated in Pascoal & Filhos, cited in footnote 25, paragraphs 35, 36 and 41, and Faroe Seafood, cited in footnote 20, paragraph 63.

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Moreover, unlike Faroe Seafood, cited in footnote 20, paragraphs, 5, 6 and 17 et seq., in the present case there was – according to the available information – no kind of substantive disagreement with the Estonian customs authorities concerning the actual result of the verification. The reasons for the Estonian authorities’ failure to cancel the EUR.1 certificates by the time of the post-clearance recovery of the duties were purely formal (see paragraph 17 of this Opinion). This could not, however, prevent the Dutch customs authorities from treating the imported butter as butter of unknown origin, and they did so as soon as the result of the subsequent verification was substantively certain.

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28 – See Recital (11) in the preamble to Regulation No 2700/2000, which serves specifically to explain the new version of Article 220(2)(b) of the Customs Code.

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29 – As is evident from Article 32(1) of Protocol 3, these checks can be carried out to determine whether all the provisions of that protocol have been complied with.

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30 – See Pascoal & Filhos, cited in footnote 25, paragraph 59.

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31 – As indicated in Pascoal & Filhos, cited in footnote 25, paragraph 59, and in Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 80, the latter concerning false declarations in connection with export refunds.

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32 – See Recital (11) in the preamble to Regulation No 2700/2000, which reveals that the aim of the new version of Article 220(2)(b) of the Customs Code is to prevent the person liable for payment from being held responsible for a malfunction of the system due to an error made by the authorities of a third country.

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33 – See, for example, Recital (2) in the preamble to Regulation No 2700/2000. The same sentiment is expressed in Recital (8) in the preamble to Regulation No 2913/92 and in Case C-385/03 Käserei Champignon Hofmeister [2005] ECR I‑2665, paragraphs 27 and 28, and Käserei Champignon Hofmeister, cited in footnote 31, paragraph 60, the latter concerning the system of export refunds.

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34 – The mere fact that – as in the present case – the third-country authorities have not checked on the exporter or called for certain documents is not, on the other hand, sufficient to support the assumption from the outset that those authorities were clearly aware or should have been aware that the exported goods did not satisfy the conditions for entitlement to preferential treatment.

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35 – As a further example, see the circumstances described in Ilumitrónica, cited in footnote 10, paragraphs 49 to 52.