OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 9 July 2020 ( 1 )

Case C‑543/19

Jebsen & Jessen (GmbH & Co.) KG

v

Hauptzollamt Hamburg

(Request for a preliminary ruling from the Finanzgericht Hamburg (Finance Court, Hamburg, Germany))

(Reference for a preliminary ruling — Customs Union — Council Regulation (EEC) No 2913/92 — Article 78 — Commission Implementing Regulation (EU) 2015/82 — Article 2(1) — Definitive anti-dumping duty — Exemption — Condition to submit an undertaking invoice — Failure to mention a mandatory element set out in the Annex to Implementing Regulation 2015/82 — Correction of the undertaking invoice)

I. Introduction

1. Where a regulation imposing definitive anti-dumping duties provides for an exemption from those duties conditional upon the presentation of an invoice meeting certain formal requirements, may an importer produce a corrected invoice after having presented the customs declaration, in particular during the course of a procedure for the post-clearance inspection of that declaration? Alternatively, in order to benefit from an exemption from the anti-dumping duty, is it always necessary that an invoice which satisfies the formal requirements be produced at the time of presentation of the customs declaration?

2. These, in essence, are the questions which have arisen in the present case, which concerns a request for a preliminary ruling from the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) on the interpretation of Article 2(1) of 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. ( 2 )

3. That request was made in the course of a dispute between a German undertaking, Jebsen & Jessen (GmbH & Co.) KG (‘the applicant’) and the Hauptzollamt Hamburg (Principal Customs Office, Hamburg, Germany, ‘the Principal Customs Office’) concerning the application of a total exemption from the anti-dumping duty which had been charged to the applicant in the absence of presentation of undertaking invoices within the meaning of Article 2(1) of Implementing Regulation 2015/82.

II. Legal context

A. The Customs Code

4. Article 62 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, ( 3 ) in the version applicable at the time of the facts in the main proceedings (‘the Customs Code’), provides: ‘1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared. 2. The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.’

5. Article 68 of the Customs Code states that: ‘For the verification of declarations which they have accepted, the customs authorities may: (a) examine the documents covering the declaration and the documents accompanying it. The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration; …’

6. According to Article 77 of the Customs Code: ‘1. Where the customs declaration is made by means of a data-processing technique within the meaning of Article 61(b), or by an oral declaration or any other act within the meaning of Article 61(c), Articles 62 to 76 shall apply mutatis mutandis without prejudice to the principles set out therein. 2. Where the customs declaration is made by means of a data processing technique, the customs authorities may allow accompanying documents referred to in Article 62(2) not to be lodged with the declaration. In this case the documents shall be kept at the customs authorities’ disposal.’

7. Article 78 of the Customs Code provides: ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. 2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said document and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced. 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’

B. Implementing Regulation 2015/82

8. Implementing Regulation 2015/82 replaced 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. ( 4 )

9. According to recitals 184 and 186 of Implementing Regulation 2015/82: ‘(184) To further enable the Commission and the customs authorities to effectively monitor the compliance of the companies with the undertakings, when the request for release for free circulation is presented to the relevant customs authority, exemption from the anti-dumping duty is to be conditional upon: (i) the presentation of an undertaking invoice, which is a commercial invoice containing at least the elements listed and the declaration stipulated in the Annex; … (186) Importers should be aware that a customs debt may be incurred, as a normal trade risk, at the time of acceptance of the declaration for release into free circulation as described in recitals 184 and 185 above even if an undertaking offered by the manufacturer from whom they were buying, directly or indirectly, had been accepted by the Commission.’

10. According to Article 1(2) of Implementing Regulation 2015/82, the rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the citric acid and trisodium citrate dihydrate produced by the Chinese exporting producer in question in the main proceedings — Weifang Ensign Industry Co. Ltd (‘Weifang’) — is 33.8%.

