Your tariff preference cancelled over an invalid certificate of origin

The case, in five lines

What is brought

Submissions before the assessment and, against it, a recurso de reposición (an appeal for reconsideration to the same authority) or a reclamación económico-administrativa (a claim before the tax and customs appeals boards). In parallel, an application for remission, or for repayment if you have already paid, on the ground of error by the exporting country's authorities (art. 119(3) UCC) and, in the alternative, on grounds of equity (art. 120). And the claim against the supplier for the loss.

Before which court

The assessment is issued by the customs office of the Agencia Estatal de Administración Tributaria (AEAT, the Spanish Tax Agency). The claim is filed through its electronic site and decided by the Tribunal Económico-Administrativo Regional (TEAR, the regional tax and customs appeals board), with a further appeal (alzada) to the Central board (TEAC) above €150,000, or by the TEAC if a central body issued the assessment. Remission is decided by customs, or by the European Commission in the cases of art. 116(3) UCC. Judicial review lies before the Sala de lo Contencioso-administrativo (administrative chamber) of the Tribunal Superior de Justicia (regional High Court of Justice) or of the Audiencia Nacional (National High Court) (arts. 10.1.d and 11.1.d of the Ley de la Jurisdicción Contencioso-administrativa, LJCA, the Administrative Jurisdiction Act).

Deadline

Thirty days to make submissions from the communication of grounds. One month to appeal the assessment; once it expires, the assessment is final. Three years from its notification to apply for remission or repayment, suspended while the appeal lasts and extendable only for unforeseeable circumstances or force majeure (art. 121 UCC). And before that, the time bar: the debt cannot be notified more than three years after the acceptance of each declaration (arts. 77(2) and 103(1)), save for facts that could amount to an offence.

Who can bring it

You, as declarant and debtor. If a customs representative declared under indirect representation, the representative is the declarant and you are also a debtor (art. 77(3) UCC), and remission only releases the person who obtains it (art. 124(5)): both should apply. The firm files the submissions, appeals and application under your power of representation (art. 46.2 of the General Taxation Act, LGT), without asking for your digital certificate.

Financial risk

If you lose, you pay the duty and VAT assessed, and appealing does not stop collection without a guarantee. Repayment carries no interest unless it is not carried out within three months of being granted (art. 116(6)). Where the debtor has acted deceptively, there is no remission (art. 116(5)), and if the facts may be an offence the matter goes to the criminal courts, where Managora does not handle the defence. Judicial review may end with an order to pay costs.

Why the claim comes now: the verification at origin and its clock

The preference is applied at the declarant's request if the goods meet the agreement's rules of origin (arts. 56(3) and 64(2) UCC), and the proof can be checked after clearance: when in doubt or at random, customs ask the exporting country's authorities to verify it. If they reply that the goods were not originating, or fail to reply in time and the doubts were well founded, the preference falls away. Under the Generalised Scheme of Preferences (GSP) the initial period for a reply is six months (arts. 107 and 109 of Implementing Regulation (EU) 2015/2447); under trade agreements, each origin protocol applies.

As far as customs are concerned, the debt is yours: the debtor is the declarant and, under indirect representation, also the person on whose behalf the declaration is made (art. 77(3) UCC), whatever the Incoterm says. And the Union Customs Code abolished the old Code's rule that barred post-clearance recovery where the authorities had erred: today customs assess the duty, and good faith is asserted by applying for remission or repayment (arts. 116 and 119), as the Commission's guidance explains and a recent TEAC criterion, not yet reiterated, holds.

What nobody tells you is that the verification abroad does not stop the clock. The debt arises on acceptance of each declaration (art. 77(2) UCC) and cannot be notified after three years (art. 103(1)); the period is suspended during an appeal and from the moment customs communicate their grounds until the period for submissions ends (art. 103(3)), not while the verification runs abroad. Because verifications take time, part of what is assessed is often already time-barred. If the facts could amount to an offence, the period rises to between five and ten years (art. 103(2); for reported smuggling, the fourth additional provision of Organic Law 12/1995).

