Judgment;Summary — ECLI:EU:C:2021:612
Date: 2021-07-15
Language of the case: Dutch
Court formation: Tenth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-362/20 – 1 
Case C-362/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
5 August 2020 
Referring court:  
Hof van beroep Antwerpen (Belgium) 
Date of the decision to refer:  
18 June 2020 
Appellants:  
Openbaar Ministerie 
Federale Overheidsdienst Financiën 
Respondents:  
Profit Europe NV 
Gosselin Forwarding Services NV 
  
Subject of the action in the main proceedings 
Criminal and tax proceedings brought against the respondents for breaches of 
customs legislation.  
Subject and legal basis of the request for a preliminary ruling 
Applicability of the anti-dumping duties referred to in Regulation No 1071/2012 
and its Implementing Regulation No 430/2013 to threaded tube or pipe cast 
fittings, of spheroidal graphite cast iron, from China.  
Legal basis: Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-362/20 
 
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Question referred 
Are threaded tube or pipe cast fittings, of spheroidal graphite cast iron, from 
China, subject to anti-dumping duties under Commission Regulation (EU) 
No 1071/2012 of 14 November 2012 imposing a provisional anti-dumping duty 
on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating 
in the People’s Republic of China and Thailand (OJ L 318 of 15.11.2012, pp. 10-
27) and Council Implementing Regulation (EU) No 430/2013 of 13 May 2013 
imposing a definitive anti-dumping duty and collecting definitively the 
provisional duty imposed on imports of threaded tube or pipe cast fittings, of 
malleable cast iron, originating in the People’s Republic of China and Thailand 
and terminating the proceeding with regard to Indonesia (OJ L 129 of 14.05.2013, 
pp. 1-11), given the ruling of the Court of Justice of the European [Union], in its 
judgment of 12 July 2018 in Joined Cases C-397/17 and C-398/17, that tube or 
pipe cast fittings of spheroidal graphite cast iron are not tube or pipe cast fittings 
of malleable cast iron and that tube or pipe cast fittings of spheroidal graphite cast 
iron fall under a different subheading than tube or pipe cast fittings of malleable 
cast iron? 
Provisions of Union law cited  
Commission Regulation (EU) No 1071/2012 of 14 November 2012 imposing a 
provisional anti-dumping duty on imports of threaded tube or pipe cast fittings, of 
malleable cast iron, originating in the People’s Republic of China and Thailand; in 
particular, recital 28 
Council Implementing Regulation (EU) No 430/2013 of 13 May 2013 imposing a 
definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, 
originating in the People’s Republic of China and Thailand and terminating the 
proceeding with regard to Indonesia; in particular, recital 13 
Commission Implementing Regulation (EU) 2019/262 of 14 February 2019 
amending Council Implementing Regulation (EU) No 430/2013; in particular, 
Articles 1 and 2 
Explanatory Notes to the Combined Nomenclature of the European Union (OJ 
2015 C 76, p. 1), as well as the notice concerning the amendment of those 
Explanatory Notes (OJ 2019 C 2, p. 2) 
Article 267 TFEU 
Court of Justice case-law cited 
Judgment of 12 July 2018, Profit Europe, C-397/17 and C-398/17, 
EU:C:2018:564 
OPENBAAR MINISTERIE AND FEDERALE OVERHEIDSDIENST FINANCIËN 
 