11. Article 2 of Implementing Regulation 2015/82 provides: ‘1. Imports declared for release into free circulation which are invoiced by companies from which undertakings are accepted by the Commission and whose names are listed in [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 (OJ 2015 L 15, p. 75)] shall be exempt from the anti-dumping duty imposed by Article 1, on condition that: (a) they are manufactured, shipped and invoiced directly by the said companies to the first independent customer in the Union; and (b) such imports are accompanied by an undertaking invoice which is a commercial invoice containing at least the elements and the declaration stipulated in the Annex to this Regulation; and (c) the goods declared and presented to customs correspond precisely to the description on the undertaking invoice. 2. A customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation: (a) whenever it is established, in respect of imports described in paragraph 1, that one or more of the conditions listed in that paragraph are not fulfilled; or …’

12. In accordance with point 9 of the Annex to Implementing Regulation 2015/82, the name of the official of the company that has issued the commercial invoice must be indicated in the commercial invoice accompanying the company’s sales to the European Union of goods which are subject to the undertaking as well as the following signed declaration: ‘I, the undersigned, certify that the sale for direct export to the European Union of the goods covered by this invoice is being made within the scope and under the terms of the Undertaking offered by (COMPANY), and accepted by the European Commission through Implementing Decision (EU) 2015/87. I declare that the information provided in this invoice is complete and correct.’

13. In accordance with its Article 3, Implementing Regulation 2015/82 entered into force on 23 January 2015.

C. Implementing Decision 2015/87

14. Recital 11 of Implementing Decision 2015/87 states that: ‘in order to enable the Commission to monitor effectively the companies’ compliance with the undertakings, when the request for release for free circulation pursuant to the undertakings is presented to the relevant customs authority, exemption from the anti-dumping duty will be conditional upon the presentation of an invoice containing at least the items of information listed in the Annex to Implementing Regulation (EU) 2015/82. This level of information is also necessary to enable customs authorities to ascertain with sufficient precision that the shipment corresponds to the commercial documents. Where no such invoice is presented, or when the other conditions provided for by the abovementioned Implementing Regulation are not met, the appropriate rate of anti-dumping duty shall instead be payable.’

15. Weifang is mentioned in Article 1 of Implementing Decision 2015/87.

16. In accordance with Articles 2 and 3 of Implementing Decision 2015/87, 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 ( 5 ) is repealed and Implementing Decision 2015/87 entered into force on 23 January 2015.

III. Facts of the main proceedings

17. 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 citric acid was shipped from the People’s Republic of China on 30 January 2015.

18. By an email of 22 January 2015, Weifang’s lawyers were informed by the Commission of the publication of Implementing Regulation 2015/82 in the Official Journal of the European Union.

19. The applicant declared the 360 tonnes of citric acid for release into free circulation via 12 customs declarations of 10 and 11 March 2015 by means of a data-processing technique, referring to three invoices of Weifang dated of 29 January 2015.

20. Before granting the release of the goods, the Principal Customs Office requested that the applicant provide these undertaking invoices all of which contained the declaration stipulated in the Annex to Implementing Regulation 2015/82. However, reference was made in that declaration to ‘Decision 2008/899’. The undertaking certificates for the export of citric acid of China (delivered by the China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters), presented in support of the said invoices, also referred to ‘Decision 2008/899’.

21. 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 Principal Customs Office refused the requested exemption from anti-dumping duty and, by 12 import duty assessment notices of 10 and 11 March 2015, imposed an anti-dumping duty on the aforementioned imports on the basis of the general anti-dumping duty rate of 42.7%.

22. By letter of 13 March 2015, the applicant requested that the anti-dumping duty be reimbursed. By 12 decisions, of 28 and 29 July 2015, the Principal Customs Office refused reimbursement on the ground that the requirements for exemption from the anti-dumping duty had not been met, owing to the incorrect reference to ‘Decision 2008/899’ in the original undertaking invoices.

23. By letter of 7 August 2015, the applicant contested those decisions in the context of an administrative procedure which is a mandatory prerequisite for a possible later challenge of the decisions in court. As part of that administrative procedure, it submitted corrected undertaking invoices which referred to ‘Implementing Regulation 2015/82’ and ‘Implementing Decision 2015/87’.

24. On 7 June 2016, the Principal Customs Office partially granted the request of the applicant and applied the individual anti-dumping duty rate. By contrast, on 13 June 2016, it refused exemption from the anti-dumping duties on the ground that the conditions for that exemption to be granted were not fulfilled, since the original undertaking invoices submitted by the applicant contained a reference not to ‘Implementing Decision 2015/87’, but to ‘Decision 2008/899’.

25. On 18 July 2016, the applicant then brought an action against that decision before the Finanzgericht Hamburg (Finance Court, Hamburg), in accordance with Article 236 of the Customs Code, in order to seek reimbursement of the anti-dumping duties imposed on it.

