Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

12 October 2017 (*)

(Reference for a preliminary ruling - Implementing Regulation (EU) No 412/2013 - Article 1(3) - Community Customs Code - Article 78 - Rule making the application of individual anti-dumping duty rates conditional upon presentation of a valid commercial invoice - Whether a valid commercial invoice may be presented after the customs declaration - Refusal to refund)

In Case C‑156/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Finanzgericht München (Finance Court, Munich, Germany), made by decision of 25 February 2016, received at the Court on 17 March 2016, in the proceedings,

Tigers GmbH

v

Hauptzollamt Landshut,

THE COURT (Eighth Chamber),

composed of J. Malenovský (Rapporteur), President of the Chamber, D. Šváby and M. Vilaras, Judges,

Advocate General: P. Mengozzi,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 16 March 2017,

after considering the observations submitted on behalf of:

–        Tigers GmbH, by G. Eder and J. Dehn, Rechtsanwälte,

–        Hauptzollamt Landshut, by G. Pieper, acting as Agent,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by L. Grønfeldt, T. Maxian Rusche and N. Kuplewatzky, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 15 June 2017,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 1(3) of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2013 L 131, p. 1) and Article 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’).

2        The request has been made in proceedings between a German company, Tigers GmbH (‘Tigers’), and the Hauptzollamt Landshut (Principal Customs Office, Landshut, Germany) (‘the Customs Office’) concerning the latter’s refusal to accede to an application for a partial refund of anti-dumping duty.

 Legal context

 The anti-dumping legislation

 Regulation (EU) No 1072/2012

3        Article 1 of Commission Regulation (EU) No 1072/2012 of 14 November 2012 imposing a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China (OJ 2012 L 318, p. 28) provides:

‘1.      A provisional anti-dumping duty is hereby imposed on imports of ceramic tableware and kitchenware, excluding ceramic knives, currently falling within CN codes ex 6911 10 00, ex 6912 00 10, ex 6912 00 30, ex 6912 00 50 and ex 6912 00 90 (TARIC codes 6911 10 00 90, 6912 00 10 11, 6912 00 10 91, 6912 00 30 10, 6912 00 50 10 and 6912 00 90 10) and originating in the People’s Republic of China.

2.      The rate of the provisional anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below, shall be as follows:

3.      The application of the provisional anti-dumping duty rates specified for the companies mentioned in paragraph 2 shall be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in the Annex II. If no such invoice is presented, the duty applicable to all other companies shall apply.

4.      The release for free circulation in the Union of the product referred to in paragraph 1 shall be subject to the provision of a security, equivalent to the amount of the provisional duty.

5.      Unless otherwise specified, the provisions in force concerning customs duties shall apply.’

 Implementing Regulation No 412/2013

4        Under recital 229 of Implementing Regulation No 412/2013:

‘In order to minimise the risks of circumvention due to the high difference in the duty rates, it is considered that special measures are needed in this case to ensure the proper application of the anti-dumping duties. These special measures include the presentation to the Customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in Annex II to this Regulation. Imports not accompanied by such an invoice shall be made subject to the residual anti-dumping duty applicable to all other exporters.’

5        Article 1 of that implementing regulation provides:

‘1.      A definitive anti-dumping duty is hereby imposed on imports of ceramic tableware and kitchenware, excluding ceramic knives, ceramic condiment or spice mills and their ceramic grinding parts, ceramic peelers, ceramic knife sharpeners and cordierite ceramic pizza-stones of a kind used for baking pizza or bread, currently falling within CN codes ex 6911 10 00, ex 6912 00 10, ex 6912 00 30, ex 6912 00 50 and ex 6912 00 90 (TARIC codes 6911 10 00 90, 6912 00 10 11, 6912 00 10 91, 6912 00 30 10, 6912 00 50 10 and 6912 00 90 10) and originating in the PRC. 

2.      The rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below, shall be as follows:

3.      The application of the individual anti-dumping duty rates specified for the companies mentioned in paragraph 2 shall be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in Annex II. If no such invoice is presented, the duty applicable to “All other companies” shall apply.

4.      Unless otherwise specified, the provisions in force concerning customs duties shall apply.’

6        Annex II to Implementing Regulation No 412/2013 states:

‘A declaration signed by an official of the entity issuing the commercial invoice, in the following format, must appear on the valid commercial invoice referred to in Article 1(3):

(1)      The name and function of the official of the entity issuing the commercial invoice.

(2)      The following declaration: “I, the undersigned, certify that the (volume) of ceramic tableware and kitchenware sold for export to the European Union covered by this invoice was manufactured by (company name and address) (TARIC additional code) in (country concerned). I declare that the information provided in this invoice is complete and correct.”

(3)      Date and signature.’