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Judgment of 2 April 2009, Hauptzollamt Bremen, C-134/08, EU:C:2009:229  
Judgment of 24 November 2005, Deutsches Milch-Kontor, C-136/04, 
EU:C:2005:716 
Judgment of 18 April 2013, Steinel Vertrieb, C-595/11, EU:C:2013:251 
Provisions of national law cited 
Articles 11, 12, 14, 24, 31 to 37 and 41 of the wet van 15 juni 1935 op het gebruik 
der talen in gerechtszaken (Law of 15 June 1935 on the use of languages in 
judicial proceedings) 
Articles 162, 185, 190, 190b, 194, 195, 199, 200, 202, 203, 203a, 204, 210, 211 of 
the Wetboek van Strafvordering (Code of Criminal Procedure) 
Articles 1, 2, 3, 7 of the Strafwetboek (Criminal Code) 
Brief summary of the facts and the procedure in the main proceedings 
General 
1 Proceedings have been brought against Profit Europe NV (‘the first respondent’ or 
‘Profit Europe’) and Gosselin Forwarding Services NV (‘the second respondent’ 
or ‘Gosselin Forwarding Services’), as importer and declarant respectively, for the 
declaration under an incorrect tariff code and the designation of certain tube or 
pipe cast fittings manufactured from malleable cast iron, originating in the 
People’s Republic of China, which are subject to anti-dumping duties, during the 
period from 19 November 2012 to 30 June 2015. This entailed 97 declarations, 
which evaded anti-dumping duties in the amount of EUR 651 954.11 (offence 1). 
2 In addition, proceedings have been brought against both respondents for the 
declaration of incorrect customs values on 7 of those declarations, resulting in an 
underpayment of EUR 10 086 in import duties (offence 2). 
3 By judgment of 28 March 2019, the rechtbank van eerste aanleg Antwerpen 
(Court of First Instance, Antwerp, Belgium) acquitted the first respondent of 
offences 1 and 2, and acquitted the second respondent of offence 1, but found it 
guilty of offence 2. The tax claim was declared unfounded. 
4 On 16 April 2019, the Federale Overheidsdienst Financiën (administratie douane 
en accijnzen) (Federal Public Service Finance (General Administration of 
Customs and Excise); ‘FOD Financiën’) lodged an appeal against the 
aforementioned judgment with the hof van beroep Antwerpen (Court of Appeal, 
Antwerp, Belgium), the referring court. In addition, the FOD Financiën argues 
with respect to the proceedings that the rechtbank van eerste aanleg wrongly 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-362/20 
 
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refused to refer the question proposed at first instance for a preliminary ruling. 
With regard to the debt, the FOD Financiën argues that Profit Europe was wrongly 
acquitted of offences 1 and 2, and that Gosselin Forwarding Services was wrongly 
acquitted of offence 1, and was given an unduly light sentence for offence 2. It 
also argued that the tax claim was wrongly dismissed.  
5 On appeal, the hof van beroep should rule on all the points raised by the FOD 
Financiën in the appeal. Moreover, it is common cause that Gosselin Forwarding 
Services is guilty of offence 2, as held by the first court.  
Contextualising the dispute with a view to assessing its merits from a criminal-law 
perspective 
6 As part of its assessment from a criminal-law perspective, the referring court 
outlines the customs law context of the dispute as follows.  
7 Following the imposition by the European Commission, with effect from 
16 November 2012 (by Regulation No 1071/2012), of a provisional anti-dumping 
duty on imports into the Union of threaded tube or pipe cast fittings, of malleable 
cast iron, originating in the People’s Republic of China and Thailand, a definitive 
anti-dumping duty on imports into the Union of those goods originating in the 
People’s Republic of China and in Thailand was imposed with effect from 15 May 
2013 (by Implementing Regulation No 430/2013) and the proceeding with respect 
to Indonesia was terminated. 
8 The goods concerned were defined in Implementing Regulation 430/2013 as 
‘currently falling within CN code ex 7307 19 10 (TARIC code 7307 19 10 10)’ 
and were subject to an anti-dumping duty of 57,8% ad valorem for imports 
originating in China and 15,5% ad valorem for imports originating in Thailand.  
9 Since the introduction of the anti-dumping duty, commodity codes 7307 11 (tube 
or pipe cast fittings, of cast iron) and 7307 11 00 (tube or pipe cast fittings, of 
non-malleable cast iron) suddenly appeared much more frequently than 
commodity code 7307 19 when imported into the Union and, more specifically, 
into Belgium.  
10 It is common cause that the imported couplings and fittings from China are 
manufactured in accordance with ASTM standard A536, which relates to 
spheroidal graphite cast iron.  
11 According to the FOD Financiën, which referred to the Explanatory Notes to that 
commodity code, the expression ‘malleable cast iron’ also includes spheroidal 
graphite cast iron (heading 7307 19 10). 
12 Profit Europe was the most important Belgian importer of the aforementioned 
goods. It relied on Crosstainer NV as declarant. That customs agency was taken 
over by Gosselin Forwarding Services on 1 April 2016.  
OPENBAAR MINISTERIE AND FEDERALE OVERHEIDSDIENST FINANCIËN 
 
