Deichmann SE v Hauptzollamt Duisburg.
Date: 2018-03-15
39


In that regard, it is settled case-law that, where a person who was undoubtedly entitled to ask the Courts of the European Union to annul an act, failed to do so within the time limit laid down by the sixth paragraph of Article 263 TFEU, it must be held that that person is not entitled to plead that such an act is invalid in an action brought before a national court against a national measure adopted on the basis of that act (judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 56).
49


It is settled case-law that the need for a uniform interpretation of EU law prevents, in the case of doubt, the text of a provision of EU law from being considered in isolation and requires, on the contrary, that it be interpreted on the basis of the real intention of its author and the aim which the latter seeks to achieve in the light of, in particular, all language versions (judgments of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), paragraph 122, and of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 47).
52


Finally, it follows from case-law that acts of the European Union must, in principle, be adopted in accordance with the procedural rules in force at the time of their adoption (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 40). It follows that, precisely due to the repeal of Regulation No 384/96 and having regard to the purpose of Regulation No 1225/2009, proceedings initiated on the basis of Regulation No 384/96 could, as from its repeal, be pursued only on the basis of Regulation No 1225/2009.
62


Indeed, it is settled case-law that, when the Court declares that a regulation imposing anti-dumping duties, such as the definitive regulation or the prolonging regulation, is invalid, such duties are to be considered as never having been lawfully owed within the meaning of Article 236 of the Customs Code and, in principle, are required to be repaid by the national customs authorities under the conditions set out to that effect (see, to that effect, judgments of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraphs 66 to 69, and of 18 January 2017, Wortmann, C‑365/15, EU:C:2017:19, paragraph 34).
63


However, the exact scope of a declaration of invalidity by the Court in a judgment and, consequently, of the obligations that flow from it must be determined in each specific case by taking into account not only the operative part of that judgment, but also the grounds that constitute its essential basis (see, to that effect, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 49 and the case-law cited).
73


In that regard, first, in respect of the possibility of resuming the proceeding at the origin of the definitive regulation and the prolonging regulation with the aim of re-imposing the anti-dumping duties imposed by those regulations during their initial application period, it must be held that where a judgment of the Court annuls a regulation imposing anti-dumping duties or declares such a regulation to be invalid, the institution called upon to take such measures for the purpose of implementing that judgment does have the option of resuming the proceeding at the origin of that regulation, even if that option is not expressly set out in the applicable legislation (see, to that effect, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraphs 51 and 52).
74


In addition, it follows from settled case-law that, except where the irregularity found has vitiated the entire proceeding with illegality, the institution concerned has the option, in order to adopt an act intended to replace the act that has been annulled or declared invalid, to resume that proceeding only at the stage when the irregularity was committed (judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 51).
76


Second, as regards the question of whether such a resumption of the proceeding is authorised in a case in which the anti-dumping rights at issue have expired, in view of the rules that apply in respect of non-retroactivity, it follows from the case-law of the Court that, when an institution of the European Union chooses to use its option to resume the proceeding referred to in paragraphs 73 and 74 of this judgment, 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 the regulation that was annulled or declared invalid (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 40).
80


Finally, with regard to the rule set out in Article 221(3) of the Customs Code, it must be noted that its effect is indeed not only to prevent the amount of duty from being communicated to the debtor after the expiry of the three-year period from the date on which its customs debt arose, but also to time-bar the customs debt itself upon the expiry of that time limit (see, to that effect, judgment of 23 February 2006, Molenbergnatie, C‑201/04, EU:C:2006:136, paragraphs 39 and 41).
81


However, as the Court has already held, that rule applies, according to the wording of Article 221(3) of the Customs Code, only to the communication of the amount of duty to the debtor, and its implementation, in that respect, is a matter for the national customs authorities alone, who are competent to make such a communication (see, to that effect, judgment of 13 March 2003, Netherlands v Commission, C‑156/00, EU:C:2003:149, paragraphs 63 and 64).
82


In addition, it follows from Article 221(1) of the Customs Code that the amount of duty may be communicated to the debtor only after the entry in the accounts of such an amount, which is itself defined in Article 217(1) of the Customs Code as being the operation consisting of the competent customs authority calculating that amount as soon as it has the necessary particulars (see, to that effect, judgments of 23 February 2006, Molenbergnatie, C‑201/04, EU:C:2006:136, paragraph 46, and of 16 July 2009, Snauwaert and Others, C‑124/08 and C‑125/08, EU:C:2009:469, paragraphs 21 and 23).
87


In that regard, it follows from case-law that, while a legal consequence of a finding that an act of the European Union is invalid is that the institution that adopted the act must take the necessary measures to remedy the illegality established — the obligation set out in Article 266 TFEU in the event of annulment being applicable by analogy — that institution does nevertheless have a wide discretion in its choice of measures, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (see, to that effect, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraphs 48 and 76 and the case-law cited).
88


Taking into account that wide discretion, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (see, by analogy, judgments of 8 February 2000, Emesa Sugar, C‑17/98, EU:C:2000:70, paragraph 53, and of 6 September 2017, Slovakia and Hungary v Council, C‑643/15 and C‑647/15, EU:C:2017:631, paragraph 207).
90


Second, it does not appear that the Commission committed a manifest error of assessment in opting for those measures. The obligation on the national customs authorities to forward to the Commission applications for repayment submitted to them under Article 236 of the Customs Code is capable of ensuring that that institution has all the relevant particulars to remedy the illegalities found by the Court in its judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), without involving an additional administrative burden for the operators concerned or unjustifiably delaying the handling of the applications in question. Moreover, it must be noted, first, that the handling of those applications is subject to the time limit laid down in Article 1(2) of the regulation at issue and, second, that any delay is capable of being compensated for by the payment of interest (see, to that effect, judgment of 18 January 2017, Wortmann, C‑365/15, EU:C:2017:19, paragraph 37).