Kingdom of Spain v European Commission (T-548/14)

Contents

Judgment of the General Court (Fifth Chamber)15 December 2016^note(Customs union — Imports of tuna products originating in Ecuador — Post-clearance recovery of import duties — Request for waiver of recovery of import duties — Article 220(2)(b) and Article 236 of Regulation (EEC) No 2913/92 — Notice to importers published in the Official Journal — Good faith — Application for the remission of import duties — Article 239 of Regulation (EEC) No 2913/92)In Case T‑548/14,Kingdom of Spain, represented initially by A. Rubio González, and subsequently by V. Ester Casas, abogado del Estado,vEuropean Commission, represented by P. Arenas, A. Caeiros and B.-R. Killmann, acting as Agents,THE GENERAL COURT (Fifth Chamber),composed, at the time of deliberation, of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,Registrar: J. Palacio González, Administrator,having regard to the written part of the procedure and further to the hearing on 6 April 2016,gives the following

Judgment

Background to the dispute

1Between 30 June 2009 and 24 September 2010, ACTEMSA SA (‘the person liable’), an undertaking established in Spain, imported into the European Union processed tuna products, namely canned tuna and frozen tuna loins, declared to originate in Ecuador (‘the disputed imports’).

2The person liable asked the Spanish customs authorities to apply the scheme of generalised tariff preferences (‘GSP’) to the disputed imports. In support of its customs declarations, it produced certificates of origin Form A issued by the Ecuadorian authorities on the basis of a form submitted by the exporter stating that the origin of the products was indeed Ecuador and that the conditions for obtaining the certificates of origin were satisfied.

3Based on the certificates of origin submitted by the person liable, the Spanish customs authorities granted the disputed imports preferential tariff treatment.

4During the period covering the disputed imports referred to in paragraph 1 above, namely on 21 May 2010, the European Commission published a notice to importers entitled ‘Imports of tuna from Colombia and El Salvador into the EU’ (OJ 2010 C 132, p. 15) (‘the notice’), the relevant sections of which for the purposes of this case, in order to define the scope of the notice and determine whether it concerns the disputed imports, are as follows:‘The … Commission informs European Union operators that there are reasonable doubts concerning the proper application of the preferential treatment and the applicability of the evidence of origin presented in the European Union for canned tuna and frozen tuna loins of HS subheading 1604 14 imported from Colombia and El Salvador.From various investigations, it results that significant quantities of canned tuna and frozen tuna loins of HS subheading 1604 14 are declared as having origin of Colombia or El Salvador, for which they are not eligible.Moreover, it cannot be excluded that consignments are imported from other countries benefiting from the [GSP] without fulfilling requirements of GSP rules of origin concerning cumulation of origin.’

5From 14 to 30 September 2010, a joint mission comprising representatives of the European Anti-Fraud Office (OLAF) and some Member States travelled to Ecuador to investigate the origin of raw materials used in the production of processed tuna products from that country and exported to the European Union with certificates of origin Form A issued in Ecuador in order to receive preferential tariff treatment.

6OLAF’s final report found that the Ecuadorian authorities had wrongly issued certificates of origin Form A for tuna products processed in Ecuador from raw materials caught by Salvadorean and Panamanian fishing vessels and that the rules for considering the goods to be of Ecuadorian origin had not been observed.

7OLAF observed, as regards raw fish caught by Salvadorean vessels, that the authorities of El Salvador had not demonstrated the origin of the fish in accordance with Articles 72a and 80 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1) and, as regards raw fish caught by Panamanian vessels, that certificates of origin Form A had been issued by the authorities of Panama but the value added rule set out in Article 70 of Regulation No 2454/93 had not been complied with.

8Since the disputed imports were not eligible for preferential tariff treatment, in 2012 the Spanish authorities initiated a procedure for the post-clearance recovery of import duties and applied the Common Customs Tariff of 24% to the transactions concerned, so that the customs duties claimed amounted to EUR 2094850.62.

