Judgment;Summary — ECLI:EU:C:2024:855
Date: 2024-10-04
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-412/22 – 1 
Case C-412/22 
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: 
21 June 2022 
Referring court:  
Supremo Tribunal Administrativo (Portugal) 
Date of the decision to refer: 
18 May 2022 
Appellant:  
Autoridade Tributária e Aduaneira 
Respondent: 
NT 
  
Subject matter of the main proceedings  
The referring court is hearing an appeal against the judgment of the Tribunal 
Administrativo e Fiscal do Porto (Administrative and Tax Court of Oporto, 
Portugal; ‘the TAF of Oportoʼ), in which that court upheld the legal challenge to 
an assessment of anti-dumping duties, among other duties, in connection with a 
procedure for post-clearance recovery of those duties. 
Subject matter and legal basis of the request  
Article 267 TFEU – Effects and scope of the repeal of Regulation (EC) 
No 91/2009 by Implementing Regulation (EU) 2016/278 in the case of post-
clearance recovery of anti-dumping duties – Relevance of the fact that that 
recovery is based on evidence collected by OLAF. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-412/22 
 
2  
Questions referred for a preliminary ruling  
1. Can Article 2 of Commission Implementing Regulation (EU) 2016/278 of 
26 February 2016 be interpreted as meaning that the repeal of the anti-dumping 
duties, apart from taking effect for the future from 28 February 2016, also affects 
imports of fasteners subject to those duties which took place up to 27 February 
2016, but were assessed (for anti-dumping duties and other duties) on a date after 
28 February 2016 (post-clearance recovery)?  
2. Will the answer to the first question be different it is considered that the 
post-clearance recovery has its origin in a transcript made, pursuant to a decision 
of 21 April 2017, of a criminal investigation initiated on the basis of evidence 
provided by the European Anti-Fraud Office (OLAF), within the framework of 
OLAF investigation CASE OF/2010/0697, AAA 2010/016-(2012)S01, in which it 
was concluded that the goods exported to the European Community in containers 
(…) and (…) on 3 April 2010 and in containers (…) and (…) on 24 April 2010 
were of Chinese non-preferential origin? 
Provisions of European Union law relied on  
Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive 
anti-dumping duty on imports of certain iron or steel fasteners originating in the 
Peopleʼs Republic of China (OJ 2009 L 29, p. 1): Article 1. 
Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending 
the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on 
imports of certain iron or steel fasteners originating in the Peopleʼs Republic of 
China to imports of certain iron or steel fasteners consigned from Malaysia, 
whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6). 
Commission Implementing Regulation (EU) 2016/278 of 26 February 2016 
repealing the definitive anti-dumping duty imposed on imports of certain iron or 
steel fasteners originating in the Peopleʼs Republic of China, as extended to 
imports of certain iron or steel fasteners consigned from Malaysia, whether 
declared as originating in Malaysia or not (OJ 2016 L 52, p. 24; ‘the 
Implementing Regulationʼ): recital 14 and Articles 1, 2 and 3. 
Regulation (EU) 2015/476 of the European Parliament and of the Council of 
11 March 2015 on the measures that the Union may take following a report 
adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-
subsidy matters (OJ 2015 L 83, p. 6): recitals 4, 5 and 6 and Articles 1(3) and 3. 
Succinct presentation of the facts and procedure in the main proceedings  
1 The European Anti-Fraud Office (OLAF) conducted an investigation into the 
transhipping of products originating from China through Malaysia with the aim of 
AUTORIDADE TRIBUTÁRIA E ADUANEIRA 
 
