1 This request for a preliminary ruling concerns the interpretation of Article 14(c) of Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People’s Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93 (OJ 1997 L 17, p. 17), as amended by Commission Regulation (EU) No 512/2013 of 4 June 2013 (OJ 2013 L 152, p. 1) (‘Regulation No 88/97, as amended in 2013’).
2 The request has been made in proceedings between A-GmbH & Co. KG (‘the importer’) and Hauptzollamt C (Principal Customs Office C, Germany) concerning the conditions under which certain bicycle parts originating in China may be imported into the European Union free of extended anti-dumping duties.
3 The Council of the European Union adopted Regulation (EEC) No 2474/93 of 8 September 1993 imposing a definitive anti-dumping duty on imports into the Community of bicycles originating in the People’s Republic of China and collecting definitively the provisional anti‑dumping duty (OJ 1993 L 228, p. 1).
4 In order to avoid circumvention of the anti-dumping measures imposed by Regulation No 2474/93 through the importation of bicycle parts originating in China which are used in the assembly of bicycles in the European Union, the Council adopted Regulation (EC) No 71/97 of 10 January 1997 extending the definitive anti-dumping duty imposed by Regulation (EEC) No 2474/93 on bicycles originating in the People’s Republic of China to imports of certain bicycle parts from the People’s Republic of China, and levying the extended duty on such imports registered under Regulation (EC) No 703/96 (OJ 1997 L 16, p. 55).
5 Recital 38 of Regulation No 71/97 states: ‘The end use by reason of which imports should benefit from an exemption from the anti-dumping duty shall be defined by reference, (i) to assembly operations found not to be circumventing, and (ii) to the use of essential bicycle parts in small quantities by small-scale operators, notably for replacement purposes, which should be presumed not to constitute circumvention. In the latter case, imports of essential bicycle parts will be of limited economic significance, and will be unlikely to undermine the effect of the existing duty in terms of the quantities of bicycles that might be produced from such imported parts within the meaning of Article 13(2)(c) of the Basic Regulation. In order to allow intermediaries, who do not import essential bicycle parts directly, to purchase these parts from importers and to resell them to non-circumventing assembly operations, such transactions should also be monitored under the end use control system.’
6 Article 3(1) and (2), second indent, of that regulation provides: ‘1. The Commission shall, after consulting the Advisory Committee, adopt by regulation the necessary measures to authorise the exemption of imports of essential bicycle parts which do not circumvent the anti-dumping duty imposed by Regulation (EEC) No 2474/93 from the duty extended by Article 2. 2. The Commission regulation shall, in particular, provide for: … - authorisation of the exemption and control of imports of essential bicycle parts, in particular by intermediaries or with regard to their use in small quantities by small-scale operators’.
7 Recitals 3 and 4 of Regulation No 88/97 state:
8 Article 14 of Regulation No 88/97, as amended in 2013, entitled ‘Exemption subject to end-use control’, provides: ‘Where imports of essential bicycle parts are declared for free circulation by a person other than an exempted party, as from the date of entry into force of the Reference Regulation, they shall be exempted from the application of the extended duty if declared in accordance with the Taric structure in Annex III and subject to the conditions laid down in Article 82 of [Council] Regulation (EEC) No 2913/92 [of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1)] and Articles 291 to 304 of Regulation (EEC) No 2454/93, which shall be applicable mutatis mutandis, where:
9 Article 15(2) of Regulation No 88/97, as amended by Commission Implementing Regulation (EU) 2023/611 of 17 March 2023 (OJ 2023 L 80, p. 67), provides: ‘Where the parties referred to in paragraph 1 are found to have declared for free circulation or received deliveries of quantities of essential bicycle parts above the threshold set out in Article 14(c), or where they fail to cooperate with the examination, they shall no longer be presumed to fall outside the scope of Article 13(2) of Regulation (EU) 2016/1036 [of the European Parliament and of 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)], and any exemption authorisation granted to such parties shall be revoked retrospectively. …’
10 Recitals 23 to 25 of Implementing Regulation 2023/611 state:
11 Article 211 of 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’), entitled ‘Authorisation’, provides, in paragraph 1(a): ‘An authorisation from the customs authorities shall be required for the following: (a) the use of the inward or outward processing procedure, the temporary admission procedure or the end-use procedure’.