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13 The import declarations for Profit Europe for the period from 2012 to June 2015 
were checked. A review showed that tariffs were not applied uniformly to the 
imported goods.  
14 Until 19 November 2012, all couplings and fittings were always declared as being 
made of malleable cast iron (TARIC code 7307 19 10 00).  
From 20 December 2012 to 27 October 2014, the couplings and fittings were 
declared 71 times as being made of malleable cast iron (TARIC code 7307 1910 
90) and 8 times as being made of non-malleable cast iron (TARIC code 7307 1110 
00).  
15 From 28 October 2014, the couplings and fittings were always declared as being 
made of non-malleable cast iron, while the goods concerned were still the same.  
16 With regard to the application of tariffs, a distinction should be made between 
threaded couplings (on which anti-dumping duties are payable on import into the 
Union) and unthreaded couplings, on which no anti-dumping duties are payable.  
17 During the period when the anti-dumping duties were in force, all couplings and 
fittings were declared as unthreaded, whereas in fact six types of threaded articles 
were imported. 
18 On 14 March 2014, the Centrale Administratie der Douane en Accijnzen (Central 
Administration of Customs and Excise) delivered six Binding Tariff Informations 
(BTIs) to Profit Europe, citing commodity code 7307 11 11 00 (tube or pipe cast 
fittings, of non-malleable cast iron, threaded). Those BTIs were revoked as of 
27 March 2015 by decision of 9 April 2015 but could continue to be used for a 
period of grace of six months (until 26 September 2015). In the decision revoking 
the BTIs, the commodity code 7307 19 10 and TARIC code 7307 19 10 90 were 
cited as the correct commodity code (tube or pipe cast fittings, of malleable cast 
iron, unthreaded).  
19 On 30 March 2015, the Centrale Administratie der Douane en Accijnzen delivered 
20 BTIs to Profit Europe, citing either commodity code 7307 19 10 00 (tube or 
pipe cast fittings, of malleable cast iron, threaded) or commodity code 7307 19 10 
90 (tube or pipe cast fittings, of malleable cast iron, unthreaded).  
20 In both decisions, reference was made to the CN Explanatory Notes to heading 
7307 19 10 which state that the expression ‘malleable cast iron’ includes 
spheroidal graphite cast iron.  
21 Reference was also made to the conclusion of the 140th meeting of the Customs 
Code Committee from 30 September 2014 to 3 October 2014 (item 4.24).  
22 Profit Europe, however, was of the opinion that spheroidal graphite cast iron was 
not malleable cast iron and lodged a timely administrative appeal against both the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-362/20 
 
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aforementioned decisions. Those administrative appeals were declared admissible 
but unfounded.  
23 As a result, Profit Europe brought two cases before the rechtbank van eerste 
aanleg Brussel (Belgium) in order to have the decisions on the applicable tariff 
codes revised. 
24 In those two cases, the rechtbank van eerste aanleg Brussel referred questions to 
the Court of Justice of the European Union (‘the Court of Justice’) for a 
preliminary ruling on the interpretation of, in particular, subheading 7307 19 10 
(and the CN Explanatory Notes thereto) and subheading 7307 11 00. 
25 By judgment of 12 July 2018, Profit Europe, Joined Cases C-397/17 and 
C-398/17, EU:C:2018:564, the Court of Justice held inter alia that: 
– The decisive criterion for the classification of goods for customs purposes is in 
general to be sought in their objective characteristics and properties as defined 
in the wording of the relevant heading of the CN and in the corresponding 
section or chapter notes;  
– The Explanatory Notes are an important aid to the interpretation of the scope of 
the various tariff headings, despite the fact that they are not legally binding; 
– The opinions of the Customs Code Committee are not legally binding and 
cannot alter the scope of the CN. 
26 Furthermore, the Court of Justice found that both the classification proposed by 
Profit Europe and the classification applied by the Belgian State were incorrect.  
According to the Court of Justice, subheading 7307 11 of the CN code should be 
interpreted as covering tube or pipe fittings of cast iron which is not deformable 
under compressive stress.  
According to the Court of Justice, subheading 7307 19 of the CN code should be 
interpreted as covering tube or pipe fittings of cast iron which is deformable under 
compressive stress.  
Spheroidal graphite cast iron and malleable cast iron differ in terms of their 
composition and their production, so that spheroidal graphite cast iron is a 
category distinct from malleable cast iron and therefore does not fall under CN 
code 7307 19 10.  
27 The Court of Justice found that the Combined Nomenclature is to be interpreted as 
meaning that tube or pipe cast fittings, of spheroidal graphite cast iron, must be 
classified under subheading 7307 19 90 of the CN.  
28 In view of the judgment of the Court of Justice, the Belgian State abandoned its 
defence in those proceedings.  
OPENBAAR MINISTERIE AND FEDERALE OVERHEIDSDIENST FINANCIËN 
 
