Opinion of the Advocate General — ECLI:EU:C:2020:555
Date: 2020-07-09
Language of the case: German
Subject matter: Agriculture and Fisheries;Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

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: 
16 July 2019 
Referring court: 
Finanzgericht Hamburg (Germany) 
Date of the decision to refer: 
1 July 2019 
Applicant: 
Jebsen & Jessen (GmbH & Co.) KG 
Defendant: 
Hauptzollamt Hamburg  
  
Subject matter of the main proceedings 
Exemption from anti-dumping duty — Effects of an incorrect reference in the 
original undertaking invoice to the decision leading to the exemption — Whether 
the subsequent submission of a corrected undertaking invoice is permissible. 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 of the Treaty on the Functioning of the 
European Union (TFEU). 
Questions referred 
1. Under the conditions of the dispute in the main proceedings, is the 
exemption from the anti-dumping duty introduced by Article 1 of 
Commission Implementing Regulation (EU) 2015/82 pursuant to 
Article 2(1) of that regulation precluded if an undertaking invoice pursuant 
to Article 2(1)(b) of that regulation does not specify Implementing Decision 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-543/19 
 
2  
(EU) 2015/87 referred to in point 9 of the annex to that regulation, but 
specifies rather Decision 2008/899/EC? 
2. If Question 1 is answered in the affirmative: May an undertaking invoice 
that meets the requirements of the annex to Implementing Regulation (EU) 
2015/82 be submitted in the context of a procedure for establishing whether 
anti-dumping duties are reimbursable in order to obtain exemption from the 
anti-dumping duty imposed in Article 1 of that regulation pursuant to 
Article 2(1) thereof? 
Provisions of EU law cited 
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the 
Community Customs Code (‘the Community Customs Code’) as last amended by 
Regulation (EU) No 952/2013 of 9 October 2013, specifically Article 78. 
Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive 
anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-
alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania 
and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating 
the proceeding in respect of such imports originating in the Republic of Croatia, 
specifically Article 2(2). 
Council Regulation (EC) No 1193/2008 of 1 December 2008 imposing a 
definitive anti-dumping duty and collecting definitively the provisional duties 
imposed on imports of citric acid originating in the People’s Republic of China. 
Commission Decision 2008/899/EC of 2 December 2008 accepting the 
undertakings offered in connection with the anti-dumping proceeding concerning 
imports of citric acid originating in the People’s Republic of China, as amended 
by Commission Decision 2012/501/EU of 7 September 2012. 
Commission Implementing Regulation (EU) 2015/82 of 21 January 2015 
imposing a definitive anti-dumping duty on imports of citric acid originating in 
the People’s Republic of China following an expiry review pursuant to 
Article 11(2) of Council Regulation (EC) No 1225/2009 and of partial interim 
reviews pursuant to Article 11(3) of Regulation (EC) No 1225/2009, specifically 
Articles 1 and 2 and point 9 of the annex. 
Commission Implementing Decision (EU) 2015/87 of 21 January 2015 accepting 
the undertakings offered in connection with the anti-dumping proceeding 
concerning imports of citric acid originating in the People’s Republic of China. 
JEBSEN & JESSEN 
 