12 Article 254 of the Union Customs Code, entitled ‘End-use procedure’, provides, in paragraph 1: ‘Under the end-use procedure, goods may be released for free circulation under a duty exemption or at a reduced rate of duty on account of their specific use.’
13 As part of its business, the importer imports various bicycle parts from China. On that basis it has for some years been the holder of an end-use authorisation issued by Principal Customs Office C. That authorisation, granted pursuant to Article 254 of the Union Customs Code, allows the importer, in accordance with paragraph 1 of that article, to release goods for free circulation in the European Union under a duty exemption or at a reduced rate of duty on account of their specific use.
14 That authorisation originally covered: - essential bicycle parts delivered to a party exempted in accordance with Regulation No 88/97, as amended in 2013 (Article 14(a)); - deliveries to other holders of an authorisation for the end-use procedure, within the meaning of Article 254 of the Union Customs Code, and of Article 291 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), who do not themselves carry out the import formalities (Article 14(b) of Regulation No 88/97, as amended in 2013); - and imports, on a monthly basis, of less than 300 units per type of essential bicycle parts which are either declared for free circulation by a party or are delivered to it (Article 14(c) of Regulation No 88/97, as amended in 2013).
15 That authorisation stated that less than 300 units per type of essential bicycle parts could be declared every month for the declarant’s own purposes or forwarded by a given party to other parties (final customers). However, following successive amendments by the customs authority, the authorisation no longer covered the exemption corresponding to that referred to in Article 14(c) of Regulation No 88/97, as amended in 2013.
16 In 2018, the importer applied to the customs authority, under Article 211(1)(a) of the Union Customs Code, for that authorisation to be extended with retroactive effect from 1 January 2018 to cover the exemption provided for in Article 14(c) of Regulation No 88/97, as amended in 2013.
17 It argued, in that regard, that that provision authorised an exemption from the extended anti-dumping duty, inter alia, where, on a monthly basis, less than 300 units per type of essential bicycle parts are ‘delivered’ to a party. According to the importer, that exemption scenario should be understood to mean that where, in the course of its business, an importer imports bicycle parts in order to deliver them to its various customers, that importer is authorised to import, monthly, 299 units per type of essential bicycle parts per customer exempt from anti-dumping duties.
18 Following the customs authority’s refusal of that request, the importer brought an action against that authority’s refusal decision before the Finanzgericht (Finance Court, Germany), which dismissed the action and upheld the refusal to extend the end-use authorisation held by the importer.
19 The Finanzgericht (Finance Court) found that the exemption referred to in Article 14(c) of Regulation No 88/97, as amended in 2013, was intended only for small-scale operators and should therefore be limited to situations in which less than 300 units are delivered in total to all of the customers of the importer concerned. It considered that interpretation to be supported by the second indent of Article 3(2) of Regulation No 71/97, according to which, in essence, the exemption regulation to be adopted by the Commission was to provide for ‘authorisation of the exemption and control of imports of essential bicycle parts, in particular by intermediaries or with regard to their use in small quantities by small-scale operators’.
20 The importer brought an appeal on a point of law against the decision of the Finanzgericht (Finance Court) before the Bundesfinanzhof (Federal Fiscal Court, Germany), which is the referring court.
