Flashback on ECJ cases C-437/13 (Unitrading) – Proof of the origin of imported goods provided by the customs authorities after investigation by a third party

On October 23, 2014, the ECJ issued its decision in the case ().

Context: Reference for a preliminary ruling — Community Customs Code — Recovery of import duties — Origin of goods — Means of proof — Charter of Fundamental Rights of the European Union — Article 47 — Rights of the defence — Right to effective judicial protection — Procedural autonomy of the Member States

Article in the EU VAT Directive

Charter of Fundamental Rights of the European Union — Article 47

Facts

On 20 November 2007 Unitrading, established in Rickmansworth (United Kingdom), made a declaration to the Netherlands customs authorities for release into free circulation of 86 400 kg of fresh garlic bulbs (‘the goods’). The declaration was submitted by F.V. de Groof’s In- en Uitklaringsbedrijf BV, trading under the name of Comex (‘Comex’). In the declaration, Pakistan was cited as being the country of origin of the goods. It was accompanied by a certificate of origin issued by the Karachi Chamber of Commerce and Industry on 5 November 2007.
On 21 November 2007, the Netherlands customs authorities took samples of the goods. On the same day, those authorities demanded an additional guarantee, on the ground that they had doubts as regards the country of origin cited. When Unitrading had provided that guarantee, on 26 November 2007 those authorities granted release of the goods. The Customs Laboratory in Amsterdam (Netherlands) had a portion of each sample examined, using a high-resolution method called ‘ICP/MS [Inductively coupled plasma mass spectroscopy]’ (‘the portions of the samples’) by a laboratory of the US Department of Homeland Security, Customs and Border Protection (‘the American laboratory’). By letter of 8 January 2008, the American laboratory reported, essentially, that the probability that the goods in question had originated in China was at least 98%.
At Comex’s request, a different portion of each sample was sent to the American laboratory, which, after examination, confirmed its earlier findings. However, Comex’s proposal that the goods be examined in Pakistan, at the cost of the company on behalf of which the goods had been imported into the Netherlands, was rejected by the customs authorities.
The Amsterdam customs laboratory sent the results of the examination to the Netherlands customs office concerned. It also informed the customs office that the remaining samples examined would not be stored in the laboratory, but that until 30 May 2009 counter-samples would be stored in a central storage facility, of which Unitrading was informed on 11 June 2008. On 2 December 2008 the customs authorities concluded that the goods had originated in China.
On 19 December 2008, a notice of assessment of customs duties (‘the contested notice of assessment’) was issued and served on Unitrading. Having regard to the alleged fact that the goods originated in China, additional duties of EUR 1 200 per 1 000 kg, namely EUR 98 870.40, were imposed.
Unitrading appealed against the contested notice of assessment, disputing the examinations carried out by the American laboratory. The American laboratory, having been asked certain questions by the Amsterdam customs laboratory, stated in an email of 9 February 2009 that the portions of the samples had been compared with the data in the American databanks relating to the declared country of origin, namely Pakistan, and from the suspected country of origin, namely China. In March 2009 the American laboratory also informed the Amsterdam customs laboratory that more than 15 trace elements had been discovered in the samples of the goods. Nevertheless, it refused to disclose the information concerning the regions of China and Pakistan which had been compared, on the ground that these were sensitive data to which access was restricted by law.
In a mission report of 20 October 2009 concerning enquiries made in China on a number of consignments of fresh garlic bulbs sent to Belgium, the Netherlands and the United Kingdom for which the country of origin declared was Pakistan while it was suspected that the goods originated in China, the European Anti-Fraud Office (OLAF) concluded that there were strong reasons to believe that the country of origin of the goods in question was in fact China and not Pakistan.
The contested notice of assessment having been confirmed, in those circumstances, by the customs authorities, Unitrading brought an action before the Rechtbank te Haarlem (District Court, Haarlem) which, by judgment of 12 August 2010, declared the appeal brought against that decision to be unfounded. Unitrading appealed against that judgment before the Gerechtshof te Amsterdam (Regional Court of Appeal, Amsterdam), which, on 10 May 2012, upheld the judgment delivered at first instance, taking the view, in particular, that the Netherlands customs authorities had shown that the goods did not originate in Pakistan but in China. The Gerechtshof te Amsterdam further stated that, at the time of the hearing before it, in Amsterdam there were still portions of the samples of the goods which could be used for a possible second expert opinion. Unitrading pursued an appeal in cassation before the referring court.

Questions

(1) Do the rights enshrined in Article 47 of the Charter … mean that if customs authorities, in the context of the submission of evidence as to the origin of imported goods, intend to rely on the results of an examination carried out by a third party with regard to which that third party does not disclose further information either to the customs authorities or to the declarant, as a result of which it is made difficult or impossible for the defence to verify or disprove the correctness of the conclusion arrived at and the court is hampered in its task of evaluating the results of the examination, those examination results may not be taken into account by the court? Does it make any difference to the answer to that question that that third party withholds the information concerned from the customs authorities and from the party concerned on the ground, not further explained, that “law enforcement sensitive information” is involved?

(2) Do the rights enshrined in Article 47 of the Charter mean that when the customs authorities cannot disclose further information in respect of the examination carried out which forms the basis for their position that the goods have a specific origin — the results of which are challenged by reasoned submissions — the customs authorities — in so far as can reasonably be expected of them — must cooperate with the party concerned in connection with the latter’s request that it conduct, at its own expense, an inspection and/or sampling in the country of origin claimed by that party?

(3) Does it make a difference to the answer to the first and second questions that, following the notification of the customs duties payable, portions of the samples of the goods, to which the party concerned could have obtained access with a view to having an examination carried out by another laboratory, were still available for a limited period, even though the result of such an examination would have had no bearing on the fact that the results obtained by the laboratory used by the customs authorities could not be verified, with the result that even in that case it would have been impossible for the court — if that other laboratory were to find in favour of the origin claimed by the party concerned — to compare the results of the two laboratories with respect to their reliability? If so, must the customs authorities point out to the party concerned that portions of the samples of the goods are still available and that it may request those samples for purposes of such an examination?

AG Opinion

None

Decision

1. Article 47 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding proof of origin of imported goods adduced by the customs authorities on the basis of national procedural rules resting on the results of an examination carried out by a third party, with regard to which that third party refuses to disclose further information either to the customs authorities or to the customs declarant, as a result of which it is made difficult or impossible to verify or disprove the correctness of the conclusions reached, provided that the principles of effectiveness and equivalence are upheld. It is for the national court to ascertain whether that is so in the main proceedings.

2. In a situation such as that at issue in the main proceedings, and when the customs authorities cannot disclose further information in respect of the examination carried out, whether the customs authorities must grant the request of the party concerned that it conduct, at its own expense, an examination in the country declared as the country of origin and whether it matters that portions of the samples of the goods, to which the party concerned could have obtained access with a view to having an examination carried out by another laboratory, were still available for a limited period and, if so, whether the customs authorities must inform the party concerned that portions of the samples of the goods are still available and that it may request those samples for purposes of such an examination must be assessed on the basis of national procedural law.

Summary

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