Judgment;Summary — ECLI:EU:C:2021:94
Date: 2021-02-04
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-324/19 — 1 
Case C-324/19 
Request for a preliminary ruling 
Date lodged: 
19 April 2019 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
3 April 2019 
Applicant: 
eurocylinder systems AG 
Defendant: 
Hauptzollamt Hamburg-Stadt 
  
Finanzgericht Hamburg (Finance Court, Hamburg) 
Order 
In the case of 
eurocylinder systems AG 
[…] 
applicant 
[…] 
against 
Hauptzollamt Hamburg 
[…] 
defendant 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 4. 2019 — CASE C-324/19 
 
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concerning customs duties (including customs tariffs) 
the [Fourth] Senate of the Finanzgericht Hamburg (Finance Court, Hamburg) […] 
on 3 April 2019 […] 
[…] [Or. 2] 
decided: 
1. The proceedings are stayed pending the preliminary ruling of the Court of 
Justice of the European Union. 
2. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling on the validity of an act of the institutions of 
the Union: 
Is Council Regulation (EC) No 926/2009 of 24 September 2009 imposing a 
definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of certain seamless pipes and tubes of iron or steel 
originating in the People’s Republic of China valid? 
[…] 
[…] [procedural matters] [Or. 3] 
Grounds 
I. 
1 The applicant seeks the repayment of definitive anti-dumping duties on the import 
of seamless pipes and tubes originating in the People’s Republic of China. 
2 The applicant, which manufactures high-pressure steel cylinders, imported 
seamless steel pipes and tubes from the People’s Republic of China from May 
2014 to December 2015, on which it paid more than EUR 1 000 000 in total in 
anti-dumping duties on the basis of Regulation (EC) No 926/2009. One of these 
imports took place on 4 November 2014. On this day it released into free 
circulation steel pipes and tubes of subheading 7304 5993 20 0 of the Combined 
Nomenclature, stating TARIC additional code A950. Tianjin Pipe (Group) 
Corporation (TPCO) was the manufacturer of the pipes and tubes. The defendant, 
in a decision on import duties of 4 November 2014 
(AT/C/40/17432/11/2014/4851), imposed an anti-dumping duty thereon in the 
amount of EUR 22 123.10. The duty was calculated on the basis of the company-
specific anti-dumping duty rate of 27.2% for cooperating manufacturers under 
Article 1(2) of Regulation (EC) No 926/2009 in conjunction with the annex 
thereto. TPCO belongs to this group of cooperating manufacturers. 
3 By letter of 6 November 2017, the applicant applied for the repayment of the anti-
dumping duties imposed by the decision of 4 November 2014. […] 
EUROCYLINDER SYSTEMS 
 
3 
4 The applicant bases its repayment application on the fact that the General Court of 
the European Union (‘the General Court’) by judgment of 29 January 2014 
(T-528/09) annulled the legal basis for the levying of the anti-dumping duties — 
Regulation (EC) No 926/2009 — with respect to the export of goods which had 
been manufactured by Hubei Xinyegang Steel Co. Ltd. The appeal against that 
judgment was dismissed by the Court of Justice of the European Union (‘the 
Court of Justice’) by judgment of 7 April 2016 (C-186/14 P and C-193/14 P). The 
reasons for the annulment were of a general nature and not limited to the applicant 
manufacturer in that case. According to the applicant, Regulation (EC) 
No 926/2009 is therefore invalid in its entirety. [Or. 4] 
5 By decision of 12 December 2017 (AT/S/00/581/12/2017/4850) the defendant 
rejected the repayment application. It said that the judgment of the General Court 
applied solely to the applicant manufacturer in that case and not to imports of the 
applicant. 
6 The defendant rejected the appeal lodged by letter dated 20 December 2017 in its 
decision on the appeal of 23 August 2018 (RL 490/17). As the effect of 
Regulation (EC) No 926/2009 had not yet been annulled as against all economic 
operators, Article 2(2) of the regulation in conjunction with the annex thereto 
remained the legal basis for the levying of the anti-dumping duties whose 
repayment was being claimed. 
7 By the action brought on 28 September 2015, the applicant pursues its claim 
further. It refers to the effect erga omnes of the annulment of the regulation. In 
doing so, it relies on the judgment of the General Court of 29 January 2014 
(T-528/09). The errors of law found by the General Court result in the annulment 
of the regulation in its entirety. The applicant calls on the Finance Court to put a 
question to the Court of Justice on the validity of Regulation No 926/2009. 
8 The applicant was neither the manufacturer nor the importer of the goods 
concerned. Nor did it sell on the imported pipes and tubes, but processed them. 
There was therefore no resale price. It is not commercially linked to any of the 
exporters of the goods concerned. 
9 After the adoption of the provisional anti-dumping regulation — Regulation (EC) 
No 289/2009 — the applicant brought an application for a hearing under Article 2 
of this regulation. The hearing thereupon took place in Brussels on 24 June 2009. 
10 The applicant claims: 
that the decision of the defendant of 12 December 2017, as confirmed in its 
decision of 23 August 2018, should be set aside. 
11 The defendant claims: 
that the action should be dismissed. 
REQUEST FOR A PRELIMINARY RULING OF 3. 4. 2019 — CASE C-324/19 
 
