Compagnie internationale pour la vente à distance (CIVAD) SA v Receveur des douanes de Roubaix and Others.
Date: 2012-06-14
19. It should be recalled that, in paragraph 1 of the operative part in Ikea Wholesale , the Court ruled that Article 1 of Regulation No 2398/97 is invalid in so far as the Council applied, for the purpose of determining the dumping margin for the product subject to the investigation, the practice of ‘zeroing’ negative dumping margins for each of the product types concerned.
20. In paragraph 67 of Ikea Wholesale , the Court also examined the consequences to be drawn from the declaration of invalidity and concluded that, in such a situation, anti-dumping duties paid under Regulation No 2398/97 are not legally owed within the meaning of Article 236(1) of the Customs Code and must, in principle, be repaid by the customs authorities in accordance with that provision, provided that the conditions to which such repayment is subject, including the condition set out in Article 236(2), are satisfied (see also Case C-419/08 P Trubowest Handel and Makarov  v Council and Commission  [2010] ECR I-2259, paragraph 25).
21. It follows from the foregoing that, following the Court’s declaration of invalidity of an anti-dumping regulation, an economic operator is no longer able, in principle, to claim repayment of the anti-dumping duties which it has paid under that regulation and for which the three-year time-limit laid down by Article 236(2) of the Customs Code has expired. Article 236(2) of the Customs Code imposes a three-year time-limit on the repayment of customs duties not legally owed.
22. The Court has recognised that it is compatible with European Union law to have a national procedural rule laying down a reasonable time-limit by which an economic operator is required to claim repayment of a tax collected in breach of European Union law, failing which its claim will be time-barred. Such a time-limit is not liable to make it in practice impossible or excessively difficult to exercise the rights conferred by European Union law. In that regard, the Court has already ruled that a three-year time-limit appears reasonable (see Case C-228/96 Aprile  [1998] ECR I-7141, paragraph 19; Case C-445/06 Danske Slagterier  [2009] I-2119, paragraph 32; and Case C-542/08 Barth [2010] ECR I-3189, paragraph 28).
23. That case-law also applies where, exceptionally, the European Union legislature decides, as in the case in the main proceedings, to harmonise procedural rules governing requests for repayment of taxes wrongly levied. A reasonable time-limit, irrespective of whether it is imposed by national law or European Union law, is in the interests of legal certainty which protects both the taxpayer and the administration concerned and does not preclude the individual from exercising rights conferred by European Union law (see, to that effect, Aprile , paragraph 19; Danske Slagterier , paragraph 32; and Barth , paragraph 28).
24. As regards whether the unlawfulness of Regulation No 2398/97 can be regarded as a case of force majeure, it must be recalled that, pursuant to Article 236 of the Customs Code, the repayment of import or export duties is made only under certain conditions and in cases specifically provided for. Such a repayment is therefore an exception to the normal import and export procedure and, consequently, the provisions which provide for it are to be interpreted strictly (see Case C-156/00 Netherlands  v Commission  [2003] ECR I-2527, paragraph 91 and Case C-78/10 Berel and Others  [2011] ECR I-717, paragraph 62).
25. Therefore, the concept of force majeure, within the meaning of the second subparagraph of Article 236(2) of the Customs Code, must be interpreted strictly.
26. In that regard, it should be observed that the Court has consistently held that, since the concept of force majeure does not have the same scope in the various spheres of application of European Union law, its meaning must be determined by reference to the legal context in which it is to operate (see Case C-314/06 Société Pipeline Méditerranée et Rhône  [2007] ECR I-12273, paragraph 25 and the case-law cited).
27. In the context of customs legislation, ‘force majeure’ must be understood, in principle, in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided (Case C-334/08 Commission  v Italy  [2010] ECR I-6865, paragraph 46 and the case-law cited).
28. It follows that, as the Court has already stated, force majeure contains both an objective element relating to abnormal circumstances extraneous to the trader and a subjective element involving the obligation, on that person’s part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices ( Société Pipeline Méditerranée et Rhône , paragraph 24 and the case-law cited).
30. First, as regards the objective element, the unlawfulness of an anti-dumping regulation, such as Regulation No 2398/97, cannot be regarded as an abnormal circumstance. It suffices to recall in that regard that the European Union is a Union based on the rule of law in which its institutions, bodies, offices and agencies are subject to judicial review of the compatibility of their acts, in particular, with the EU and FEU Treaties. As the Advocate General noted at point 56 of his Opinion, it is in the very nature of European Union law that the rules of which it is comprised might be declared invalid.
32. It must be recalled that those treaties have established a complete system of legal remedies and procedures designed to confer on the Court of Justice jurisdiction to review the legality of acts of the institutions, bodies, offices and agencies of the European Union (see Case C-550/09 E and F  [2010] ECR I-6213, paragraph 44 and the case-law cited).
33. In that context, where an economic operator which feels that it has been adversely affected by the application of an anti-dumping regulation which it considers to be illegal has submitted an application under Article 236(2) of the Customs Code for repayment of the duties it has paid and that application has been dismissed, it can bring proceedings before the competent national court and plead before that court that the regulation concerned is unlawful. That court may, and possibly must, then, under the conditions of Article 267 TFEU, refer a question to the Court of Justice concerning the validity of the regulation in question ( Trubowest Handel and Makarov  v Council and Commission , paragraph 24).
39. The acts of the European Union institutions, bodies, offices and agencies are presumed to be lawful, which implies that they produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality (Case C-475/01 Commission  v Greece  [2004] ECR I-8923, paragraph 18, and Case C-199/06 CELF and Ministre de la Culture et de la Communication  [2008] ECR I-469, paragraph 60).
40. Since the Court of Justice alone has jurisdiction to declare an act, such as an anti-dumping regulation, of the European Union invalid and the purpose of that jurisdiction is to ensure legal certainty through the uniform application of EU law (see Joined Cases C-188/10 and C-189/10 Melki and Abdeli  [2010] ECR I-5667, paragraph 54 and the case-law cited), the fact that the DSB has found that an anti-dumping regulation is not in accordance with the anti-dumping agreement does not affect the presumption that such a regulation is lawful.