26. First, the referring court observes that the new undertaking given by Weifang, given concrete expression in Implementing Decision 2015/87, was applicable at the time when the goods at issue in the main proceedings were imported. In these circumstances, it questions whether the invoices provided in the context of the inspection of the customs declaration fulfil the conditions laid down in Article 2(1)(b) of Implementing Regulation 2015/82 so as to be considered as undertaking invoices, despite the fact that the conditions set out in the annex to that regulation were clearly not met, and whether the principle of proportionality could have an impact on the answer to that question.

27. Second, the referring court considers that Article 2 of Implementing Regulation 2015/82 does not expressly state a deadline by which the undertaking invoices must be presented at the latest. Article 2(2) of the regulation indicates only the time at which the custom debt is incurred, namely the time of acceptance of the declaration for release into free circulation. In that context, it believes that Article 2(2) of the Implementing Regulation 2015/82 does not set the last possible point in time for the submission of documents in order for an exemption from the anti-dumping duty to be granted.

28. Moreover, the referring court is of the opinion that the use of a data-processing technique to lodge a customs declaration could also have an impact on the interpretation of Article 2 of Implementing Regulation 2015/82, since the national provisions in force relating to such procedures provide only that the documents concerned are kept at the disposal of the customs authorities, as permitted by Article 77(2) of the Customs Code.

29. Finally, it also states that it might be inferred from the principle of proportionality that certain indications on an undertaking invoice may be made retrospectively or may be corrected in so far as the objective pursued can still be achieved.

IV. The request for a preliminary ruling and the procedure before the Court

30. In that context, the Finanzgericht Hamburg (Finance Court, Hamburg) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Under the conditions of the dispute in the main proceedings, is the exemption from the anti-dumping duty introduced by Article 1 of [Implementing Regulation 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 2015/87] referred to in point 9 of the annex to that regulation, but specifies rather [Decision 2008/899]? (2) If Question 1 is answered in the affirmative: May an undertaking invoice that meets the requirements of the annex to [Implementing Regulation 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?’

31. Written observations were submitted by the applicant in the main proceedings, the Italian Government and the European Commission. Due to the Covid-19 pandemic, the hearing scheduled for 6 May 2020 was cancelled. Instead, by decision of 20 April 2020, the questions for oral response sent to the parties in advance of the hearing were converted into questions for written response. The applicant, the Italian Government and the Commission were therefore given the opportunity to express their views on all the issues raised by the preliminary reference.

V. Analysis

A. The first question

32. By its first question, the referring court asks whether an importer may benefit from the exemption from the anti-dumping duty, as provided for by Article 2(1) of Implementing Regulation 2015/82, where the undertaking invoice presented in support for that purpose, does not specify Implementing Decision 2015/87 as referred to in point 9 of the annex to that regulation, but rather the previous one, that is to say, Decision 2008/899.

33. First, it follows from settled case-law that exemptions from anti-dumping and countervailing duties may be made only under certain conditions, in cases specifically provided for, and thus constitute exceptions to the normal regime for anti-dumping and countervailing duties. The provisions which provide for such exemptions are, therefore, to be interpreted strictly. ( 6 )

34. Second, it must also be noted that the Court has held that where it is necessary to refer to the item of EU legislation by which the undertaking offered by a company was accepted, the reference to the correct applicable act is of particular importance since it permits the customs authorities to verify, at the material time, that all the requirements regarding the exemption from anti-dumping and countervailing duties at issue have been satisfied. ( 7 )

35. That justification, for reasons relating to the verification, whether by the Commission or by the competent authorities of the Member States, that the undertakings given by the companies covered by the applicable rules, have been respected, is confirmed in the present case by recital 184 of Implementing Regulation 2015/82 and recital 11 of Implementing Decision 2015/87. ( 8 )

36. From a broader perspective, those rules and conditions seek to eliminate the injurious effects of dumping and to limit the risk of circumvention. ( 9 ) In other words, they are not enacted to protect primarily the specific interests of a particular importer. On the contrary, it must be recalled that the exemptions are an exception to anti-dumping duties, which are a protective and preventive measure against unfair competition resulting from dumping practices. ( 10 ) This is confirmed by recital 186 of Implementing Regulation 2015/82 which underlines that ‘importers should be aware that a customs debt may be incurred, as a normal trade risk, at the time of acceptance of the declaration for release into free circulation … even if an undertaking offered by the manufacturer from whom they were buying, directly or indirectly, had been accepted by the Commission’.

