EU COURT CASE TIGERS C-156/16 In the context of the application of individual anti-dumping duty rates, it is possible to produce a valid invoice after the customs declaration has been made

In a request for a preliminary ruling in the proceedings between the German company, Tigers GmbH (‘Tigers’), and the Hauptzollamt Landshut (Principal Customs Office, Landshut, Germany) (‘the Customs Office’), the Court of justice gives some insides concerning the application for a partial refund of anti-dumping duty in its judgment of 12 October 2017 (Tigers GmbH v Hauptzollamt Landshut, case C-156/16).

In 2012, the Commission has imposed provisional anti-dumping duties on imports of ceramic tableware and kitchenware originating in the People’s Republic of China by Regulation (EU) No 1072/2012 of 14 November 2012. Subsequently, by Council Implementing Regulation (EU) No 412/2013 of 13 May 2013, the European Union imposed definitive anti-dumping duty on these products and ordered the definitive collection of the provisional duty imposed.

Tigers is a German company which imported into Germany ceramic tableware and other ceramic kitchenware from the People’s Republic of China which were subject to the provisional anti-dumping duty imposed by Regulation No 1072/2012. As required, Tigers submitted to the Customs Office the customs declaration for the goods imported and presented to it a commercial invoice.

It is important to note that, a valid commercial invoice should be provided by the companies concerned by an individual anti-dumping rate in order to benefit from it. Such an invoice should met the requirements set out in Annex II to Regulation No 1072/2012, concerning the obligation to present a declaration signed by an official of the entity issuing the commercial invoice, in the format required in the Regulation, and which must appear on the valid commercial invoice. Without a valid commercial invoice, the customs authorities shall otherwise apply the rate to ‘all other companies’.

However, at the time when the goods were imported, the invoice presented by Tigers was not accompanied by a declaration signed by the manufacturer. It did therefore not meet the requirements set out in Annex II to Regulation No 1072/2012.

Following the adoption of Regulation No 412/2013, the Customs Office 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.

Ultimately, 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 Regulation No 412/2013 rather than the individual 17.9% rate applicable to imports from companies listed in Annex I to that regulation regarding all co-operating Chinese exporting producers not sampled.

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.

In an action brought before the Finanzgericht München (Finance Court, Munich, Germany), the later asked the Court of Justice whether Regulation No 412/2013 must be interpreted as allowing 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.

The Court first notes that it follows clearly from the wording of Article 1(3) of Implementing Regulation No 412/2013 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.

However, that wording provides no information whatsoever as to when that invoice must be presented. Moreover, no other provision of Implementing Regulation No 412/2013 specifies the point in time at which a valid commercial invoice must be presented to the customs authorities.

Furthermore, the Union Customs Code (UCC) does not either expressly state when a commercial invoice must be presented.

The Court outlines that Article 78 UCC establishes a procedure enabling customs authorities, on their own initiative or at the request of the declarant, to amend the customs declaration after that declaration has been made. Thus, the customs authorities may, 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 regularize the situation, taking account of the new information available to them.

It thus follows from Article 78 UCC 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.

As a result, according to the Court, an importer may submit a valid commercial invoice after the customs declaration has been made, 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.

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