21 In that appeal, it argued that the concept of ‘small-scale operators’, as referred to in the second indent of Article 3(2) of Regulation No 71/97, is not defined by the legislation in force and that the objective of Regulation No 88/97 is only to prevent circumvention of the anti-dumping duty where several undertakings that declare goods deliver to one customer quantities of those goods which, in aggregate, exceed the threshold laid down. Accordingly, for the purposes of the exemption from anti-dumping duty, it was important to determine not the volume of essential bicycle parts sold by intermediaries to other operators but the monthly quantity ultimately delivered to each final customer. Furthermore, the threshold of ‘less than 300 units per type of essential bicycle parts’, on a monthly basis, is, it was argued, an allowance giving rise to the exemption of 299 of those units even if that threshold is exceeded, and not an exemption threshold that would result in no exemption being applied if a party declares and delivers, on a monthly basis, more than 299 such units.
22 The referring court considers that the key to resolving the dispute before it lies in establishing which imports of essential bicycle parts are exempted from the extended anti-dumping duty and, in that regard, refers to its doubts regarding the interpretation of Article 14(c) of Regulation No 88/97, as amended in 2013.
23 First, it is uncertain as to whether the exemption referred to in that provision may be combined with another exemption, within the meaning of Article 14(a) and/or (b) of that regulation. In that regard, the referring court considers that while the exemptions from the extended anti-dumping duty provided for in Article 14(a) and (b) of that regulation may be combined with the exemption referred to in point (d) of that article, that is because each relates to a different consignee and assembly operations and there is therefore no overlap between them. By contrast, a party could fail to have regard to the objective of Regulation No 88/97 - which is to exempt only economically insignificant imports - if, by availing of the exemptions under Article 14(a) and/or (b) of Regulation No 88/97, as amended in 2013, in conjunction with the exemption referred to in Article 14(c) of that regulation, as amended, it were able to import more than 299 units of essential bicycle parts, free of anti-dumping duty, every month.
24 Second, the referring court is uncertain as to whether, in the light of Article 14(c) of Regulation No 88/97, as amended in 2013, the end-use authorisation may provide for an exemption from the extended anti-dumping duty for less than 300 units per type of essential bicycle parts, per customer and per month, or whether that upper limit applies in respect of all customers. It notes that the wording of that provision gives no indications in that regard, and that a broad interpretation of that provision could lead to the circumvention of the anti-dumping duty. It also states that the way in which a party conducts its business or is present on the market should be immaterial in the examination of that issue.
25 Third, the referring court queries whether the threshold of ‘less than 300 units per type of essential bicycle parts’ on a monthly basis, within the meaning of Article 14(c) of Regulation No 88/97, as amended in 2013, constitutes an exemption threshold, with the result that the exemption from the extended anti-dumping duty as a whole ceases to apply if a party declares and delivers more than 299 units per month. The stated intention of the EU legislature to ensure that small-scale importers or consignees benefit from the exemption set out in that provision would favour that interpretation.
26 In those circumstances, the Bundesfinanzhof (Federal Fiscal Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
27 By its first question, the referring court asks, in essence, whether Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that the exemption from the extended anti-dumping duty provided for therein may be combined, in the same end-use authorisation, within the meaning of Article 254 of the Union Customs Code, with another exemption under Article 14(a) and/or (b) of that regulation, as amended.
28 The Court of Justice has consistently held that, for the purposes of interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (judgment of 14 March 2024, VR Bank Ravensburg-Weingarten, C‑536/22, EU:C:2024:234, paragraph 35 and the case-law cited).
29 In the first place, as regards the wording of the provisions at issue, it must be stated that neither Article 254 of the Union Customs Code, which is expressly referred to in the first question, nor Article 211 of that code, both of which relate to the end-use authorisation, precludes an end-use authorisation being able to provide for a combination of several types of exemption from anti-dumping duty.
30 Similarly, while the various types of exemption covered by Article 14(a) to (c) of Regulation No 88/97, as amended in 2013, are referred to in succession and are linked by the conjunction ‘or’, it cannot be inferred from the use of that conjunction that one type of exemption necessarily rules out another. Indeed, while just one reason for an exemption can suffice to benefit from the rules on exemption from the extended anti-dumping duties, that does not preclude more than one reason for an exemption being covered by a single end-use authorisation under Articles 211 and 254 of the Union Customs Code.
