OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 20 July 2017 (1)
Case C‑256/16
Deichmann SE
v
Hauptzollamt Duisburg
(Request for a preliminary ruling from the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany))
(Reference for a preliminary ruling — Dumping — Application for the refund of import duties paid on the basis of a regulation declared invalid — Implementing Regulation (EU) 2016/223 — Regulation adopted in implementation of a judgment of the Court — Validity)
1. The dispute giving rise to this reference for a preliminary ruling concerns the consequences of the annulment of a regulation imposing anti-dumping duties. In replying to the questions referred by the national court, the Court of Justice has the opportunity to outline its case-law on the scope of judgments annulling acts of the EU institutions.
2. On this occasion, the doubts have arisen as part of a request for a preliminary ruling on the validity of Implementing Regulation (EU) 2016/223, (2) by which the Commission initiated the proceedings necessary to remedy the illegalities identified by the Court of Justice in an earlier judgment (3) declaring certain anti-dumping regulations invalid.
3. Those regulations, which were later annulled, had served as the basis for the imposition of anti-dumping duties on Deichmann SE, (4) a company importing footwear from China and Vietnam into the European Union which, following the annulment of those regulations, sought to recover the amounts it had paid.
4. The national court asks the Court of Justice whether Implementing Regulation 2016/223 is valid, inasmuch as, if it is not, Deichmann should have refunded to it the duties it paid under the aforementioned regulations.
5. This case brings into opposition, on the one hand, the power of the EU institutions to reopen a procedure that may culminate in the imposition of anti-dumping duties to replace ones which have been annulled, and, on the other hand, the right of individuals to the stability of established situations and the effective protection of their legal position.
I. Legal framework
A. Treaty on the Functioning of the European Union
6. Under Article 263 TFEU:
‘…
Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.
…
The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.’
7. Under Article 266 TFEU:
‘The institution whose act has been declared void or whose failure to act has been declared contrary to the Treaties shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.
…’
B. Regulation (EEC) No 2913/92 (5)
8. Article 221 provides:
‘…
3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings. (6)
…’
9. Article 236 provides:
‘1. Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).
…
2. Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.
…’
C. Regulation (EC) No 1225/2009 (7)
10. Article 10 (‘Retroactivity’) provides:
‘1. Provisional measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to Article 7(1) or 9(4), as the case may be, enters into force, subject to the exceptions set out in this Regulation.
…’
11. Article 14 (‘General provisions’) provides:
‘1. Provisional or definitive anti-dumping duties shall be imposed by Regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the Regulation imposing such duties. Such duties shall also be collected independently of the customs duties, taxes and other charges normally imposed on imports. No product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation.
…’
12. Article 23 (‘Repeal’) provides:
‘Regulation (EC) No 384/96 is repealed.
However, the repeal of Regulation (EC) No 384/96 shall not prejudice the validity of proceedings initiated thereunder.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.’
II. Facts
13. Pursuant to Regulation (EC) No 1472/2006 (8) and Implementing Regulation (EU) No 1294/2009, (9) the Hauptzollamt Duisburg (Principal Customs Office, Duisburg, Germany) issued to Deichmann on 10 May 2010 a notice of assessment to anti-dumping duty in the amount of EUR 11 181.92.
14. That assessment was based on six imports of footwear from the People’s Republic of China and Vietnam which Deichmann had declared for release into free circulation in April 2010.
15. The footwear from China had been supplied and manufactured by Chengdu Sunshine Shoes Co. Ltd., and that from Vietnam by Tripos Enterprises Inc. Both companies had claimed market economy treatment (MET) in July 2005 by submitting the relevant documents provided for in Article 2(7)(b) and (c) of Regulation (EC) No 384/96. (10)
16. In its judgments in Zhejiang Aokang Shoes Co.Ltd and Brosmann Footwear, (11) the Court of Justice annulled Regulation No 1472/2006.
17. Relying specifically on the judgment in Brosmann, (12) Deichmann, on 12 June 2012, applied to the Hauptzollamt Duisburg for a refund of the anti-dumping duty which had been paid to that customs office. That application was turned down on 15 November 2013.
18. Subsequently, the Court of Justice delivered the judgment in C & J Clark International and Puma, (13) which declared Regulation No 1472/2006 and Implementing Regulation No 1294/2009 invalid. (14)
19. In order to comply with that judgment, the Commission adopted Implementing Regulation 2016/223, initiating the procedure for carrying out individualised assessments of the MET and IT claims which had been made. It thus sought to replace the acts which had been annulled with other, new acts not vitiated by the illegalities identified by the Court of Justice, to which end it resumed the procedure at the point at which those illegalities had occurred.
20. At the same time, the Commission considered it appropriate to instruct the national customs authorities not to reimburse any duties until that process had been completed.
