Court of Justice 11-12-1980 ECLI:EU:C:1980:287

Data

Court: Court of Justice

Case date: 11 december 1980

Verdict

JUDGMENT OF 11. 12. 1980 — CASE 827/79 AMMINISTRAZIONE DELLE FINANZE v ACAMPORA

In Case 827/79

REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte Suprema di Cassazione, First Civil Chamber, for a preliminary ruling in the action pending before that court between

Amministrazione delle Finanze

and

Ciro Acampora

THE COURT (Second Chamber)

composed of: P. Pescatore, President of Chamber, A. Touffait and O. Due, Judges,

Advocate General: F. Capotorti

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts, the course of the procedure and the observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC may be summarized as follows :

I — Facts and procedure

Between 7 July 1971 and 2 February 1972 Ciro Acampora imported from Hong Kong various lots of transistor radios, stated to be “originating products” according to the certificates on Form A and as such admitted by the customs for import under the preferential tariff treatment provided for by the aforesaid Regulation (EEC) No 1371/71 of the Commission.

The Italian Customs Office asked the Hong Kong Department of Trade and Industry to carry out subsequent verification pursuant to Regulation No 1371/71. The verification revealed discrepancies “since it showed that the certificate of origin did not give entitlement to the application of the provisions concerning preferential tariff treatment referred to in Article 1 of Regulation No 1371/71” and the customs thereupon claimed and ordered the respondent to pay the duties unpaid on importation amounting to Lit 7 371 420 and Lit 326 375 respectively.

Ciro Acampora brought proceedings before the Tribunale di Genova, alleging the illegality of those two orders, on the ground that the customs had investigated the origin of the goods when the latter had already been imported and were no longer at the importer's disposal.

The Tribunale di Genova found for Ciro Acampora and the Corte d'Appello, Genova, confirmed the judgment holding that the subsequent verification of the certificate of origin permitted by Article 13 of Regulation (EEC) No 1371/71 was subsequent not, as maintained by the Amministrazione, to the date of importation, but to the date of issue by the State of origin, and that in any event it could not be requested after the goods had been given customs clearance unreservedly under the favourable system laid down in that Community provision. The Amministrazione delle Finanze appealed on a point of law on a single ground, maintaining that the subsequent verification might also be carried out after the imported goods had been placed at the disposal of the importer. Confronted with the question of interpretation the Corte di Cassazione referred the following question to the Court for a preliminary ruling:

“May an importing State, pursuant to Article 13 of Regulation (EEC) No 1371/71 of 30 June 1971 — after having permitted, without reserve, the final importation of goods in application of the preferential tariff treatment granted to products originating in developing countries — require the State benefiting from the exportation to verify the certificate of origin on Form A relating to those goods, and then, if the outcome of that verification is negative, demand payment of the duty which was not paid at the time of importation?”

The order making the reference was registered at the Court on 21 December 1979. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC written observations were lodged on 10 March 1980 by the Commision of the European Communities, represented for that purpose by A. Marchini-Camia, acting as Agent, assisted by L. Biamonti, of the Rome Bar; on 21 March 1980 by Ciro Acampora, represented for that purpose by Cesidio de Vincentiis and N. Cavasola, both of the Rome Bar; and on 3 April 1980 by the Italian Government, represented for that purpose by A. Squillante, acting as Agent, assisted by O. Fiumara, Avvocato dello Stato.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry, but put a question to the Italian Government and the Commission.

By order dated 21 May 1980 the Court pursuant to Article 95 (1) of the Rules of Procedure assigned the case to the Second Chamber.

II — Observations pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

A — Observations of Ciro Acampora

Ciro Acampora, the respondent in the main action, makes the following preliminary observations:

First, the present case does not concern the interpretation of Article 13 of Regulation No 1371/71 but its correct application in conjunction with the rules of the Italian customs in force at the time of importation which could be inapplicable only if they conflicted with Community rules;
Secondly, the case raises a question of a moral nature: the irregularity was committed “in a country some thousands of kilometres from the importer's place of business” and the official responsible for checking the regularity of certificates had certified the transaction, as had ultimately the Italian Consul.

Thus the Italian importer, who had neither power, duty, or opportunity to check the regularity of the certificates, was “just a victim of possible duplicity committed in Hong Kong” and it would certainly not have bought the goods in question had it known that there was no exemption from customs duties.

Before considering Article 13 of Regulation No 1371/71, Ciro Acampora refers to the rules of the Italian customs applicable at the time of importation.

