delivered on 15 June 2017 (1)

Case C‑156/16

(Request for a preliminary ruling from the Finanzgericht München (Finance Court, Munich, Germany))

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

Where a regulation imposing definitive anti-dumping duties makes the application of individual duty rates conditional upon presentation of an invoice meeting certain formal requirements, may an importer produce such an invoice after having presented the customs declaration, in particular during a procedure for the post-clearance inspection of that declaration? Or, in order to qualify for an individual anti-dumping duty rate, is it always necessary for such an invoice to be produced in tandem with the presentation of the customs declaration?

That, in essence, is the question which has arisen in the present case, which concerns a request from the Finanzgericht München (Finance Court, Munich, Germany) for a preliminary ruling on 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 (2) and Article 78 of Regulation (EEC) No 2913/92. (3)

That request was made in the course of a dispute between a German undertaking, Tigers GmbH and the Hauptzollamt Landshut (Principal Customs Office, Landshut, Germany, ‘the Customs Office’) concerning the latter’s refusal to grant an application by Tigers for a partial refund of the anti-dumping duty which it had been charged under Implementing Regulation No 412/2013 for importing ceramic ware into Germany.

The issue underlying the present case arises from a practice whereby the German customs authorities exclude any retrospective presentation of an invoice meeting the formal requirements necessary for the application of individual anti-dumping duty rates. That issue, which has a not insignificant impact on customs practices, is the subject of some debate in both case-law and legal commentary in Germany.

Legal framework

The anti-dumping legislation

On 14 November 2012, the European Commission adopted Regulation (EU) No 1072/2012 imposing a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People’s Republic of China. (4) Article 1 of that regulation laid down different individual rates of provisional anti-dumping duty for different categories of producer/exporter. Under that provision, imports from certain companies listed in Annex I to that regulation were subject to a rate of 26.6% (the TARIC additional code corresponding to which was B354) and imports from all other companies not listed in Regulation No 1072/2012 were subject to a rate of 58.8% (the TARIC additional code corresponding to which was B999).

The company Chaozhou Wingoal Ceramics Industrial Co Ltd (‘CWCI’) was among the producers/exporters listed in Annex I to Regulation No 1072/2012.

Article 1(3) of Regulation No 1072/2012 stated that the application of the individual provisional anti-dumping duty rates was conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice meeting the requirements set out in Annex II to that regulation, (5) and that, if no such invoice were presented, the duty rate of 58.8% applicable to all other companies would apply. Paragraph 5 of that article referred to the provisions in force concerning customs duties as being applicable.

On 13 May 2013, the Council adopted Implementing Regulation (EU) No 412/2013.

Recital 229 of that implementing regulation states:

‘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 the 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’.

Article 1(2) of Implementing Regulation (EU) No 412/2013 laid down the definitive anti-dumping duty rates applicable to the goods concerned. Under that provision, imports from certain companies listed in Annex I to that implementing regulation — including CWCI — were subject to an individual rate of definitive anti-dumping duty of 17.9% and imports from all other companies not listed in that implementing regulation were subject to a rate of 36.1%.

Article 1(3) and (4) of Implementing Regulation No 412/2013 provide:

‘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 be conform to the requirements set out in Annex II. If no such invoice is presented, the duty applicable to “All other companies” shall apply.

Annex II to Implementing Regulation (EU) No 412/2013 stipulates:

‘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

Article 62 of the Customs Code provides:

‘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.

According to Article 63 of the Customs Code:

‘Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs’.

According to Article 68 of the Customs Code:

‘For the verification of declarations which they have accepted, the customs authorities may:

(a) examine the documents covering the declaration and the documents accompanying it. The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration;

(b) examine the goods and take samples for analysis or for detailed examination.’

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.

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

On 17 December 2012, Tigers imported into Germany various items of CWCI ceramic tableware and kitchenware. At the time of importation, those products were liable to provisional anti-dumping duty under Regulation No 1072/2012.

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

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

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

Following the adoption of Implementing Regulation No 412/2013 on 13 May 2013, on 28 June 2013, the Customs Office, acting in accordance with that implementing regulation, imposed on Tigers’ imports a definitive anti-dumping duty calculated on the basis of an anti-dumping duty rate of 36.1%, without asking Tigers to produce a valid commercial invoice meeting the requirements set out in Annex II to Implementing Regulation No 412/2013.

On 4 July 2013, Tigers produced the original of the invoice, including a signed declaration by CWCI, and applied for a refund of the anti-dumping duty which it considered itself to have overpaid as a result of having been charged the 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 implementing regulation.

On 2 October 2013, the Customs Office refused the application for a refund on the ground that a valid commercial invoice drawn up or presented retrospectively was unacceptable.