21. The Commission also decided that, for the sake of the efficient use of resources, it would not take into account all MET and IT claims, but only those from exporters which had supplied footwear to any importer having sought to recover sums unduly paid on the ground that the regulations establishing anti-dumping duties had been annulled. To that end, the Commission instructed the national customs authorities to forward those claims and any supporting documents to it so as to enable it to identify such cases.
22. Deichmann submitted before the referring court that Implementing Regulation 2016/223 was invalid inasmuch as Article 14(1) of the 1996 basic anti-dumping regulation did not entitle the Commission to impose retrospective obligations on the national authorities or on importers seeking reimbursement.
23. It also argued that Article 266 TFEU had been infringed, inasmuch as account had been taken only of exporting producers which had claimed MET or IT, and that a determination had not been made within the time limit laid down in Article 2(7)(c) of the 1996 basic anti-dumping regulation. The fact that an independent review procedure was initiated after the anti-dumping measure had expired constituted a further infringement of Article 266 TFEU.
24. The Finance Court, Dusseldorf has doubts about the validity of Implementing Regulation 2016/223. A first set of reasons for this has to do with the formal question of the legal basis which the Commission chose for its adoption:
– On the basis of the second paragraph of Article 23 of the 2009 basic anti-dumping regulation, the national court considers that the legislation applicable is the 1996 basic anti-dumping regulation rather than the former regulation, with the result that competence to adopt Implementing Regulation 2016/223 lies with the Council rather than the Commission.
– Article 14 of the 1996 basic anti-dumping regulation does not support the inference of a power to draw up a regulation preparatory to the reintroduction of anti-dumping duties.
25. A second set of reasons concerns the capacity of Implementing Regulation 2016/223 to instruct national customs authorities to defer their decision on applications for a refund of anti-dumping duties until the Commission has adjudicated on the MET and IT claims. Article 236(1) of the Customs Code is concerned only with whether, when the import duties were paid, the amount of those duties was actually owed, a matter which it is for the customs authorities to determine. By interfering in that decision-making process, the Commission infringes Article 5 TEU.
26. In the third place, the national court sets out a series of arguments relating to Article 266 TFEU and the Commission’s powers to replace acts which have been annulled with other, new acts that remove the illegality identified by the Court of Justice. It accuses the Commission of seeking to give the anti-dumping duties in question an effect retroactive to the time when the annulled regulations were adopted, notwithstanding that the anti-dumping measure expired on 31 March 2011.
27. The reintroduction of the anti-dumping duty is not permitted by Article 10 of the 1996 basic anti-dumping regulation. Furthermore, for reasons of legal certainty, there is no scope for post-clearance recovery, which is precluded by the first sentence of Article 221(3) of the Customs Code.
28. Lastly, it adduces practical reasons based on the passage of time (and precluding, in its view, the imposition of new anti-dumping duties) and the difficulties which an exporter will encounter in supplying documents and information after a period of time of that length has passed, thus potentially undermining the rights of the defence. It raises the question as to whether the procedure designed by the Commission constitutes a misuse of its powers and points to alternatives which, in its view, might have been more appropriate.
29. On the basis of those arguments, the Finanzgericht Düsseldorf has referred the following question to the Court of Justice for a preliminary ruling:
‘Is Commission Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 valid?’
III. Procedure before the Court of Justice
30. The order for reference was received at the Registry of the Court of Justice on 9 May 2016.
31. Deichmann and the European Commission lodged written observations and attended the hearing on 11 May 2017.
IV. Summary of the observations of the parties
A. Admissibility of the question referred
32. In the Commission’s view, the question referred must be dismissed as inadmissible, in the light of the case-law of the Court of Justice to the effect that a person who could undoubtedly have brought a direct action against an act of the Union and who has allowed the mandatory time limit laid down in Article 263 TFEU to lapse cannot call into question the lawfulness of that act before the national courts.
33. In this case, according to the Commission, Deichmann was entitled to seek the annulment of the contested regulation before the General Court, in so far as that regulation was of direct concern to it and did not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU. Having refrained from bringing an action within the corresponding time limit, it cannot seek the annulment of that regulation before the national court. The fact that that regulation was adopted after Deichmann applied to the national court is irrelevant.
34. At the hearing, Deichmann rejected those objections, on the ground that, in its view, it was not entitled to challenge the contested regulation directly because the latter was not of direct concern to it. Furthermore, that provision required implementing measures, at both national and EU level.
B. Substance
35. Relying on Article 5 TEU, Deichmann submits that there has been an infringement of the system for the division of powers provided for in the FEU Treaty. In its view, since the provisions declared invalid by the Court of Justice were adopted while the 1996 basic anti-dumping regulation was in force, the latter is the applicable legislation. In fact, Article 23 of the 2009 basic anti-dumping regulation establishes a transitional regime which supports that view. The consequence of the foregoing, in its opinion, is that, in accordance with Article 9(4) of the 1996 basic anti-dumping regulation, competence lies with the Council rather than the Commission.