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evading payment of anti-dumping duties, which covered the period between 
1 February 2009 and 29 October 2010. 
2 The results of that investigation were communicated to the Member States within 
the framework of the mutual assistance procedure. The evidence collected by 
OLAF was used in national administrative and judicial proceedings in accordance 
with Article 11(2) of Regulation (EU, Euratom) No 883/2013 of the European 
Parliament and of the Council of 11 September 2013. 
3 The inspection carried out by the Customs Authority derived from a transcript, 
made on 21 April 2017, of the criminal investigation ongoing at the Public 
Prosecutorʼs Office for the District of Oporto, in which indications of 
circumvention of anti-dumping duties were being investigated on the basis of 
evidence provided by OLAF in connection with OLAF investigation CASE 
OF/2010/0697, AAA 2010/016-(2012)S01. 
4 In that investigation it had been concluded, in particular, that the iron or steel 
fasteners exported to Portugal on 3 and 24 April 2010 were of Chinese non-
preferential origin, although Malaysia was stated, falsely, to be the country of 
origin of the containers in which the goods in question had been transported. 
5 According to the individual administrative documents completed by NT, as 
declarant, and submitted to the Leixões Customs Office on 12 May and 9 June 
2010, the company Inemer was the consignee/importer of the aforementioned 
exports. 
6 The amendment of the origin of the goods from Malaysia to China involved the 
application of Regulation No 91/2009. Imports of these goods from China were 
subject to definitive anti-dumping duties, of between 26.5% and 85% under 
Regulation No 91/2009, whereas the same imports, when they did actually 
originate in Malaysia, were not subject to such duties until Regulation 
No 723/2011 came into force.  
7 That amendment also meant the loss of the benefit of the preferential tariff 
measures, provided for in Article 20(3)(e) of Council Regulation (EEC) 
No 2913/92 of 12 October 1992 establishing the Community Customs Code 
(CCC), and intended for goods which satisfy the rules of preferential origin; 
therefore, a conventional ad valorem rate of duty of 3.77% was applied. 
8 On 20 March 2018, a tax assessment for anti-dumping duties, conventional duties, 
VAT and compensatory interest was issued for the total amount of 
EUR 106 997.60. The assessment was served on Inemer and on NT, as indirect 
representative and declarant, deemed to be jointly and severally liable.  
9 NT challenged the assessment before the TAF of Oporto, which upheld the action. 
The Customs Authority disagreed with the ruling and lodged an appeal before the 
referring court.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-412/22 
 
4  
The essential arguments of the parties in the main proceedings  
10 According to the Customs Authority, the repeal of Regulation No 91/2009 by the 
Implementing Regulation is not a nullifying repeal based on an illegality which 
would have meant that the former regulation was invalid from the outset. 
11 In its opinion, both Article 2 of the Implementing Regulation and recital 14 
thereof clearly and expressly state that the repeal of Regulation No 91/2009 took 
effect only after 28 February 2016, the date on which the Implementing 
Regulation entered into force. Therefore, between 2009 and 28 February 2016, 
Regulation No 91/2009 was valid, fully in force in the European legal order and 
had to be applied to all chargeable events which occurred while it was in force.  
12 The expression ‘shall not serve as a basis for the reimbursement of the duties 
collected prior to that dateʼ in Article 2 of the Implementing Regulation aims 
specifically to reinforce the idea that Regulation No 91/2009 was valid and 
applicable while it was in force, so that applications for the annulment and 
reimbursement of customs duties could not be submitted on the grounds of its 
illegality.  
13 Recital 14 of the Implementing Regulation is also clear when it states that ‘the 
repeal of the disputed measures should take effect from the date of its entry into 
force and, therefore, does not provide any basis for the reimbursement of the 
duties collected prior to that dateʼ.  
14 According to the Customs Authority, it is clear from the wording of Article 2 of 
the Implementing Regulation that only imports after 28 February 2016 are exempt 
from the customs duties laid down in Regulation No 91/2009, and it therefore 
considers that the TAF [of Oporto] unlawfully failed to apply the latter regulation 
to chargeable events occurring in 2010 on the ground that that regulation was no 
longer in force at the date of the assessment, that is to say, in 2018.  
15 The Customs Authority states that what determines the application of a regulation 
is the date of the chargeable event, that is to say, whether or not that event 
occurred while that regulation was in force, and not the date of the corresponding 
tax assessment.  
16 In that regard, the Customs Authority refers to the judgment of the Court of 
Justice of 18 October 2018, Rotho Blaas (C-207/17, EU:C:2018:840), and points 
out that, in case, in answer to the question referred for a preliminary ruling, as to 
whether Regulation No 91/2009 was invalid or contrary to the law in relation to a 
ruling of the Dispute Settlement Body of the World Trade Organisation (WTO), 
the Court of Justice declared that examination of that question had not disclosed 
any factor of such a kind as to affect the validity of Regulation No 91/2009.  
17 According to the Customs Authority, the Commission considered it appropriate to 
repeal the anti-dumping duties imposed and, in accordance with Article 3 of 
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Regulation 2015/476, established that that repeal would take effect ex nunc, thus 
preserving the effects of Regulation No 91/2009 until the date of its repeal.  
18 It follows that the anti-dumping duties relating to the imports at issue, which were 
payable at the date of importation, must be regarded as still legally payable. 
19 The fact that Article 1 of the Implementing Regulation establishes that ‘the 
proceeding concerning the imports [will be] terminatedʼ does not affect the above 
conclusion. That provision shows only that the Commission opted not to conduct 
the review in accordance with Article 1(3) of Regulation 2015/476, but to 
terminate the proceeding.  
20 The legislature intended to apply the Implementing Regulation to new events, an 
intention which it expressed by providing that taxes already collected would not 
be reimbursed.  
21 Thus, it did not apply to imports already carried out while Regulation No 91/2009 
was in force, in order to avoid situations of inequality, the infringement of 
competition rules and the different treatment of identical situations. Otherwise, 
importers who had paid anti-dumping duties on imports of fasteners originating in 
China would have been at a disadvantage in relation to importers who declared a 
false origin in order to evade that payment.  
22 Given that Regulation No 91/2009 is not unlawful, its repeal respects the effects 
already produced by the repealed measure and merely puts an end, in the future, to 
the effects which it might still produce, by providing that it will take effect ex 
nunc. 
23 According to the respondent, it is apparent from recitals 9, 10 and 13 of the 
Implementing Regulation and from recitals 4, 5 and 6 of Regulation 2015/476 that 
the purpose of the Implementing Regulation was to repeal Regulation No 91/2009 
owing to its incompatibility, as established by the Dispute Settlement Body of the 
WTO, with certain provisions of the Anti-dumping Agreement.  
24 Therefore, the repeal in question was not based on considerations of the 
appropriateness or suitability of the customs legislative policy for dealing with the 
changes in the political and economic landscape, since it was evident that, from 
the entry into force of the Implementing Regulation, the Customs Authority could 
no longer assess anti-dumping duties, irrespective of the date on which the 
imports had taken place, because it would no longer have any legal basis for doing 
so.  
25 According to the respondent, that interpretation is supported by the fact that the 
Commission did not initiate any review proceedings pursuant to Regulation 
2015/476 in order to terminate or alter the continued imposition of the anti-
dumping measures in Regulation No 91/2009, but merely adopted a repeal 
measure.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-412/22 
 
