CELEX: 62016CJ0612
Language: en
Date: 2019-06-19
Title: Judgment of the Court (Eighth Chamber) of 19 June 2019.#C & J Clark International Ltd v Commissioners for Her Majesty's Revenue & Customs.#Request for a preliminary ruling from the First-tier Tribunal (Tax Chamber).#Reference for a preliminary ruling — Anti-dumping — Interpretation and validity of regulations re-imposing anti-dumping duties following the delivery by the Court of a judgment declaring invalidity — Legal basis — Non-retroactivity — Limitation.#Case C-612/16.

JUDGMENT OF THE COURT (Eighth Chamber)
19 June 2019 (*)
(Reference for a preliminary ruling — Anti-dumping — Interpretation and validity of regulations re-imposing anti-dumping duties following the delivery by the Court of a judgment declaring invalidity — Legal basis — Non-retroactivity — Limitation)
In Case C‑612/16,
REQUEST for a preliminary ruling under Article 267 TFEU from the First-tier Tribunal (Tax Chamber) (United Kingdom), made by decision of 14 November 2016, received at the Court on 28 November 2016, in the proceedings

C & J Clark International Ltd

v

Commissioners for Her Majesty’s Revenue & Customs,

THE COURT (Eighth Chamber),
composed of F. Biltgen, President of the Chamber, J. Malenovský (Rapporteur) and C.G. Fernlund, Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        C & J Clark International Ltd, by S. De Knop and M. Meulenbelt, advocaten, and by J. Bourgeois and A. Willems, avocats,
–        the Italian Government, by G. Palmieri, acting as Agent, and by G. Albenzio, avvocato dello Stato,
–        the European Commission, by L. Armati, N. Kuplewatzky and T. Maxian Rusche, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following

Judgment

1        This request for a preliminary ruling concerns  the interpretation and validity  of  Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 225, p. 52), and of  Commission Implementing Regulation (EU) 2016/1647 of  13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial and its related company  Freetrend Industrial A (Vietnam)  Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment  of the Court  of  Justice in joined cases  C‑659/13 and  C‑34/14 (OJ 2016 L 245, p. 16) (together, ‘the Implementing  Regulations at issue’).

2        The request has been made in proceedings between  C  &  J Clark International Ltd (‘Clark’) and the Commissioners for Her Majesty’s Revenue and Customs  in relation to a request for  repayment  of  anti-dumping duties paid on the  import of  footwear with uppers of leather into the European Union.
 Legal context

 The anti-dumping legislation

3        The facts  and the legal measures at issue  in the main proceedings  occurred in a period  when the adoption of  anti-dumping measures within the European Union  was successively  governed by  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1, and corrigenda, OJ 1999 L 94, p. 27, and  OJ 2000 L 263, p. 34), as amended by  Council Regulation (EC)  No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17) (‘Regulation  No 384/96’);  then by  Council Regulation (EC) No 1225/2009 of  30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, and corrigenda, OJ 2010 L 7, p. 22, and  OJ 2016 L 44, p. 20), as amended by  Regulation (EU) No 37/2014 of the European Parliament and the  Council  of  15 January  2014 (OJ 2014 L 18, p. 1) (‘Regulation  No 1225/2009’);  and,  last,  by  Regulation (EU) 2016/1036 of the European Parliament and the Council of 8 June 2016, on protection against dumped imports from countries not members of the European Union (OJ 2016  L 176, p. 21).

4        Article 9  of  Regulation  No 384/96, Article 9  of  Regulation  No 1225/2009  and  Article 9  of  Regulation 2016/1036, those articles being headed ‘Termination without measures; imposition of definitive duties’, each contain a  paragraph 4  worded as follows:
‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Community/Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed …’

5        Article 10  of  Regulation  No 384/96, Article 10  of  Regulation  No 1225/2009  and  Article 10  of  Regulation 2016/1036, those articles being headed ‘Retroactivity’, each contain a paragraph 1,  which provides:
‘… definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to [Article] … 9(4) … enters into force, subject to the exceptions set out in this Regulation.’