9By several letters, the most recent dated 7 February 2013, the person liable applied to the Spanish authorities for remission of the import duties under Article 236 in conjunction with Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the CCC’) or, in the alternative, under Article 239 of the CCC.

10By letter of 18 April 2013, the Spanish authorities asked the Commission to decide whether the remission of import duties was justified under Article 236 in conjunction with Article 220(2)(b) of the CCC and with Articles 869 and 871 of Regulation No 2454/93 or, in the alternative, under Article 239 of the CCC and Article 905 of Regulation No 2454/93.

11By letters of 8 May and 17 September 2013, the Commission requested additional information, which the Spanish authorities supplied by letters of 28 May and 21 October 2013. The person liable was able to acquaint itself with each of those two requests for information and make comments on the reply that the Spanish authorities intended to send.

12By letter of 12 February 2014, the Commission invited the person liable, in accordance with Articles 873 and 906a of Regulation No 2454/93, to comment on any points of law or fact which might, in its opinion, lead to its application being refused. In its reply of 5 March 2014, the person liable submitted that it should not be held responsible for an error committed by the Ecuadorian authorities. It also claimed that it had acted in good faith and expressed its disagreement with the Commission’s findings relating to its lack of due care in respect of imports made after 21 May 2010.

13On 8 May 2014, in accordance with Articles 873 and 907 of Regulation No 2454/93, a group of experts composed of representatives of the Member States met to consider the file.

14By Decision C(2014) 3007 final of 15 May 2014, the Commission found that, in a particular case, the remission of import duties was justified for a certain amount, but not for another amount (REM 03/2013) (‘the contested decision’).

15In its examination of the application based on Article 236 in conjunction with Article 220(2)(b) of the CCC, the Commission found, in recital 26 of the contested decision, that the Ecuadorian customs authorities had misapplied the rules relating to the issue of certificates of origin Form A and that the fact that the exporting company had submitted incorrect declarations when applying for certificates was not sufficient to exclude the existence of an error attributable to the Ecuadorian authorities. The Commission then stated that it was necessary to determine whether the error was reasonably capable of detection by the person liable, taking into account the circumstances of the case, the nature of the error as well as the professional experience of and care exercised by the person liable.

16As regards the nature of the error, the Commission contended, in recital 28 of the contested decision, that the recurrence of the error, resulting from the issue of certificates of origin Form A by the Ecuadorian authorities over a long period of time, militated in favour of the person liable acting in good faith and that it was not possible to ascertain whether the error thus committed could have been detected by that person for imports made before 21 May 2010.

17In recital 29 of the contested decision, the Commission considered that the person liable was a very experienced professional and was active in the import and export of fishery products from Latin America, Africa and East Asian countries.

18In respect of the care exercised by the person liable, the Commission drew a distinction, in recitals 30 to 36 of the contested decision, between imports made before 21 May 2010, when the notice was published, and those made after that date. Referring to the fact that the notice stated that ‘it cannot be excluded that consignments are imported from other countries benefiting from the [GSP] without fulfilling requirements of GSP rules of origin concerning cumulation of origin’, the Commission considered that, after 21 May 2010, the person liable should have taken all the necessary precautions to check the evidence of origin in order to ensure that the rules relating to preferential treatment were correctly applied, particularly in the light of the rules on regional cumulation. Therefore, as from the date of publication of the notice, the person liable could no longer be regarded as acting in good faith. By contrast, the Commission found that there was no reason to doubt that the person liable had acted in good faith and had exercised due care as regards imports made before the notice was published.

19Next, in recitals 39 to 48 of the contested decision, the Commission examined the conditions laid down in Article 239 of the CCC in order for the remission of duties to be granted for imports made after 21 May 2010. As regards the first condition, the Commission recalled that reliance on the validity of certificates of origin which proved to be invalid did not constitute a special situation and concluded that the person liable was not in a special situation compared with other operators carrying on the same business activity. The Commission also stated that the second condition relating to the care to be expected from an experienced importer was not met either and referred to the considerations relating to the care exercised by the person liable examined pursuant to Article 220 of the CCC.