By letter of 4 November 2013, Tigers raised an objection to that decision and on 5 May 2014, Tigers presented an amended invoice, drawn up by CWCI.

By decision of 24 February 2015, the Customs Office dismissed Tigers’ objection too. 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 objection proceedings, should have been presented at the time when the customs declaration was accepted.

Tigers’ action against the Customs Office’s decision refusing its application for a refund was brought before the Finanzgericht München (Finance Court, Munich). In the course of that dispute, that court decided to stay the proceedings and 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?’

Procedure before the Court

The order for reference was received at the Court Registry on 17 March 2016. Written observations were lodged by the Polish Government, Tigers, the Customs Office and the European Commission. Tigers and the Commission took part in the hearing held on 16 March 2017.

Analysis

Preliminary observations

As a preliminary point, I would note, first, that, as is clear from point 24 of the present Opinion, Tigers presented a valid commercial invoice meeting the requirements set out in Article 1(3) of, and Annex II to, Implementing Regulation No 412/2013 to the German customs authorities in the course of the objection proceedings which it had initiated against the decision refusing its application for an anti-dumping duty refund.

Secondly, I would also note that the referring court explicitly stated that an application for a refund such as that made by Tigers amounts in essence to an application for the post-clearance inspection of a declaration under Article 78 of the Customs Code.

In those circumstances, I consider that the two questions referred for a preliminary ruling by the referring court must be analysed together. They seek, in essence, to ascertain whether Article 1(3) of Implementing Regulation No 412/2013 must be interpreted as meaning that, for the purposes of the imposition of a definitive anti-dumping duty, it precludes an importer from presenting a valid commercial invoice meeting the requirements set out in Annex II to that implementing regulation retrospectively, in particular in the course of a procedure initiated under Article 78 of the Customs Code, where all the other conditions necessary for obtaining an individual anti-dumping duty rate are satisfied.

In that regard, the referring court leans towards an interpretation of Article 1(3) of Implementing Regulation No 412/2013 as meaning that a valid commercial invoice may still be presented after the customs declaration has been accepted, at the very least where this occurs in the course of an amendment procedure under Article 78 of the Customs Code. It considers, after all, that EU law contains no provision which rules out the possibility of presenting a valid commercial invoice retrospectively in this way. More precisely, there is no legal basis capable of prohibiting a declarant from supplementing his customs declaration, which, moreover, he drew up in accordance with the rules laid down, by presenting a valid commercial invoice.

The applicant and the Commission concur with the referring court’s view. The Customs Office and the Polish Government, on the other hand, support the opposing proposition.

Before analysing the substance of the question raised by the request for a preliminary ruling, it is necessary to consider the Commission’s observation that the facts in the main proceedings fall within the scope not of Implementing Regulation No 412/2013, which imposed a definitive anti-dumping duty and was not adopted by the Council until after the import operation at issue took place, but of Regulation No 1072/2012, which imposed provisional anti-dumping duty and the provisions of which are therefore applicable to the import operation carried out by Tigers. On the basis of that finding, the Commission proposes that the questions referred for a preliminary ruling be reformulated accordingly.

In that regard, it is true that, when the import operation at issue took place, it was Regulation No 1072/2012 that was in force. However, the provisional anti-dumping duty imposed by that regulation was, in essence, subsequently ‘replaced’ by the definitive anti-dumping duty imposed by Implementing Regulation No 412/2013. Moreover, both regulations provided, in the same terms, that the application of the individual (provisional and definitive) anti-dumping duty rates was conditional upon presentation of a valid commercial invoice.

Now, the dispute in the main proceedings concerns the amount of the definitive anti-dumping duty as laid down in Implementing Regulation No 412/2013. Moreover, as is apparent from point 24 of the present Opinion, Tigers provided the valid commercial invoice on 5 May 2014, by which time Implementing Regulation No 412/2013 was in force.

For all of those reasons, the request for a preliminary ruling rightly seeks an interpretation of Implementing Regulation No 412/2013. I do not therefore see any need to reformulate the questions referred as the Commission has proposed.

First of all, it should be noted that, pursuant to Article 1(3) of Implementing Regulation No 412/2013, the application of the individual anti-dumping duty rates provided for in that implementing regulation is conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice meeting the requirements set out in Annex II to that implementing regulation.

It follows from the use of the word ‘conditional’ in that provision that the presentation of such a valid commercial invoice is a sine qua non for the application of individual anti-dumping duty rates. Thus, where such an invoice is not presented at customs, the individual rates may not be applied to imports of the goods concerned and those imports must be made subject to the general rate laid down for imports from ‘[a]ll other companies’.