31 In the second place, it should be noted that, in the light of recital 38 of Regulation No 71/97, which sets out the reasons for the operation of exemptions from extended anti-dumping duties, and of recital 4 of Regulation No 88/97, the overall scheme of Article 14(a) to (c) of Regulation No 88/97, as amended in 2013, is linked to the objective of the latter regulation which is to authorise imports of essential bicycle parts, free of extended anti-dumping duties, that are of limited economic significance.
32 Therefore, it is unlikely that the combined operation of such exemptions would undermine the objective pursued by the imposition of anti-dumping duties, both in the light of the quantities of bicycles capable of being manufactured using those imported essential parts and in the light of the economically limited nature of the imports that are exempt from those duties.
33 In the light of the foregoing considerations, the answer to the first question is that Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that the exemption from the extended anti-dumping duty provided for therein may be combined, in the same end-use authorisation, within the meaning of Article 254 of the Union Customs Code, with another exemption under Article 14(a) and/or (b) of that regulation, as amended.
34 By its second question, the referring court asks, in essence, whether Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that the end-use authorisation, within the meaning of Article 254 of the Union Customs Code, may provide for an exemption from the extended anti-dumping duty for less than 300 units per type of essential bicycle parts per customer and per month, or whether that threshold relates to all of the customers of the holder of that authorisation.
35 It must be noted at the outset that, in the judgment of 29 July 2010, Isaac International (C‑371/09, EU:C:2010:458, paragraphs 33 and 34), the Court previously held that Article 14(c) of Regulation No 88/97, as amended in 2013, which establishes a de minimis exemption for certain operators, ‘lays down a monthly quantitative limit and states that the number of units is to be calculated by taking account of all parties which are associated with, or have compensatory arrangements with, the importer or the person making the declaration’.
36 Thus, it has been held, in essence, that that de minimis exception fixes a maximum number of units per type of essential bicycle parts, namely less than 300 units, which may be imported every month pursuant to Article 14(c) of Regulation No 88/97, as amended in 2013, by a non-exempted importer, regardless of the number of undertakings/persons to whom that importer subsequently delivers those units.
37 That interpretation is consistent with the objective of Regulation No 88/97, which is to authorise exemptions from extended anti-dumping duties only if they do not undermine the objectives pursued by the imposition of those duties. As it is, to authorise imports free of such duties, albeit limited to less than 300 units per type of essential bicycle parts, per month and per customer, which could be delivered to a potentially unlimited number of customers, would be liable to undermine those objectives.
38 In the light of the foregoing considerations, the answer to the second question is that Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that the end-use authorisation, within the meaning of Article 254 of the Union Customs Code, may provide for an exemption from the extended anti-dumping duty for less than 300 units per type of essential bicycle parts per month for all of the customers of the holder of that authorisation.
39 By its third question, the referring court asks, in essence, whether Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that where the threshold of ‘less than 300 units per type of essential bicycle parts’ on a monthly basis is exceeded, a party which declares and delivers more than 299 units per month will not be entitled to any exemption from extended anti-dumping duties pursuant to that provision.
40 First of all, it is not apparent from the wording of Article 14(c) of Regulation No 88/97, as amended in 2013, that the threshold of ‘less than 300 units per type of essential bicycle parts’, on a monthly basis, constitutes an allowance which, if exceeded, would give rise, up to that threshold, to an exemption from the extended anti-dumping duties.
41 By contrast, it follows from Article 15(2) of Regulation No 88/97, as amended by Implementing Regulation 2023/611, in particular, that where the parties have declared for free circulation or have received deliveries of quantities of essential bicycle parts above the threshold set out in Article 14(c), any exemption authorisation granted to such parties is to be revoked retroactively. Accordingly that threshold constitutes a value which, if exceeded, results in those parties being deprived altogether of such an exemption.