20Consequently, in the contested decision the Commission concluded as follows:‘Article 1The import duties in the sum of EUR 999863.58 for imports made between 1 January 2009 and 20 May 2010 which are the subject of the request from the Kingdom of Spain on 18 April 2013 shall be remitted.Article 2The import duties in the sum of EUR 1094987.04 which are the subject of the request from the Kingdom of Spain on 18 April 2013 for imports made between 21 May 2010 and 24 September 2010 shall not be remitted.’

Procedure and forms of order sought

21The Kingdom of Spain brought this action by application lodged at the Registry of the General Court on 24 July 2014. The Commission lodged its defence on 7 October 2014. On 22 December 2014, the Kingdom of Spain submitted its reply and, on 17 February 2015, the Commission submitted its rejoinder.

22On a proposal from the Judge-Rapporteur, the General Court (Fifth Chamber) decided to open the oral part of the procedure.

23The parties presented oral argument and gave their replies to the questions asked by the Court at the hearing on 6 April 2016.

24The Kingdom of Spain claims that the Court should:— annul Article 2 of the contested decision;— order the Commission to pay the costs.

25The Commission contends that the Court should:— dismiss the action in its entirety;— order the Kingdom of Spain to pay the costs.

Law

26The Kingdom of Spain puts forward three pleas in law in support of its action alleging, first, infringement of the fifth subparagraph of Article 220(2)(b) of the CCC; secondly, infringement of Article 239 of the CCC; and, thirdly, in the alternative, infringement of the fifth subparagraph of Article 220(2)(b) of the CCC a regards the regional cumulation rule provided for in Regulation No 2454/93.

First plea in law, alleging infringement of the fifth subparagraph of Article 220(2)(b) of the CCC

27As a preliminary point, it should be recalled that Article 220(2)(b) of the CCC makes waiver of post-clearance recovery of import duties by the national authorities subject to three cumulative conditions (see, by analogy, judgment of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 37 and the case-law cited).

28Thus, first of all, non-collection of the duties must have been due to an error made by the competent authorities themselves. Secondly, the error they made must be such that the person liable, acting in good faith, could not reasonably have been able to detect it in spite of the professional experience and exercise of due care required of him. Thirdly, the person liable must have complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned (see, by analogy, judgment of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 38 and the case-law cited).

29The fulfilment of those conditions must be assessed in the light of the purpose of Article 220(2)(b) of the CCC, which is to protect the legitimate expectation of the person liable that all the information and criteria on which the decision whether or not to proceed with recovery of customs duties is based are correct (see, by analogy, judgment of 14 November 2002, Ilumitrónica, C‑251/00, EU:C:2002:655, paragraph 39 and the case-law cited).

30However, under the fifth subparagraph of Article 220(2)(b) of the CCC, the person liable may not plead good faith if the Commission has published a notice to importers in the Official Journal of the European Union stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary non-member country (see, to that effect, order of 1 October 2009, Agrar-Invest-Tatschl v Commission, C‑552/08 P, EU:C:2009:605, paragraphs 56 and 57). That provision does not afford the person liable the opportunity to prove his good faith by taking supplementary measures in order to ensure the authenticity and accuracy of the certificates issued with a view to securing preferential treatment (judgment of 8 October 2008, Agrar-Invest-Tatschl v Commission, T‑51/07, EU:T:2008:420, paragraph 42).

31The first plea in law must be examined in the light of those considerations.

32Principally, the Kingdom of Spain essentially submits that when the Commission intends to depart from the position taken by the national authorities, it is required to prove, based on relevant matters of fact, the existence of manifestly negligent conduct on the part of the operator. The Commission simply referred to the importers’ obligation to take all the necessary precautions to check the evidence of origin contained in the notice and did not demonstrate how the person liable failed to comply with its obligation to exercise due care or to act in good faith. According to the Kingdom of Spain, the publication of the notice does not prevent the person liable from pleading good faith since that notice relates only to imports from Colombia and El Salvador and its effects cannot be extended to other countries in regional group II, such as Ecuador, between which the regional cumulation rule applies (also see paragraph 48 below).