36. Deichmann draws attention to Article 14 of the 2009 basic anti-dumping regulation, expressly mentioned in Implementing Regulation 2016/223, in order to reject the proposition that that article authorises the adoption of a regulation in implementation of a judgment.
37. If applicable, Article 14(1) of that regulation allows the EU institutions only to impose provisional or definitive anti-dumping duties which the Member States are to collect under the conditions defined in the 2009 basic anti-dumping regulation. The contested regulation does not impose an anti-dumping duty or prescribe the criteria for its collection, but simply lays down the rules governing the reimbursement of anti-dumping duties which have already been paid (as provided for in Article 236 of the Customs Code), a matter falling within the competence of the Member States.
38. Nor, in Deichmann’s view, does the contested regulation fall within the scope of Article 266 TFEU. After referring to the arguments set out in the order for reference, it contends that the implementing measure cannot give rise to the same illegalities as the measure annulled. In this case, Implementing Regulation 2016/223, contrary to the judgment in C & J Clark International and Puma, (15) confines itself to assessing only a restricted number of MET and IT claims and thus commits the same illegality as was found to have been committed in that judgment.
39. It submits that an anti-dumping procedure may be reopened only in circumstances in which the procedure has not yet been closed, that is to say, before it has expired. Given that, in this case, the procedure expired on 31 March 2011, it could not be reopened without infringing the principles of non-retroactivity and legal certainty (Article 10 of the 1996 and 2009 basic anti-dumping regulations), as well as the time-bar laid down in Article 221(3) of the Customs Code.
40. Deichmann relies on Article 236 of the Customs Code in order to submit that applications for the reimbursement of sums unduly paid must be dealt with as quickly as possible. That provision does not empower the Commission to grant a standstill period for repayment.
41. The Commission disregarded the principle of proportionality in failing to adhere to the margins set out by the judgment in C & J Clark International and Puma (16) when it suspended the application of Article 236 of the Customs Code, thus delaying the repayment of the anti-dumping duties. Moreover, the measure adopted is not the least restrictive of those available, since it makes reimbursement to European importers subject to an examination of the MET and IT claims made by Chinese exporters. The latter, however, are not in a position to cooperate properly, inasmuch as they made those claims over 10 years ago and no longer have any interest in their outcome, the claims in question having no bearing on those exporters’ rights.
42. Lastly, Deichmann relies on the application by analogy of Article 54 of the EU Charter of Fundamental Rights and states that the Commission has misused its powers.
43. According to the Commission, the legislation applicable is the 2009 basic anti-dumping regulation rather than the 1996 version. While it accepts that there are linguistic discrepancies between the different versions, these must, in its view, be resolved in favour of the applicability of the 2009 basic anti-dumping regulation, given the codifying purpose served by the latter.
44. The Commission defends the choice of Article 14 of the 2009 anti-dumping regulation as the legal basis for the regulation at issue here, since it considers that anti-dumping duties are not import duties that give rise to a customs debt. They are special measures to which EU legislation does not apply automatically but only to the extent that the Council and the Commission decide that it should, on a case-by-case basis, at the time when they adopt a regulation imposing anti-dumping duties.
45. So it was that the Council opted to make the Customs Code applicable to the collection of the anti-dumping duties imposed by the definitive and implementing regulations in question. However, there is nothing to stop Article 14 from being used to the opposite effect, where appropriate, in order to exclude the application of the Customs Code and, therefore, the competence enjoyed by the national authorities under that Code.
46. As regards the instructions given to the national authorities (to suspend the repayment procedure and forward certain items of information), the Commission considers these to be valid. While they may have the effect of overriding the provisions of Article 236 of the Customs Code, they are supported by the Commission’s power, granted in Article 14(1) of the 2009 basic anti-dumping regulation, to determine not only the form and rate of those duties, but also the ‘other criteria’ which the Member States must use for their collection.
47. The Commission takes the view that those instructions are appropriate, since the judgment in C & J Clark Internacional andPuma (17) did not affect the existence of the debt itself but only the rate applicable to its determination. Accordingly, any reimbursement does not affect the debt already paid in its entirety but only that part of it resulting from the application of the rates of charge arrived at after each MET or IT claim has been analysed. It is reasonable for that examination to be carried out by the Commission before the national authorities proceed with reimbursement.
48. The Commission maintains that Article 266 TFEU does not preclude the reopening of the procedure. The case-law of the Court of Justice allows such a procedure to be reopened following the annulment of an EU act or a finding as to its invalidity, even in the absence of a specific legal basis. (18) Furthermore, the (three-year) limitation period laid down in Article 221(3) of the Customs Code was not infringed, as it was suspended and could in any event be avoided by the application of Article 14(1) of the 2009 basic anti-dumping regulation.