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It refers to its previous submission. [Or. 5] 
12 […] [procedural matters] 
13 The Chamber stays the proceedings by analogous application of Paragraph 74 of 
the Finanzgerichtsordnung (Code of procedure of finance courts) and refers the 
question set out in the operative part to the Court of Justice under subparagraph 
(b) of the first paragraph of Article 267 of the Treaty on the Functioning of the 
European Union (TFEU) because the legal assessment of the case depends on the 
application of an EU legal instrument whose validity is in doubt. 
14 1. Admissibility of the request for a preliminary ruling 
The applicant can rely on the invalidity of Regulation (EC) No 926/2009. An 
economic operator who has submitted an application for the repayment of anti-
dumping duties paid by it may, if the repayment is refused, raise objections to the 
validity of the regulation concerned in a case before a national court. That court 
may or must, under the conditions of Article 267 TFEU, refer a question to the 
Court of Justice concerning the validity of the regulation in question (Court of 
Justice, judgment of 18 October 2018, Internacional de Productos Metálicos SA, 
C-145/17 P, paragraph 61; judgment of 14 June 2012, CIVAD, C-533/10, 
paragraph 33). 
15 There is no exception here. This would only be the case if the applicant could 
have brought a direct action against Regulation (EC) No 926/200. This is not the 
case. It was not the subject of the anti-dumping investigation. It had merely 
participated in a hearing. Nor could it have brought a direct action against the 
regulation under the final clause of the fourth paragraph of Article 263 TFEU. The 
anti-dumping duty was first imposed by the decision of the relevant national 
authority (see for a comparable set of circumstances: Court of Justice, judgment of 
18 October 2018, C-207/17, Rotho Blaas Sri, paragraph 26 et seq., in particular 
paragraph 40). 
16 2. Legal context 
a) The conditions for the repayment are governed by either Article 236 of [Or. 
6] Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the 
Community Customs Code (OJ 1992 L 302, p. 1, ‘the Customs Code’) or 
Article 116(1)(a) in conjunction with Article 117(1) and Article 121 of Regulation 
(EU) No 952/2013 of 9 October 2013 laying down the Union Customs Code (OJ 
2013 L 269, p. 1, ‘the Union Customs Code’), which came fully into force on 
1 May 2016 and simultaneously repealed the Customs Code (Article 286(2) in 
conjunction with Article 288(2) of the Union Customs Code). For the purposes of 
the reference proceedings, it is not necessary to clarify which are the applicable 
provisions as the same conditions are contained in the respective provisions 
applicable under both regulations. 
EUROCYLINDER SYSTEMS 
 
