23.6.2012   

EN

Official Journal of the European Union

C 184/4

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Set aside the judgment of the General Court in accordance with the pleas put forward in this appeal;

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Order the Commission to pay the costs.

1.

The first two pleas concern errors of law, in so far as the General Court held that the respondent was right to conclude that the EUR.1 movement certificates were issued on the basis of an incorrect account of the facts provided by the exporter.

The General Court relies in this respect on several letters, sent to the Departement van Economische Zaken (Department of Economic Affairs), dating from over two and a half years before the actual export which are open to a number of interpretations, as well as on an inadvertent incorrect interpretation of the cumulation rules; the General Court disregards the fact that these rules are regarded by the authorities themselves as very complex.

In addition, the General Court fails to have regard to the fact that the Netherlands customs authorities declared in the proceedings before the Gerechtshof te Amsterdam that they were unable to prove that the issue of the certificates in question in relation to the EUR.1 certificates is attributable to the incorrect account of the facts provided by the exporter.

2.

The third, fourth and fifth pleas concern errors of law, in so far as the General Court held that the Curaçao customs authorities did not know or could not have known that the goods in question were not eligible for preferential treatment at the time of issue of the EUR.1 movement certificates.

In the appellant’s submission, in its findings, the General Court fails to have regard to the fact that the Departement of Economic Affairs in Curaçao did at least one check on the location of the exporter before the issue of the EUR.1 movement certificates. In addition, the General Court fails to have regard to the fact that, when issuing an EUR.1 movement certificate, the customs authorities in Curaçao check the origin of the sugar in question in conjunction with the processing thereof so as to verify the rules chosen.

The General Court also fails to have regard to the fact that the EUR.1 movement certificates were issued by the customs authorities on the basis of certificates of Form A origin (‘Form A’), pursuant to which it is not possible to issue an EUR.1 movement certificate.

When the raw materials enter Curaçao, those customs authorities take delivery of the Form As. The appellant cannot be blamed for the fact that these very forms were lost in a fire in the archives of the customs authorities in Curaçao. Since the archives have been destroyed, it is no longer possible to determine which documents were present in the customs authorities’ file.

In the appellant’s submission, the General Court’s conclusion that the administrator would have given these documents to the respondent’s mission if the documents had been present in the administration is not sound. That consideration alone cannot lead to the conclusion that the Form As were not present there, in the light of all the foregoing considerations.