(1) Rules of the Italian customs in force at the time of importation

In the view of Ciro Acampora the Italian customs law and the established case-law of the Italian judicial authorities provide that when “goods have been placed unreservedly at the disposal of the Italian importer they can no longer be examined nor be the subject of reclassification or reexamination for the purpose of determining duties”.

Ciro Acampora considers the law relating to decisions in customs cases (Royal Decree No 330 of 9 April 1911), the customs regulations (Royal Decree No 65 of 13 February 1896) and the subsequent amendments thereto (in particular the Decree No 1968 of the President of the Republic of 2 August 1952, together with Circular No 392/34902, Divison 6 (a) of 24 December 1952) and maintains that those rules contain “a clear principle” to the effect that “the customs authorities must challenge the importer before the operation takes place when the goods are still at the disposal of the customs”. Moreover, citing case-law of the Corte di Cassazione it states that “the principle which is now well-established in the case-law is that no objections closely connected with the checking of goods liable to duty may be made once customs clearance has been given unreservedly and the goods have left the customs precincts”.

It concludes that part of its statement by saying that those principles have not been cited to no purpose since they are given “specific reaffirmation” in Article 13 of Regulation No 1371/71 as properly interpreted.

(2) Discussion of Article 13

Ciro Acampora maintains that Article 13 (1) means that the customs authorities may before giving clearance check the certificate of origin if they have reasonable doubts as to its authenticity or correctness or where they wish to carry out a random check.
Where a decision to carry out a subsequent verification is taken the customs authorities must “necessarily suspend application of the provisions relating to tariff preferences”, as is apparent from Article 13 (3) which provides that in that case
“While awaiting the result of the verification, the competent customs authorities in the Community shall offer to release the goods to the importer subject to any precautionary measures judged necessary”.
It follows from that provision that when the customs administration orders verification it must stop the importation. That interpretation is also dictated by the “obvious logic” of preventing the importer from being misled by the customs authority which “first unreservedly authorizes import duty-free and then a year later claims duties which acording to its own declaration were not owing” at the time of the said importation.
Ciro Acampora further insists on “the importer's absolute good faith” in relying on Article 19 of Regulation No 1371/71, according to which the certificate on Form A is the authority for applying the provisions on tariff preferences. Repeating its argument on the moral aspect of the matter it maintains that it “cannot suffer the consequences of the failure to verify in the country benefiting from the tariff preferences (that is to say, disregard of the law by a civil servant)”.
Basing itself on the reasoning of the Corte d'Appello, Genova, Ciro Acampora challenges the argument of the Amministrazione to the effect that “subsequent verification” must be understood to mean “verification effected after the goods have been finally imported”. To support that interpretation the Amministrazione is obliged to allege that “Article 13 (1) and the first subparagraph of Article 13 (2) refer to subsequent verification while the second subparagraph of Article 13 (2) refers to prior verification”. That argument is “obviously unfounded” because consideration of the article “clearly shows that the aim of the whole provision is to regulate subsequent verification by laying down in the first paragraph the circumstances in which and by whom it may be decided on and stating in the second the terms on which it may be carried out”. It follows that subsequent verification must be ordered before importation and that the term“subsequent” relates, not to the time of importation, but to the time of issue of the certificate of origin. Such verification is termed subsequent in contrast to the initial verification carried out by the government authority in the exporting country on the application of the exporter himself, when the verification is obviously prior to the issue of the certificate of origin.
That interpretation also clarifies the meaning and scope of Article 30 of Regulation No 1371/71, which provides that the subsequent verification must make it possible
“to determine whether the disputed certificate of origin on Form A or the disputed Form APR applies to the goods actually exported, and whether these goods can, in fact, qualify for the application of the tariff preferences -referred to in Article 1”.
Although in accordance with its interpretation of the words “subsequent verification” the Amministrazione maintains that the aim of Article 30 is to allow revocation of the benefits granted when verification reveals the unlawfulness of the certificate of origin on the basis of which those benefits were granted, Ciro Acampora considers that the aim of the Article 30 is to reveal “before importation whether the benefits are or are not due to the importer and not to authorize revocation when importation has taken place”. Thus the Community provision is not incompatible with the national customs rules and avoids causing damage to the importer who would otherwise have to bear an unforeseen tax burden.
Ciro Acampora concludes its examination of the Community regulation by maintaining that it contains no rule overriding the general principle protecting the legitimate interests of international traders and that on the contrary it would be illogical to think that the Community legislature, whose aim is to facilitate trade with developing countries, would have adopted a system which, by allowing the imposition, after importation, of unforeseen duties, would adversely affect trading conditions and dissuade importers from engaging in such transactions.
In consequence Ciro Acampora claims :
“that the Court of Justice by way of preliminary ruling should adopt the argument put forward here and answer in the negative the question put by the Italian Corte di Cassazione, confirming the principle to the effect that also under Article 13 of Regulation (EEC) No 1371 of 30 June 1971, once final importation has been authorized unreservedly and preferential tariff treatment has been granted to products originating in developing countries it is no longer possible to claim, even where a subsequent verification of the documents reveals discrepancies, the payment of customs duties unpaid on importation”.