5 
17 At a substantive level, the first paragraph of Article 236(1) of the Customs Code 
provides: 
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). 
Article 116(1)(a) of the Union Customs Code provides: 
Subject to the conditions laid down in this Section, amounts of import or 
export duty shall be repaid or remitted on any of the following grounds: 
(a) overcharged amounts of import or export duty … 
Article 117(1) of the Union Customs Code, in part, provides: 
An amount of import or export duty shall be repaid or remitted insofar as the 
amount corresponding to the customs debt initially notified exceeds the 
amount payable … 
18 In respect of the formal conditions, in particular the application period, the 
following applies. 
The first paragraph of Article 236(2) of the Customs Code provides: 
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. [Or. 7] 
Article 121(1)(a) of the Union Customs Code provides: 
Applications for repayment or remission in accordance with Article 116 
shall be submitted to the customs authorities within the following periods: 
(a) in the case of overcharged amounts of import or export duty …, within 
three years of the date of notification of the customs debt … 
19 b) By Article 1(1) of Council Regulation (EC) No 926/2009 of 24 September 
2009 imposing a definitive anti-dumping duty and collecting definitively the 
provisional duty imposed on imports of certain seamless pipes and tubes of iron or 
steel originating in the People’s Republic of China (OJ 2009 L 262, p. 19), a 
definitive anti-dumping duty was levied on the import of certain pipes and tubes 
originating in the People’s Republic of China. 
Under Article 1(2) of Regulation (EC) No 926/2009 the company-specific anti-
dumping duty rate amounted to 27.2% for the cooperating undertakings listed in 
the annex to the regulation. In particular, the following were listed in the annex to 
the regulation: 
REQUEST FOR A PRELIMINARY RULING OF 3. 4. 2019 — CASE C-324/19 
 
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Hubei Xinyegang Steel Co., Ltd 
Tianjin Pipe (Group) Corporation (TPCO) 
20 Under Article 1(3) of Regulation (EC) No 926/2009, unless otherwise specified, 
the provisions in force concerning customs duties shall apply. 
21 c) Regulation (EC) No 926/2009 is based on Council Regulation (EC) 
No 384/96 of 22 December 1995 on protection against dumped imports from 
countries not members of the European Community (OJ 1968 L 56, p. 1; ‘the 
basic regulation’). Under ‘Determination of injury’, Article 3(9) of this regulation 
states: 
A determination of a threat of material injury shall be based on facts and not 
merely on allegation, conjecture or remote possibility. The change in 
circumstances which would create a situation in which the dumping would 
cause injury must be clearly foreseen and imminent. 
In making a determination regarding the existence of a threat of material 
injury, consideration should be given to [Or. 8] such factors as: 
(a) a significant rate of increase of dumped imports into the Community 
market indicating the likelihood of substantially increased imports; 
(b) sufficient freely disposable capacity of the exporter or an imminent 
and substantial increase in such capacity indicating the likelihood of 
substantially increased dumped exports to the Community, account being 
taken of the availability of other export markets to absorb any additional 
exports; 
(c) whether imports are entering at prices that would, to a significant 
degree, depress prices or prevent price increases which otherwise would 
have occurred, and would probably increase demand for further imports; and 
(d) inventories of the product being investigated. 
No one of the factors listed above by itself can necessarily give decisive 
guidance but the totality of the factors considered must lead to the 
conclusion that further dumped exports are imminent and that, unless 
protective action is taken, material injury will occur. 
22 Article 9(4) of the basic regulation provides: 
Where the facts as finally established show that there is dumping and injury 
caused thereby, and the Community interest calls for intervention in 
accordance with Article 21, a definitive anti-dumping duty shall be imposed 
by the Council, acting by simple majority on a proposal submitted by the 
Commission after consultation of the Advisory Committee … 
EUROCYLINDER SYSTEMS 
 
