1 This request for a preliminary ruling concerns the interpretation of Article 2 of Commission Implementing Regulation (EU) 2016/278 of 26 February 2016 repealing the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2016 L 52, p. 24; ‘the repeal regulation’).
2 The request has been made between the Autoridade Tributária e Aduaneira (Tax and Customs Authority, Portugal) (‘the customs authority’) and NT concerning the post-clearance recovery of anti-dumping duties, conventional duties and value added tax (VAT), increased by compensatory interest, for the import of certain steel fasteners into the European Union.
3 By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organization (WTO), signed in Marrakesh on 15 April 1994, as well as the agreements in Annexes 1 to 3 to that agreement, including the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 11) and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the WTO anti-dumping agreement’).
4 On 26 January 2009, the Council adopted Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).
5 On 18 July 2011, the Council adopted Implementing Regulation (EU) No 723/2011 extending the definitive anti-dumping duty imposed by Regulation No 91/2009 to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6), which was subsequently amended by Council Implementing Regulation (EU) No 693/2012 of 25 July 2012 (OJ 2012 L 203, p. 23).
6 On 28 July 2011, the WTO Dispute Settlement Body (‘the DSB’) adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report in the case ‘European Communities - Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS397) (‘the DSB decision of 28 July 2011’). Those reports found, inter alia, that the European Union had acted inconsistently with certain provisions of the WTO anti-dumping agreement.
7 On 4 October 2012, following the DSB decision of 28 July 2011, the Council adopted Implementing Regulation (EU) No 924/2012 amending Regulation No 91/2009 (OJ 2012 L 275, p. 1), which, inter alia, reduced the anti-dumping duty that had been provided for in the latter regulation.
8 Following an expiry review pursuant to Article 11(2) of 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), the European Commission adopted Implementing Regulation (EU) 2015/519 of 26 March 2015 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, following an expiry review pursuant to Article 11(2) of Regulation No 1225/2009 (OJ 2015 L 82, p. 78), by which it maintained, for an additional period of five years, the anti-dumping duty on imports of the products covered as imposed and amended by Regulation No 91/2009 and by Implementing Regulation No 924/2012, respectively.
9 By a decision of 12 February 2016, the DSB adopted new reports finding that the measures taken by the European Union by means of Implementing Regulation No 924/2012 were not compliant with certain provisions of the WTO anti-dumping agreement (‘the DSB decision of 12 February 2016’).
10 Following the DSB decision of 12 February 2016, the Commission adopted, on 26 February 2016, the repeal regulation.
11 According to Article 1 of the repeal regulation, the anti-dumping duties imposed by Regulation No 91/2009, amended by Implementing Regulation No 924/2012 and maintained by Implementing Regulation 2015/519, are thereby repealed.
12 Under Article 2 of the repeal regulation, the repeal of the anti-dumping duties referred to in Article 1 thereof was to take effect from the date of the entry into force of that regulation and was not to serve as a basis for the reimbursement of the duties collected prior to that date. In accordance with Article 3 thereof, that regulation was to enter into force on the day following its publication in the Official Journal of the European Union, on 28 February 2016.
13 The repeal regulation was adopted on the basis of Regulation (EU) 2015/476 of the European Parliament and of the Council of 11 March 2015 on the measures that the Union may take following a report adopted by the WTO Dispute Settlement Office concerning anti-dumping and anti-subsidy matters (OJ 2015 L 83, p. 6).
14 Article 1(1) of the latter regulation provides that, whenever the DSB adopts a report concerning an EU measure taken pursuant to the EU anti-dumping rules, the Commission may repeal or amend the disputed measure, or adopt any other special measure deemed appropriate.
15 Article 3 of the said regulation provides that ‘any measures adopted pursuant to this Regulation shall take effect from the date of their entry into force and shall not serve as a basis for the reimbursement of the duties collected prior to that date, unless otherwise provided for.’
16 Following an investigation led by the European Anti-Fraud Office (OLAF) and by the Malaysian authorities at the request of OLAF concerning the transhipment via Malaysia of goods from China, aimed at avoiding the payment of anti-dumping duties (OLAF CASE OF/2010/0697, AAA 2010/016-(2012)S01), communicated to the Member States through the mutual assistance mechanism, it was found that certain goods, namely steel fasteners, exported to the European Union on 3 and 24 April 2010, were of non-preferential Chinese origin.
17 Inemer Lda., a company governed by Portuguese law, was identified as being the consignee (importer) of those goods. The relevant import declarations, dated 12 May and 9 June 2010, had been presented under the indirect form of representation by NT, the defendant in the main proceedings, on behalf of Inemer, as proprietor of the customs procedure.
