From the 11 to the 22 February 2013, in the context of an enquiry and administrative cooperation, as provided for under the provisions of Art 16 of Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences as amended, Member States of the European Anti-Fraud Office (OLAF) and representatives of Member States of the European Union (Italy, Germany, Spain and Belgium), visited Indonesia with the agreement of the Indonisian authorities, specifically, the Directorate of Trade Defence – Ministry of Trade of the Republic of Indonesia.
4.3.
Non-genuine manufacturer, not complying with the GPS regulations: [Bedrijf 2] (18-19 February 2013)
On the spot, it was found that [Bedrijf 2] has been purportedly taken
over by another Indonesian company, in December 2012. As the purchase of the company
was concluded in December 2012, the person claims to be its new manager (hereafter: the
new Manager) has not decided yet whether it will keep or change the company name, i.e.,
[Bedrijf 2] . The new manager stated that [Bedrijf 2] was purchased to
manufacture in the future steel fasteners for the local market.
According to the new Manager’s statement, [Bedrijf 2] was owned by a Chinese
company, and the former Managers left Indonesia after having sold the company in January,
2013. Following his statement, he purported that the former Manager removed some
equipment from the factory, in particular the loading and unloading ramps. He also stated
that the former activity of the company was the manufacturing of steel fasteners from semi
finished product. However, the new manager stated that former company stopped production in October, 2012. Moreover, the new Manager stated that he never saw the factory producing steel fasteners.
On the spot, at the premises of the factory there were five (5) heading machines, five (5)
threading machines, one (1) heat treatment machine and three (3) plating machines and
washing machines. These 14 machines are identical to those described and shown in the
company profile provided in September 2012 by the former management of the company to
the Batam Indonesia Free Trade Authority (BIFZA).
He also stated that the customers placed their orders to the sales office of [Bedrijf 2]
in China. The new Manager stated that [Bedrijf 2] have had more than
50 customers in the EU.
Some documentation related to export consignments of steel fasteners to EU, sales contracts and imports of steel fasteners from the PR China, remained at the office of the company. Among this documentation invoices were found of the machinery described above and office equipment imported into Indonesia from the PR China. The Team also found copies of imports of “fasteners” and of “steel products (fasteners)” from the PR China. All imports were invoiced by the same Chinese company, [naam Chinees bedrijf] Ltd.
No documentation was found related to payments, bank transactions, electricity consumption, water supplying and/or any other supplying of materials like pallets, cartons, etc, necessary for the alleged activity of the company, i.e., the manufacture of steel fasteners.
The new Manager stated that the former factory had around 44 workers. He was shown the quantities of steel fasteners exported to the EU during 2010 to 2012, and he stated that it was impossible to manufacture such amount of steel fasteners with the equipment and
machinery installed in the factory.
In addition to the visit of the premises of the factory, a visit was paid to the forwarding
agency [naam forwarding agency] , in Batam Island. The sales Manager of [naam forwarding agency] stated that the agency have
arranged the transport for the consignments imported by [Bedrijf 2] from the PR
China to Singapore, and afterwards to Batam, and the transport of similar consignments of
steel fasteners exported from Batam to the EU, via Singapore. [naam forwarding agency] Sales Manager
confirmed to the EU mission team that the last importation arranged on behalf of [Bedrijf 2] was for six (6) containers of steel fasteners shipped at the Port of Ningbo, PR China, on 18 October 2012.
Based on the findings mentioned above, it is concluded that [Bedrijf 2] did not
have real capacity to manufacture steel fasteners, neither from raw material and/or from
semi finished products, as they claimed to BIFZA. Therefore, the “semi finished” products, as described on the invoices issued by Ningbo Jinding Fasteners, imported from PR China into Batam was actually “finished product, and the same product imported from PR China, was re-exported to the EU.
5 Mission conclusions in relation with the GSP certificates of Indonesian Preferential Origin Form A.
5.2.
