CELEX: 62010CJ0533
Community Customs Code
Article 236(2)
Repayment of duties not legally owed
Time limit
Regulation (EC) No 2398/97
Definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan
Regulation (EC) No 1515/2001
Repayment of anti-dumping duties paid pursuant to a regulation subsequently declared invalid
Concept of ‘force majeure’
Time at which the obligation to repay import duties arises

This reference for a preliminary ruling concerns the interpretation of Article 236(2) of Council Regulation (EEC) No 2913/92 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
) (‘the Customs Code’).
The reference has been made in proceedings between Compagnie internationale pour la vente à distance (CIVAD) SA (‘CIVAD’) and the Receveur des douanes de Roubaix (Collector of Customs, Roubaix), the Directeur régional des douanes et droits indirects de Lille (Regional Director of Customs and Indirect Taxes, Lille) and the Administration des douanes (Customs Administration) concerning a request for repayment of anti-dumping duties which it had wrongly paid in respect of imports of cotton-type bed linen originating in Pakistan.
Legal context
Article 236 of the Customs Code 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).
Import duties or export duties shall be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).
No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned.
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.
That period shall be extended if the person concerned provides evidence that he was prevented from submitting his application within the said period as a result of unforeseeable circumstances or force majeure.
Where the customs authorities themselves discover within this period that one or other of the situations described in the first and second subparagraphs of paragraph 1 exists, they shall repay or remit on their own initiative.’
Under Article 243(1) of the Customs Code, ‘any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually’.
Council Regulation (EC) No 2398/97 of 28 November 1997 (
OJ 1997 L 332, p. 1
and — corrigendum —
OJ 1998, L 107, p. 16
) imposed a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan.
Article 1(1) of Council Regulation (EC) No 1515/2001 of 23 July 2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (
OJ 2001 L 201, p. 10
) sets out those measures as follows:
‘1.   Whenever the DSB [World Trade Organisation (WTO) Dispute Settlement Body] adopts a report concerning a Community measure taken pursuant to [Council] Regulation (EC) No 384/96 [of 22 December 1995 on protection against dumped imports from countries not members of the European Community (
OJ 1996 L 56, p. 1
)], [Council] Regulation (EC) No 2026/97 of [6 October 1997 on protection against subsidised imports from countries not members of the European Community (
OJ 1997 L 288, p. 1
)] or to this Regulation (“disputed measure”), the Council may, acting by simple majority on a proposal submitted by the Commission after consultation of the Advisory Committee established pursuant to Article 15 of Regulation (EC) No 384/96 or Article 25 of Regulation (EC) No 2026/97 (“the Advisory Committee”), take one or more of the following measures, whichever it considers appropriate:
(a)
repeal or amend the disputed measure or;
(b)
adopt any other special measures which are deemed to be appropriate in the circumstances.’
Article 3 of that regulation provides:
‘Any measures adopted pursuant to this Regulation shall take effect from the date of their entry into force and shall not serve as basis for the reimbursement of the duties collected prior to that date, unless otherwise provided for.’
Having regard to the recommendations made in the reports adopted by the DSB on 30 October 2000 and 1 March 2001 regarding anti-dumping duties on imports originating in India (‘DSB reports’), the Council, by Article 2 of Regulation (EC) No 160/2002 of 28 January 2002 amending Regulation No 2398/97 (
OJ 2002 L 26, p. 1
), declared the anti-dumping proceeding concerning imports of cotton-type bed linen originating in Pakistan to be terminated.
In paragraph 1 of the operative part of its judgment in Case
C-351/04
Ikea Wholesale
[2007] ECR I-7723
, the Court ruled that Article 1 of Regulation No 2398/97 is invalid in so far as the Council applied, for the purpose of determining the dumping margin for the product subject to the investigation, the practice of ‘zeroing’ negative dumping margins for each of the product types concerned. In those circumstances, the Court also ruled, in paragraph 2 of the operative part of that judgment, that an importer, such as that at issue in the case giving rise to the judgment, which has brought an action before a national court against the decisions by which the collection of anti-dumping duties is claimed from it under that regulation, declared invalid by that judgment, is, in principle, entitled to rely on that invalidity in the dispute in the main proceedings in order to obtain repayment of those duties in accordance with Article 236(1) of the Customs Code.
The dispute in the main proceedings and the questions referred for a preliminary ruling
CIVAD, established in France and whose business is the sale of goods by mail order, marketed for that purpose cotton-type bed linen originating in Pakistan.