In that regard, it follows from recital 229 of Implementing Regulation No 412/2013 that the rationale behind that ‘reinforced’ formal requirement is to minimise the risks of circumvention and to ensure the proper application of the anti-dumping duties.

However, neither Article 1(3) of Implementing Regulation No 412/2013 nor any other provision of that implementing regulation specifies when that invoice must be presented at customs.

Since Article 1(4) of Implementing Regulation No 412/2013 refers to the provisions in force concerning customs duties, the question as to whether such an invoice may be presented retrospectively must be assessed in the light of the Customs Code. That assessment must, however, take account of the circumstances of the case in the main proceedings.

In the present case, it is clear from the documents before the Court that, at the time when the goods concerned were imported, Tigers presented a customs declaration concerning the goods which it was importing, pursuant to Article 62(1) of the Customs Code. That declaration, which was accompanied by an invoice, was accepted by the German customs authorities, in accordance with Article 63 of that code.

On the very day on which the customs declaration was presented at customs, the German customs authorities verified that declaration in accordance with Article 68 of that code, by examining both the documents and the goods in question, pursuant to the provisions of subparagraphs (a) and (b) of that article.

As is apparent from points 19 and 20 of the present Opinion, during that verification, the authorities noticed, first, that there were inaccuracies in the declaration inasmuch as it contained the wrong TARIC additional code and, secondly, that the invoice provided did not meet the formal requirements laid down in Article 1(3) of, and Annex II to, Regulation No 1072/2012 (which requirements are the same as those laid down in Implementing Regulation No 412/2013).

During that examination, the German customs authorities also found, however, that the imported goods came from the company CWCI, that is to say from one of the producers/exporters listed in Annex I to that regulation. This fact is apparent from the order for reference and is not disputed by the Customs Office. It was for this reason that the Customs Office corrected the incorrect TARIC code.

The German customs authorities therefore applied the (higher) general anti-dumping duty rate applicable to imports from ‘[a]ll other companies’ for the sole reason that the invoice accompanying the customs declaration did not meet the formal requirements of the anti-dumping legislation, even though they had found that the imported goods came from a producer/exporter whose imports were subject to a lower individual rate.

Following the imposition of the definitive anti-dumping duty pursuant to Implementing Regulation No 412/2013, Tigers, notwithstanding that the goods had already been released, disputed the imposition of the anti-dumping rate applicable to imports from ‘[a]ll other companies’ and, in an application for a refund, sought to have applied to it the individual anti-dumping rate applicable to imports from CWCI. In the course of the refund procedure, which, as I noted in point 29 of the present Opinion, amounts in essence to a procedure for a post-clearance inspection of the declaration under Article 78 of the Customs Code, Tigers finally produced a valid commercial invoice meeting the requirements set out in Annex II to Implementing Regulation No 412/2013.

In that regard, it should be recalled that, according to case-law, Article 78 of the Customs Code introduces a procedure enabling the customs authorities, if necessary on their own initiative, to make a post-clearance amendment to the customs declaration, that is to say, after release of the goods covered by that declaration.

To that end, those authorities may, under Article 78(1) of the Customs Code, amend the customs declaration, that is to say re-examine it.

Under Article 78(2) of the Customs Code, furthermore, the customs authorities may, 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.

The Court has already held on several occasions that the specific logic of Article 78 of the Customs Code is to bring the customs procedure into line with the actual situation by correcting material errors or omissions as well as errors of interpretation of the applicable law.

Moreover, that logic is consistent with the purpose of that code, which, according to recital 5 thereof, is, in particular, to ensure the correct application of the duties provided for therein.

The Court has thus held that, if the amendments or inspections provided for in Article 78(1) and (2) of the Customs Code indicate that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them, even if the declarant, by his conduct, has directly affected the ability of the customs authorities to carry out inspections.

The Court has also held that the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation if the abovementioned amendments or inspections indicate that the objectives of the customs procedure in question are not threatened.

The situation in the present case is, first, that, during the procedure which the German authorities initiated at Tigers’ request under Article 78 of the Customs Code, that undertaking provided a commercial invoice meeting the requirements laid down in Annex II to Implementing Regulation No 412/2013, and, secondly, that it would appear from the material in the documents before the Court that the objectives of the anti-dumping regime in question were not threatened.

After all, as I noted in point 45 of the present Opinion, there is no doubt — and it is not disputed — that the goods imported by Tigers did indeed come from one of the undertakings listed in Annex I to that implementing regulation and that their importation should therefore have been made subject to an individual anti-dumping duty rate applicable to imports from those companies.