B — Observations of the Government of the Italian Republic

After examining the system under Regulation No 1371/71, the Italian Government sets forth its arguments in support of an answer in the affirmative to the question put by the national court and rejects the arguments of Ciro Acampora.

The system under Regulation No 1371/71
The Italian Government cites the main provisions of Regulation No 1371/71 and in particular Articles 6, 8, 13, 19 and 30, maintaining that the system resulting from those various articles is as follows :
- Importation with the benefit of the tariff preferences takes place on the basis of production of the certificate of origin issued by the authority of the exporting country benefiting from such preferences;
- The customs authorities of the importing country may ask for verification of the authenticity and regularity of the certificates, either by way of a random check or in the case of reasonable doubt as to the authenticity of a document;
- In the event of a request for verification the customs authorities of the importing Member State have the power to suspend application of the preferential system, provided that they offer to release the goods to the importer subject to such precautionary measures as may be considered necessary.
The Italian Government's argument
According to the Italian Government, it is a question “whether the customs authorities may ask for verification of a certificate of origin after they have allowed importation ‘unreservedly’ under the preferential system, and whether where in such a case the verification sought has revealed discrepancies it may still require the importer to pay the increased sums due”.
The affirmative answer to that question follows first of all from the aim of the arrangements under Regulation No 1371/71, which is to encourage, even as regards the completion of customs formalities, the importation into the Community of particular products originating in developing countries. In those circumstances verification can take place only after importation in order not to impede it, for if it were to take place before “there would be a risk of halting or at least appreciably restricting the trade which it had been intended to encourage”. Thus, since the general rule is that importation takes place upon production of the certificate, subject to the possibility of subsequent verification, “that is to say, subsequent to importation”, the Community rule could not have provided that the request for verification should be subject to a proviso as to the system applicable on importation.
The normal result therefore of subsequent verification is that the customs authorities of the importing country have the power or the duty to recover the normal customs duties not levied on importation. Otherwise, there would be no reason to carry out verification if it were to have no effect, especially as Article 30 of Regulation No 1371/71 refers particularly to all the cases of verification provided for in Article 13 and stipulates that verification must make it possible to determine whether the disputed certificate of origin applies to the goods actually exported and whether those goods can, in fact, qualify for the application of the preferential arrangements.
Refutation of the argument adduced by Ciro Acampora
1. According to the Italian Government, Ciro Acampora's case is that “the Community rules also provide for a possibility of suspending the application of the provisions relating to tariff preferences where verification is sought (second subparagraph of Article 13 (2)), that is to say where the importer is formally challenged; only where there is such challenge are the customs authorities able to recover increased duties due as the result of the verification”.
  In the view of the Italian Government that argument is not correct because the provision in the last sentence of Article 13 would appear to be an exception to the general rule. The general rule is that the preferential system applies upon simple production of a certificate of origin, subject to the result of subsequent verification. The provision in the last sentence of Article 13 reflects the concern to give the customs authorities greater guarantees in certain cases where a suspicion of inauthenticity or irregularity appears particularly well-founded from the time of the application to import. In such case the customs authorities have the power to suspend application of the preferential system while awaiting the results of the verification. The power may therefore be exercised before importation and that is why the verification appears to be “preliminary”. In such cases, where moreover the goods may be released to the importer, subject to such precautionary measures as may be considered necessary, the result of the verification makes the preferential system definitely inapplicable and allows the customs authorities to recover the increased duties due by means of the guarantee given.
  In the view of the Italian Government, however, there is no reason why that possibility of recovery should not also be given where “according to the general rule the verification is ordered and effected subsequently, that is to say following importation under the favourable system”. It adds that the arguments of Ciro Acampora would lead to illogical consequences:
  - To ensure payment of sums in fact due the customs authorities would have to suspend application of the preferential system even for the purpose of a simple random check, which would be contrary to the letter and the spirit of the Community regulation, since such a decision would be a serious obstacle to the trade which the regulation intends to facilitate;
  - Otherwise the customs would have to resign itself to the nonpayment of duties in all cases where certificates are produced which appear in order but as a result of verification are revealed to be inauthentic or not in accordance with the facts. Such a situation, moreover, would render verification devoid of useful purpose.
  Ciro Acampora had maintained that verification which was not followed by suspension of the application of the preferential system would, nevertheless, by verifiying at random the good faith of the authorities of the exporting country when they issue certificates of origin, serve to encourage the customs authorities to take greater care in respect of future importations. The Italian Government in answer says that such a result would lead to suspicion of all certificates issued by the authorities of the exporting country and consequently to general suspension of the application of the tariff preferences for products coming from such countries.
2. It does not appear unjust, as Ciro Acampora claims, that where the certificate of origin is not in accordance with the facts or is inauthentic the consequences should fall upon the imponer, even if he has counted on the application of the preferential system to make the importation, because not only may the importer be responsible for the irregularity of the certificate, but even apart from that he must accept the risk inherent in transactions which he negotiates, and because in any event he may pass on the loss suffered to those responsible who have guaranteed the origin of the goods in accordance with the general rules.
  On the other hand there is no reason why the conduct of the seller should cause the Community damage where goods are imported with the benefit of tariff preference on condition that they have a particular origin.
3. Although Community rules govern the present case, the Italian Government nevertheless considers that it is useful to state “that Italian law allows review of the assessment which has become final where the goods in question have been released to the trader” and that it is possible to ascertain the facts giving rise to the offence within the time-limits of the rules on prescription with reference to the offence, even outside the time-limits for the review of the assessment, so that the customs authorities have the right to claim payment of unpaid duties.
  It is thus apparent that the Community rules, although independent and different, are not contrary to the principles of national law which “also allow claims for payment of duties on the basis of an assessment differing from that deemed to have been made on final importation”.
  In consequence the Italian Government proposes that the question put by the Corte di Cassazione should be answered as follows:
  “Pursuant to Article 13 of Regulation No 1371/71 (and consequently the corresponding Article 13 of Regulation No 2862/71), the importing State may request verification of the certificate of origin even if it has expressed no reservations at the time of importation and in such case, where verification reveals discrepancies, the State may claim payment of the customs duties unpaid on importation”.