By letters of 26 July and 28 October 2002, CIVAD sought from the Administration des douanes the repayment of anti-dumping duties which it had paid in respect of import declarations lodged, pursuant to Regulation No 2398/97, for the periods between 15 December 1997 and 25 January 1999, between 1 February and 23 July 1999 and between 29 July 1999 and 25 January 2002 respectively.
By letter of 17 March 2008, the Administration des douanes granted CIVAD’s application for the import declarations lodged during the period between 29 July 1999 and 25 January 2002. However, it dismissed the application for the import declarations lodged during the two other periods referred to above, on the ground that it was submitted after the expiration of the three year time-limit laid down by the first subparagraph of Article 236(2) of the Customs Code.
By letter of 24 April 2008, CIVAD requested the Administration des douanes to reconsider its decision claiming that it had not been possible for it to submit its applications for repayment before Regulation No 160/2002 on the termination of the anti-dumping proceeding with regard to imports originating in Pakistan was published in the
Official Journal of the European Union
. By letter of 14 August 2008, the Administration des douanes rejected that request.
By summons of 2 July 2009 CIVAD issued proceedings before the Tribunal d’instance de Roubaix (District Court, Roubaix) against the Receveur des douanes de Roubaix, the Directeur régional des douanes et droits indirects de Lille and the Administration des douanes, pursuant to Article 234 of the Customs Code.
In those circumstances, the Tribunal d’instance de Roubaix, taking the view that the outcome of the proceedings before it depended on the interpretation of Article 236(2) of the Customs Code, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1.
Does the unlawfulness of a Community regulation, which cannot in fact or in law be challenged by a trader by means of an individual action to have it set aside, amount for that trader to a case of force majeure which permits the time-limit provided for in Article 236(2) of the [Customs Code] to be exceeded?
2.
If the first question is to be answered in the negative, do the provisions of the final paragraph of Article 236 of the [Customs Code] require the customs authorities to repay anti-dumping duties of their own initiative when the unlawfulness of those duties has been found following a challenge to their lawfulness by a Member State of the WTO:
(a)
from the time of the first communication of the country concerned contesting the lawfulness of the anti-dumping regulation;
(b)
from the time of the panel report finding the unlawfulness of the anti-dumping regulation; or
(c)
from the time of the report of the Appellate Body of the WTO which led the European Community to recognise the unlawfulness of the anti-dumping regulation?’
Consideration of the questions referred
The first question
By its first question, the referring court asks in essence whether Article 236(2) of the Customs Code must be interpreted as meaning that the unlawfulness of a regulation is a case of force majeure allowing an extension of the three-year time-limit during which an importer can request the repayment of import duties paid pursuant to that regulation.
First of all, it should be recalled that, pursuant to the first subparagraph of Article 236(2) of the Customs Code, to obtain repayment of import duties, the operator must submit 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.
In the present case, as regards the duties paid between 1 February and 23 July 1999 and between 15 December 1997 and 25 January 1999, it is not disputed that CIVAD submitted the corresponding applications for repayment after the expiry of the three-year time-limit.
It should be recalled that, in paragraph 1 of the operative part in
Ikea Wholesale
, the Court ruled that Article 1 of Regulation No 2398/97 is invalid in so far as the Council applied, for the purpose of determining the dumping margin for the product subject to the investigation, the practice of ‘zeroing’ negative dumping margins for each of the product types concerned.
In paragraph 67 of
Ikea Wholesale
, the Court also examined the consequences to be drawn from the declaration of invalidity and concluded that, in such a situation, anti-dumping duties paid under Regulation No 2398/97 are not legally owed within the meaning of Article 236(1) of the Customs Code and must, in principle, be repaid by the customs authorities in accordance with that provision, provided that the conditions to which such repayment is subject, including the condition set out in Article 236(2), are satisfied (see also Case
C-419/08 P
Trubowest Handel and Makarov
v
Council and Commission
[2010] ECR I-2259
, paragraph 25).
It follows from the foregoing that, following the Court’s declaration of invalidity of an anti-dumping regulation, an economic operator is no longer able, in principle, to claim repayment of the anti-dumping duties which it has paid under that regulation and for which the three-year time-limit laid down by Article 236(2) of the Customs Code has expired. Article 236(2) of the Customs Code imposes a three-year time-limit on the repayment of customs duties not legally owed.