49. The reopening of the procedure did not have retroactive effect, given that, since the MET and IT claims had not been examined, the debt of importers such as Deichmann was to be regarded as not having been definitively established. Even if it were recognised as having retroactive effect, it would still be permissible, provided that the legitimate expectations of the persons concerned have not been adversely affected. (19) An importer such as Deichmann cannot rely on the protection of legitimate expectations before the Commission has closed the procedure by adopting a definitive measure.
V. Assessment
A. Admissibility of the question referred
50. In accordance with the case-law of the Court of Justice, (20) the inadmissibility of the question referred, in the circumstances cited by the Commission, is subject to two requirements: i) the question must relate to a person, whether natural or legal, who could without any doubt have brought a direct action but allowed the mandatory time limit laid down in Article 263 TFEU to lapse; and ii) the provision the legality of which is at issue must not require implementing measures within the meaning of the fourth paragraph of that article.
51. From an academic point of view, the question of whether Implementing Regulation 2016/223 was of direct concern to Deichmann, given the wording of Article 1(1) of that provision, is open to debate. Although it is addressed to the national customs authorities, that regulation could have a direct impact on the legal situation of persons who, like Deichmann, applied for the reimbursement of anti-dumping duties on the basis of Article 236 of the Customs Code. For the time being, Implementing Regulation 2016/223 prevented them from recovering the duties collected (Article 1(2) and (3)).
52. To my mind, however, there is no need for a ruling on Deichmann’s right to bring an action, since a mere reading of Article 1(2) of Implementing Regulation 2016/223 shows that that provision required enacting measures. The reimposition of appropriate duties will not take place until after the MET and IT claims made by the exporting producers have been verified and evaluated, by means of a (new) regulation.
53. In other words, Implementing Regulation 2016/223 is actually the forerunner to subsequent regulations that will have to evaluate various MET and IT claims made by exporting producers. (21) Since that regulation thus requires implementing measures within the meaning of the fourth paragraph of Article 263 TFEU, the circumstances in which the question referred might be regarded as inadmissible are not present.
54. It should be added that Deichmann’s action was in progress by the time Implementing Regulation 2016/223 was adopted. (22) Indeed, it was in the course of the very proceedings to establish its entitlement to a refund that the national court experienced the doubts that prompted the reference for a preliminary ruling. Deichmann was therefore reasonably entitled to assume that it did not need to challenge that regulation before the General Court, given the stage its dispute had reached when that regulation was published.
55. The objection of inadmissibility raised by the Commission must, in consequence, be rejected.
B. Substance
56. In the interests of a proper understanding of the issues involved, I shall give a brief account of the context in which Deichmann made its application for a refund of anti-dumping duties.
57. In a series of judgments, (23) the Court of Justice declared Regulation No 1472/2006 and Implementing Regulation No 1294/2009 invalid because the Commission had failed to carry out an individual examination of each of the MET and IT claims made by exporters. Instead, the Commission had taken a sample, extrapolated the findings from that sample to all cases and fixed the anti-dumping duty payable on that basis.
58. As regards this case in particular, the Commission, following the judgment in C & J Clark International and Puma, (24) designed a procedure for ascertaining whether exporting producers not included in the sample had made MET and IT claims and, if they had, for evaluating them in an implementing regulation providing for any necessary reimposition of appropriate duties.
59. Implementing Regulation 2016/223, the validity of which forms the subject of the national court’s question, constitutes the first step in that process. It is a markedly brief provision comprising two articles (the second of which merely indicates the date of its entry into force).
60. Article 1 is directed at national customs authorities which have received a request for reimbursement — in cases where the non-sampled exporting producer had claimed MET or IT — and instructs them to forward that request to the Commission. (25) The national customs authorities cannot adjudicate upon the request (although they do have to suspend the repayment procedure) until the Commission has published an implementing regulation reimposing the anti-dumping duties.
61. As the examination of the validity of an EU act in the context of a reference for a preliminary ruling must be confined to the grounds set out by the national court, there being no need for that examination to be extended to other grounds, (26) I shall devote the forthcoming submissions to an analysis of the referring court’s doubts as set out in its order, which have to do with: i) the legal basis on which the Commission relies in order to adopt Implementing Regulation 2016/223; (27) ii) the Commission’s competence to resume the anti-dumping procedure; (28) iii) the possibility of overriding the immediate effectiveness of Article 236 of the Customs Code; (29) iv) the scope of the reopening of the procedure and the temporal effectiveness of the new regulation; (30) and v) the particular features of the resumed procedure and establishment of the facts crucial to its resolution. (31)
1. Legal basis
62. Article 236 of the Customs Code provides that, where a regulation establishing an anti-dumping duty is annulled, the amounts paid under that regulation must, in principle, be refunded. Where there is no longer any legal basis for their collection, those sums become undue as from the point at which they were paid.