37. In that context, I am of the opinion that circumstances relating to the specific interests of the importer concerned or to the terms of a particular contract — such as the wish to benefit from the maintenance of a better price based on the minimum price previously accepted by the Commission — which could jeopardise the objective of verifying compliance with the undertaking given by a producer in order to be exempted from the anti-dumping duties in force at the material time — namely at the time of verification by the customs authorities — cannot be accepted as a derogation from the strict application of the formal conditions for exemption from anti-dumping duties. Such a possibility would be open to arbitrariness and would be contrary to the principle of the strict interpretation of legislative exceptions to which I have already referred. ( 11 )

38. Narrow and formalistic as this may seem, nonetheless experience has shown that the efficient and smooth operation of the entire customs regime is dependent on a strict and punctilious adherence to the relevant legislative requirements in respect of customs documentation. This does not mean, however, that there is no provision for the correction of such documentary error at a later stage. I propose to address this very issue in the context of the second question referred by the referring court.

39. Accordingly, in the light of the foregoing considerations, I am of the view that the exemption from the anti-dumping duty, introduced by Article 1 of Implementing Regulation 2015/82, is excluded if the undertaking invoice required by Article 2(1)(b) of that regulation does not specify Implementing Decision 2015/87, as expressly referred to in point 9 of the Annex to Implementing Regulation 2015/82.

B. The second question

40. By its second question, the referring court seeks to determine whether, in order to obtain the exemption from the anti-dumping duty provided for in Article 2(1) of Implementing Regulation 2015/82, an undertaking invoice which fulfils the conditions laid down in its annex may be submitted in the context of a procedure for the reimbursement of anti-dumping duties.

41. In its request for a preliminary ruling, the referring court refers on several occasions to the judgment delivered by the Court in the Tigers case. ( 12 ) In that case, the Court held that a provision of an implementing regulation which provides that the application of an individual anti-dumping duty rate is conditional on the presentation, to the customs authorities of the Member States, of a valid commercial invoice conforming to the requirements set out in one of its annexes, must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of a valid commercial invoice, for the purposes of fixing a definitive anti-dumping duty, in the case where all the other preconditions necessary for obtaining a company-specific anti-dumping duty rate are satisfied and compliance with the proper application of the anti-dumping duties is thereby ensured. ( 13 )

42. While the provision at issue in the present case concerns an exemption from anti-dumping duties and not an individual anti-dumping duty rate, I am of the opinion that the same interpretation, based on a literal and contextual interpretation, must be followed so far as the present case is concerned.

43. Before addressing these methods of interpretation, I think it is important to bear in mind that, if, as I have already observed, an exemption from anti-dumping duties is not enacted in order to protect the interests of a particular importer, the converse is also true. In other words, the adoption of anti-dumping duties is not to be regarded as a penalty relating to earlier behaviour. It is rather a protective and preventive measure designed to protect against unfair competition resulting from dumping practices. ( 14 )

44. It may be then observed that Article 2(1) of Implementing Regulation 2015/82 is worded in a similar manner to the provision at issue in Tigers (C‑156/16, EU:C:2017:754). Although that provision provided that ‘the application of the provisional anti-dumping duty rates … shall be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice, which shall conform to the requirements set out in the Annex II’, Article 2(1)(b) of Implementing Regulation 2015/82 similarly provides that imports declared for release into free circulation which are invoiced by companies from which undertakings are accepted by the Commission and whose names are listed in Implementing Decision 2015/87 ‘shall be exempt from the anti-dumping duty … on condition that … such imports are accompanied by an undertaking invoice which is a commercial invoice containing at least the elements and the declaration stipulated in the Annex to this Regulation’.

45. In the same way as the provision at issue in Tigers (C‑156/16, EU:C:2017:754), neither the wording of Article 2(1) of Implementing Regulation 2015/82, nor any other provision of that regulation, specifies the point in time at which a valid undertaking invoice must be presented to the customs authorities.