The Court has recognised that it is compatible with European Union law to have a national procedural rule laying down a reasonable time-limit by which an economic operator is required to claim repayment of a tax collected in breach of European Union law, failing which its claim will be time-barred. Such a time-limit is not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law. In that regard, the Court has already ruled that a three-year time-limit appears reasonable (see Case
C-228/96
Aprile
[1998] ECR I-7141
, paragraph 19; Case
C-445/06
Danske Slagterier
[2009] I-2119
, paragraph 32; and Case
C-542/08
Barth
[2010] ECR I-3189
, paragraph 28).
That case-law also applies where, exceptionally, the European Union legislature decides, as in the case in the main proceedings, to harmonise procedural rules governing requests for repayment of taxes wrongly levied. A reasonable time-limit, irrespective of whether it is imposed by national law or European Union law, is in the interests of legal certainty which protects both the taxpayer and the administration concerned and does not preclude the individual from exercising rights conferred by European Union law (see, to that effect,
Aprile
, paragraph 19;
Danske Slagterier
, paragraph 32; and
Barth
, paragraph 28).
As regards whether the unlawfulness of Regulation No 2398/97 can be regarded as a case of force majeure, it must be recalled that, pursuant to Article 236 of the Customs Code, the repayment of import or export duties is made only under certain conditions and in cases specifically provided for. Such a repayment is therefore an exception to the normal import and export procedure and, consequently, the provisions which provide for it are to be interpreted strictly (see Case
C-156/00
Netherlands
v
Commission
[2003] ECR I-2527
, paragraph 91 and Case
C-78/10
Berel and Others
[2011] ECR I-717
, paragraph 62).
Therefore, the concept of force majeure, within the meaning of the second subparagraph of Article 236(2) of the Customs Code, must be interpreted strictly.
In that regard, it should be observed that the Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of European Union law, its meaning must be determined by reference to the legal context in which it is to operate (see Case
C-314/06
Société Pipeline Méditerranée et Rhône
[2007] ECR I-12273
, paragraph 25 and the case-law cited).
In the context of customs legislation, ‘force majeure’ must be understood, in principle, in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided (Case
C-334/08
Commission
v
Italy
[2010] ECR I-6865
, paragraph 46 and the case-law cited).
It follows that, as the Court has already stated, force majeure contains both an objective element relating to abnormal circumstances extraneous to the trader and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices (
Société Pipeline Méditerranée et Rhône
, paragraph 24 and the case-law cited).
In a case such as that in the main proceedings, neither of those two elements is satisfied.
First, as regards the objective element, the unlawfulness of an anti-dumping regulation, such as Regulation No 2398/97, cannot be regarded as an abnormal circumstance. It suffices to recall in that regard that the European Union is a Union based on the rule of law in which its institutions, bodies, offices and agencies are subject to judicial review of the compatibility of their acts, in particular, with the EU and FEU Treaties. As the Advocate General noted at point 56 of his Opinion, it is in the very nature of European Union law that the rules of which it is comprised might be declared invalid.
As regards the subjective element, the applicant in the main proceedings could have submitted an application for repayment from the first payment of antidumping duties under Regulation No 2398/97, with a view in particular to challenging the validity of that regulation.
It must be recalled that those treaties have established a complete system of legal remedies and procedures designed to confer on the Court of Justice jurisdiction to review the legality of acts of the institutions, bodies, offices and agencies of the European Union (see Case
C-550/09
E and F
[2010] ECR I-6213
, paragraph 44 and the case-law cited).
In that context, where an economic operator which feels that it has been adversely affected by the application of an anti-dumping regulation which it considers to be illegal has submitted an application under Article 236(2) of the Customs Code for repayment of the duties it has paid and that application has been dismissed, it can bring proceedings before the competent national court and plead before that court that the regulation concerned is unlawful. That court may, and possibly must, then, under the conditions of Article 267 TFEU, refer a question to the Court of Justice concerning the validity of the regulation in question (
Trubowest Handel and Makarov
v
Council and Commission
, paragraph 24).
Since CIVAD had the opportunity to challenge the validity of Regulation No 2398/97 before the expiry of the three-year time-limit laid down by the first subparagraph of Article 236(2) of the Customs Code, by submitting an application for repayment under that subparagraph, the invalidity of that regulation declared subsequently by the Court of Justice in
Ikea Wholesale
cannot be regarded as a case of force majeure which prevented it from submitting an application for repayment within that time-limit.