63. The dispute here has arisen because, in Implementing Regulation 2016/223, the Commission made the application of Article 236 of the Customs Code subject to a number of conditions.
64. This case has some points in common with that which formed the subject of the judgment of 18 January 2017, Wortmann. (32) There, the dispute centred on the application of Article 241 of the Customs Code, which limits the charging of interest in the event of the repayment of unduly paid anti-dumping duties. The issue here is whether the Commission is permitted to prescribe a standstill period during which the national authorities are prevented from applying Article 236 of that Code until the Commission has decided on the MET and IT claims made. The feature shared by both cases is the existence of an earlier judgment in which the Court of Justice declared a regulation creating anti-dumping duties invalid.
65. In my Opinion in Wortmann, (33) I referred to the mechanism for calculating anti-dumping duties, which is based, essentially, on the process for calculating customs duties. (34) The Customs Code’s provisions relating to the refund of duties unduly paid cater for what I referred to in that Opinion as ‘ordinary’ situations, that is to say circumstances in which the calculation of the debt appears to be vitiated by the incorrect determination of the individual components of the customs debt. These are not the same as circumstances in which amounts unduly paid by importers are reimbursed because the regulation imposing the anti-dumping duty has been declared invalid.
66. When the EU institutions are faced with a judicial declaration as to the invalidity of their measures, there are various options open to them depending on the content of the judgment and the extent of their own powers.
67. First, they must establish whether the judgment has declared the measure to be irremediably invalid or whether, on the contrary, the actions or omissions of the institution can be put right. In the latter scenario, the powers available to the institution will usually include the power to bring its conduct into line with the law in a manner consistent with the content of the judgment. In accordance with that judgment, therefore, it can resume the procedure either from the start or from the point at which the stated illegality was identified.
68. The Court of Justice addressed those issues, in the context of anti-dumping duties, in the judgment of 28 January 2016, CM Eurologistik and GLS, the relevance of which to this case seems to me to be undeniable. (35) It looked, in particular, at whether, notwithstanding the absence of any provisions to that effect in an anti-dumping regulation, the procedure could be reopened once the contested provision had been declared invalid following a reference for a preliminary ruling.
69. The Court held that the obligation laid down in Article 266 TFEU in the case of judgments annulling a measure applies by analogy to such situations. ‘… [the Court’s] decision has the legal effect of requiring the institutions concerned to take the necessary measures to remedy that illegality’. And, in order to fulfil that very ‘obligation, the institutions concerned are required to have regard not only to the operative part of the judgment of annulment or invalidity, but also to the grounds which led to the judgment and constitute its essential basis’. (36)
70. The Court also identified in that case (as it did in the invalidity judgments which gave rise to the present case) an irregularity that did not render the entire procedure null and void. The institutions, it went on to say, may, ‘in order to adopt an act intended to replace a preceding act annulled or declared invalid, reopen the procedure at the stage at which that irregularity was committed’. (37) In the same vein, it held that ‘the annulment of a Union act does not necessarily affect the preparatory acts thereof’. (38)
71. The judgment in CM Eurologistik and GLS made it clear that ‘it is not necessary that the option of reopening the procedure should be expressly provided for by the applicable legislation in order that the institutions which adopted an act annulled or declared invalid may avail themselves of it. The Court has, furthermore, already been able to find, without referring to a specific legal basis, that such an option was available to them following a judgment annulling a regulation imposing anti-dumping duties (see, to that effect, the judgment in Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraphs 84 and 94)’. (39)
72. Thus, the fact that the basic regulation did not provide for the option of reopening the procedure after an anti-dumping regulation has been declared invalid is not capable of resulting in a declaration that a regulation adopted in implementation of a judgment is invalid. (40)
73. It follows from those clarifications that the Commission is, on the one hand, empowered to take action to restore legality in a manner consistent with the findings of the judgment declaring the measure in question invalid, and, on the other hand, pursuant to Article 266 TFEU, obliged to bring its conduct into line with the content of that judgment.
74. Not even reliance on Article 14 of the 2009 basic anti-dumping regulation is indispensable when the true legal basis for resuming the procedure lies in the power-cum-duty that falls to the Commission, which, I shall say again, must restore legality in a manner consistent with the operative part and grounds of the preliminary ruling declaring the anti-dumping regulations invalid.
75. I do not take the view that that case-law is to be regarded as having been divested of its authority by the judgment of 14 June 2016, Commission v McBride and Others, (41) which was given in a context in which the regulation that had formed the basis of the annulled act had been repealed without being replaced by another.
76. It is true that, in that judgment, the Court held that ‘the obligation to act which follows from Article 266 TFEU is not a source of competence for the Commission, nor does it permit the Commission to rely on a legal basis which has in the meantime been repealed’. (42) However, that case differed from the present one in that the rules conferring competence to adopt an act (in replacement of the one annulled) were no longer contained in EU law, and the institution could not assert its power to act exclusively on the basis of Article 266 TFEU. Here, on the other hand, the legal basis has not disappeared and the only change has been that competence has been conferred on the Commission, as I shall explain at length.
