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ECJ C-543/19 (Jebsen & Jessen) – Opinion – Reimbursement of an anti-dumping duty (customs duties)

On 9 July 2020, Advocate General HOGAN gavs its opinion in case C‑543/19 (Jebsen & Jessen (GmbH & Co.) KG). The case deals with the question if an importer may produce a corrected invoice after he already submitted the customs declaration.

Facts (simplified):

Jebsen & Jessen (GmbH & Co.) KG (herafter: the applicant) agreed with a supplier (Weifang) on the supply of a total of 360 tonnes of citric acid at a price of EUR 884.70 per tonne by way of three contracts dated 9, 13 and 15/16 January 2015, respectively. The citric acid was shipped from the People’s Republic of China on 30 January 2015.

By an email of 22 January 2015, Weifang’s lawyers were informed by the Commission of the publication of Implementing Regulation 2015/82 in the Official Journal of the European Union.

The applicant declared the 360 tonnes of citric acid for release into free circulation via 12 customs declarations of 10 and 11 March 2015 by means of a data-processing technique, referring to three invoices of Weifang dated of 29 January 2015.

Before granting the release of the goods, the Customs Office requested that the applicant provide these undertaking invoices all of which contained the declaration stipulated in the Annex to Implementing Regulation 2015/82. However, reference was made in that declaration to ‘Decision 2008/899’. The undertaking certificates for the export of citric acid of China (delivered by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters), presented in support of the said invoices, also referred to ‘Decision 2008/899’.

As the original undertaking invoices referred to ‘Decision 2008/899’ and not to ‘Implementing Decision 2015/87’, which entered into force on 23 January 2015, the Customs Office refused the requested exemption from anti-dumping duty and, by 12 import duty assessment notices of 10 and 11 March 2015, imposed an anti-dumping duty on the aforementioned imports on the basis of the general anti-dumping duty rate of 42.7%.

By letter of 13 March 2015, the applicant requested that the anti-dumping duty be reimbursed. By 12 decisions, of 28 and 29 July 2015, the Customs Office refused reimbursement on the ground that the requirements for exemption from the anti-dumping duty had not been met, owing to the incorrect reference to ‘Decision 2008/899’ in the original undertaking invoices.

The applicant contested those decisions, and it submitted corrected invoices which referred to ‘Implementing Regulation 2015/82’ and ‘Implementing Decision 2015/87’.

On 7 June 2016, the Customs Office partially granted the request of the applicant and applied the individual anti-dumping duty rate. By contrast, on 13 June 2016, it refused exemption from the anti-dumping duties on the ground that the conditions for that exemption to be granted were not fulfilled, since the original invoices contained the wrong reference.

The Finanzgericht Hamburg (Finance Court, Hamburg) decided to refer the following questions to the Court for a preliminary ruling:

(1) Under the conditions of the dispute in the main proceedings, is the exemption from the anti-dumping duty introduced by Article 1 of [Implementing Regulation 2015/82] pursuant to Article 2(1) of that regulation precluded if an undertaking invoice pursuant to Article 2(1)(b) of that regulation does not specify [Implementing Decision 2015/87] referred to in point 9 of the annex to that regulation, but specifies rather [Decision 2008/899]?

(2) If Question 1 is answered in the affirmative: May an undertaking invoice that meets the requirements of the annex to [Implementing Regulation 2015/82] be submitted in the context of a procedure for establishing whether anti-dumping duties are reimbursable in order to obtain exemption from the anti-dumping duty imposed in Article 1 of that regulation pursuant to Article 2(1) thereof?

Opinion

The AG provides the ECJ with the following opinion:

(1) Article 2(1) of Commission Implementing Regulation (EU) 2015/82 of 21 January 2015 imposing a definitive anti-dumping duty on imports of citric acid originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 and of partial interim reviews pursuant to Article 11(3) of Regulation (EC) No 1225/2009 must be interpreted as excluding the exemption from the anti-dumping duty if the undertaking invoice required by this provision does not specify Commission Implementing Decision (EU) 2015/87 of 21 January 2015 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of citric acid originating in the People’s Republic of China expressly referred to in point 9 of the Annex to Implementing Regulation 2015/82.

(2)      Article 2(1) of Implementing Regulation 2015/82 must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of an undertaking invoice, for the purposes of obtaining the reimbursement of an anti-dumping duty, in the case where all the other preconditions necessary for exemption from that duty 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.

Source Curia

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