46. As I have already explained in regard to a similar provision in my Opinion in Krohn & Schröder (C‑226/18, EU:C:2019:211, point 62), while the wording used suggests that the ‘right’ moment is when the customs declaration is made, this wording cannot be compared to a provision such as that referred to by Advocate General Mengozzi in his Opinion in Tigers (C‑156/16, EU:C:2017:474, point 60). Indeed, the relevant provision to which he referred provided that ‘when the declaration for release for free circulation is presented, exemption from the duty shall be conditional upon presentation to the competent Member States’ customs services of a valid, original production certificate issued by one of the companies listed in paragraph 4’. ( 15 )

47. In that context, the fact that Article 2(2)(a) of Implementing Regulation 2015/82 specifies that ‘a customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation whenever it is established … that one or more of the conditions listed in [Article 2(1) of the regulation] are not fulfilled’, does not seem to me to alter that interpretation. To my mind, it is clear from the wording of that provision that Article 2(1) of Implementing Regulation 2015/82 relates to the fact of the incurrence of the customs debt and it is not intended to determine when the undertaking invoice is to be submitted.

48. In those circumstances, I am of the view that Article 2(1) of Implementing Regulation 2015/82 should be interpreted as not precluding the importers concerned from presenting, in the context of a procedure for the reimbursement of anti-dumping duties, the undertaking invoice required.

49. Consequently, since Article 1(4) of Implementing Regulation 2015/82 refers to the provisions in force concerning customs duties unless otherwise specified, the detailed rules on lodging and checking the customs declaration of goods subject to anti-dumping duties are governed by the Customs Code ( 16 ) and, more specifically, by Article 78 in the case of a procedure for reimbursement such as the administrative opposition procedure which led to the main proceedings. Indeed, this can be assimilated to a procedure for a ‘post-clearance inspection of declarations’ within the meaning of Article 78 of the Customs Code. ( 17 )

50. As stated by the Court, this provision establishes a procedure enabling customs authorities, on their own initiative or at the request of the declarant, to amend the customs declaration after release of the goods covered by that declaration, that is to say, after that declaration has been made. ( 18 )

51. To that effect, those authorities may, pursuant to Article 78(1) and (2) of the Customs Code, first, re-examine and, if necessary, amend the customs declaration and, second, inspect relevant documents and data in order to ensure the accuracy of the particulars contained in the declaration. If that re-examination or those inspections show that the provisions governing the customs procedure in question have been applied on the basis of incorrect or incomplete information — such as material errors or omissions — the customs authorities must, in accordance with Article 78(3), take the measures necessary to regularise the situation, taking account of the new information available to them. ( 19 ) Such is the breadth of these provisions that the Court has indicated that this must be the case even if the declarant, by his conduct, has directly affected the ability of the customs authorities to carry out controls, provided that the revision of the customs declaration or controls confirm that the objectives of the customs procedure in question have not been threatened. ( 20 )

52. In this type of situation, that is to say, where there is no risk of circumvention of the customs regime applicable, I agree with Advocate General Mengozzi that the application to imports of a higher anti-dumping duty rate than that which was actually prescribed for the company producing the imported products would be contrary to the very spirit of imposing anti-dumping duties, since it would go beyond the objective of eliminating the harm caused by the dumped imports. ( 21 ) Indeed, as already pointed out in point 43 of the present Opinion, the objective of the anti-dumping and countervailing duties is to avoid injury to an EU industry and not to provide for a form of punishment in respect of the infringement of the customs rules, still less to penalise those who have been casual or inattentive in the completion of the customs forms.

53. It thus follows from Article 78 of the Customs Code as a whole that it is permissible to present new material which may be taken into consideration by the customs authorities after the customs declaration has been made. The specific logic of that article is to bring the customs procedure into line with the actual situation. ( 22 )

54. In those circumstances, I am of the opinion that there is nothing to indicate that an undertaking invoice, which complies with the requirements set out in the Annex to Implementing Regulation 2015/82, is excluded from that material, especially if the objectives of the customs procedure in question are not threatened.

55. The situation in the present case is, first, that, during the procedure before the German authorities, the applicant provided an undertaking invoice meeting the requirements laid down in the Annex to Implementing Regulation 2015/82, and, secondly, that it would appear from the material in the documents before the Court that the objectives of the anti-dumping regime in question were not threatened.

56. Indeed, there is no doubt — and it is not disputed — that the goods imported by the applicant came from one of the undertakings listed in Implementing Decision 2015/87 and that the minimum import price accepted by the Commission had been respected in the context of the imports concerned. For the rest, the fulfilment of the other requirements laid down in Article 2(1) of Implementing Regulation 2015/82 is not contested.

57. In those circumstances, it would appear that, in the present case, there was no risk of circumvention as referred to in recital 183 of Implementing Regulation 2015/82, with the result that the proper application of the anti-dumping duties was not jeopardised. It is nevertheless for the referring court to establish definitively that this was the case.