 The Customs Code

7        Under Article 62 of the Customs Code:

‘1.      Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

2.      The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.’

8        Article 78 of the Customs Code provides:

‘1.      The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.

2.      The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced.

3.      Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

9        On 17 December 2012, Tigers imported into Germany ceramic tableware and other ceramic kitchenware from the People’s Republic of China. Those goods were thereupon made subject to the provisional anti-dumping duty imposed by Regulation No 1072/2012.

10      On that same day, Tigers submitted to the Customs Office the customs declaration for the goods imported and presented to it a commercial invoice. That declaration described the goods as being ceramic ware, giving as the TARIC additional code the code B999, that is to say, the code corresponding to imports from ‘all other companies’ not listed in Regulation No 1072/2012.

11      Also on 17 December 2012, the Customs Office inspected the goods on its premises and, in each case, replaced TARIC additional code B999, which had been declared, with TARIC additional code B354, that is to say, the code corresponding to imports from producers/exporters listed in Annex I to Regulation No 1072/2012.

12      However, given that, at the time when those goods were imported, the invoice presented by Tigers was not accompanied by a declaration signed by the manufacturer and did not therefore meet the requirements set out in Annex II to Regulation No 1072/2012, the Customs Office, acting pursuant to that regulation, ordered Tigers to lodge a cash security corresponding to a provisional anti-dumping duty calculated on the basis of a customs duty rate of 58.8%.

13      Following the adoption of Implementing Regulation No 412/2013, the Customs Office, acting in accordance with that regulation, on 28 June 2013 imposed on Tigers’ imports a definitive anti-dumping duty calculated on the basis of an anti-dumping duty rate of 36.1%, relating to ‘all other companies’ not listed in Implementing Regulation No 412/2013, without requesting Tigers to produce a valid commercial invoice meeting the requirements set out in Annex II to Implementing Regulation No 412/2013.

14      By letter dated 4 July 2013, Tigers produced the original of the invoice, including a declaration signed by the manufacturer, and applied for a refund of the anti-dumping duty which it considered to have been unduly paid as a result of its having been charged a definitive anti-dumping duty rate of 36.1% applicable to ‘all other companies’ not listed in Implementing Regulation No 412/2013 rather than the 17.9% rate applicable to imports from companies listed in Annex I to that regulation.

15      By decision of 2 October 2013, the Customs Office refused Tigers’ application for a refund on the ground that a valid commercial invoice which was drawn up or presented retrospectively could not be accepted.

16      By letter of 4 November 2013, the applicant in the main proceedings submitted a pre-action complaint against that decision and, on 5 May 2014, submitted an amended invoice drawn up by the manufacturer.

17      By decision of 24 February 2015, the Customs Office dismissed Tigers’ complaint. It considered that, for the purposes of eligibility for the individual anti-dumping duty rate, the invoice accompanied by the corresponding declaration by the manufacturer, which had been presented retrospectively along with the application for a refund and then further amended in the course of the complaint procedure, ought to have been presented at the time when the customs declaration was accepted.

18      Tigers brought an action before the Finanzgericht München (Finance Court, Munich, Germany) against the decision of the Customs Office refusing its application for a refund.

19      In those circumstances, the Finanzgericht München (Finance Court, Munich) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1.      Does Article 1(3) of [Implementing Regulation No 412/2013] allow a valid commercial invoice presented for the purposes of the initial fixing of a definitive anti-dumping duty to be submitted retrospectively where all the other conditions necessary for obtaining an individual anti-dumping duty rate are satisfied?

2.      In the event that the first question is answered in the negative:

Does Article 78 of [the Customs Code] preclude the customs authority, in the course of a revision procedure, from refusing to refund an anti-dumping duty on the ground that the declarant did not present a valid commercial invoice until after the customs declaration had been made?’

 Consideration of the questions referred

 The first question

20      By its first question, the referring court asks, in essence, whether Article 1(3) of Implementing Regulation No 412/2013 must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of a valid commercial invoice, for the purposes of fixing a definitive anti-dumping duty, in the case where all the other preconditions necessary for obtaining a company-specific anti-dumping duty rate are satisfied.

21      According to settled case-law, for the purpose of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 16 November 2016, Hemming and Others, C‑316/15, EU:C:2016:879, paragraph 27 and the case-law cited).

22      As regards the wording of Article 1(3) of Implementing Regulation No 412/2013, that wording provides for the application of an individual anti-dumping duty rate to be conditional on the presentation, to the customs authorities of the Member States, of a valid commercial invoice conforming to the requirements set out in Annex II to that regulation. If no such invoice is presented, the rate of duty applicable to all other companies, not listed in that regulation, is to apply.

23      It follows clearly from that wording, in particular from the word ‘conditional’, that the presentation, to the customs authorities, of a valid commercial invoice conforming to the requirements set out in Annex II to that regulation is an indispensable condition for the application of an individual anti-dumping duty rate.