33The Commission submits that the Kingdom of Spain’s line of argument must be rejected. It essentially recalls, at the outset, that, as a rule, where goods in receipt of preferential tariff treatment do not have the origin claimed or where their origin cannot be verified, the competent authorities are required to make post-clearance entry in the accounts of import duties.

34According to the Commission, the first condition laid down in Article 220(2)(b) of the CCC for waiver of post-clearance recovery is satisfied since the Ecuadorian authorities erred by issuing certificates of origin Form A notwithstanding the failure to comply with the rules on regional cumulation.

35Although the other two conditions laid down in that article were satisfied prior to 21 May 2010, they ceased to be so satisfied thereafter. As from that date, the person liable was no longer able, under the fifth subparagraph of Article 220(2)(b) of the CCC, to plead good faith because the notice also applied to Ecuador and the person liable had not demonstrated that it had exercised due care in order to ensure compliance with the conditions relating to preferential tariff treatment.

36The Commission contends that the case-law of the EU Courts has not yet addressed the question whether the fifth subparagraph of Article 220(2)(b) of the CCC establishes an irrebuttable presumption. It maintains that, in some exceptional circumstances, an operator may plead good faith after demonstrating that additional checks were carried out following the publication of a notice to importers.

37Furthermore, the Commission asserts that, where a notice to importers is published, the burden of proving good faith and due care lies with the person liable. In the instant case, the Kingdom of Spain did not submit any evidence showing that the person liable took additional measures to verify the origin of the goods after publication of the notice.

38The Commission states that the notice mentions Colombia and El Salvador and, as regards the nine other countries in regional group II, the possibility of irregularities affecting products under the same tariff subheading as the disputed imports. Thus, in its opinion, the notice refers to these nine other countries without identifying them by name. An experienced operator would infer from the notice the existence of risks in respect of all regional group II countries as regards regional cumulation. The Commission also notes that it may legitimately and in general terms refer to several countries in a notice to importers and has done so on two previous occasions.

39The notice draws importers’ attention to the need to take precautions in respect of imports from all group II countries. Indeed, raw materials from Colombia or El Salvador could be exported to another group II country with a view to being used in the working of processed tuna products for export to the European Union. Under the principle of regional cumulation, these products could be regarded as originating in Ecuador, without the importer in the EU being aware of the origin of the raw materials.

40The Commission also submits that it does not follow either from the wording of Article 220(2)(b) of the CCC or from its communications of 5 December 2000 setting out conditions, in the context of preferential tariff arrangements, for informing economic operators and Member State administrations of cases of reasonable doubt as to the origin of goods (OJ 2000 C 348, p. 4) and of 30 October 2012 setting out conditions, in the context of preferential tariff arrangements, for informing economic operators and Member State administrations of cases of reasonable doubt as to the origin of goods (OJ 2012 C 332, p. 1), to which the Kingdom of Spain refers before the Court, that reasonable doubts must be expressed in relation to countries or products falling within the scope of the notice, since those doubts, expressed in relation to some countries, also entail the existence of irregularities affecting other countries from the same regional group.

41Concerning the period following publication of the notice, the Commission argues that the person liable should have taken measures to verify the origin of the goods. It argues that the notice encouraged importers to take extra precautions as regards imports from all regional group II countries, as a product allegedly from Ecuador might include potentially irregular raw materials from Colombia or El Salvador. In view of the very small number of notices to importers published by the Commission, a person liable who imports products from a country belonging to the same regional group as the country forming the subject matter of the notice without taking heed of that notice cannot be regarded as exercising due care. In any event, the person liable did not take the precautions necessary to ensure that there were proper checks of the evidence of origin for the application of preferential tariff treatment.