6        Article 14  of  Regulation  No 384/96, Article 14  of  Regulation  No 1225/2009  and  Article 14  of  Regulation 2016/1036, those articles being headed ‘General provisions’, each state, in  paragraph 1:
‘Provisional or definitive anti-dumping duties shall be imposed by Regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the Regulation imposing such duties. …’

7        Article 21  of  Regulation  No 384/96  and  Article 21  of  Regulation  No 1225/2009, those articles being headed ‘Community interest’,  and Article 21  of  Regulation 2016/1036, headed  ‘Union interest’, provide,  in  paragraph 1 of each article,  that  a determination as to whether the interest of the Community or the interest of the Union, as the case may be, calls for intervention is to be based on an appreciation of all the various interests taken as a whole.
 The Customs legislation

8        The facts and the legal measures at issue in the main proceedings occurred in a period when customs matters were successively governed by  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), then by  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Union Customs Code’).

9        Article 221(3) of Regulation (EEC) No 2913/92,  as amended by  Regulation  (EC)  No 2700/2000  of the European Parliament and of the Council  of  16 November 2000 (OJ  2000 L 311, p. 17) (‘the Community Customs Code’), the  provisions  of which are now reproduced in  in  Article 103(1) and  (3)  of  the Union Customs Code,  stated:
‘Communication [of the amount of duty] to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243  [of the Community Customs Code] is lodged, for the duration of the appeal proceedings.’
 The background to the Implementing Regulations at issue

10      On  23 March 2006 the Commission adopted  Regulation  (EC)  No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3).

11      On  5 October 2006 the  Council  adopted Regulation  (EC)  No 1472/2006, imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006  L 275, p. 1).

12      Article 1(1)  and  (3)  of that  regulation  impose  the definitive anti-dumping duty at issue, list the various products  to which the duty is applicable  and set its rate, according to the products concerned,  at 9.7%, 10% and 16.5%.

13      Article 1(4) of that  regulation  states, further,  that, ‘unless otherwise specified, the provisions in force concerning customs duties shall apply’.

14      On 22 December 2009 the  Council  adopted  Implementing Regulation (EU) No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 (OJ 2009  L 352, p. 1).

15      Article 1(1),  (3) and (4)  of that implementing  regulation impose the definitive anti-dumping duty at issue, list the various products to which the duty is applicable and set its rate, according to the products concerned, at 9.7%, 10% and 16.5%.

16      Article 1(5) of that implementing regulation states, further, that  ‘unless otherwise specified, the provisions in force concerning customs duties shall apply’.

17      In the judgment of  4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Court, asked to give a ruling on the validity  of  Regulation  No 1472/2006 and of  Implementing Regulation  No 1294/2009  in the light of  Regulation  No 384/96, declared that those  regulations  were invalid (together,  ‘the regulations declared to be invalid’) in that they had been adopted  without the  Council  and  the Commission  having first examined  the  claims for market economy treatment  and the claims for  individual treatment  submitted to them by  some of the Chinese and Vietnamese exporting producers  affected by the  investigation.

18      On  17 February 2016 the Commission  adopted Implementing Regulation (EU) 2016/223 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 41, p. 3).

19      In the judgment of  15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court, asked to give a ruling on  the validity  of  Implementing Regulation (EU) 2016/223, concluded that  examination of that  issue  revealed nothing  capable of affecting  the validity of that regulation.

20      For a fuller account of the  background  of the  Implementing Regulations at issue, reference is made  to paragraphs 23 to 40 of the judgment of 4 February 2016,  C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74),  and to  paragraphs 16 to 28 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187).
 The Implementing Regulations at issue

21      As is apparent from their titles, the purpose of the  Implementing Regulations at issue is to implement  the judgment of 4 February 2016 C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74).

22      To that end, the Commission  undertook, in each of  those  implementing regulations,  an examination of  some of the  claims for market economy treatment and claims for individual treatment  referred to in  paragraph 18 of the present judgment, in order to determine whether  those claims justified  the imports into the Union of products  from the  exporting producers who had submitted those claims  being subject to  anti-dumping duties set at rates  lower than those  laid down by  the  regulations declared to be invalid.

23      On the conclusion of that examination, the Commission  considered that  none of the claims at issue  was well founded.