EUR.1 or REX statement: the difference that decides your defence

Art. 119(3) UCC is the centrepiece: if the preference rests on a system of administrative cooperation and the exporting country's authorities issue an incorrect certificate, that is an error you could not reasonably have detected. EUR.1 and EUR-MED certificates are exactly that: certificates issued by those authorities at the exporter's request, under each agreement's origin protocol (for the preferences the Union grants unilaterally to certain countries or territories outside the GSP, art. 114 of the Implementing Regulation). With them, the law treats one of the two conditions in art. 119(1) as met; what remains is to prove good faith.

A statement on origin by an exporter registered in the REX (Registered Exporter system), or an invoice declaration by an approved exporter, is something else: the exporter itself certifies and no authority issues anything. Art. 119(3) is written for the authorities' certificate, and customs will argue that its presumption does not reach you. Your defence moves to the verification and the assessment, to equity under art. 120, which requires special circumstances with no deception or obvious negligence, and to the supplier. The same goes if the EUR.1 was forged: if no authority issued it, there was no error by the authorities.

With EUR.1 certificates, the battle is usually over the second subparagraph: there is no error if the certificate was based on an incorrect account of the facts by the exporter, unless it was evident that the authorities knew or should have known that the goods did not qualify. The verification reply will say why the certificate is invalid, and the strategy follows from that. And evidence is lost: according to the Court of Justice, if the verification cannot establish this because the exporter has closed or stopped production, the burden of proving that the certificate rested on a correct account of the facts falls on the importer. Ask your supplier for its records today.

Good faith is proved by what you did then, not by what you gather now

Good faith has a legal definition: you acted in good faith if you can show that, during the period of the operations, you took due care to ensure that all the conditions for preferential treatment were met (art. 119(3)). The key word is ‘during’: what you gather now does not prove the care you took then. What counts are the supplier's declarations on the origin of its materials, cost breakdowns, factory visits or audits, origin questionnaires, the check that the exporter was registered and the emails in which you asked questions when something did not add up.

And an exclusion with no nuance: good faith cannot be pleaded if the Commission published a notice in the Official Journal of the European Union that there are grounds for doubt about the proper application of the preferential arrangements by that country. The TEAC, in a criterion on anti-dumping duties reiterated on 26 November 2024, presumes that importers know the Official Journal. That is why we first check whether such a notice existed at the dates of your imports: if it did, art. 119(3) is closed and equity will run into the charge of negligence.

Customs will also look for warning signs: prices well below market, a product typical of another country, unexplained transhipments, a newly created supplier or documents that do not match. Obvious negligence rules out equity (art. 120(1)), and deception by the debtor rules out any repayment or remission (art. 116(5)). If there was a warning sign and you looked into it, the email with your question and the reply you received are worth more than any general declaration: they show that you made sure, which is what the rule requires.

Remission or repayment: deadline, who decides and when the Commission steps in

You apply for remission if you have not paid and for repayment if you have, within three years of notification of the debt (art. 121(1)(a) UCC): here, notification of the post-clearance assessment, as the TEAC holds in a criterion not yet reiterated. The period is suspended while the appeal against it lasts (art. 121(3)), including a claim before the appeals boards, as the TEAC decided on 19 November 2020, and is extended only for unforeseeable circumstances or force majeure. The application goes to Spanish customs, which notified the debt (art. 92 of Delegated Regulation (EU) 2015/2446).

Customs have thirty days to decide whether to accept the application and one hundred and twenty from acceptance to decide it, an extendable period (art. 22 UCC) that is suspended if the case goes to the Commission; with no decision, an appeal lies (art. 44(1)). If they reject the ground relied on, they must examine the others (art. 121(2)), but it is wise to plead equity in the alternative from the start. What nobody tells you: an application for remission requires the time limit for payment to be suspended until it is decided, if it is likely to succeed, against a guarantee save serious difficulties (art. 89 of the Delegated Regulation). And the goods having been sold is no bar if they are shown to be the same goods (art. 173 of the Implementing Regulation).