42In the rejoinder, the Commission contends that, although OLAF’s final report envisages the possibility of repealing or amending the notice if El Salvador alters its conduct, that would affect only El Salvador and the notice would remain in force for the other regional group II countries. According to the Commission, the notices to importers to which it refers do not lack legal certainty and are not an exception to the general rules. As regards the care exercised by the operator, the Commission states that since the notice expressed doubts as to whether the provisions on regional cumulation had been correctly applied, the onus was on the person liable, in accordance with the case-law, to make inquiries and seek all possible clarification to ensure that it did not infringe the relevant provisions, which it did not do.

43Lastly, the Commission maintains that even if responsibility for proving that the person liable did not exercise due care lay with it, it discharged that responsibility by explaining the content of the notice, by referring to the ample experience of the person liable in imports of the products at issue, so that the person liable ought to have had doubts as to whether the rules of origin had been correctly applied, and by drawing attention to the failure of the person liable to take additional precautions after publication of the notice.

44According to settled case-law, the principles of legal certainty and of the protection of legitimate expectations must be observed, in particular, by the EU institutions (see judgment of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 30 and the case-law cited). It follows, inter alia, that EU legislation must be certain and its application foreseeable by those who are subject to it. That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which those rules impose on them (judgments of 15 December 1987, Ireland v Commission, 325/85, EU:C:1987:546, paragraph 18, and of 9 July 2015, Salomie and Oltean, C‑183/14, EU:C:2015:454, paragraph 31).

45Furthermore, it has been held that the absolute exclusion of good faith where a notice to importers has been published ensures a very high level of legal certainty (judgment of 8 October 2008, Agrar-Invest-Tatschl v Commission, T‑51/07, EU:T:2008:420, paragraph 43).

46It follows from the wording of Article 220(2)(b) of the CCC that the publication in the Official Journal of the European Union of a notice to importers stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary non-member country prevents importers, as from the publication date, from pleading good faith, thereby ensuring a very high level of legal certainty and resulting in the national authorities or the Commission rejecting the application for non-recovery of import duties.

47In the present case, Article 2 of the contested decision rejects the application for non-recovery of import duties for the period after 21 May 2010, when the notice was published.

48Since the Kingdom of Spain objects to the application of the notice to the disputed imports, which originate in Ecuador and not Colombia or El Salvador, the countries targeted by the notice, it is necessary to determine the scope of the notice before addressing the arguments in support of the contention that the person liable acted in good faith. As a preliminary point, and taking account of the arguments the Commission submitted to the Court, it should be pointed out that, under Article 72(3)(b) of Regulation No 2454/93, regional group II comprises the following countries for the purpose of applying regional cumulation: Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Peru and Venezuela.

49First, it must be stated that the notice is addressed to economic operators who import tuna products into the European Union, namely professionals some of whom may be experienced or very experienced.

50Secondly, the notice contains no reference whatsoever to Ecuador either in the title or body thereof. On the other hand, it is readily apparent from the first paragraph of the notice that it refers to imports of tuna products into the European Union declared to originate in Colombia or El Salvador.

51Thirdly, the notice states, without providing further detail, that there are ‘reasonable doubts’ concerning the proper application of the preferential arrangements and the applicability of the evidence of origin presented in the European Union, since various investigations have shown that significant quantities of tuna products were declared to originate in Colombia or El Salvador which did not qualify for such arrangements.

52Fourthly, the notice does not preclude the possibility that the imports might be from other GSP beneficiary countries and might not comply with the GSP rules of origin relating to cumulation of origin. No explicit additional details are given as regards the GSP referred to.

53It must be stated that these last two points are not clear, even for an experienced or very experienced professional. It is not possible to ascertain from them why the imports declared to originate in Colombia and El Salvador are not eligible for the preferential arrangements or whether the expression relating to imports from other countries refers to products declared to be such upon import into the European Union or to products declared to originate in Colombia or El Salvador but which actually come from other GSP beneficiary countries. Lastly, as the Kingdom of Spain rightly points out, one may ask whether, by referring to the GSP, the notice covers all countries benefiting from such arrangements or only those belonging to the same regional group as Colombia and El Salvador, namely regional group II.