24      Consequently, the Commission  re-imposed  anti-dumping duties on the imports,  into the Union,  of products  from the  exporting producers  concerned, at rates  identical to those  laid down by  the  regulations declared to be invalid.
 The dispute in the main proceedings and the questions referred for a preliminary ruling

25      By means of two applications  submitted to  the Commissioners for Her Majesty’s Revenue and Customs  on 30 June 2010 and 2 March 2012, Clark sought  repayment  of the anti-dumping duties  that it had paid  because of the  import  of footwear with uppers of leather into the Union,  in a  period from 1 July 2007 until 31 August 2010. The sum at issue  amounts to  GBP 42 592 829.52 (approximately EUR 50 000 000).

26      Since the Commissioners for Her Majesty’s Revenue and Customs rejected those  applications  by a decision of 13 March 2013, Clark brought, on 11 April 2013, an action against that decision  before  the First-tier Tribunal (Tax Chamber),  which decided to stay the proceedings  initially  and to submit to the Court  one of the two requests for a preliminary  ruling that gave rise to the  judgment of 4 February 2016,  C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74).

27      Following the delivery of that judgment and  the adoption of Implementing  Regulation 2016/223 and the  Implementing Regulations at issue, that court decided  to stay the proceedings for a second time  and to submit a further  request for a preliminary ruling to the Court.

28      The procedure before the Court  was  suspended until the delivery of  the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), following which the referring court, asked whether  it wished to maintain or withdraw  its request, replied that it wished to maintain the request.

29      The questions referred to the Court  for a preliminary ruling by the First-tier Tribunal (Tax Chamber) are as follows:
‘1)      Does a statute of limitations apply to the collection of the anti-dumping duty imposed by [the Implementing Regulations at issue], and, if so, on the basis of which legal provision?
2)      Are  the [Implementing Regulations at issue] invalid because they lack a valid legal basis, and as such violate Articles 5(1) and 5(2) TEU?
3)      Are the  [Implementing Regulations at issue] invalid because they violate Article 266 TFEU by failing to take the necessary measures to comply with [the judgment of 4 February 2016,  C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74)]?
4)      Are the  [Implementing Regulations at issue] invalid because they violate Article 10(1) of Regulation [2016/1036] or the principle of legal certainty (non-retroactivity) by imposing an anti-dumping duty on import of certain leather footwear originating in the People’s Republic of China and Vietnam which took place during the period of application [of the  regulations declared  to be invalid]?
5)      Are the [Implementing Regulations at issue] invalid because they violate Article 21  of Regulation  [2016/1036]  by re-imposing  an anti-dumping duty without conducting a fresh Union interest  assessment?’
 The request to open the oral part of the procedure

30      By a letter of  8 May 2019, Clark submitted a  request to open the oral part of the procedure,  arguing, in essence, that  the holding of a hearing  could enable it to provide the Court  with additional information  in relation to the  first question submitted by  the referring court, particularly  in the light of decisions recently delivered by  other national courts.

31      Under Article 83 of the Rules of  Procedure of the Court, the  Court may at any time, after hearing the Advocate General, order the opening or  reopening  of  the oral part of the procedure, in particular if it considers that it lacks sufficient information or where, after the close of that part of the procedure, there has been submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or  where  the case must be decided  on the basis of  an argument which has not been debated  between the parties or  the interested  persons referred to in  Article 23  of the  Statute  of the Court  of  Justice of the European Union.

32      In this case, the Court considers, after hearing the Advocate General, that it has all the information necessary  to give a ruling on the present case  and, consequently, that there is no need to order  the opening of the  oral part of the procedure.
 Consideration of the questions referred

33      It is clear, at the outset, that  the referring court is asking the Court  not only  to interpret  the  Implementing Regulations at issue  (the first question), but also to assess their validity (the second  to fifth questions).  An interpretation  of those implementing regulations that is to serve any purpose necessarily presupposes, having regard to the  issue  of interpretation  referred in this case,  that those regulations  are  valid. Consequently, it is appropriate  to examine,  first,  the questions concerning the  validity  of those implementing regulations, and then, if it is the case that they are  valid, the question concerning their  interpretation.
 Questions (2) to (5): the validity of the Implementing Regulations at issue

 The second question

34      By its second question, the referring court  seeks, in essence, to ascertain whether the  Implementing Regulations at issue  are invalid  on the ground that they have no valid legal basis.

35      Although the wording of that question does not itself  indicate  the reasons  that underlie it, it is clear from the grounds  stated in the  request for a preliminary ruling that the referring court  wants to know  whether  the legal bases to which the  Implementing Regulations at issue refer, namely  Article 266  TFEU,  on the one hand, and  Articles 9  and 14 of  Regulation 2016/1036,  on the other,  empower  the Commission to  re-impose  the anti-dumping duties imposed  by the  regulations declared to be invalid.