24      By contrast, that wording provides no information whatsoever as to when that invoice must be presented. Therefore, that wording does not preclude an invoice, which meets all the requirements set out in Article 1(3) of Implementing Regulation No 412/2013, from being presented to the customs authorities after the customs declaration has been made.

25      As regards the context of which that Article 1(3) forms part, it must be stated at the outset that, as the Advocate General has noted in point 60 of his Opinion, no other provision of Implementing Regulation No 412/2013, unlike other anti-dumping regulations, specifies the point in time at which a valid commercial invoice must be presented to the customs authorities.

26      In those circumstances, Article 1(3) of Implementing Regulation No 412/2013 must be interpreted as not precluding the importers concerned from presenting such an invoice after the customs declaration has been made.

27      However, since that regulation does not include any provision which, pursuant to Article 1(4) thereof, would render the provisions in force in the field of customs duties inapplicable, the derailed rules on lodging and checking the customs declaration of goods subject to anti-dumping duties are governed by the Customs Code.

28      In that respect, it must be held that that code does not expressly state when a commercial invoice must be presented. Moreover, while Article 62(2) of the Customs Code indicates that the declaration must be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared, including, evidently, a commercial invoice, that provision does not specify the consequences linked to a lack of conformity of the documents accompanying that declaration, such as the commercial invoice at issue in the main proceedings.

29      That said, in that respect, Article 78 of that code establishes a procedure enabling customs authorities, on their own initiative or at the request of the declarant, to amend the customs declaration after release of the goods covered by that declaration, that is to say, after that declaration has been made.

30      To that effect, those authorities may, pursuant to Article 78(1) and (2), first, amend the customs declaration, namely re-examine it, and, second, inspect relevant documents and data in order to ensure the accuracy of the particulars contained in the declaration. If that re-examination or those inspections show that the provisions governing the customs procedure in question have been applied on the basis of incorrect or incomplete information, the customs authorities must, in accordance with Article 78(3), take the measures necessary to regularise the situation, taking account of the new information available to them.

31      It thus follows from Article 78 of the Customs Code as a whole that it is permissible to present new material which may be taken into consideration by the customs authorities after the customs declaration has been made. The specific logic of that article is to bring the customs procedure into line with the actual situation (see, to that effect, judgment of 10 December 2015, Veloserviss, C‑427/14, EU:C:2015:803, paragraph 26 and the case-law cited).

32      There is nothing to indicate that a valid invoice, which complies with the requirements set out in Annex II to Implementing Regulation No 412/2013, is excluded from that material.

33      That conclusion is corroborated by the objectives pursued by Implementing Regulation No 412/2013.

34      Under Recital 229 of that implementing regulation, it is considered necessary, in order to minimise the risks of circumvention due to the high difference in the duty rates, to take special measures to ensure the proper application of anti-dumping duties.

35      Such an application is ensured when the anti-dumping duties are fixed in the light of material the accuracy of which it has been possible to verify, if necessary by having recourse to the procedure under Article 78 of the Customs Code.

36      Consequently, in light of the fact that the objective of Implementing Regulation No 412/2013 is to minimise the risks of circumvention by a proper application of anti-dumping duties, it must be regarded as allowing the importers concerned to present a valid commercial invoice also after the customs declaration has been made.

37      In the case in the main proceedings, it is apparent from the documents before the Court that, during the checking of the customs declaration by the competent authorities, those authorities established that the imported goods originated from one of the companies listed in Annex I to Implementing Regulation No 412/2013 and that the importation of those goods therefore had to be subject to the individual anti-dumping rate applicable to imports from those companies.

38      Consequently, there does not appear to be any risk of circumvention linked to the high difference between the duty rates; this, however, is a matter for the referring court to verify.

39      In the light of the foregoing considerations, the answer to the first question is that Article 1(3) of Implementing Regulation No 412/2013 must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of a valid commercial invoice, for the purposes of fixing a definitive anti-dumping duty, in the case where all the other preconditions necessary for obtaining a company-specific anti-dumping duty rate are satisfied and compliance with the proper application of the anti-dumping duties is ensured, this being a matter for the referring court to verify.

 The second question

40      In the light of the answer given to the first question, there is no need to reply to the second question.

 Costs

41      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Eighth Chamber) hereby rules:

Article 1(3) of Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People’s Republic of China must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of a valid commercial invoice, for the purposes of fixing a definitive anti-dumping duty, in the case where all the other preconditions necessary for obtaining a company-specific anti-dumping duty rate are satisfied and compliance with the proper application of the anti-dumping duties is ensured, this being a matter for the referring court to verify.

[Signatures]

*      Language of the case: German.

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