54In order to determine specifically the meaning and scope of the notice, it is necessary to check its other language versions, which may give a clearer view of the content of the information provided to importers. However, the mere fact that it is necessary to compare the different language versions of a notice to importers in order to comprehend its scope properly reflects unfavourably on the clarity and precision of that notice. In principle, each language version should, on its own, enable the operators concerned to be sufficiently appraised of the relevant points and the risks identified by the Commission, since those operators cannot be required to carry out a generalised comparative exegesis of the meaning of a notice in the light of its different language versions.

55In the instant case, as regards the second paragraph of the notice, the meaning and scope of which is not clearly apparent from the French version (see paragraph 53 above), the Spanish version, which is of particular relevance in this case due to the operators and countries involved, is as follows: ‘Diversas investigaciones han permitido constatar que cantidades importantes de atún en conserva y de lomos de atún congelados de la subpartida 1604 14 del SA se declaran como originarias de Colombia o El Salvador, sin cumplir las condiciones para ello.’ It follows that imports declared to originate in Colombia or El Salvador do not satisfy the conditions in order to be declared as originating in one of these two countries. The English version is the same: ‘From various investigations, it results that significant quantities of canned tuna and frozen tuna loins of HS subheading 1604 14 are declared as having origin of Colombia or El Salvador, for which they are not eligible.’

56These language versions of the notice show that imports of tuna products declared to originate in Colombia or El Salvador were not fully entitled to that origin, which goes some way towards explaining the refusal to apply the preferential arrangements, the reference to which in the French version is inadequate in order to understand the scope of the notice properly. However, the other language versions cited above do not add anything new to the precise basis for that refusal. The specific reason why the imports at issue were not fully entitled to the origin in question is not stated.

57Therefore, the only inference to be drawn from the first two paragraphs of the notice is that, on account of the reasonable doubts concerning the applicability of the evidence of origin presented in the European Union, the imports of tuna products declared to originate in Colombia or El Salvador were considered to be not eligible for the preferential arrangements because that evidence did not demonstrate that, pursuant to the GSP, the products concerned could be acknowledged as having such an origin.

58In other words, the notice informs importers that the products declared to originate in Colombia or El Salvador cannot be regarded as having that origin, irrespective of whether the origin was inferred from the fact that the products at issue had been caught and processed in those countries or the fact that they had been considered to originate there after being caught or processed in another GSP beneficiary country. As stated above, the notice mentions the preferential arrangements under the GSP without providing any other details, particularly as regards the group of countries concerned.

59Whilst it is true that it can be inferred from one of the possible interpretations of the notice that this mention is intended to refer to regional group II, to which the two countries in question belong, particularly in view of the words ‘cumulation of origin’, the fact remains that, due to the notice’s vague wording, it is conceivable that some, even very experienced, operators might construe the notice as covering all imports from any beneficiary country under a GSP which do not comply with the requirements of the rules of origin of that GSP relating to cumulation of origin and which have been declared as originating in Colombia or El Salvador. That interpretation is possible since the notice only states that the imports at issue do not ‘fulfil … requirements of GSP rules of origin concerning cumulation of origin’, without any additional explanation, and because the third paragraph of the notice must necessarily be read in the light of the first two paragraphs, which suggest that the problems are linked to imports designated as originating in Colombia or El Salvador.

60In view of the specific importance attached to notices to importers, in accordance with the findings made in paragraphs 44 and 45 above, such notices must be especially clear, particularly as regards the countries covered. This is all the more so because it follows directly from the wording of the fifth subparagraph of Article 220(2)(b) of the CCC that such notices must state the reasonable doubts concerning the proper application of the preferential arrangements ‘by the beneficiary country’. Thus, the provision in question does not refer to a ‘group of countries’ or to several countries which are for the operators to identify by inference, based on general assertions by the Commission as to the possible existence of other unspecified risks. In addition, the Commission could, without great difficulty, define the scope of the notice country by country, particularly because, as it admits, it has previously only ever published a very small number of notices to importers (see paragraph 41 above), which shows that the Commission’s decision to effect a designation based on a group of countries was not dictated by any need for administrative simplification in the interests of speed.

