Official Journal of the European Union

C 267/50

(Case C-371/09)

2009/C 267/84

Language of the case: English

Referring court

Parties to the main proceedings

Applicant: Commissioners for Her Majesty's Revenue and Customs

Defendant: Isaac International Limited

Questions referred

(1)In circumstances such as those of the present case, where an importer is established and operates in two Member States and imports goods in one Member State and immediately transports them to a second Member State, does the end-use authorisation required for the purpose of obtaining exemption from anti-dumping duty pursuant to Article 14(c) of Commission Regulation 88/97 involve more than one customs authority for the purpose of Article 292(3) of Commission Regulation 2454/93?

(2)In circumstances such as those of the present case, where an importer failed to obtain the necessary authorisation for use of the end-use procedure envisaged by Article 14(c) of Commission Regulation 88/97, can exemption from anti-dumping duty nevertheless apply pursuant to Article 212a of Council Regulation 2913/92?

(3)If the answer to the second question is in the affirmative, in assessing whether a trader in a situation such as that of Isaac has been obviously negligent,

(a)are the provisions of Article 14(c) of Commission Regulation 88/97 and Article 292(3) of Commission Regulation 2454/93 sufficiently clear that a trader who failed to ascertain, by consulting the Official Journal, that the simplified authorisation was not available to it due to the involvement of more than one customs authority, must be regarded as obviously negligent?

(b)Alternatively, if the relevant provisions are to be regarded as complex, would it be incumbent on a trader to seek clarification from the taxing authorities prior to undertaking the importations? Does the answer to this question depend on whether the trader subjectively, but erroneously, concluded that the relevant provisions were clear in their application?

(c)How is the experience of a trader, in a situation such as that of Isaac, whose main business is the import of bicycle parts from China, who employs five members of staff to deal with importation and has undertaken 33 similar importations in a period of 16 month to be classified? In particular, must such a trader be regarded as experienced?

(d)Are the taxing authorities of a Member State, in assessing whether a trader, in a situation such as that of Isaac, has been obviously negligent, entitled to rely on published legislation such as the UK Tariff which, though available for consultation without charge at certain officers of the taxing authorities and other public libraries, is only available over the internet on payment of a yearly subscription?

Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People's Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93, OJ L 17, p. 17

Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, OJ L 253, p. 1

Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code OJ L 302, p. 1