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Flashback on ECJ Cases (Customs) – C-294/14 (ADM Hamburg) – Preferrential Origin – Consignments of crude palm kernel oil may be recognised

On April 7, 2016, the ECJ issued its decision in the case C-294/14 (ADM Hamburg).

Context: Reference for a preliminary ruling — Customs Union and Common Customs Tariff — Community Customs Code — Tariff Preferences — Regulation (EEC) No 2454/93 — Article 74(1) — Products originating from a beneficiary country — Transport — Consignments composed of a mixture of crude palm kernel oil originating in several countries benefiting from the same preferential treatment


Article in the EU VAT Directive

N/A


Facts

  • On 11 August 2011, ADM Hamburg imported a number of consignments of crude palm kernel oil from Ecuador, Colombia, Costa Rica and Panama to Germany for release for free circulation in the European Union. Those four countries, which have the status of developing countries benefiting from the generalised system of preferences granted by the EU under its scheme of generalised preferential tariffs introduced by Regulation No 732/2008 (‘the relevant GSP countries’), issued certificates of origin Form A in respect of those various consignments.
  • During its transport to the European Union, the palm kernel oil was loaded in different tanks on a cargo vessel. In three of those tanks consignments originating respectively from three of the relevant GSP countries were loaded and transported separately. In a fourth tank, ADM Hamburg mixed the oil from different consignments coming from each of the four relevant GSP countries.
  • On arrival of the goods in Germany, ADM Hamburg presented the certificates of origin Form A, requesting in respect of the whole palm kernel oil shipment the application of a preferential customs treatment under the scheme of generalised tariff preferences.
  • By notice of 8 December 2011, the Customs Office fixed the import duties without granting preferential treatment for the part of the consignment consisting of a mix of oils stored in the fourth tank and decided to impose, on that part of the consignment, import duties calculated at the full rate.
  • Following the rejection of its administrative complaint, ADM Hamburg brought an action before the Finanzgericht Hamburg (Finance Court, Hamburg) in which it requested the annulment of the import duty notice of 8 December 2011.
  • In support of its action, ADM Hamburg contends, inter alia, that the common storage of oils for transport purposes is origin-neutral, whereas the Customs Office takes the view that preferential customs treatment can be granted only to products in respect of which an absence of alteration is established; that has not been established in the present case.

Questions

Is the factual condition laid down in the first sentence of Article 74(1) of [Regulation No 2454/93], whereby the products declared for release for free circulation in the European Union must be the same products as exported from the beneficiary country in which they are considered to originate, fulfilled in a case such as the present case, where several consignments of crude palm kernel oil are exported from different GSP exporting countries, in which they are considered to originate, and imported into the European Union not as physically separate consignments, but are all exported after being poured into the same tank of the cargo vessel and imported as a mixture in that tank into the European Union, such that it can be ruled out that other products (not enjoying preferential treatment) have been put into the tank of the cargo vessel during the time the products were being transported until they were released for free circulation?


AG Opinion

The requirement of identity as laid down in the first sentence of Article 74(1) 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, as amended by Commission Regulation (EU) No 1063/2010 of 18 November 2010, whereby the products declared for release for free circulation in the European Union are to be the same products as exported from the beneficiary country in which they are considered to originate, is fulfilled in circumstances such as those underlying the present case where several consignments of crude palm kernel oil originating in different countries benefiting from the same preferential treatment have not been physically separated for the purpose of transport, but have been poured into the same tank of a cargo vessel and, as a result, have been imported as a mixture in that tank into the European Union.


Decision

Article 74(1) 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, as amended by Commission Regulation (EC) No 1063/2010 of 18 November 2010, must be interpreted as meaning that in a situation, such as that at issue in the main proceedings, where valid certificates of origin have been presented, the preferential origin, within the meaning of the generalised system of preferences established by Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007, of consignments of crude palm kernel oil may be recognised even where those products have been mixed in the tank of a vessel at the time of their transport to the European Union in circumstances where it is possible to rule out that other products, in particular products not benefiting from any preferential treatment, have been added to that tank.


 

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