36      In those circumstances, it must be determined  whether at least one of those articles  constitutes  a legal basis  that empowers  the Commission  to  re-impose  those  anti-dumping duties.

37      As regards, in the first place, Article 266  TFEU, the first paragraph of that provision states that  the institution, body, office or entity  of the Union whose act has been declared void  is required to take  the necessary measures  to  comply with the judgment  of the Court of Justice of the European Union.

38      Admittedly, the obligation to act  which that  provision  lays down  is applicable,  by analogy,  in a situation where  a judgment of the Court  has declared  an EU act to be invalid, since the legal effect of that judgment is to require the competent institution, body, office or entity to take the necessary measures to remedy the illegality identified by the Court (judgments of 9 September 2008, FIAMM and Others v Council  and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 123, and  of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87).

39      However, that obligation to act  does not constitute  a source of competence nor does it enable the competent institution, body, office or entity  to rely  on a legal basis  which has in the meantime been repealed (see, to that effect, judgment of  14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 38).

40      Consequently, that obligation to act does not relieve the  institution, body, office or entity concerned  of the  need  to base the  act containing measures  to comply with  a judgment annulling or declaring a measure to be invalid  on a legal basis  that, first, empowers it to adopt that act, and, second, is in force  on the date of adoption of that act (see, to that effect, judgment of  14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraphs 40  and 45).

41      As regards, in the second place, Articles 9  and 14 of  Regulation 2016/1036, it must be observed, first, that, in accordance with  Article 25 thereof,  that  regulation  entered into force on  20 July 2016, so that  it was  in force on the  respective dates of adoption of the  Implementing Regulations at issue, namely  18 August  and  13 September 2016.

42      Further, Article 9(4)  of  Regulation 2016/1036 states that  where the facts as finally established  show that there is dumping and injury caused thereby,  and the Union interest  calls for intervention, a  definitive  anti-dumping  duty is to be imposed  by the Commission. For its part, Article 14(1)  of  Regulation 2016/1036 provides that  the  anti-dumping duties are to be imposed  by  regulation. Those two  provisions, read together, therefore empower  the Commission to  ‘impose’ anti-dumping duties by regulation.

43      Last, it follows from settled case-law  that, although those  provisions  do not expressly refer to  the possibility of  ‘re-imposing’ anti-dumping duties following the delivery of a  judgment annulling an act or declaring it to be invalid, those provisions  are no less apt to empower the  Commission  to undertake such a re-imposition, after the Commission  has resumed the proceedings that gave rise to the regulations annulled or declared to be invalid  by the Courts of the European Union  and has  thereby, in accordance with the procedural and substantive rules applicable  ratione temporis, remedied the illegalities  identified (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 55, 73 and  74 and the case-law cited).

44      It follows that, in that they  refer to  Articles 9  and 14 of  Regulation 2016/1036, the Implementing Regulations at issue  have a legal basis  that empowers  the Commission  to  re-impose  the  anti-dumping duties  imposed  by the  regulations declared to be invalid.

45      Consequently, the answer to the second question is that the  Implementing Regulations at issue are not invalid  on the ground that they have no valid legal basis.
 The third question

46      By its third question, the referring court  seeks to ascertain whether the  Implementing Regulations at issue  are invalid  on the ground that they  infringe  Article 266  TFEU  by not taking the measures necessary to comply with  the judgment of 4 February 2016,  C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74).

47      As is apparent from the  grounds stated in the request for a preliminary ruling, the doubts  experienced  by  the referring court  on this subject  have three aspects. First, that court  is uncertain as to whether  the Commission  was entitled  to direct the national customs authorities  to suspend, until the adoption of the  Implementing Regulations at issue, the  repayment  of the  anti-dumping duties  imposed  by the  regulations declared to be invalid. Second, the referring court seeks to ascertain whether  the Commission  could properly limit the examination made  in the  Implementing Regulations at issue  to the question of which  rates  were to be set for those  anti-dumping duties.  Last, that court states that, in  the  Implementing Regulations at issue, the Commission  did not make findings with respect to all the  claims for market economy treatment  and individual treatment referred to in  paragraph 18 of the present judgment.