61Accordingly, in respect of the third paragraph of the notice, it must be stated, in particular, that its meaning is not sufficiently clear in order to discern the exact scope of the notice, either in French, worded in very general terms, or in some of the other relevant language versions.

62The Spanish version is as follows: ‘Por otro lado, no se puede excluir que haya importaciones procedentes de otros países que se acojan al sistema de preferencias generalizadas (SPG) sin cumplir los requisitos fijados en las normas de origen del SPG relativas a la acumulación de origen.’ This means that it cannot be ruled out that there may be imports from other GSP beneficiary countries which do not satisfy the requirements of the rules of origin concerning cumulation of origin. That wording is especially broad and lacks precision regarding the countries specifically covered and the exact requirements which were not met, in other words regarding the basis for the finding that cumulation of origin could not be granted.

63The English version does not provide any additional details: ‘Moreover, it cannot be excluded that consignments are imported from other countries benefiting from the generalized system of preferences (GSP) without fulfilling requirements of GSP rules of origin concerning cumulation of origin’. The imports at issue may be those declared to originate in Colombia or El Salvador but which in actual fact originate in another country.

64Thus, the first three paragraphs of the notice, even when read together, do not contain enough information in order to define the scope of the notice with precision.

65As indicated above, it is clearly apparent from the first two paragraphs of the notice that, due to reasonable doubts as to the applicability of the evidence of origin presented in the European Union, the imports of tuna products declared to originate in Colombia or El Salvador were regarded as not eligible for the preferential arrangements because that evidence did not demonstrate that, pursuant to the GSP, the products concerned could be acknowledged as having such an origin (see paragraph 57 above). Thus, it was found that the rules of origin had been infringed as regards imports declared to originate in two countries of regional group II for the purpose of applying the GSP.

66Furthermore, the third paragraph of the notice states that ‘it cannot be excluded that’ there are imports from other GSP beneficiary countries which do not satisfy the requirements of the rules of origin concerning cumulation of origin, as stated in, inter alia, the Spanish version. As the Court has already pointed out, although the fifth subparagraph of Article 220(2)(b) of the CCC specifically refers to ‘the beneficiary country’, the third paragraph of the notice does not name such a country or countries. Moreover, contrary to the Commission’s claims, in the absence of additional information on the error committed which prevented the requirements concerning cumulation of origin from being met, it is not possible to conclude, at the very least with sufficient certainty, that all economic operators would interpret the notice as covering only regional group II countries, namely countries in the same group as Colombia and El Salvador.

67As regards that last point, it should also be pointed out that it was for the Commission, if that had been its intention, to word the notice in such a way as to, at the very least, limit it specifically to group II of the GSP, so that the ‘beneficiary countries’ could be clearly identified by all operators concerned. No such mention is made in the notice and it cannot necessarily be inferred, as indicated above, from the mere reference to ‘regional cumulation’. In those circumstances, it is conceivable that an operator might interpret the notice as containing a general reference to all of the situations which may arise under any GSP arrangement and as covering all measures to circumvent the rules relating to cumulation of origin.

68Therefore, in the light of the wording of the notice, even an experienced operator would not necessarily grasp that the imports of tuna products at issue from one of the countries in the same regional group as Colombia and El Salvador, namely regional group II, were the only imports concerned by the doubts raised as regards the evidence of origin. The insufficiently clear nature of the notice, which contained only a single general indication to the effect that irregularities in other countries could not be ruled out, prevented any doubts regarding the scope of its geographical application from being dispelled.

69Lastly, the fact that it is for operators to conduct a meticulous examination of the notice, by attempting to fathom all its possible meanings or by comparing the different language versions, constitutes additional evidence that the wording of the notice cannot be considered to be sufficiently clear, for the purpose of applying the principles laid down in the case-law cited in paragraphs 44 and 45 above, namely, in order to ensure legal certainty and the protection of operators’ legitimate expectations. Indeed, at the hearing, the Commission itself conceded that it would have been clearer to name the countries covered by the notice. Accordingly, even though the last paragraph of the notice urges operators ‘to take all necessary precautions’ in relation to the ‘goods in question’, it cannot be found that those terms could be construed, in the light the wording of the notice, as also covering the disputed imports from Ecuador.

