Case C-613/12, Helm Düngemittel – certifying the origin of a cargo from Egypt [judgment 2014, ECLI:EU:C:2014:52]

Where a ship laden with urea comes to the EU, how can a company prove that the consignment originates from Egypt when one EU customs authority has already acted in breach of Decision No 1/2006 of the EU-Egypt Association Council, and the boat has gone onto another EU port where a second customs authority decides that without the proper certificate, there can be no proof of origin thereby making the consignment subject to import taxes?

Facts
The claimant, Helm Düngemittel, bought 9300 metric tonnes of urea of Egyptian origin. It chartered a boat to transport this to the EU. The days of the 29 and 30 January 2009 were spent loading up the boat in Egypt.

On 2 February 2009, and pursuant to the EU’s Decision No 1/2006 of the EU-Egypt Association Council, Egyptian customs duly put together an ‘issue of movement certificate EUR.1′, for the entire consignment of urea.

Helm Düngemittel arranged for the ship to travel non-stop to the EU, and unload a part of its consignment in the Dutch west coast port of Terneuzen. From Holland, the ship would travel on to the German port of Hamburg where the remainder of Helm Düngemittel’s purchase would be unloaded.

On 11 February 2009, Helm Düngemittel surrendered the ‘issue of movement certificate’ to Dutch customs. Helm Düngemittel requested the Dutch to split the certificate.

On 12 February 2009, the boat arrived in Holland, where almost half of the urea was unloaded.

On 13 February, the boat set off for Germany. On the same day, Helm Düngemittel put in a request to German customs for clearing the remaining tons of urea that were due to be unloaded in Germany – this for the purpose of allowing the urea to be put into free movement inside the EU.

The boat duly arrived in Hamburg. Between 16 and 17 February 2009, the remaining tons of urea were unloaded. And on 16 February, German customs granted Helm Düngemittel’s request for free movement.

However, back in Holland, customs in the Dutch city of Nijmegen (near the German border) decided to issue a certificate in respect of the consignment. Their decision was taken on 24 February 2009, but the Dutch customs also indicated that the certificate had been issued after the event.

This Dutch issue of movement certificate was then relied upon by Helm Düngemittel in Germany when it was filling out a supplementary statement in relation to the month of February. Relying on the Dutch certificate, Helm Düngemittel declared on 2 March 2009 that the imported urea fell under the heading for customs for which no import tax was to be levied.

German customs however approached Dutch customs in order to verify the Dutch certificate. Eighteen months later it did. The Dutch clarified that they had put together a certificate to replace the certification of origin, and this had been done after the event, namely on 24 February 2009. At that point in time, the goods – which had previously been under the supervision of Dutch customs – had already left Holland.

Dutch customs however had not complied with the definition of ‘originating products’ in Article 20 of Protocol 4, which provides:

Issue of movement certificates EUR.1 or EUR-MED on the basis of a proof of origin issued or made out previously

When originating products are placed under the control of a customs office in the Community or in Egypt, it shall be possible to replace the original proof of origin by one or more movement certificates EUR.1 or EUR-MED for the purpose of sending all or some of these products elsewhere within the Community or Egypt. The replacement movement certificate(s) EUR.1 or EUR-MED shall be issued by the customs office under whose control the products are placed.

In light of this rule, German customs decided in November 2010 that on the basis of the Dutch certificate, there was no certificate of movement. Since there was no certificate of movement, the origin of the goods could not be established. And since the origin could not be established, the Germans were entitled to levy 69 000 Euro of import taxes from Helm Düngemittel.

In February 2011, the Dutch replied to the German customs authority. They admitted that although they had drawn up a certificate of movement after the event, and that was probably contrary to Article 20, the problem was there was no basis in law for the Dutch customs to retract or revoke the issued certificate. Under the rules, however, the Dutch believed that it was open for German customs to grant preferential treatment to the goods, or not.

Helm Düngemittel challenged the decision of the German authorities to levy the 69 000 import tax. It referred to the correctness of the approach taken by Dutch customs, particularly since they had declared that the certificate had been issued ex post. They also challenged the idea procedural reasons could be used in order to deny preferential treatment being given (citing Case C-12/92, Huygen, and Case C-334/93, Bonapharma Arzneimittel). Helm Düngemittel submitted that the origin of the goods could be objectively evidenced from the certificate of movement. And by way of conclusion, they observed that international trade depended on the speedy processing of shipped goods. The current procedure was just unable to cope – it would have been commercially unreasonable for the importer to require the ship to be parked in a port until the requisite certificate movement had been issued in respect of just a part of the consignment.

These submissions failed to persuade German customs. Helm Düngemittel appealed to the Finanzgericht Düsseldorf.

Question Referred
An unofficial translation of the question asked by the German court reads:

Must it be presumed that the origin of goods is not established where, for those goods which form part of a greater consignment corresponding to Article 20 of Protocol 4 on the definition of the concept of ‘originating products’ and methods of administrative cooperation, in the version of Decision No 1/2006 of the EU-Egypt Association Council of 17 February 2006 (OJ [2006] L 73/1), a certificate of movement has been issued even though the conditions for this provision have not been fulfilled since the goods were not under the supervision of the customs authorities at the moment when the authorities issued that certificate?