C — Observations of the Commission

Before considering the problem of subsequent verification with which the question put by the Italian Corte di Cassazione is concerned the Commission considers as a whole the provisions applicable.

(1) Provisions applicable

The system of general preferences is based on the principle of the unilateral grant by the Community of tariff advantages for the benefit of products originating in certain developing countries. Consequently, verification of the origin of the goods is a fundamental factor in the system. Since it proves impossible in practice, without excessively and in an intolerable manner prolonging the time taken for customs procedures, to effect systematic and thorough verification of that origin, it is necessary to apply a system allowing for speedy customs clearance while retaining the possibility at the same time of subsequent verification and, consequent thereon, of the application of other customs rules.
In the view of the Commission Regulation No 1371/71 contains a set of provisions intended to satisfy the requirements of the system considered above. The Commission insists above all upon the establishment of the subsequent verification laid down in Article 13.
Although as regards the Italian customs rules the consolidated laws relating to decisions in customs cases (Royal Decree No 33G of 9 April 1911 as recently amended several times) provided that disputes between those liable for duty and the customs authorities had to be raised before customs clearance of the goods, on the other hand, Decree No 62 of the Precident of the Republic of 2 February 1970 provides that the customs authorities may review such assessments “even where the goods in question have been released to the trader” and that the customs authorities have the power “where the review reveals inaccuracies, ommissions or errors in relation to the facts upon which the assessment was made” to make the “necessary corrections”. The customs authorities must give notice to the importer within a period of six months, failing which the right lapses.

