Opinion of the Advocate General — ECLI:EU:C:2011:819
Date: 2011-12-08
Language of the case: French
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the Judgment 1. European Union law — Rights conferred on individuals — Taxes levied in breach of European Union law — Repayment — Procedural rules provided for by European Union law — Time limits — Lawfulness — Condition 2. European Union own resources — Repayment or remission of import duties — Conditions — Action brought within three years — Exception — Force majeure — Concept — Declaration of invalidity of an anti-dumping regulation — Not included (Council Regulation No 2913/92, Art. 236(2)(2)) 3. European Union own resources — Repayment or remission of import or export duties — Duties paid under an invalid anti-dumping regulation — Finding, by the Dispute Settlement Body of the World Trade Organisation, of incompatibility with the anti‑dumping agreement — Obligation to repay on the basis of such a finding — Absence — Presumption of legality of acts of the institutions of the European Union (Council Regulation No 2913/92, Art. 236(2)(3)) 1. 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, a three-year time limit appears reasonable. That principle also applies where, exceptionally, the European Union legislature decides 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 paras 22, 23) 2. The second subparagraph of Article 236(2) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 2700/2000 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. First, the unlawfulness of an anti-dumping regulation cannot be regarded as an abnormal circumstance. 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. It is in the very nature of European Union law that the rules of which it is comprised might be declared invalid. Secondly, 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. Since the economic operator has the opportunity to challenge the validity of the regulation 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 cannot be regarded as a case of force majeure which prevented it from submitting an application for repayment within that time limit. (see paras 30, 33-35, operative part 1) 3. The third subparagraph of Article 236(2) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation 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 (DSB) 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, signed in Marrakech on 15 April 1994 and approved by Decision 94/800 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). 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. 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, 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. (see paras 39, 40, 44, operative part 2)