Case C‑416/15

Selena România SRL

v

Direcția Generală Regională a Finanțelor Publice (DGRFP) București

(Request for a preliminary ruling from the

Curtea de Apel Bucureşti)

‛Reference for a preliminary ruling — Commercial policy — Regulation (EC) No 1225/2009 — Article 13 — Circumvention — Council Implementing Regulation (EU) No 791/2011 — Open mesh fabrics of glass fibres originating in the People’s Republic of China — Anti-dumping duties — Council Implementing Regulation (EU) No 437/2012 — Consignment from Taiwan — Initiation of an investigation — Implementing Regulation (EU) No 21/2013 — Extension of the anti-dumping duty — Temporal scope — Principle of non-retroactivity — Community Customs Code — Post-clearance recovery of import duties’

Summary — Judgment of the Court (Ninth Chamber), 30 June 2016

Common commercial policy — Protection against dumping — Circumvention — Extension of the anti-dumping duty — Temporal scope of application — Retroactive application of the definitive anti-dumping duty imposed on imports released for free circulation in the Union prior to the entry into force of the regulation initiating an investigation concerning the circumvention and making the imports at issue subject to registration — Limit — Inaccuracy of the certificates of origin revealed following a verification carried out after the event

(Council Regulations No 2913/92, Art. 26, No 1225/2009, Arts 10(1), 13(1) and (3) and 14(5) and No 21/2013, Art. 1(1) and (2); Commission Regulation No 437/2012)

Article 1(1) of Implementing Regulation No 21/2013 extending the definitive anti-dumping duty imposed by Implementing Regulation No 791/2011 on imports of certain open mesh fabrics of glass fibres originating in the People’s Republic of China to imports of those same goods consigned from Taiwan and Thailand, whether declared as originating in those countries or not, is to be interpreted as meaning that the definitive anti-dumping duty extended by that provision is not applicable retroactively to goods consigned from Taiwan, released for free circulation in the Union after the date of entry into force of the original Implementing Regulation No 791/2011, but before that of Regulation No 437/2012, initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Implementing Regulation No 791/2011, by imports at issue consigned from Taiwan and Thailand, and making such imports subject to registration. Nevertheless, the anti-dumping duty imposed by Article 1(1) of the Original Implementing Regulation No 791/2011 applies to imports of such goods, if it is established that, despite being consigned from Taiwan and declared as originating in that country, those goods in fact originate in the People’s Republic of China.

In that respect, it follows from Article 13(3) of Basic Anti-dumping Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community that, in the event of circumvention, the extension of established definitive measures takes effect from the date on which the registration was imposed pursuant to Article 14(5) of that regulation.

Whilst Article 10(1) of Regulation No 1225/2009 affirms the principle of non-retroactivity of anti-dumping measures, since such measures cannot as a rule be applied to any goods other than those released for free circulation after the date on which the regulation introducing them entered into force, several provisions of that regulation derogate from that principle.

Consequently, the anti-dumping duty imposed by Article 1(1) of Extending Regulation No 21/2013 is not applicable retroactively to imports which took place before the date of entry into force of Regulation No 437/2012 on initiating an investigation on circumvention, that is to say before the imports at issue could have been registered in accordance with that regulation.

Nevertheless, that interpretation does not preclude the definitive anti-dumping duties imposed by the original Regulation No 791/2011 from applying to such imports if it is established, after a verification carried out after the event, that those imports originate in reality in the People’s Republic of China.

As is apparent from Article 26 of Regulation No 2913/92 establishing the Community Customs Code, although EU legislation provides that the origin of the goods must be evidenced by the production of a document, the production of that document does not prevent, in case of serious doubt, customs authorities from requiring any supplementary evidence to ensure that the indication of origin does comply with the rules established by EU legislation in this field. The purpose of the verification after the event is to check the accuracy of the origin indicated on the certificate of origin.

It follows that the fact that goods are accompanied by certificates of origin is not a circumstance capable of preventing the recovery of duty due in respect of the import of those goods if, after that import has taken place, those certificates prove to be inaccurate, which is for the national courts to determine.

(see paras 29, 30, 32-34, 36-39, operative part)