77. In any event, the reliance placed on Article 14 of the 2009 basic anti-dumping regulation is not misplaced, in my view. Article 14(1) of that article provides that anti-dumping duties are to be imposed by regulation and collected by the Member States in the form, at the rate specified and according to the other criteria laid down in the regulation determining such duties.
78. What sets this case apart is that the Commission acted in two stages. As a first step, it adopted Implementing Regulation 2016/223, by which it requires the customs authorities to provide information on the requests for refunds made to them and to suspend temporarily the application of Article 236 of the Customs Code. It then adopted the implementing regulations in which it assessed the MET and IT claims made by the exporting producers not included in the original sample.
79. It is open to debate whether reliance on the ‘other criteria’ referred to in Article 14(1) of the 2009 basic anti-dumping regulation enabled the Commission to adopt all the measures laid down in Implementing Regulation 2016/223. However, even if one of those measures did prove to be inappropriate or disproportionate, the Commission would not on that basis have committed a breach triggering invalidity (on the ground of a lack of legal basis) in adopting that implementing regulation.
80. We must once again look back to the defect that brought about the invalidity of Regulation No 1472/2006, which had imposed definitive anti-dumping duties of between 9.7% and 16.5% on imports of footwear. The Court of Justice found not that those duties were invalid but that the Commission should have examined the relevant [MET] claims in order to establish that market economy conditions prevailed for the appellants too. Only after conducting such an examination and establishing that that was the case could it confirm whether the rate applicable to each claimant was one (16.5%) or the other (9.7%).
81. Reopening the procedure after the judgments annulling the measure in question had been delivered was thus both logical and necessary, given the need to respond to the claims made by determining whether any of them warranted the lower rate (9.7%) rather than the general rate which had been applied to them (16.5%). The legal basis for adopting that final decision was in fact the same as that on which the definitive anti-dumping duties had been imposed originally (in 2006).
82. Implementing Regulation 2016/223 is simply an instrument designed to determine definitively the amounts of any anti-dumping duties applicable. Prompted by considerations of efficiency, it seeks to avoid unnecessary assessments of MET and IT claims, while at the same time temporarily suspending the reimbursement of certain amounts the lawfulness of which will depend on the outcome of those assessments.
2. The Commission’s competence
83. The order for reference calls into question the Commission’s competence to adopt Implementing Regulation 2016/223, given that, at the time when the anti-dumping regulations declared invalid by the Court of Justice were adopted, that competence lay with the Council. (43)
84. The Court of Justice referred, in the same context of anti-dumping duties, to the need for the institutions to act within the limits of their competence in the judgment in Commission v McBride and Others, (44) from the paragraphs of which the following findings may be noted:
– ‘[A]lthough it is necessary — in order to comply with the principles governing the temporal application of the law and because of the requirements relating to the principles of legal certainty and the protection of legitimate expectations — to apply the substantive rules in force at the date of the facts in issue even if those rules are no longer in force when an EU institution adopts an act, the provision which forms the legal basis of an act and empowers the EU institution to adopt the act in question must, by contrast, be in force when the act is adopted. Similarly, the procedure for adopting that act must be carried out in accordance with the rules in force at the time of adoption’. (45)
– ‘[T]hat case-law (46) makes it possible to apply the substantive rules in force at the time of the facts of the case while following the procedural rules in force at the time when the act in question is adopted, provided that the legal basis empowering the institution to act is in force when the act in question is adopted’. (47)
85. The 1996 basic anti-dumping regulation conferred on the Council the competence to adopt the regulation establishing a definitive anti-dumping duty (Article 9(4)), as did the 2009 basic anti-dumping regulation (Article 9(4)).
86. However, that provision was amended by Regulation (EU) No 37/2014, (48) in order, inter alia, to confer the competence in question on the Commission. Although Article 3 of Regulation No 37/2014 provides for a number of circumstances in which that regulation does not apply, (49) none of them is present in this case, the re-opening procedure having commenced after that regulation entered into force. Consequently, at the time when Implementing Regulation 2016/223 was drafted and adopted, the Commission was the institution empowered to adopt the act remedying the illegality, in accordance with the case-law cited in the preceding point.
87. As I have already stated, the present case does not involve the same situation as that which was at issue in the judgment in Commission v McBride. (50) It does, however, involve a transfer of competence to the Commission, to which it falls to apply the relevant substantive and procedural rules in force both at the time when the facts occurred and at the time when the act was adopted. (51)
3. Suspension of the effectiveness of Article 236 of the Customs Code
88. Article 236 of the Customs Code does not provide for the suspension of procedures for the refund of customs duties said to have been unduly paid. It is my view, however, that the literal interpretation of that provision is open to adjustment in the case of refunds affected by a (previous) judgment of the Court of Justice.