In those circumstances, it would appear that, in the present case, there was no risk of circumvention as referred to in recital 229 of Implementing Regulation No 412/2013, with the result that the proper application of the anti-dumping duties was not jeopardised. It is for the referring court to establish definitively that this was the case.

In the complete absence of any risk of a threat to the objectives of the anti-dumping regime at issue, there was nothing to prevent the customs authorities, with a view to bringing the customs procedure into line with the actual situation in a manner consistent with the specific logic of Article 78 of the Customs Code as referred to in point 51 of the present Opinion, from taking into account the production, during the procedure initiated under that article, of a valid commercial invoice meeting the requirements set out in Annex II to Implementing Regulation No 412/2013.

I would make the point here that the fact that Article 78(2) of the Customs Code gives customs authorities the option of analysing the commercial documents and data relating to subsequent commercial operations involving the same goods demonstrates that, in carrying out the inspection provided for in that provision, those authorities are indeed at liberty to take into consideration documents other than those which accompanied the customs declaration in accordance with Article 62(2) of the Customs Code. The argument put forward by the Customs Office, to the effect that the latter provision prevents an invoice meeting the requirements set out in Annex II to Implementing Regulation No 412/2013 from being taken into consideration retrospectively in the course of a procedure initiated under Article 78 of the Customs Code, cannot therefore be upheld.

I would also note that, in circumstances where there is no risk of circumvention, a solution which enables customs authorities to bring the customs procedure into line with the actual situation by retrospectively taking into consideration a valid commercial invoice does not run counter either to the provisions or to the spirit of Implementing Regulation No 412/2013, since that regulation, unlike others, does not specify when such an invoice must be presented.

Moreover, as the Commission noted at the hearing, in a situation where there is no risk of circumvention, the application to imports of a higher anti-dumping duty rate than that which was actually prescribed for the company producing the imported products runs counter to the very spirit of imposing anti-dumping duty, since it goes beyond the objective of eliminating the harm caused by dumped imports.

The foregoing considerations all support an interpretation of Article 1(3) of Implementing Regulation No 412/2013 as meaning that, in a situation where there is no risk of circumvention of, or jeopardy to, the proper application of anti-dumping duties, it is not contrary to that provision for an importer, having in mind the imposition of a definitive anti-dumping duty, to be able to present a valid commercial invoice meeting the requirements set out in Annex II to that implementing regulation retrospectively during a procedure initiated under Article 78 of the Customs Code. In such a situation, if all the other conditions necessary for obtaining an individual anti-dumping duty rate are satisfied, it follows from Article 78(3) of the Customs Code that the customs authorities must, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the presentation of that invoice.

In light of all the foregoing considerations, I propose that the Court should answer the questions referred for a preliminary ruling by the Finanzgericht München (Finance Court, Munich) as follows:

It is not contrary to 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, in a situation where there is no risk of circumvention of, or jeopardy to, the proper application of anti-dumping duties, for an importer, having in mind the imposition of a definitive anti-dumping duty, to present a valid commercial invoice meeting the requirements set out in Annex II to that implementing regulation retrospectively during a procedure initiated under Article 78 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code as amended by Regulation (EC) No 2700/2000. In such a situation, if all the other conditions necessary for obtaining an individual anti-dumping duty rate are satisfied, it follows from Article 78(3) of the Customs Code that the customs authorities must, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the presentation of that invoice.

(1) Original language: French.

(2) OJ 2013 L 131, p. 1.

(3) Council Regulation 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).

(4) OJ 2012 L 318, p. 28.

(5) Annex II to Regulation No 1072/2012 provided that a declaration signed by an official of the entity issuing that commercial invoice must appear on the valid commercial invoice. That declaration was to be in the following format:

‘(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.’

(6) See recital 236 of Implementing Regulation No 412/2013.

(7) Judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 21 and the case-law cited).

(8) Judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 22 and the case-law cited).

(9) Judgment of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 26 and the case-law cited).

(10) Judgments of 27 February 2014, Greencarrier Freight Services Latvia (C‑571/12, EU:C:2014:102, paragraph 32), and of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 26 and the case-law cited).

(11) Judgments of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 24), and, to that effect, of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraph 62 and the case-law cited).

(12) Judgment of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 51).

(13) On the conduct of such a procedure, see the judgment of 14 January 2010, Terex Equipment and Others (C‑430/08 and C‑431/08, EU:C:2010:15, paragraphs 58 to 61 and the case-law cited).

(14) See, in particular, Article 2(2) of Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (OJ 1997 L 322, p. 1).

(15) On the scope of that requirement, see my Opinion in Greencarrier Freight Services Latvia (C‑571/12, EU:C:2013:803, point 60 et seq.).