If customs intend to grant it and the amount reaches €500,000 for one or more operations, or the case is linked to a Union investigation, the Commission decides (art. 116(3) UCC), unless it has already decided, or is considering, a comparable case. First you will have thirty days to complete the file; the Commission has nine months, which may be extended, and if it intends to refuse it will give you another thirty days to answer its objections. If it does not decide or notify in time, customs must decide in your favour (arts. 98 to 102 of the Delegated Regulation). To refuse, however, customs do not need the Commission.

Against the assessment: submissions, appeal and stopping collection

Before assessing, customs must communicate their grounds and give you thirty days to respond (arts. 22(6) and 29 UCC and art. 8(1) of the Delegated Regulation), save for exceptions such as anti-fraud investigations. This is the best moment: you request a copy of the verification request and the reply, point out the time-barred declarations, challenge the verification and already provide the evidence of good faith, asking customs to apply art. 119 of their own motion, as art. 116(4) requires. Good submissions save years of appeals.

Once the assessment is notified, there is one month for the recurso de reposición or the claim before the appeals boards, never both at once (art. 222 LGT). The claim is filed through the electronic site of the body that issued the act (art. 235) and decided by the TEAR, or by the TEAC if a central body issued the assessment. Neither stops collection (art. 45(1) UCC): suspension is automatic with a deposit, bank guarantee or surety insurance, and a waiver is possible if collection would cause harm that is difficult or impossible to repair (art. 233 LGT). After that, two months for judicial review (art. 46.1 LJCA), with a lawyer and a procurador (court representative), both provided by the firm.

What is argued there is legality: the time bar, declaration by declaration; whether the doubts behind the verification were stated; whether the reply concerns your certificates; and the calculation. If the exporting country did not reply, TEAC doctrine, issued under the earlier rules, accepts the assessment if the request was based on well-founded doubts and was repeated, even without an acknowledgement of receipt. And good faith, according to the TEAC's most recent criterion, goes through remission, although doctrine of 22 July 2020, under the old Code, allowed it to be raised on appeal. That is why both routes are used: appealing costs you no time, because it suspends the remission deadline.

Your supplier: the debt is yours before customs, the loss is not

If the contract, the invoice or the offer promised preferential origin, or the supplier was to deliver the EUR.1 or the statement on origin, the proof turning out invalid is its breach, and the duty assessed and the costs are the loss you claim. Write to it as soon as you know: inform it of the verification, require it to cooperate with its authorities and hand over its records, and reserve your claim. Depending on the law of the contract there may be very short notice periods, and that letter is also evidence.

That claim is a civil one: the applicable law and the court follow from the contract, its jurisdiction or arbitration clause and the place of delivery. To sue in Spain, an appropriate dispute resolution method must be attempted first, a procedural precondition under art. 5 of Organic Law 1/2025 that does not apply to the claim before the appeals boards or to judicial review. Under Spanish law, the action becomes time-barred after five years (art. 1964.2 of the Civil Code). The quickest route is often to negotiate a credit note or a discount on future orders, in writing.

What nobody tells you is that the supplier's cooperation is worth more now than a lawsuit later: what it provides to its authorities decides the verification, and what it keeps decides the burden of proof if it closes down. A new certificate does not cure an invalidated one: the TEAC, in a non-binding criterion on the Pan-Euro-Mediterranean system, accepts retrospective issue of EUR.1 certificates only exceptionally, where they were not issued at the time because of involuntary errors or omissions or special circumstances. And coordinate the fronts: remission reduces what you can claim from the supplier, but what the supplier pays you does not reduce your debt to customs.

How we run the case, step by step

1. 1

   Pin down the dates of each declaration

   With the declarations, the communication of grounds and the assessment, we calculate, one by one, the time bar (art. 103 UCC), the month to appeal and the deadline for remission (art. 121).

2. 2

   Read the verification and the type of proof

   A copy of the verification request and its reply; whether the preference rested on a EUR.1 or EUR-MED certificate or on an exporter's statement; and whether the Official Journal published a notice of doubts about that country.