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26 The repeal in question was based on an assessment of invalidity, stemming from 
incompatibility with obligations under a multilateral international treaty concluded 
by the European Union. The logical corollary of that incompatibility with the 
WTO Anti-dumping Agreement can only be repeal effects ex tunc, precisely 
because that repeal is based on the invalidity of the measure and not on reasons of 
suitability or appropriateness.  
27 Therefore, anti-dumping duties which had not yet been collected, as in present 
case, can now no longer be collected from the date on which they were repealed 
by the Implementing Regulation. According to the respondent, this is the only 
solution which enables the duties already collected to be safeguarded and the 
financial interests of the European Union to be protected.  
28 Furthermore, the respondent considers that this position is consistent with the 
case-law of the Court of Justice concerning the consequences of the annulment or 
declaration of invalidity of a regulation which imposes anti-dumping duties, 
according to which, in the respondentʼs view, the automatic effect of such a 
declaration of invalidity is that those duties are not legally payable. 
29 Moreover, contrary to what the Customs Authority maintains, in the judgment in 
Rotho Blaas, only the validity of Regulation No 91/2009 in the light of WTO law 
was examined, not the interpretation of Articles 1, 2 and 3 of the Implementing 
Regulation, which constituted the legal basis of the judgment of the TAF of 
Oporto. 
30 Consequently, the judgment in Rotho Blaas cannot affect the interpretation of 
Article 2 of the Implementing Regulation, since the question of whether a 
provision of an EU legal act was adopted in order to give effect in the EU legal 
order to a specific obligation assumed within the framework of the WTO 
agreements must not be confused with the question of whether that provision is 
contrary to the WTO rules.  
31 Lastly, according to the respondent, the principle of equal treatment does not 
require the Customs Authority to assess anti-dumping duties, after the entry into 
force of the Implementing Regulation, in respect of imports made before that date. 
In fact, the provision in the final part of Article 2 of that regulation, which 
precludes reimbursement of amounts relating to anti-dumping duties collected 
before the entry into force of that regulation, is what gives rise to unequal 
treatment in relation to situations in which imports, carried out either before or 
after the entry into force of the regulation at issue, have not yet been assessed for 
anti-dumping duties.  
Succinct presentation of the reasoning in the request for a preliminary ruling  
32 According to the referring court, it is crucial, in order to settle the dispute, to 
clarify the scope of the repealing effects of the adoption of the Implementing 
Regulation, specifically, whether, in spite of the fact that the repeal began to take 
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effect from 28 February 2016, it is possible to apply the anti-dumping duties laid 
down in Regulation No 91/2009 to imports of goods which were carried out in 
April 2010, when that Regulation was in force, but which were not subject to an 
assessment for anti-dumping duties, among other duties, until March 2018, when 
the contested regulation was already repealed.