[Bedrijf 2]
As explained in point 4.3, the company never manufactured steel fasteners in Batam but
exported unduly to the EU finished Chinese products under the cover of authentic certificates of origin GSP Form A. These certificates were issued by the Batam Indonesia Free Zone Authority (BIFZA) on the basis of false and misleading information provided by the company [Bedrijf 2] , for the alleged shipment of steel fasteners to the EU.
Therefore these certificates do not comply with the GSP rules of origin, they are invalid and
have been withdrawn by the Directorate of Export and Import Facilitation. A list of the
certificates which fall into this category is attached as Annex 4.”
7. Annex 4 bij de ‘Agreed Joint Minutes’ draagt het opschrift ‘GPS certificates - [Bedrijf 2] ’. Op de lijst staan onder meer de aan [Bedrijf 2] afgegeven Forms A met de nummers [Kenmerk] , [Kenmerk] , [Kenmerk] , [Kenmerk] , [Kenmerk] en [Kenmerk] .
8. Het ‘final report’ van de OLAF met nummer [Kenmerk] houdt – voor zover van belang – onder meer in:
2.2.2.
Post-mission action concerning the GSP certificates of origin identified after the mission by the Member States.
In relation with the exporter [Bedrijf 2] , the Joint Agreed Minutes stated that “the company.. exported unduly to the EU finished Chinese products under the cover of authentic certificates of origin GSP Form A. These certificates were issued by the Batam Indonesia Free Zone Authority (BIFZA) on the basis of false and misleading information provided by the company [Bedrijf 2] .. Therefore these certificates do not comply with the GSP rules of origin; they are invalid.”.
Lists of the related certificates of origin already identified by the Member States were also attached to the Joint Agreed Minutes (Annexes 2 to 5).
It was agreed at this time that, with regard to the certificates of origin Form A bearing the names of the above-mentioned companies, these would be identified after the mission by the Member States, and the Directorate of Export and Import Facilitation would confirm at OLAF’s request that these GSP certificates of origin Form A were false/forged or based on misleading information provided by the companies in question and were therefore invalid.
The related GSP certificates of origin were listed in the Annex 1 of the OLAF letter to the Directorate of Export and Import Facilitation of 12 June 2013 (Thor (2013) 14461).
By message of 5 July 2013 and reminder of 26 August 2013 (Thor (2013) 21377), OLAF requested the Directorate of Export and Import Facilitation to deal with this as a matter of particular urgency. To date, however, no reply has been received from the Indonesian authorities.”
Nu de door de rechtbank vastgestelde feiten door partijen op zichzelf niet zijn bestreden, zal ook het Hof daarvan uitgaan.
2.2.
In aanvulling op de door de rechtbank vastgestelde feiten stelt het Hof de volgende feiten vast.
In de door de rechtbank onder punt 6 aangehaalde ‘Agreed Joint Minutes’ is onder 5.1. het volgende vermeld:
“5.1. [Bedrijf 1] <overige bedrijfsnamen onleesbaar gemaakt>
In addition to the ones mentioned in point 4, several other operators were also the subject of the current investigation; the companies [Bedrijf 1] <overige bedrijfsnamen onleesbaar gemaakt>.
On the occasion of the preparatory meeting of December 2012 and the opening meeting of the present mission on 11 Februari 2013, the Directorate of Export and Import Facilitation (Min of Trad) reported to OLAF their findings as regards to their checks on the seven operators mentioned above. They confirmed to the EU-OLAF team that the seven Indonesian operators selected and located in the Province of Jakarta are currently non-existent.
They also established that the GSP certificates, provided by OLAF, presented at import into the EU and related to these seven Indonesian exporters, were actually issued in favor of other companies.
In addition, no records of imports or exports of the products concerned by these companies were found by the Directorate of Customs and Excise of Indonesia. Therefore, these companies never carried out any importation into Indonesia and any exportation from Indonesia. It is accepted that the fasteners in question were never shipped through from Indonesia
(…)
It is concluded that false or forged certificates of origin GSP Form A in the name of the companies [Bedrijf 1] <overige bedrijfsnamen onleesbaar gemaakt> were presented at import into the EU and that these certificates are, therefore, invalid.
(…)”
3. Geschil in hoger beroep