58. Accordingly, in the light of the foregoing considerations, I consider that the answer to the second question should be that Article 2(1) of Implementing Regulation 2015/82 must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of an undertaking invoice, for the purposes of obtaining the reimbursement of an anti-dumping duty, in the case where all the other preconditions necessary for exemption from that duty are satisfied and compliance with the proper application of the anti-dumping duties is ensured, this being a matter for the referring court to verify.

VI. Conclusion

59. Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Finanzgericht Hamburg (Finance Court, Hamburg, Germany) as follows: (1) Article 2(1) of 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 must be interpreted as excluding the exemption from the anti-dumping duty if the undertaking invoice required by this provision does not specify 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 expressly referred to in point 9 of the Annex to Implementing Regulation 2015/82. (2) Article 2(1) of Implementing Regulation 2015/82 must be interpreted as meaning that it allows the presentation, after the customs declaration has been made, of an undertaking invoice, for the purposes of obtaining the reimbursement of an anti-dumping duty, in the case where all the other preconditions necessary for exemption from that duty are satisfied and compliance with the proper application of the anti-dumping duties is ensured, this being a matter for the referring court to verify.

( 1 ) Original language: English.

( 2 ) OJ 2015 L 15, p. 8.

( 3 ) OJ 1992 L 302, p. 1.

( 4 ) OJ 2008 L 323, p. 1.

( 5 ) OJ 2008 L 323, p. 62.

( 6 ) See, to that effect, judgments of 17 September 2014, Baltic Agro (C‑3/13, EU:C:2014:2227, paragraph 24), and of 22 May 2019, Krohn & Schröder (C‑226/18, EU:C:2019:440, paragraph 46).

( 7 ) See, to that effect, judgment of 22 May 2019, Krohn & Schröder (C‑226/18, EU:C:2019:440, paragraphs 54 and 55).

( 8 ) See, to that effect, about similar provisions, judgment of 17 September 2014, Baltic Agro (C‑3/13, EU:C:2014:2227, paragraph 30).

( 9 ) See, to that effect, recital 183 of Implementing Regulation 2015/82 and judgment of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 34).

( 10 ) See, to that effect, judgment of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 91).

( 11 ) Such a possibility would, in any event, not seem to be applicable in the present case. Indeed, although the contracts concerned are dated 9, 13, 15 and 16 January 2015 respectively, the Commission has confirmed in its written replies to the Court’s questions that Weifang signed its new price undertaking on 11 November 2014. It is therefore unlikely that the new price undertaking referred to in recital 4 of the Implementing Decision 2015/87 was not used as a reference when the abovementioned contracts were negotiated.

( 12 ) Judgment of 12 October 2017, (C‑156/16, EU:C:2017:754).

( 13 ) See, to that effect, paragraph 39 and the operative part of the judgment.

( 14 ) See, to that effect, judgment of 3 October 2000, Industrie des poudres sphériques v Council (C‑458/98 P, EU:C:2000:531, paragraph 91).

( 15 ) Article 2(2) of 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 (OJ 1997 L 322, p. 1). Emphasis added. It is true that the wording used in recital 184 of Implementing Regulation 2015/82 is close to that of Article 2(2) of Regulation No 2320/97. However, while recitals may help to interpret a text, it must be noted that this formulation is not the one used by the legislator in Article 2(1) of Implementing Regulation 2015/82, which is the only binding text.

( 16 ) See, to that effect, judgment of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 27).

( 17 ) See, to that effect, Opinion of Advocate General Mengozzi in Tigers (C‑156/16, EU:C:2017:474, point 47). It is important to note that, despite the differences in translation, the administrative opposition procedures in question in Tigers and in the present case are the same.

( 18 ) See, to that effect, judgment of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 29).

( 19 ) See, to that effect, judgments of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 24); and of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 30).

( 20 ) See, to that effect, judgment of 12 July 2012, Südzucker and Others (C‑608/10, C‑10/11 and C‑23/11, EU:C:2012:444, paragraph 51).

( 21 ) See, to that effect, Opinion of Advocate General Mengozzi in Tigers (C‑156/16, EU:C:2017:474, point 61).

( 22 ) See, to that effect, judgments of 10 December 2015, Veloserviss (C‑427/14, EU:C:2015:803, paragraph 26); and of 12 October 2017, Tigers (C‑156/16, EU:C:2017:754, paragraph 31).