89. Implementing Regulation 2016/223 has practical implications not only for the national customs authorities but also for importers seeking to recover the anti-dumping duties they have paid.
90. As regards the customs authorities of the Member States (none of which say that they have challenged Implementing Regulation 2016/223 because it infringes their powers), it must not be forgotten that anti-dumping duties form part of the EU’s own revenue. (52) As I stated in my Opinion in Wortmann, (53) ‘the administration of own resources … follows a scheme whereby the administrative authorities of the Member States are responsible for calculation and collection of own resources and the sums received are shared with the Union. The State therefore acts as an instrument of the EU institutions. That factor creates a special link between the national authorities and the judgment annulling the antidumping regulation and bolsters the requirement that the national court must take into account the case-law of the Court of Justice on that subject and the criteria for enforcement derived from Article 266 TFEU.’
91. In that context, in which the spheres of competence enjoyed by the public authorities involved in the process of defining, administering and recovering anti-dumping duties overlap, it seems to me to be difficult to rule out the possibility that the action taken by the Commission following a judgment annulling an anti-dumping regulation (or a preliminary ruling declaring such a regulation to be invalid) may have an impact on the conduct of the national customs authorities.
92. Both the application for the refund of unduly paid anti-dumping duties and their prior calculation are rooted in the way in which those duties were originally established by the Commission. The classification of those duties as being unduly paid will be inextricably linked to the lack of a legal basis for them, that is to say to the invalidity either of the notice of assessment itself or of the legislative act under which they were imposed. It is the second situation which is at issue here.
93. It is true that the case-law of the Court of Justice (54) laid down the unambiguous principle that taxpayers who have unduly paid sums levied in breach of EU law are entitled to have those payments refunded to them.
94. In this case, the concept of ‘unduly paid’ must be understood in the light of the operative part and grounds of the judgment which declared Regulation No 1472/2006 and Implementing Regulation No 1294/2009 invalid. If, as I have already said, that annulment follows from the fact that Commission fixed the anti-dumping duty without conducting an individual analysis of the exporting producers’ MET and IT claims (having examined only a sample), the infringement committed took place at a specific point in the procedure and was remediable, in accordance with the case-law previously cited.
95. It is therefore legitimate, in principle, to reopen the procedure at the point when the illegality occurred, as the Commission did. Did that institution infringe Article 236 of the Customs Code by imposing on the national authorities a waiting period to enable it to ascertain whether the sums unduly paid should be refunded?
96. In my view, it did not. In the light of the wording of the judgment declaring the aforementioned regulations invalid, it was not actually known whether the amounts in question had been ‘unduly paid’ or not. The Court of Justice ruled on the steps preparatory to the decision rather than on the substance of the decision itself (that is to say, the amount of the anti-dumping duties payable).
97. In order to answer that, as yet unsettled, question of substance, the Commission must resume the procedure at the point when the illegality occurred and analyse the MET and IT claims made by each exporter. Moreover, it seems reasonable to me that, while that procedure is ongoing, the national authorities should suspend their own decision until such time as the Commission has made its adjudication. Until then, they cannot know for certain whether the anti-dumping duty was unduly paid or, if so, to what extent. (55)
98. From the point of view of the importers seeking repayment, it is true that the money claimed will continue to be unavailable to them during the period in which the Commission completes the claim process. As the Court of Justice has held, however, (56) ‘where import duties, including anti-dumping duties, are reimbursed on the ground that they have been levied in breach of EU law, this being a matter for the referring court to determine, there is an obligation on Member States, arising from EU law, to pay to individuals with a right to reimbursement the corresponding interest which runs from the date of payment by those individuals of the duties reimbursed’.
99. Consequently, the suspension does not occasion any actual harm to the importer, given that, if the import duties are ultimately declared to have been ‘levied in breach of EU law’, their reimbursement will attract interest as from the date on which they were paid until they are refunded, and any delay will thus be compensated for.
100. Lastly, I take the view that an examination of the decision to suspend the procedure for claiming refunds in the light of the principle of proportionality shows that it does not infringe that principle. The alternative would have been to refund those amounts only to levy them again, if necessary, following the review of the MET and IT claims. As I have already said, it seems more appropriate to me to maintain the status quo, given that compensation (if any is due) for the fact that the money in question is unavailable while the Commission is making its decision is guaranteed by the accrual of interest.
4. The scope of the review of the MET and IT claims and the temporal effectiveness of Implementing Regulation 2016/223
101. The accusation directed against the Commission is that, in Implementing Regulation 2016/223, it confined the review of the MET and IT claims to certain exporting producers rather than extending it to all of them, and may thus have acted in breach of the judgment delivered.