42 It is true that, as the Commission indicates in its written observations, that development in EU legislation has provided clarification in the light of the divergent practices of national customs authorities. However, it is apparent from recital 23 of Implementing Regulation No 2023/611 that that threshold must be regarded, from the date of its establishment by Regulation No 88/97, in its original version, as being a value which, if exceeded, results in the revocation of the exemption authorisation. That is, moreover, borne out by recital 24 of that implementing regulation, which states that the ‘[de minimis] threshold should be made explicit in [Regulation No 88/97]’, and that that should be done ‘to ensure legal certainty and transparency’, as well as by recital 25 of that implementing regulation.
43 Next, as the referring court notes and as is apparent from recital 4 of Regulation No 88/97, the exemption under the end-use procedure was established in order to enable imports or deliveries in small quantities, which are of limited economic significance, to proceed. To enable economic operators carrying out significant imports or resales automatically to be given at least a partial allowance in respect of such operations would undermine the objective of the anti-dumping legislation.
44 Lastly, the referring court refers to the judgment of 12 May 2021, Hauptzollamt B (Sturgeon caviar) (C‑87/20, EU:C:2021:382). In that judgment, the Court found that the quantity of 125 grams of sturgeon caviar per person which may be brought in without the need to present an import permit constitutes an exemption threshold; in so doing it relied in particular on the fact that the provision in question is to be regarded as a derogation which must, as such, be strictly interpreted.
45 The facts of the case in the main proceedings differ from those of the case that gave rise to that judgment, which concerned the protection of endangered species of wild fauna and flora by regulating trade therein, under Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ 1997 L 61, p. 1).
46 The fact remains that the anti-dumping legislation is intended, in the present case, to protect European industry within the bicycle sector and that the exemptions from extended anti-dumping duties, under Regulation No 88/97, particularly those that are to the benefit of small-scale economic operators, are granted only in respect of non-circumventing operations. Thus, Article 14(c) of Regulation No 88/97, as amended in 2013, must be regarded as constituting a derogation in favour of small-scale economic operators whose activity, given its limited economic impact, does not come within the scope of provisions that are designed to ensure that the extended anti-dumping duties are not circumvented.
47 In the light of the foregoing, the answer to the third question is that Article 14(c) of Regulation No 88/97, as amended in 2013, must be interpreted as meaning that where the threshold of ‘less than 300 units per type of essential bicycle parts’ on a monthly basis is exceeded, a party which declares and delivers more than 299 units per month will not be entitled to any exemption from extended anti-dumping duties pursuant to that provision.
48 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. 1. Article 14(c) of Commission Regulation (EC) No 88/97 of 20 January 1997 on the authorisation of the exemption of imports of certain bicycle parts originating in the People’s Republic of China from the extension by Council Regulation (EC) No 71/97 of the anti-dumping duty imposed by Council Regulation (EEC) No 2474/93, as amended by Commission Regulation (EU) No 512/2013 of 4 June 2013, must be interpreted as meaning that the exemption from the extended anti-dumping duty provided for therein may be combined, in the same end-use authorisation, within the meaning of Article 254 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, with another exemption under Article 14(a) and/or (b) of Regulation No 88/97, as amended. 2. Article 14(c) of Regulation No 88/97, as amended by Regulation No 512/2013, must be interpreted as meaning that the end-use authorisation, within the meaning of Article 254 of Regulation No 952/2013, may provide for an exemption from the extended anti-dumping duty for less than 300 units per type of essential bicycle parts per month for all of the customers of the holder of that authorisation. 3. Article 14(c) of Regulation No 88/97, as amended by Regulation No 512/2013, must be interpreted as meaning that where the threshold of ‘less than 300 units per type of essential bicycle parts’ on a monthly basis is exceeded, a party which declares and delivers more than 299 units per month will not be entitled to any exemption from extended anti-dumping duties pursuant to that provision.