The Concept of ‘Good Faith’ in the Particular Case of Preferential Arrangements

Abstract

Under EU preferential trade arrangements reduced or zero rates of customs duties apply to goods originating in certain countries. However, a customs debt may be incurred when the certificate of origin of the goods is deemed to be incorrect. In such cases, import duties are collected by way of post-clearance recovery since imports should not have benefited initially from preferential treatment, whereas importers may plead good faith to claim the repayment or remission of customs duties. The plea of good faith is based on the grounds of an error made by the competent authorities themselves and on the fact that the debtor was not aware nor should be aware of the irregularities committed in the country of origin. Two issues arise: (1) to what extent are EU importers required to be aware of the irregularities committed in the countries of origin; and (2) what is the impact that a notice to importers published by the European Commission may have on the good faith of importers. The first issue depends basically on the scope of the principle of good faith, so it is necessary to take into account the degree of diligence (duty of care) that should be required to EU importers. The second issue deals with the minimum level of legal certainty that may be required by notices to importers which have a direct impact on the good faith and may therefore be decisive as to determine whether importers should have been aware of irregularities committed in the country of origin.