48      As regards the first aspect  of the doubts expressed, the Court  has already stated, after the lodging of the present case, that  the Commission  was  entitled to  direct the  national customs authorities to suspend, until the adoption of acts such as the  Implementing Regulations at issue, repayment of the  anti-dumping duties  imposed  by the  regulations declared to be invalid (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 59, 60, 69 and 70).

49      As regards the second aspect of those doubts, the Court stated, on the same occasion, that, taking into account the extent of the  grounds  underpinning  the operative part  of the judgment of 4 February 2016, C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74),  and  the illegalities identified in that judgment  with respect to the rates  at which some of  the  anti-dumping duties  imposed  by  the regulations declared to be invalid had been fixed, the Commission  was entitled to take the view that  compliance with that judgment was to be achieved by  carrying out an  assessment limited  to the question of the rates at which  those  anti-dumping duties  were to be set (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 68).

50      Last,  as regards the third aspect of those doubts, the Commission  did not err in law  by failing to make any finding  on all the  claims for market economy treatment and individual treatment referred to in  paragraph 18  of the present judgment, but confining itself  to dealing with those  submitted by the  exporting producers  whose products were  affected, when they were imported into the  European Union, by  the anti-dumping duties  the repayment of which  has been subsequently  requested from the  national customs authorities. That limitation  is compatible not only with  the procedure laid down by  Implementing  Regulation  2016/223, as is apparent from  paragraphs 27  and 28 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), but also with  Article 236  of the Community Customs Code, from which it follows that, as a general rule  and except as a result of unforeseeable circumstances or force majeure, the repayment of duties  that were not legally owed  at the time  when they were paid  can occur, after the expiry of a  period of 3 years from  the communication of the amount of those duties  to the  debtor, only if the debtor  has validly submitted, within that period,  an application  to that effect  to the  national customs authorities (see, to that effect, judgments  of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 17  to 21, and of 4 February 2016,  C  &  J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 187  to 189).

51      In those circumstances, the answer to the  third question is that the  Implementing Regulations at issue are not invalid  on the ground that  they infringe Article 266  TFEU  by not taking  the necessary  measures to comply with  the judgment of 4 February 2016,  C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74).
 The fourth question

52      By its fourth question, the referring court seeks to ascertain whether  the  Implementing Regulations at issue  are invalid  on the ground that they infringe  the general principle of  non-retroactivity or  Article 10(1)  of  Regulation 2016/1036 by re-imposing  anti-dumping duties  on imports  that were made  during the period of application of the regulations declared to be invalid.

53      Prior to an examination of the substance of that question, it must be  observed, in the first place, that the  general principle of  non-retroactivity  was enshrined, in the area of  anti-dumping measures, in the  rule initially  laid down in  Article 10(1)  of  Regulation  No 384/96  and subsequently reproduced, in the same terms, in  Article 10(1)  of  Regulation  No 1225/2009, then in  Article 10(1)  of Regulation 2016/1036 (see, to that effect, judgments of  17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 48, and of  30 June 2016, Selena România, C‑416/15, EU:C:2016:501, paragraph 30).

54      In the second place, it is clear from the case-law of  the Court  that, in a situation where, following the delivery of a  judgment annulling or declaring invalid  a regulation  imposing  anti-dumping duties, the Commission  resumes the procedure  that gave rise to the  regulation  that was annulled or  declared to be invalid  with a view to  re-imposing  anti-dumping duties,  it must, in accordance with the principles governing the temporal application of the law, comply with the substantive rules in force at the time of the facts referred to in that regulation (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 76 and the case-law cited).

55      Accordingly, and as the Court  has previously held, the  validity  of acts such as the  Implementing Regulations at issue  must be assessed, taking into account  the period covered by the  facts  that were the subject of the  regulations declared to be invalid, in the light of  Article 10(1)  of  Regulation  No 384/96  (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77).

56      That being the case, the fourth  question must be understood as meaning that  the referring court  seeks to ascertain whether the Implementing Regulations at issue are invalid  on the ground that they infringe the general principle of non-retroactivity, as enshrined in  Article 10(1)  of  Regulation  No 384/96, by re-imposing  anti-dumping duties  on imports  that were made  during the period of application of the  regulations declared to be invalid.