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29 On 4 January 2019, the Official Journal of the European Union published an 
amendment to the CN Explanatory Notes so that, in the explanatory note to 
subheading 7307 19 10 (Of malleable cast iron), the passage ‘The expression 
“malleable” includes spheroidal graphite cast iron’ under that heading was 
deleted, and the following new explanatory note to heading ‘7307 19 90 (Other)’ 
was inserted: ‘This subheading includes fittings of spheroidal graphite cast iron’.  
30 As a result of the aforementioned judgment of the Court of Justice, Implementing 
Regulation 430/2013 was amended by Implementing Regulation 2019/262. In 
particular, CN code ex 7307 19 90 and the corresponding TARIC code were 
added to the codes of commodities subject to the definitive anti-dumping duty 
listed in Implementing Regulation 430/2013.  
Main submissions of the parties to the main proceedings 
31 The FOD Financiën argues that the foregoing does not answer the question of 
whether anti-dumping duties are payable, pursuant to Regulation No 1071/2012 
and Implementing Regulation No 430/2013, on the threaded tube or pipe cast 
fittings, of spheroidal graphite cast iron, imported by Profit Europe,  
32 According to the FOD Financiën, recital 28 of Regulation No 1071/2012, which is 
referred to in recital 13 of Implementing Regulation No 430/2013, indicates that 
anti-dumping duties should also be levied on goods made of malleable spheroidal 
graphite cast iron.  
33 Recital 28 of Regulation 1071/2012 can be found under the heading ‘B. Product 
concerned and like product 
[…] 
2. Like product’, 
and reads as follows: 
‘The authorities of one of the Member States pointed out the fact that, according 
to the explanatory notes to the Combined Nomenclature, the expression 
“malleable” [cast iron] includes spheroidal graphite cast iron (identical to ductile 
cast iron). While no sales of threaded fittings made from ductile cast iron were 
reported by any interested party during the [investigation period], there is 
evidence that this is possible. As these fittings have the same basic physical 
characteristics as the threaded malleable fittings investigated, it is considered 
appropriate to clarify that ductile iron products are falling within the scope of the 
proceeding and the measures.’  
34 All parties agree that the legal considerations within a regulation have no binding 
legal force.  
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35 The respondents both argue that a preamble cannot be used to broaden the scope 
of a regulation and that the points of a preamble cannot be validly relied on either 
as a ground for derogating from the actual provisions of the act in question or for 
interpreting those provisions in a manner clearly contrary to their wording. In that 
regard, they refer to the judgments of the Court of Justice of 2 April 2009, 
Hauptzollamt Bremen, C-134/08, EU:C:2009:229, paragraph 16, and of 
24 November 2005, Deutsches Milch-Kontor, C-136/04, EU:C:2005:716, 
paragraph 32, and the case-law cited therein.  
36 They refer expressly to the reasoning of the Court of Justice in its judgment of 
12 July 201, Profit Europe, in Joined Cases C-397/17 and C-398/17, 
EU:C:2018:564, where it is stated in paragraph 32 that malleable cast iron is an 
intermediate product between lamellar graphite iron (grey iron) and cast steel, 
which can be easily cast and becomes tough and malleable after a suitable heat 
treatment during which the carbon partly disappears or changes its make-up and it 
finally deposits in the form of nodules.  
Paragraph 45 of the aforementioned judgment expressly states that spheroidal 
graphite cast iron and malleable iron differ in terms of their composition and 
method of production.  
37 Malleable cast iron constitutes a specific category within the standardised form of 
cast iron. This standard ‘cast iron’ comprises six large families of cast iron 
according to the structure of the graphite of which they are composed, including, 
more specifically, cast iron with graphite in the form of tempering coal, also 
called ‘malleable cast iron’ and designated by code EN-GJM.  
The malleability of spheroidal graphite cast iron does not result from a suitable 
heat treatment because spheroidal graphite cast iron has a graphite form different 
from malleable cast iron, i.e. a nodular graphite form instead of tempering coal. 
Spheroidal graphite cast iron is referred to by code EN-GJS. 
38 The respondents further argue that Implementing Regulation 2019/262 broadens 
the scope of Implementing Regulation No 430/2013 and therefore cannot be 
applied retroactively, and they refer in that regard to the judgment of the Court of 
Justice of 18 April 2013, Steinel Vertrieb, C-595/11, EU:C:2013:251. 
Brief summary of the reasons for the referral 
39 In view of the aforementioned lack of clarity regarding the scope of application of 
the anti-dumping measures of Implementing Regulation No. 430/2013, the hof 
van beroep Antwerpen is of the opinion that the abovementioned question should 
be referred for a preliminary ruling.