102. I do not concur with that argument. When the Commission opens an investigation in relation only to claims the content of which may affect importers which have applied for a refund of anti-dumping duties, it does so in the light of reasonable practical considerations. So far as concerns the particular case to which the preliminary reference relates, the aforementioned objection would be significant if Implementing Regulation 2016/223 prevented the MET and IT claims made by exporters of the footwear purchased by Deichmann from being included in the Commission’s assessment, which is not the case.
103. Does Implementing Regulation 2016/223 disregard the principles of legal certainty and non-retroactivity (which underpin Article 10 of both the 1996 and the 2009 basic anti-dumping regulations) or the time-bar contained in Article 221(3) of the Customs Code? (57)
104. To my mind, no. As I have already emphasised, the case-law of the Court of Justice allows the institutions to reopen a procedure affected by a declaration of invalidity, provided that the legislation applied is that in force at the time when the facts occurred, that the drafting procedure followed is that which is in force when the new measure is adopted, and that the institution adopting that measure is competent do so at that time.
105. Retroactivity would involve the application of a subsequent provision to an already established legal situation. That is not the case here, for the very reason that the provisions applicable are those that were in force at the time when the facts occurred, and the rates of anti-dumping duty payable are unchanged. The only task that remains is to ascertain whether, in accordance with those provisions, the relevant determinations of duty payable are to be adjusted in line with one rate of charge (the general rate) or another (the lower rate), depending on the status of the exporter having claimed MET or IT. The end result will be an outcome which, if favourable to the importer, will entitle it to obtain a refund that will have lost none of its value because it will be supplemented by the interest accrued from the date of the undue payment.
106. As regards time-barring, the position is much the same as that which I set out when examining the applicability of Article 236 of the Customs Code in the context of compliance with a judgment. From the point at which the validity of the regulations forming the basis of the determination of the anti-dumping duty payable was called into question, the situation became one awaiting adjudication. The duty calculations which had been made were subject to the judgment to be delivered. Once that judgment is delivered, its content applies to all such — hitherto provisional — situations, which must be adjusted to bring them into line with the judgment concerned.
107. The provisional status of such situations operates to balance both sides of the equation. The importers are attempting to rely on Article 221(3) of the Customs Code in order to confine the exercise of the powers vested in the Commission and the national authorities to the three-year period laid down in that provision. Any acceptance of their proposition, as put forward by Deichmann, could, however, support the further argument that their right to seek the reimbursement of undue payments has been extinguished by the passage of time because the three-year time limit laid down in Article 236(2) of that Code has expired. To apply that time limit automatically, without taking into account the fact that legal proceedings and the administrative proceedings arising from them have the effect of interrupting it, would frustrate the effectiveness of the judgments that follow, since the passage of time would render such judgments unenforceable in all cases where the administrative decision becomes final once that period of time has elapsed.
108. It is true, as the order for reference states, that, by Implementing Decision of 18 March 2014, (58) the Council refused to endorse the proposal for an Implementing Regulation submitted by the Commission in compliance with the judgment in Brosmann. (59) That decision was based on Article 221(3) of the Customs Code and the rejection of allegedly retroactive reimposition.
109. In my opinion, however, that Council decision is not binding on the Commission now that the latter has acquired the power to make decisions in this sphere, since the assumptions which obtained at the time of that decision are different from those that apply now. As recital 10 of Implementing Regulation 2016/223 indicates, the decisive factor at that time was that the competent national authorities had reimbursed the customs duties in accordance with Article 236 of the Customs Code, whereas, in the present case, no such reimbursement has taken place.
110. The fact that judicial proceedings relating to the validity of the anti-dumping regulations are pending precludes any contention as to the infringement of legal certainty. The challenge to those regulations was public and meant that the duty calculations were dependent on the outcome of the litigation concerned. (60)
5. The procedure for adjudicating on MET and IT claims and the furnishing of evidence in the context of that procedure
111. The order for reference calls into question certain aspects of the procedure for assessing MET and IT claims and the furnishing of evidence in support of such claims.
112. To my mind, however, those arguments are premature. Implementing Regulation 2016/223, as I have already said, is designed to prepare (61) the procedure for examining MET and IT claims that were not originally assessed. The debate as to the conditions governing the conduct of that procedure and the extent to which the furnishing of evidence in the course of it entails difficulties on account of the time that has elapsed since those claims were made will form part of any challenge to the subsequent implementing regulations. (62)
113. In those subsequent regulations — which have already been published — (63) the Commission ‘reimposed’ the definitive anti-dumping duties, after having reviewed the claims made each exporting producer, the submissions of the undertakings affected and the evidence included in the file. Whether, in order to arrive at that end result, the Commission acted lawfully, is a question which can be answered only by analysing the relevant processes that culminated in the adoption of those new implementing regulations.
VI. Conclusion
114. In the light of the foregoing, I propose that the answer to the question referred by the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany) should be as follows:
Examination of the question referred has disclosed nothing capable of affecting the validity of Commission Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14.