3 
Brief summary of the facts and procedure 
1 The applicant seeks exemption from anti-dumping duty on imports of citric acid 
from the People’s Republic of China (‘the PRC’). 
2 Anti-dumping duty on imports of citric acid originating in the PRC was originally 
levied on the basis of Regulation No 1193/2008. In order to be made exempt from 
this, Weifang Ensign Industry Co. Ltd. (‘Weifang’) submitted an undertaking 
offer to the Commission, which the latter accepted by Decision 2008/899 
(‘original undertaking offer’). 
3 The Commission initiated a review of the anti-dumping duty in November 2013. 
In the context of that review, Weifang submitted a new undertaking offer. 
4 The applicant and Weifang agreed on the supply of a total of 360 tonnes of citric 
acid at a price of EUR 884.70 per tonne by way of three contracts dated 9, 13 and 
15/16 January 2015, respectively. The minimum import price established for the 
first quarter of 2015 by the Commission on the basis of Weifang’s undertaking 
offers was EUR 878.60 per tonne. The citric acid was shipped from the PRC on 
30 January 2015. 
5 The applicant declared the 360 tonnes of citric acid for release into free circulation 
under tariff heading 2918 1400 00 0 and TARIC additional code A882 via twelve 
customs declarations of 10 and 11 March 2015. At the request of the defendant, 
the applicant submitted the associated undertaking invoices of Weifang of 
29 January 2015 (‘original undertaking invoices’). They referred to, inter alia, 
‘Decision 2008/899/EC’. 
6 As the original undertaking invoices referred to Decision 2008/899 and not to 
Implementing Decision 2015/87, which entered into force on 23 January 2015, the 
defendant refused the requested exemption from anti-dumping duty and, by 
twelve import duty assessment notices of 10 and 11 March 2015, imposed anti-
dumping duty on the aforementioned imports on the basis of the general anti-
dumping duty rate of 42.7%. 
7 The applicant requested that the anti-dumping duty be reimbursed and, in that 
connection, submitted corrected undertaking invoices. The only difference 
between these invoices and the original undertaking invoices was that ‘Decision 
2008/899/EC’ had been replaced by ‘Implementing Decision (EU) 2015/87’. 
8 The defendant refused reimbursement on the ground that the requirements for 
exemption from anti-dumping duty had not been met, owing to the incorrect 
reference to Decision 2008/899 in the original undertaking invoices. It stated that 
the decisive factor in this regard was the time of acceptance of the customs 
declaration. This, it argued, was also confirmed in the judgment of the Court of 
Justice of 17 September 2014, Baltic Agro (C-3/13, EU:C:2014:2227). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-543/19 
 
4  
9 The applicant brought an action against this refusal before the referring court. It 
continues to seek full exemption from the anti-dumping duties and argues, inter 
alia, that the subsequent submission of a corrected undertaking invoice was 
permissible in any event. 
Brief summary of the basis for the request 
First question referred 
10 The question arises as to whether the undertaking invoices submitted in the 
context of the verification of the customs declaration meet the requirements of 
Article 2(1)(b) of Implementing Regulation 2015/82. Pursuant to that provision, 
an undertaking invoice must be submitted in order to obtain exemption. This is a 
commercial invoice containing at least the elements and the declaration stipulated 
in the annex to that regulation. According to the wording of the undertaking 
invoices originally submitted, the requirements of point 9 of the annex to the 
regulation are clearly not met. They refer not to Implementing Decision 2015/87, 
but rather to Decision 2008/899. However, it is possible that, under the specific 
circumstances of the main proceedings, this incorrect reference does not preclude 
exemption from anti-dumping duty. 
11 The rule of interpretation according to which provisions which provide for an 
exemption are to be interpreted strictly supports the argument that specifying a 
decision that is not valid at the time of import excludes the right to exemption 
from duty (judgments of 17 September 2014, Baltic Agro, C-3/13, paragraph 24, 
and of 22 May 2019, Krohn & Schröder, C-226/18, paragraph 46). 
12 The referring court takes the view that this rule of interpretation must, however, 
be understood in the light of the principle of proportionality. In this connection, 
Advocate General Kokott stated in her Opinion of 6 September 2018 in the Vetsch 
case (C-531/17, point 50) that the incurrence of import VAT liability constitutes 
interference with the freedom to conduct a business under Article 16 of the 
Charter. The same must apply to the incurrence of anti-dumping duty. Pursuant to 
the second sentence of Article 52(1) of the Charter, a limitation of the freedom to 
conduct a business resulting from the refusal of exemption from anti-dumping 
duty may therefore be made only if it is necessary and genuinely meets objectives 
of general interest recognised by the European Union. 
13 Even irrespective of whether the refusal of exemption from anti-dumping duty 
constitutes interference with a fundamental right of the applicant, the referring 
court takes the view that the exemption under Article 2 of Implementing 
Regulation 2015/82 must be understood in the light of the principle of 
proportionality. The case-law of the Court of Justice makes clear that the 
withdrawal of acceptance of an undertaking offer must be assessed against the 
principle of proportionality (judgment of 22 November 2012, Usha Martin, 
C-552/10 P, paragraph 32). The same must apply to the interpretation of a 
JEBSEN & JESSEN 
 