(2) The answer to the question put by the Corte di Cassazione

The Commission states first of all that because Community law has precedence, if Article 13 had to be interpreted as meaning that there is a possibility of verification following customs clearance of the goods, any provision of national law incompatible with that article would not be applicable. On the other hand, if Article 13 did not determine the terms or time-limits for recovering duty the case would not have to be regarded as being governed by Community law and national law could therefore apply.
After those preliminary remarks the Commission considers Article 13 of Regulation No 1371/71 in order to interpret its wording and purpose. The wording of that article refers to verification of the certificates; it follows that the argument to the effect that the word “subsequent” has reference to the time at which the certificate was delivered “is not valid”, for it is not possible to conceive of verification of the certificate “prior” to its delivery. Further, the word “subsequent” also implies verification subsequent to customs clearance, as distinct from that which takes place originally when the goods and the certificate on Form A are lodged together. That interpretation is confirmed by the purpose of Artide 13, which is to allow the actual origin of the goods to be established with a higher degree of certainty than that obtained merely by consideration of the certificate and the goods. Consequently, the verification established by Article 13 requires a longer lapse of time than that normally required for customs clearance and it could not be untertaken before but only after customs clearance, as is confirmed by the fact that it may not be possible at the time of the customs procedures to have well-founded doubts regarding the correctness of the particulars contained in the certificate in relation to the actual origin of the goods.
Any alteration in the statement of origin appearing in the certificate involves the application of different customs rules and consequently the recovery of sums corresponding to the difference between the customs duties due and those which have in fact been levied. Thus it must also be possible to decide upon and effect the supplementary levy following customs clearance.
On the other hand since Regulation No 1371/71 does not lay down the terms or time-limits for verification and for recovery of the duties which have not been levied, and since Community law did not provide until 1979 for the recovery of duties which had not been levied, national law could at the time of the events with which the present case is concernod continue to regulate as a whole the terms and time-limits for verification and for recovery, it being understood that those national rules must not impede the actual application of Regulation No 1371/71. Since the last paragraph of Article 30 of Regulation No 1371/71 provides for a period of two years for the preservation of the copy of the certificates on Form A and Article 7 of the same regulation provides for a period of five months for the production of the said certificate it appears by implication that it must be possible for the subsequent verification to be made more than one and a half years after customs clearance.

In view of those matters it seems that the period of six months provided for by Decree No 62 of the President of the Republic of 2 February 1970 for giving notice of correction to assessments is insufficient to ensure the correct functioning of the system for the verification of origin established by Regulation No 1371/71 and that therefore the verification provided for by that regulation and any recovery to which it may give rise cannot be subject to that period of six months. It is for the Italian State to take the necessary measures to remedy the discrepancy in the national rules, if it thinks it necessary for the purpose of ensuring that legal certainty and legitimate expectation are better protected.

Consequently the Commission considers that the answer to be given to the question put by the Italian Corte di Cassazione could be formulated as follows :

In order to function correctly, the system for the verification of origin established by Regulation No 1371/71 requires that the random check or, in a case of reasonable doubt as to the authenticity of the certificate or as to the correctness of the particulars contained in it, the subsequent verification must be decided upon and carried out following customs clearance and the release of the goods to the importer.
That system further requires that the subsequent verification, when the results justify it, entails the application of customs different from those of the system of generalized preferences.

Regulation No 1371/71 nevertheless does not lay down detailed rules and time-limits for the verification and possible recovery of customs duties which have not been levied and which may be due as a result of that verification.
In those circumstances national law could govern the matter provided always that in doing so it did not compromise the attainment of the aims of the Community rules.”

III — Oral procedure

At the hearing on 3 July 1980 Mr Fiumara, of the Avvocatura dello Stato, appeared for the Italian Government and Mr Biamonti for the Commission. They developed the arguments put forward in the written observations.

The Italian Government was concerned that the Court should in its reply clarify the time-limit on recovery. The Commission stressed that the terms and time-limits for verification and recovery of unpaid duties were the responsibility of the Member States.

The representative of the Italian Government answered a question put by the Judge-Rapporteur in relation to respect for legal certainty as affected by random verification.

The Advocate General delivered his opinion on 16 October 1980.

Decision

1 By order dated 27 June 1979 received at the Court on 21 December 1979 the Italian Corte Suprema di Cassazione referred a question for a preliminary ruling under Article 177 of the EEC Treaty on the interpretation of Regulation No 1371/71 of the Commission of 30 June 1971 on the definition of the concept of originating products for the purpose of the tariff preferences granted by the EEC to certain products of developing countries (Journal Officiel L 146 of 1 July 1971, p. 1) and in particular Article 13 thereof.

2 That question has been raised in proceedings between, on the one hand, an undertaking which imported into Italy from Hong Kong various lots of transistor radios between 1 July 1971 and 2 Februar 1972 and after declaring them to be “originating products” obtained customs clearance on payment of duties based on the tariff preferences and on the other hand the Italian Amministrazione delle Finanze which, after carrying out pursuant to Article 13 of Regulation No 1371/71 subsequent verification revealing that the products were not “originating products”, required the importer to pay the appropriate duties unpaid on importation.