70The Commission therefore committed an error of law in maintaining that the notice covers the disputed imports from Ecuador, a country belonging to regional group II for GSP purposes, and the fact that Ecuador was not mentioned in the notice is irrelevant. Consequently, in the light of the reasoning set out in paragraphs 49 to 69 above, the Commission also committed an error of law in finding that the person liable could not thus plead good faith.

71The Commission’s other arguments do nothing to invalidate that conclusion. First, its practice in other notices to importers, which it claims do not name the countries in question either, is irrelevant, even if true, because the conditions laid down in the express wording of the fifth subparagraph of Article 220(2)(b) of the CCC are clear and the question whether or not an individual notice to importers meets the conditions laid down in legislation must be assessed ad hoc and not in the light of the Commission’s alleged previous practice.

72Secondly, in so far as the Commission refers to the purpose of the notices, which is, in particular, to enable Member States to protect the Union’s financial interests and operators to protect their own economic interests, it must be stated that the vagueness of the notice in question does not facilitate the achievement of those aims. Although the Commission deemed action to be necessary in order to prevent the purpose of the notice covering Colombia and El Salvador from being circumvented, the onus was on it to word the notice in clearer terms as regards the countries covered, in order to preclude the possibility of fraudulent movements in trade flows related to the fishing of the products concerned.

73Thirdly, as regards the numerous references to the fact that the operators at issue are, in the instant case, very experienced professionals active in various geographical areas across the world, this is not a fact from which it should be inferred that those same operators are to bear responsibility for the Commission’s use of opaque wording in a notice which should have served precisely as a guide for their activities.

74It follows from all the foregoing that, pursuant to the notice, the Commission was not entitled to maintain in the contested decision that the person liable could not plead good faith in the application of Article 220(2)(b) of the CCC in order to avoid the recovery of import duties as regards the situation after 21 May 2010.

75It is apparent from the contested decision, particularly recitals 30 et seq. thereof, as well as the Commission’s replies during the hearing to the questions put by the Court, that the Commission’s conclusion that the person liable did not act in good faith and did not exercise due care was based on the application of the fifth subparagraph of Article 220(2)(b) and the finding that the notice also covered the disputed imports from Ecuador. It should also be noted that, as recital 28 and Article 1 of the contested decision show, the Commission took the view that the person liable was unable to detect the error prior to adoption of the notice. Furthermore, the parties agree that the person liable exercised the same degree of care before and after the notice of 21 May 2010; the Commission’s criticism of the person liable is that it failed to conduct stricter checks following publication of the notice (see, to that effect, recital 33 of the contested decision).

76Since, as the Court has found, the notice cannot be interpreted as also covering, with sufficient precision, imports from Ecuador, the person liable cannot be required to have altered its approach after publication of that notice. A different interpretation would diminish legal certainty for economic operators inasmuch as they would be required, where they have doubts as to the scope of a notice to importers, always to apply — as a precaution — additional measures of protection, even in respect of imports from countries not clearly identified as being the target of the Commission’s doubts.

77Consequently, the Court must uphold the Kingdom of Spain’s first plea in law and, therefore, without it being necessary to rule on its other pleas in law, annul Article 2 of the contested decision by which the Commission decided not to remit import duties in the amount of EUR 1094987.04.

Costs

78Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

79Since the Commission has been unsuccessful, it must bear its own costs as well as those of the Kingdom of Spain, in accordance with the forms of order sought by the Kingdom of Spain.

Operative part

On those grounds,THE GENERAL COURT (Fifth Chamber)hereby:

1.Annuls Article 2 of Decision C(2014) 3007 final of the Commission of 15 May 2014 finding that the remission of import duties is justified for a certain amount and that remission of import duties is not justified for another amount in a particular case (REM 03/2013);

2.Orders the European Commission to pay the costs.

Delivered in open court in Luxembourg on 15 December 2016.