5 
provision of the law on anti-dumping duty under which exemption is granted. In 
line with this, the Court of Justice has recently emphasised in the context of 
preferential treatment in the application of anti-dumping duties that, for the 
purpose of interpreting a provision of EU law, it is necessary to consider not only 
its wording but also the context in which it occurs and the objectives pursued by 
the rules of which it forms part (judgment of 12 October 2017, Tigers, C-156/16, 
paragraph 21, with reference to the judgment of 16 November 2016, Hemming 
and Others, C-316/15, paragraph 27; judgment of 14 July 2016, Verband Sozialer 
Wettbewerb, C-19/15, paragraph 23). 
14 This is not precluded by recital 186 of Implementing Regulation 2015/82, to 
which the defendant referred. Although it is clear from that recital that the mere 
purchase of goods from a manufacturer whose undertaking offer has been 
accepted by the Commission does not necessarily lead to exemption from anti-
dumping duty, that recital merely makes clear that the exemption depends on 
whether the conditions laid down in Article 2 of Implementing Regulation 
2015/82 are met. As the recital presupposes the fulfilment of these conditions, it is 
unable to make any contribution to their interpretation. 
15 It follows from the application of the principle of proportionality, firstly, that it is 
not the case that every deviation, however small, from the text stipulated in 
point 9 of the annex to Implementing Regulation 2015/82 leads to the loss of 
exemption. The parties to the main proceedings are also in agreement on this. The 
present Chamber takes the view that deviations from the wording stipulated in 
point 9 should not preclude exemption if they do not frustrate the purpose behind 
submission of the undertaking invoice. 
16 The purpose behind submission of the undertaking invoice is to monitor 
effectively the compliance with the undertaking offer (judgment of 17 September 
2014, Baltic Agro, C-3/13, paragraph 29; also recital 184 of Implementing 
Regulation 2015/82). The Court of Justice recently emphasised the particular 
importance of referring to the correct implementing decision in this context 
(judgment of 22 May 2019, Krohn & Schröder, C-226/18, paragraph 55). Thus, 
exemption should normally be granted only if the undertaking invoice refers to the 
decision accepting an undertaking offer which is valid at the time of import. 
17 However, the referring court takes the view that, owing to the special 
circumstances of the present case, the reference to the decision that had ceased to 
be valid did not impair, and could not have impaired, the verification of 
compliance with the conditions of the undertaking offer. The reason for this is 
that, in this specific case, the ability of the German customs authorities to verify 
compliance with the conditions governing exemption had not been impaired. 
18 In addition, the conditions of the undertaking offer which was valid when the 
goods were imported had been complied with. The Commission informed the 
referring court that the content of the two undertaking offers was virtually 
identical. In addition, according to the information provided to the referring court 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-543/19 
 
6  
by the Commission, it has been established in the present case that the import 
price of the citric acid in question here was higher than the minimum import price 
applicable to Weifang for the first quarter of 2015. 
19 In the present case, moreover, the Commission did not see any reason to amend 
the minimum import price set for the first quarter of 2015 in accordance with the 
original undertaking offer after the new undertaking offer entered into force. 
Under these circumstances, for the referring court it appears disproportionate to 
refuse the exemption solely on account of the reference to Decision 2008/899, 
which was still valid when the contract was concluded, even though it has been 
established that the minimum import price applicable at the time of conclusion of 
the contract, invoicing and import had been exceeded. 
20 The present case differs from the case that was the subject of the judgment of 
17 September 2014, Baltic Agro (C-3/13). That case concerned the question of 
whether Baltic Agro AS could be regarded as the ‘first independent customer in 
the Union’ in the context of a provision that is comparable to Article 2(1)(a) of 
Implementing Regulation 2015/82 (paragraph 25 of the judgment), even though it 
had not acquired the product directly from the undertaking that had submitted the 
undertaking offer, but had acquired it, rather, from an intermediary. The Court of 
Justice answered that question in the negative. intermediaries could not be 
involved, as otherwise it would not be clear who could claim the exemption 
(paragraph 30 of the judgment). The reason for this was that the rules relating to 
direct sale served to make it possible ‘to verify in a transparent manner 
compliance with the minimum price on import undertaken by the exporting 
producers’ (Opinion of Advocate General Cruz Villalón of 3 April 2014 in the 
Baltic Agro case, C-3/13, point 32). It would not be possible to do this in the same 
manner in the case of an export involving intermediaries, given that any 
subsequent resale of the product taking place prior to import into the European 
Union could give rise to additional costs affecting those prices (loc. cit.). The 
verification of compliance with the undertaking offer was not impaired in the 
present case, however. 
Second question referred 
21 Were the Court of Justice to conclude that the reference to Decision 2008/899 in 
the undertaking invoices that were originally submitted precludes exemption from 
anti-dumping duty, the question then arises as to whether the corrected invoices 
that were subsequently submitted, which indisputably meet the requirements of 
Article 2(1)(b) of Implementing Regulation 2015/82, must still be taken into 
consideration. 
22 The answer to this question hinges on the interpretation of Article 2(2)(a) of 
Implementing Regulation 2015/82. At first glance, the wording of this provision 
appears to be clear. It provides that the customs debt is incurred at the time of 
acceptance of the declaration for release into free circulation if it is established 
that one of the conditions for exemption of Article 2(1) is not fulfilled. The 
JEBSEN & JESSEN 
 