3 The importer resisted the order to pay on the ground that the verification of origin of the goods took place after importation when it no longer had control of them. The proceedings came before the Tribunale di Genova and then the Corte d'Appello, Genova, which both found the verification could not be subsequent to customs clearance of the goods and their admission without reservation to the favourable scheme provided by the Community rules. The Amministrazione delle Finanze appealed to the Corte Suprema di Cassazione which referred the following question to the Court:

“May an importing State, pursuant to Article 13 of Regulation (EEC) No 1371/71 of 30 June 1971 — after having permitted, without reserve, the final importation of goods in application of the preferential tariff treatment granted to products originating in developing countries — require the State benefiting from the exportation to verify the certificate of origin on Form A relating to those goods, and then, if the outcome of the verification is negative, demand payment of the duty which was not paid at the time of importation?”

4 In order to answer that question which basically relates to the interpretation of Article 13 of Regulation No 1371/71, it is necessary first to look for the aim of the Community regulation and then examine the functioning of the system of verification of the origin of the products in question which it established for the attainment of the objectives pursued by it.

5 The system of generalized preferences such as those provided for by Regulation No 1371/71 is based on the principle of the unilateral grant by the Community of tariff advantages in favour of products originating in certain developing countries with the aim of facilitating the flow of trade with those countries. The benefit of that preferential system is thus linked to the origin of the goods and the verification of that origin is therefore a necessary element of the system. In the actual organization of that verification the regulation seeks to avoid, for practical reasons, systematic verification of the origin of products, which would excessively delay customs transactions. To that end Article 13 provides for two kinds of subsequent verification of certificates of origin namely at random or whenever the customs authorities responsible have “reasonable doubt as to the authenticity of the document or the accuracy of the information regarding the true origin of the goods in question or their components”. The second subparagraph of Article 13 (2) provides that if the customs authorities decide in case of doubt to suspend application of the provisions on tariff preferences while awaiting the results of the verification, they “shall offer to release the goods to the importer subject to any precautionary measures judged necessary”.

6 The last provision which in practice can apply only when the goods are still under customs control appears to be an exception to the general rule laid down in Article 6 of the regulation to the effect that “originating products within the meaning of this regulation shall enjoy the benefits of the provisions on tariff preferences in the Community on simple production of a certificate of origin on Form A, signed by the customs authorities or by other governmental authorities in the country benefiting from the export and subject to the latter country's assisting the Community through the customs authorities of the Member States in verifying the authenticity and regularity of the certificates”.

7 Normally subsequent verification at random can therefore take place only after production of the certificate and customs clearance which automatically follows such production when there has been nothing to cast initial doubt on the authenticity of the certificate. Moreover, for the purpose of subsequent verification of the certificates of origin on Form A, Article 30 of the regulation provides that “the competent governmental authorities of the exporting country must keep the export documents, or copies of certificates used in place thereof, for two years”, which necessarily implies the possibility of effective verification during that time.

8 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 does 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.

9 In conclusion, the answer to the question put should be that the customs authorities of an importing Member State may, pursuant to Article 13 of Regulation No 1371/71 of the Commission of 30 June 1971 and the general structure of that regulation, after having permitted without reserve the final importation of goods and the application of the preferential tariff treatment granted to products originating in developing countries:

Require the State benefiting from the exportation to verify the certificate of origin on Form A relating to those goods;
Then, if the outcome of that verification is negative, demand payment of the duty which was not paid at the time of importation.

Costs

10 The costs incurred by the Commission of the European Communities and the Italian Government, which have submitted observations to the Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the question submitted by the Italian Cone Suprema di Cassazione, hereby rules:

The customs authorities of an importing Member State may, pursuant to Article 13 of Regulation No 1371/71 of the Commission of 30 June 1971, after having permitted without reserve the final importation of goods and the application of the preferential tariff treatment granted to products originating in developing countries:

Require the State benefiting from the exportation to verify the certificate of origin on Form A relating to those goods;
Then, if the outcome of that verification is negative, demand payment of the duty which was not paid at the time of importation.

Pescatore

Touffait

Due

Delivered in open court in Luxembourg on 11 December 1980.

J. A. Pompe

Deputy Registrar

P. Pescatore

President of the Second Chamber