18 In those declarations, processed at the customs office of Leixões (Portugal), it was indicated that the goods imported were of Malaysian origin, even though no customs duty was collected at that stage.
19 Having found, in the course of an inspection procedure, false declarations of origin, relating to Malaysia instead of China, the customs authority took the view, first, that the imports concerned did not enjoy the preferential tariff measures laid down in Article 20(3)(e) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), and, second, that it was appropriate to apply, in particular, Regulation No 91/2009, which, at the date of acceptance of the import declarations at issue, provided for the application of a definitive anti-dumping duty on such goods originating in China.
20 Consequently, by means of a tax assessment of 20 March 2018, issued in the course of a post-clearance recovery procedure, the payment of anti-dumping duties, conventional duties, VAT and compensatory interest, for a total amount of EUR 106 997.60, was imposed on Inemer and on NT as joint and severable debtors.
21 NT lodged an administrative appeal against that tax assessment, maintaining that, following the repeal of Regulation No 91/2009, as effected by Articles 1 and 2 of the repeal regulation, anti-dumping duties could no longer be imposed on the basis of Regulation No 91/2009.
22 That appeal having been dismissed, NT lodged an appeal against that decision before the Tribunal Administrativo e Fiscal de Porto (Administrative and Tax Court, Porto, Portugal), which upheld that latter appeal by judgment of 17 December 2021.
23 The customs authority brought an appeal against that judgment before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which is the referring court, alleging an error of law in so far as that judgment found, inter alia, an infringement of the repeal regulation and of its repealing effects.
24 In particular, it argues before the referring court that, contrary to what was held in the judgment at first instance, the repeal of Regulation No 91/2009 by the repeal regulation does not amount to an annulment on grounds of illegality resulting in the invalidity, with ex tunc effects, of Regulation No 91/2009, but takes effect from the date of the entry into force of the repeal regulation, so it was necessary to ensure the maintenance of the anti-dumping duties arising before that date in order to protect the financial interests of the European Union.
25 NT argues before the referring court that, on the contrary, since the entry into force of the repeal regulation, the Portuguese authorities could no longer liquidate anti-dumping duties on the basis of Regulation No 91/2009, irrespective of the date of the imports concerned, because there was no longer a legal basis for those duties.
26 According to NT, it is apparent from the recitals of the repeal regulation that the reason for the repeal of Regulation No 91/2009 was its non-compliance, found by the DSB, with certain provisions of the WTO anti-dumping agreement, such that that repeal amounts to an annulment, based on a finding of invalidity, with ex tunc effects.
27 The referring court takes the view that it is necessary to establish the scope and extent of the repealing effects arising from the repeal regulation, that is to say, to determine whether, although the repeal effected by that repeal regulation took effect on 28 February 2016, the legal rules of Regulation No 91/2009, which was repealed, namely the anti-dumping duties that it provides for, applies to imports which took place during the months of May and June 2010, the period in which Regulation No 91/2009 was still in force, but which were the subject of a liquidation, inter alia as regards anti-dumping duties, only in March 2018, when that regulation had been repealed.
28 In those circumstances, the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Can Article 2 of [the repealing regulation] be interpreted as meaning that the repeal of the anti-dumping duties, apart from taking effect for the future from 28 February 2016, also affects imports or fasteners subject to those duties which took place up to 27 February 2016, but were assessed (for anti-dumping duties and other duties) on a date after 28 February 2016 (post-clearance recovery)? (2) Will the answer to the first question be different [if] it is considered that the post-clearance recovery has its origin in a transcript made, pursuant to a decision of 21 April 2017, of a criminal investigation initiated on the basis of evidence provided by [OLAF], within the framework of OLAF investigation CASE OF/2010/0697, AAA 2010/016-(2012)S01, in which it was concluded that the goods exported to the European [Union] in containers … on 3 April 2010 and in containers … on 24 April 2010 were of Chinese non-preferential origin?’
29 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 2 of the repeal regulation must be interpreted as meaning that the repeal of anti-dumping duties which it effects precludes, in the context of a post-clearance recovery carried out after the date of the entry into force of that regulation, the collection of anti-dumping duties and, where appropriate, other related duties, in respect of imports of products subject to those anti-dumping duties made after that date. The referring court asks, in addition, whether the answer to that question is different if that post-clearance recovery stems from a document obtained from a criminal investigation based on evidence provided by OLAF.
30 In order to answer those questions, it must be recalled, as a preliminary point, that it is clear from Article 201(1) and (2) of Regulation No 2913/92 that a customs debt on importation is to be incurred through, inter alia, the release for free circulation of goods liable to import duties, that debt being incurred at the time of acceptance of the customs declaration in question.