57      As regards the substance, and as is clear from the case-law of the Court, Article 10(1)  of  Regulation  No 384/96  does not preclude acts  such as the  Implementing Regulations at issue  from re-imposing  anti-dumping duties  on imports that were made during the period of application of the regulations declared to be invalid (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 77  and 78).

58      Therefore, the answer to the fourth question is that  the Implementing Regulations at issue  are not invalid  on the ground that they infringe  the general principle of  non-retroactivity, as enshrined in  Article 10(1)  of Regulation  No 384/96, by re-imposing anti-dumping duties on imports that were made during the period of application of the regulations declared to be invalid.
 The fifth question

59      By its fifth question, the referring court  seeks to ascertain whether  the  Implementing Regulations at issue  are  invalid on the ground that they infringe  Article 21  of  Regulation 2016/1036 by re-imposing  anti-dumping duties  without conducting a fresh Union interest assessment.

60      At the outset, it must be recalled that, as regards the  rules that are applicable ratione temporis, the adoption of acts such as  the  Implementing Regulations at issue  must comply with the  substantive rules laid down by  Regulation  No 384/96, as set out in  paragraphs 52  and  53  of the present judgment.

61      Consequently, the fifth  question must be understood as meaning that  the referring court  seeks to ascertain whether the  Implementing Regulations at issue are  invalid on the ground that they infringe Article 21  of  Regulation  No 384/96  by re-imposing  anti-dumping duties without conducting a fresh Union interest assessment.

62      As regards the substance, Article 21  of  Regulation  No 384/96  provided that, in order to determine whether the Community interest calls for measures to be taken, there must be an appreciation of all the various interest taken as a whole.

63      Since the wording of that article uses only the term  ‘measures’, it cannot, considered in isolation, be determined  whether acts  such as  the Implementing Regulations at issue  constitute  ‘measures’,  the adoption  of which requires  that an assessment of the Union interest be undertaken.

64      It is accordingly necessary  to examine  the context of that article.

65      In that regard, it must be noted that  there is an explicit reference in Article 9(4) of Regulation No 384/96 to  Article 21  of that regulation, so that it is plain that  regulations concerning the  imposition of  anti-dumping duties  constitute measures whose adoption  requires that an assessment of the Community interest be undertaken.

66      However, it is apparent from  paragraphs 22  to 25  of the present judgment  that the  Implementing Regulations at issue  constitute measures the object of which is  not to impose  anti-dumping duties, but solely  to  re-impose  such duties, while remedying  the illegalities identified by the Court  in  the judgment of 4 February 2016, C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74). Further, and as stated in  paragraph 47  of the present judgment,  the illegalities identified by the Court  did not at all relate to  the assessment of the Union interest.

67      Having regard to the foregoing, it cannot be held, in the light of  Article 9(4)  of  Regulation  No 384/96, that  Article 21  of that  regulation  should be understood as meaning that  acts such as the  Implementing Regulations at issue, which  re-impose  anti-dumping duties  following the  identification, by the Court, of illegalities that do not relate to the assessment of the Community interest, constitute measures  whose adoption requires that a fresh assessment of the Community interest be undertaken.

68      In the light of the foregoing, the answer to the fifth question is that the Implementing Regulations at issue are  not invalid on the ground that  they infringe Article 21  of  Regulation No 384/96 by re-imposing  anti-dumping duties without conducting a fresh Union interest assessment.
 Question (1): the interpretation of the Implementing Regulations at issue

69      Since an examination  of  the questions concerning the  validity  of  the Implementing Regulations at issue  has revealed nothing capable of affecting their  validity, an answer must be given to the  first question of  the referring court.

70      By that question, that court  seeks to ascertain whether  there is a statute of limitations that  applies  to the collection of the  anti-dumping duties  established by the  Implementing Regulations at issue  and, if so, on what legal provision  that statute of limitations is based.

71      In that regard, it must be stated,  first, that  the  Implementing Regulations at issue  are, as is apparent from their very titles, acts that implement  EU legislation applicable in the area of anti-dumping measures and  that re-impose  anti-dumping duties  following  the declaration,  in  the judgment of 4 February 2016, C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74), that the regulations that had imposed  those duties were invalid.

72      As stated in  paragraph 3  of the present judgment, that legislation has been found, in the period in the course of which  the facts  and legal acts  at issue in the main proceedings occurred, in  Regulation  No 384/96, then in  Regulation  No 1225/2009, and,  last,  in  Regulation 2016/1036.