7 
23 3. The relevance of the question referred 
The applicant seeks the repayment of anti-dumping duties which were set on the 
basis of Regulation (EC) No 926/2009. That the imported pipes and tubes fall 
within the material and temporal scope of this regulation is not in dispute between 
the parties. 
24 The three-year time limit within which to seek repayment (first subparagraph of 
Article 236(2) [of the Customs Code] or Article 121(1)(a) of the Union Customs 
Code) was observed. The time period began on the day after the issue of the 
decision on import duties of 4 November 2014 (second paragraph of Article 3(1) 
of [Or. 9] Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 
determining the rules applicable to periods, dates and time limits (OJ, English 
Special Edition 1971(II), p. 354). This was 5 November 2014. As 5 November 
2017 was a Sunday, the period expired at midnight on the next working day, 
6 November 2017 (first paragraph of Article 3(4) of Regulation No 1182/71). On 
this day, the repayment application was received by fax by the defendant. 
25 By judgment of the General Court of 29 January 2014 (T-528/09), Regulation 
(EC) No 926/2009 was annulled in so far as it concerned the import of goods 
which were manufactured by Hubei Xinyegang Steel Co., Ltd. In respect of all 
other imports into the EU which are covered by it, the regulation is still valid (see 
Court of Justice, judgment of 14 June 2012, CIVID, C-533/10, paragraph 33). As 
it is still valid, the defendant must apply it. In applying the regulation, there is no 
entitlement to be repaid as the anti-dumping duties originally set were legally 
owed. If the regulation were also null and void in respect of the imports of the 
applicant, the anti-dumping duties originally set would have to be repaid, as they 
would not be legally owed within the meaning of the first subparagraph of 
Article 236(1) of the Customs Code or would constitute in this respect an 
overcharging of import duties (Article 116(1)(a) of the Union Customs Code). 
26 Since the present Chamber, as a national court or tribunal, is not itself authorised 
to annul acts of the institutions of the Union, which include anti-dumping 
regulations of the Council (Court of Justice, judgment of 22 October 1987, Foto-
Frost, Case 314/85, paragraph 15; judgment of 6 December 2005, Gaston Schul 
Douaneexpediteur BV, C-461/03, paragraph 21), it is necessary to have recourse 
to the Court of Justice. 
27 4. Legal considerations with regard to the question referred 
Regulation (EC) No 926/2009 is null and void if it infringes a higher-ranking 
principle of law. Only an infringement of the basic regulation falls to be 
considered. 
By judgment of 29 January 2014 (T-528/09), the General Court determined that 
Regulation (EC) No 926/2009 infringed Article 3(9) and Article 9(4) of the basic 
regulation (paragraph 92 of the judgment). 
REQUEST FOR A PRELIMINARY RULING OF 3. 4. 2019 — CASE C-324/19 
 
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28 Article 3(9) of the basic regulation sets down the principles for the determination 
of a threat of [Or. 10] material injury. The General Court (paragraph 91 of the 
judgment) found that, in the assessment of the four factors relating to the analysis 
of a threat of injury laid down in this provision, one factor (stocks) was regarded 
as irrelevant by the EU institutions, two factors showed inconsistencies between 
the Commission’s estimates, confirmed by the Council in the contested regulation, 
and the relevant post-investigation period data (volume of imports and price of 
imports) and one factor (capacity of the exporter and risk of redirection of 
exports) was incomplete in respect of the relevant evidence to be taken into 
account. 
29 The General Court further explained (paragraph 91 of the judgment): 
Those inconsistencies and lacunae must be viewed in the context of the 
requirements laid down by the basic regulation that the threat of injury must 
be based ‘on facts and not merely on an allegation, conjecture or remote 
possibility’ and that the change in circumstances which would create a 
situation in which the dumping would cause injury must be ‘clearly foreseen 
and imminent’. 
30 Carrying out that exercise, the General Court came to the conclusion that the 
Council had made a manifest error of assessment and infringed the obligation 
under Article 3(9) of the basic regulation (paragraph 92 of the judgment). 
31 Article 9(4) of the basic regulation specifies that a definitive anti-dumping duty 
may only be imposed if, arising from the facts as finally established, there is an 
injury to a domestic industry. This was not the case, because it had not been 
possible to prove an injury (in the form of a threat of injury) without erring in law 
(paragraph 92 of the judgment). 
32 The Court of Justice, by judgment of 7 April 2016 (C-186/14 P and C-193/14 P), 
dismissed the appeal which was lodged against the judgment of the General Court 
of 29 January 2014. 
33 In the opinion of the referring court, the grounds which led to the annulling of 
Regulation (EC) No 926/2009 as regards Hubei Xinyegang Steel Co., Ltd are of a 
general nature. They concern the determination [Or. 11] of the injury to the 
domestic industry, which is a prerequisite for the levying of an anti-dumping duty. 
Accordingly, the referring court is of the opinion that Regulation (EC) 
No 926/2009 should be annulled in its entirety for the reasons laid down in the 
judgment of the General Court of 29 January 2014. 
[…] 
[signatures] 
[…]