31 In the present case, it must be noted that, as is apparent from the order for reference, the imports of fasteners at issue in the main proceedings were carried out and, subsequently, declared to customs during the months of May and June 2010, and therefore in a period in which Regulation No 91/2009, imposing the anti-dumping duties concerned, was applicable to those imports.
32 It is therefore common ground that, as a result of those imports, the anti-dumping duties imposed by Regulation No 91/2009, and other related duties, were due, even if, initially, those duties were not imposed and collected on account of information contained in the customs declarations, which subsequently proved to be incorrect as regards the origin of the imported products.
33 By its questions, the referring court seeks to ascertain, in essence, whether the repeal of the anti-dumping duties imposed by Regulation No 91/2009, effected in Article 2 of the repeal regulation, means that those anti-dumping duties may no longer be collected in the context of a post-clearance recovery.
34 In that regard, it should be noted, first of all, that, under Article 2 of the repeal regulation, the repeal of the anti-dumping duties referred to in Article 1 thereof, including those imposed by Regulation No 91/2009, is to take effect from the date of the entry into force of that regulation and is not to serve as a basis for the reimbursement of the duties collected prior to that date.
35 It is in no way apparent from that wording, however, that the repeal of anti-dumping duties provided for in Article 1 of that regulation applies retroactively. On the contrary, as the Court has held, Article 2 of the repeal regulation provides for the expiry of those duties from the date of its entry into force and excludes any retroactive effect (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 57).
36 In particular, contrary to what NT argues, the clarification in Article 2, according to which the repeal of the anti-dumping duties concerned is not to serve as a basis for the reimbursement of the duties collected prior to the entry into force of that regulation, cannot be understood as laying down a single exception to retroactive effect of that repeal. That clarification in fact confirms the absence of retroactivity.
37 Furthermore, it is necessary to reject NT’s claim according to which the repeal of the anti-dumping duties concerned would amount, in reality, to an annulment for illegality with, as a result, ex tunc effects, regard being had to the non-compliance of Regulation No 91/2009 with the WTO agreements, as found by the DSB in the decisions of 28 July 2011 and 12 February 2016. It should be noted, first, that the Court has already had occasion to hold that the validity of Regulation No 91/2009 may not be determined in the light of the agreements in Annexes 1 to 3 to the Agreement establishing the WTO or, more specifically, in the light of those DSB decisions (see, to that effect, judgments of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraph 56, and of 11 January 2024, Eurobolt and Others v Commission and Stafa Group, C‑517/22 P, EU:C:2024:9, paragraph 88 and the case-law cited).
38 Second, the Court has already held that the repeal of an EU act by its author, as was effected by the repeal regulation in relation to Regulation No 91/2009, cannot be regarded as a finding of unlawfulness of that act with ex tunc effect, since such a repeal produces effects only for the future (see, to that effect, judgment of 11 January 2024, Eurobolt and Others v Commission and Stafa Group, C‑517/22 P, EU:C:2024:9, paragraphs 88 and 89).
39 It follows that the repeal, as provided for in Articles 1 and 2 of the repeal regulation, of the anti-dumping duties imposed, in particular, by Regulation No 91/2009 cannot be interpreted as an annulment for illegality affecting the validity of that latter regulation and which may, on that basis, have effects on the application of that regulation to imports, such as those at issue in the main proceedings, prior to the entry into effect of that repeal.
40 Consequently, as the repeal of Regulation No 91/2009 produces effects only in respect of the imports made from the date of the repeal regulation’s entry into force, it is not capable of affecting either the incurrence of a customs debt relating to anti-dumping duties and other related duties for imports made prior to that date under Regulation No 91/2009 or the post-clearance recovery of those duties, notwithstanding the fact that that latter regulation was no longer in force at the time of that recovery.
41 It follows from foregoing considerations that the fact that the post-clearance recovery took place on the basis of a document obtained from a criminal investigation, on the one hand, and the origin of evidence used in that investigation, on the other hand, are, as such, irrelevant as to the temporal effects of the repeal of the anti-dumping duties at issue in the main proceedings, particularly in relation to the liquidation of those duties in the context of a recovery carried out after that repeal.
42 It follows from the foregoing considerations that the answer to the questions referred is that Article 2 of the repeal regulation must be interpreted as meaning that the repeal of anti-dumping duties which it effects does not preclude, in the context of a post-clearance recovery carried out after the date of the entry into force of that regulation, the collection of anti-dumping duties and, where appropriate, other related duties, in respect of imports of products subject to those anti-dumping duties made after that date. The fact that that post-clearance recovery stems from a document obtained from a criminal investigation based on evidence provided by OLAF has no bearing in that regard.
43 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.