7 
submission of documents after acceptance of the customs declaration therefore 
appears to be precluded. Recital 11 of Implementing Decision 2015/87 could also 
be understood in this sense. Pursuant to the first sentence of that recital, when the 
request for release for free circulation is presented, an invoice containing at least 
the items of information listed in the annex to Implementing Regulation 2015/82 
must be presented. 
23 On closer examination, however, Article 2(1) of Implementing Regulation 
2015/82 does not explicitly specify the latest point in time by which documents 
may be submitted. It expressly specifies only the time when the customs debt is 
incurred. It is incurred at the time of acceptance of the declaration of release for 
free circulation. This is the case if ‘it is established […] that one or more of the 
conditions listed in [Article 2(1) of Implementing Regulation 2015/82] are not 
fulfilled’. No mention is made of the point in time at which this must be 
established. Recital 11 of Implementing Decision 2015/87 does not necessarily 
militate in favour of there being a specific point in time for the submission of 
documents either. Rather, it could also be understood as meaning that the 
exemption from anti-dumping duty must be claimed when the request for release 
for free circulation is presented; it thus makes no mention of the (last-possible) 
point in time for submitting the invoice. 
24 Additional doubts surrounding the assumption that Article 2(2) of Implementing 
Regulation 2015/82 sets the acceptance of the customs declaration as the last-
possible point in time for submitting documents arise if its wording is compared 
with that of other anti-dumping provisions. In the judgment of 12 October 2017, 
Tigers (C-156/16), the Court of Justice stated that the regulation in question in that 
case, unlike other anti-dumping regulations, did not contain a provision on the 
point in time at which a valid commercial invoice must be presented to the 
customs authorities (paragraph 25, with reference to point 60 of the Opinion of 
Advocate General Mengozzi). For example, Article 2(2) of Regulation 
No 2320/97 specifies the point in time at which the production certificate is to be 
submitted. This differs clearly from the wording of Article 2(2) of Implementing 
Regulation 2015/82. 
25 The referring court is aware that, in the interpretation of EU legislation, the 
purpose of the provision must also be taken into account. The undertaking invoice 
must be presented in order to make it possible to verify ‘that the shipment 
corresponds to the commercial documents’ (second sentence of recital 11 of 
Implementing Decision 2015/87). In principle, therefore, the undertaking invoice 
must be in the possession of the customs authorities at the same time as the 
product. 
26 However, it could be deduced from the principle of proportionality, which is also 
applicable, that individual items of information in the undertaking invoice may 
still be remedied or corrected, provided that the purpose pursued by that 
information can still be achieved. This should be the case with regard to evidence 
of compliance with an undertaking offer, since, pursuant to Article 2(1) of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-543/19 
 
8  
Implementing Regulation 2015/82, such evidence is provided solely by way of 
self-declaration by the exporting producer. 
27 A comparison with Article 78 of the Community Customs Code might support 
such an understanding of the time at which the obligation to submit documents 
arises. According to the case-law of the Court of Justice, the logic of that article is 
to bring ‘the customs procedure into line with the actual situation’ (judgment of 
12 October 2017, Tigers, C-156/16, paragraph 31). It is not clear to the referring 
court why the same should not also apply to a reimbursement procedure. As 
indicated, the wording of Article 2(2) of Implementing Regulation 2015/82 does 
in any event not preclude the subsequent submission of documents. 
28 Finally, the risk of circumvention in the present case was also not increased by the 
subsequent correction of the undertaking invoice. The reference to Decision 
2008/899, which had ceased to be valid, was an isolated error which did not 
impair the examination of the other conditions governing exemption from anti-
dumping duty. As the declaration stipulated by point 9 of the annex to 
Implementing Regulation 2015/82 in any event constitutes self-declaration by the 
exporting producer, the point in time at which it is submitted does not affect its 
veracity. The referring court takes the view that the substantive criterion as to 
whether the undertaking price has in fact been complied with must ultimately be 
decisive for the exemption from anti-dumping duty. That was indisputably the 
case here.