73      However, in none of those three  regulations  is there any  provision  laying down any rules concerning limitation applicable to the collection of  anti-dumping duties.

74      That said, all three regulations state in the  same terms, in Article 14(1)  of each, that anti-dumping duties  are to be collected by the Member States  in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties.

75      It follows from that  wording that  it is in the  regulations  imposing  anti-dumping duties, in implementation of  Regulations No 384/96, No 1225/2009 and 2016/1036, that the criteria relating to the  collection of those  anti-dumping duties are to be laid down.

76      Further, and  as the Court has previously held, it follows from that wording  that the EU legislature  did not intend to set out an exhaustive list of such criteria (the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 58).

77      It follows that the  regulations imposing  anti-dumping duties  may prescribe, among other relevant criteria,  rules concerning limitation  to be applicable to the collection of those duties.

78      As regards, second, whether, in this case,  the  Implementing Regulations at issue  provide for the  application of rules concerning limitation, it is clear that the operative part of each  contains nothing on that subject.

79      However, the object of those  Implementing Regulations is not, as has been stated in paragraph 64  of the present judgment, to impose anti-dumping duties, but only to  re-impose  such  anti-dumping duties  following  the declaration, in  the judgment of 4 February 2016, C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74), that regulations which had imposed them were invalid.  They must therefore be construed  taking account of that situation.

80      In that regard, the Court has previously stated that, taking account of the  extent of the grounds  that constitute  the necessary support for  the operative part of the judgment of 4 February 2016, C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74), according to which  the  regulations imposing  those  anti-dumping duties  are  invalid  only in so far as  they infringe certain specific  provisions  of  Regulation  No 384/96, the declaration of invalidity  made in that  judgment  must be understood as  relating exclusively  to the  provisions  of those  regulations relating to  the imposition of certain  anti-dumping duties  and the setting of the rates applicable to those  anti-dumping duties  (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 64  to 69).  That declaration does not, therefore,  affect  the other  provisions  of those  regulations.

81      However, the  provisions  of the  regulations declared to be invalid  which were not affected by the declaration of invalidity  made in  the judgment of 4 February 2016 C  &  J Clark International and Puma  (C‑659/13 and C‑34/14, EU:C:2016:74)  state, inter alia, that  ‘the provisions in force concerning customs duties shall apply’, as is apparent from  paragraphs 14  and 17  of the present judgment.

82      Consequently,  those ‘provisions in force concerning customs duties’ are applicable to the  anti-dumping duties that are re-imposed  by the  Implementing Regulations at issue,  as from the date of entry into force of those regulations.

83      In that regard, the  provisions in force concerning customs duties, in the version applicable to the  Implementing Regulations at issue, contain rules with respect to limitation,  which are applicable to the collection  of the  anti-dumping duties  established by those  acts.

84      More specifically, that collection is subject to the limitation rule  laid down in  Article 221(3)  of the Community Customs Code, which  provides that the  amount of the duties can no longer be communicated to the debtor  after the expiry of the three-year period from the date on which that customs debt arose, that period being however suspended  as from  the date of bringing an appeal,  within the meaning of  Article 243 of that code.

85      Accordingly, it is the task of the competent national authorities and courts  to determine  on a case-by-case basis whether such communication can still be made or  whether it is time-barred  by reason of the expiry of that  period, taking account of the date on which the debtor’s customs debt arose and, in the event that the debtor has brought an  appeal,  the suspension of that period (the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 84).

86      Accordingly, the answer to the first question is that the  limitation rules  laid down in  Article 221(3)  of the Community Customs Code  are applicable to  the collection  of the  anti-dumping duties  established by the  Implementing Regulations at issue.
 Costs

87      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
1.      An examination of the questions of validity referred to the Court has revealed nothing capable of affecting the validity of Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14, or the validity of Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14.

2.      The rules on limitation laid down in Article 221(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, are applicable to the collection of the anti-dumping duties established by the implementing regulations referred to in point 1 of the operative part of the present judgment.

Biltgen

Malenovský

Fernlund

Delivered in open court in Luxembourg on 19 June 2019.

A. Calot Escobar
 
F. Biltgen

Registrar
 
President of the Eighth Chamber

*      Language of the case: English.