3. 3

   Respond within the thirty days

   If there is no assessment yet, the firm submits under your power of representation the time bar, flaws in the verification and documented good faith, and asks for art. 119 to be applied of customs' own motion (art. 116(4) UCC).

4. 4

   Appeal within the month and stop collection

   A recurso de reposición or a claim before the appeals boards within the month, with a request for suspension: a guarantee you arrange with your bank or insurer, or a waiver backed by evidence of the harm.

5. 5

   Apply for remission or repayment

   To the customs authority that notified the debt, on the ground of error by the authorities (art. 119(3)) and, in the alternative, equity (art. 120), with all the evidence from the outset in case it reaches the Commission, and with the suspension of payment under art. 89 of the Delegated Regulation.

6. 6

   Put the supplier on notice and claim

   A written demand enclosing the verification, requiring cooperation and reserving your rights; then the attempt at a negotiated solution under art. 5 of Organic Law 1/2025 and, failing agreement, the claim before the court with jurisdiction under the contract.

The law that applies

• Art. 119 del Código Aduanero de la Unión (Reglamento (UE) 952/2013). It provides for repayment or remission where an error by the authorities, undetectable for a debtor in good faith, led to less than the amount payable being notified. An incorrect certificate from the exporting country's authorities is such an error, unless based on an incorrect account by the exporter; good faith requires due care during the operations and is excluded by a notice of doubts in the Official Journal. 02013R0952-20221212
• Arts. 116, 120, 121 y 124 del Código Aduanero de la Unión. Grounds for repayment or remission, exclusion for deception by the debtor and referral to the Commission where customs intend to grant and the amount reaches €500,000 or there is a Union investigation; three years from notification, suspended during an appeal; equity with no deception or obvious negligence; and remission that releases only the person who obtains it. 02013R0952-20221212
• Arts. 77 y 103 del Código Aduanero de la Unión. The debt arises on acceptance of the declaration; the debtor is the declarant and, under indirect representation, also the person on whose behalf the declaration is made. It may only be notified within three years, or between five and ten if the act could be an offence, a period suspended during an appeal and the prior period for submissions. 02013R0952-20221212
• Arts. 22, 29, 44 y 45 del Código Aduanero de la Unión. Before an adverse decision, customs communicate their grounds and open a period for submissions; for decisions on application, acceptance is checked within 30 days and the decision taken within 120 of it. Any decision affecting a person directly and individually, or a failure to decide in time, may be appealed, and an appeal does not suspend the decision unless there are well-founded doubts or a risk of irreparable damage, against a guarantee where duty is payable. 02013R0952-20221212
• Arts. 8, 89, 92 y 97 a 102 del Reglamento Delegado (UE) 2015/2446. 30 days to be heard; suspension of the time limit for payment while a remission likely to succeed is decided, against a guarantee save serious difficulties; application in the Member State that notified the debt; and referral to the Commission: 30 days to complete the file, nine months to decide and a favourable decision if it fails to decide or notify in time. 02015R2446-20260701
• Arts. 107, 109, 173 y 177 del Reglamento de Ejecución (UE) 2015/2447. Under the GSP, the preference is refused if the verification denies the origin or the exporter's entitlement, or if there are well-founded doubts and no adequate reply in time, initially six months. Repayment or remission requires the goods to be presented or proved to be the same goods, with any formalities completed within 60 days at most. 02015R2447-20260701
• Arts. 222, 226, 233 y 235 de la Ley General Tributaria. Acts applying State taxes, customs acts included, may be challenged before the appeals boards within one month, by a claim lodged with the body that issued them, through its electronic site where electronic dealings are mandatory; reposición is optional and cannot run in parallel. They are suspended against a deposit, bank guarantee or surety insurance, or with a waiver where harm would be difficult or impossible to repair. BOE-A-2003-23186
• Arts. 10, 11 y 46 de la Ley de la Jurisdicción Contencioso-administrativa. Decisions of the regional appeals boards (TEAR) that end the administrative appeal route go to the administrative chamber of the Tribunal Superior de Justicia, and those of the TEAC to that of the Audiencia Nacional; two months from notification of the act ending the administrative route. BOE-A-1998-16718

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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