In those circumstances, the answer to the first question is that the second subparagraph of Article 236(2) of the Customs Code must be interpreted as meaning that the unlawfulness of a regulation is not a case of force majeure within the meaning of that provision, allowing an extension of the three-year time-limit during which an importer can request the repayment of import duties paid pursuant to that regulation.
The second question
By its second question, the referring court asks whether the third subparagraph of Article 236(2) of the Customs Code must be interpreted as requiring national authorities to repay, on their own initiative, anti-dumping duties collected pursuant to a regulation subsequently declared by the DSB to be not in accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (
OJ 1994 L 336, p. 103
) (‘the anti-dumping agreement’) set out in Annex 1A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (
OJ 1994 L 336, p. 1
).
It should be recalled first that, in accordance with the third subparagraph of Article 236(2) of the Customs Code, customs authorities are to repay and remit import and export duties on their own initiative where they themselves discover, within the three-year period following the date on which the amount of those duties was communicated to the debtor, that the amount was not legally owed within the meaning of Article 236(1) of that code.
A finding by the DSB that an anti-dumping regulation is not in accordance with the anti-dumping agreement is not a factor allowing import duties to be repaid pursuant to Article 236(1) and (2) of the Customs Code.
The acts of the European Union institutions, bodies, offices and agencies are presumed to be lawful, which implies that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (Case
C-475/01
Commission
v
Greece
[2004] ECR I-8923
, paragraph 18, and Case
C-199/06
CELF and Ministre de la Culture et de la Communication
[2008] ECR I-469
, paragraph 60).
Since the Court of Justice alone has jurisdiction to declare an act, such as an anti-dumping regulation, of the European Union invalid and the purpose of that jurisdiction is to ensure legal certainty through the uniform application of EU law (see Joined Cases
C-188/10 and C-189/10
Melki and Abdeli
[2010] ECR I-5667
, paragraph 54 and the case-law cited), the fact that the DSB has found that an anti-dumping regulation is not in accordance with the anti-dumping agreement does not affect the presumption that such a regulation is lawful.
Therefore, in the absence of a declaration of invalidity, amendment or repeal by the competent European Union institutions, Regulation No 2398/97 remained binding in its entirety and directly applicable in all Member States, even after the DSB’s finding.
In that regard, it should be recalled that, in accordance with Articles 1 and 3 of Regulation No 1515/2001, whenever the DSB adopts a report concerning a measure taken by the European Union in anti-dumping or anti-subsidy matters, the Council may, as it considers appropriate, either repeal or amend the measure, or adopt any other special measures deemed to be appropriate and that, unless otherwise provided for, any measures thereby adopted by the Council take effect from the date of their entry into force and cannot serve as basis for the reimbursement of the duties collected prior to that date.
It follows that, since Regulation No 2398/97 was not declared invalid by the Court, until 27 September 2007, the date when the judgment in
Ikea Wholesale
was delivered and since it had not yet been repealed or amended by Regulation No 160/2002 — irrespective of the DSB’s findings on whether Regulation No 2398/97 was in accordance with the anti-dumping agreement — that regulation was presumed to be lawful, so that the national customs authorities could not consider, before that date, that duties imposed pursuant to that regulation were not legally owed within the meaning of Article 236(1) of the Customs Code. Nor, in those circumstances, were they able before that date to repay anti-dumping duties paid under Regulation No 2398/97 on their own initiative on the basis of the third subparagraph of Article 236(2) of the Customs Code.
In those circumstances, the answer to the second question is that the third subparagraph of Article 236(2) of the Customs Code must be interpreted as not allowing national customs authorities to repay, on their own initiative, anti-dumping duties collected pursuant to a European Union regulation, on the basis of a finding by the DSB that that regulation was not in accordance with the anti-dumping agreement.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

1.
The second subparagraph of Article 236(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 must be interpreted as meaning that the unlawfulness of a regulation is not a case of force majeure within the meaning of that provision, allowing an extension of the three-year time-limit during which an importer can request the repayment of import duties paid pursuant to that regulation.

2.
The third subparagraph of Article 236(2) of Regulation (EEC) No 2913/92, as amended by Regulation (EC) No 2700/2000, must be interpreted as not allowing national customs authorities to repay, on their own initiative, anti-dumping duties collected pursuant to a European Union regulation, on the basis of a finding by the Disputes Settlement Body that that regulation was not in accordance with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, set out in Annex 1A of the Agreement establishing the World Trade Organisation (WTO), signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994).

[Signatures]
(
*1
)	Language of the case: French.