1 This request for a preliminary ruling concerns the interpretation of Article 116 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 Customs Code’).
2 The request was submitted in the context of a dispute between SAS Tenergie Development (‘Tenergie’), on the one hand, and the Directeur régional des douanes de Marseille (Regional Customs Director, Marseille, France), the Direction interrégionale des douanes Provence-Alpes-Côte d’Azur-Corse (Interregional Customs Directorate, Provence-Alpes-Côte d’Azur-Corsica) and the Direction régionale des douanes de Marseille (Regional Customs Directorate, Marseille) (together, ‘the French Customs Administration’), on the other hand, concerning the legality of a recovery notice for anti-dumping and countervailing duties sent to Tenergie for solar panels imported and then released for free circulation in France.
3 Article 116 of the Customs Code provides: ‘1. Subject to the conditions laid down in this Section, amounts of import or export duty shall be repaid or remitted on any of the following grounds: … 3. Where the customs authorities consider that repayment or remission should be granted on the basis of Article 119 or 120, the Member State concerned shall transmit the file to the [European] Commission for decision in any of the following cases: Notwithstanding the first subparagraph, files shall not be transmitted in either of the following situations: 4. Subject to the rules of competence for a decision, where the customs authorities themselves discover within the periods referred to in Article 121(1) that an amount of import or export duty is repayable or remissible pursuant to Articles 117, 119 or 120 they shall repay or remit on their own initiative. …’
4 Article 119 of that code, entitled ‘Error by the competent authorities’, states: ‘1. In cases other than those referred to in the second subparagraph of Article 116(1) and in Articles 117, 118 and 120, an amount of import or export duty shall be repaid or remitted where, as a result of an error on the part of the competent authorities, the amount corresponding to the customs debt initially notified was lower than the amount payable, provided the following conditions are met: 2. Where the conditions laid down in Article 117(2) are not fulfilled, repayment or remission shall be granted where failure to apply the reduced or zero rate of duty was as a result of an error on the part of the customs authorities and the customs declaration for release for free circulation contained all the particulars and was accompanied by all the documents necessary for application of the reduced or zero rate. 3. Where the preferential treatment of the goods is granted on the basis of a system of administrative cooperation involving the authorities of a country or territory outside the customs territory of the Union, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of point (a) of paragraph 1. The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment. The debtor shall be considered to be in good faith if he or she can demonstrate that, during the period of the trading operations concerned, he or she has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled. The debtor may not rely on a plea of good faith if the Commission has published a notice in the Official Journal of the European Union stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country or territory.’
5 Article 120 of that code, entitled ‘Equity’, states: ‘1. In cases other than those referred to in the second subparagraph of Article 116(1) and in Articles 117, 118 and 119 an amount of import or export duty shall be repaid or remitted in the interest of equity where a customs debt is incurred under special circumstances in which no deception or obvious negligence may be attributed to the debtor. 2. The special circumstances referred to in paragraph 1 shall be deemed to exist where it is clear from the circumstances of the case that the debtor is in an exceptional situation as compared with other operators engaged in the same business, and that, in the absence of such circumstances, he or she would not have suffered disadvantage by the collection of the amount of import or export duty.’
6 Tenergie, a company incorporated under French law, imports equipment used in the construction of solar power plants into France, using suppliers based in various countries. Between 18 December 2013 and 27 February 2014, it imported solar panels from Taiwan into France, then released them for free circulation and home use.
7 After the European Anti-Fraud Office (OLAF) launched an international investigation in 2014 to verify the customs origin of solar panels consigned from Taiwan and imported into Europe, the French Customs Administration carried out checks on Tenergie’s imports.
8 On 15 October 2015, the French Customs Administration served Tenergie with a notice containing the findings of the investigation, which reported breaches of EU customs regulations, in that the solar panels imported by Tenergie during the period in question originated in China. On 15 December 2015, an infringement notice relating to false declarations of origin in respect of solar panels imported between 18 December 2013 and 27 February 2014 was issued by the French Customs Administration. On 2 March 2016, that body issued an initial recovery notice relating to anti-dumping and countervailing duties applicable to the solar panels originating in China which were imported by Tenergie (‘the disputed anti-dumping and countervailing duties’).
9 On 21 November 2019, the French Customs Administration revoked that initial recovery notice on the ground that Tenergie’s right to be heard had been breached.
10 On 11 December 2019, it issued the company another notice of investigation findings. On 26 August 2020, it notified Tenergie of a breach for failure to comply with EU customs regulations, which cancelled and replaced the infringement notice served on 15 December 2015. On 16 September 2020, the French Customs Administration issued a second recovery notice in relation to the disputed anti-dumping and countervailing duties, amounting to EUR 2 405 887.
11 By letter dated 12 April 2021, Tenergie submitted an initial request to the French Customs Administration for remission of those anti-dumping and countervailing duties, based on Articles 119 and 120 of the Customs Code.
12 On 4 May 2021, Tenergie brought initial proceedings before the tribunal judiciaire de Marseille (Court of Marseille, France), seeking the annulment of that second recovery notice relating to the disputed anti-dumping and countervailing duties, which was dismissed by a judgment of 9 May 2023. Tenergie appealed against that judgment.
13 On 18 May 2021, Tenergie submitted a second request to the French Customs Administration for remission of the disputed anti-dumping and countervailing duties.
14 By letter of 16 September 2021, the French Customs Administration issued an unfavourable opinion in respect of the second request for remission of those disputed anti-dumping and countervailing duties, on the grounds, first, that no error within the meaning of Article 119 of the Customs Code could be attributed to the customs authorities concerned and, second, that Tenergie’s situation did not result from special circumstances within the meaning of Article 120 of that code.
15 By letter of 19 October 2021, the French Customs Administration issued an unfavourable opinion in respect of the first request for remission of the disputed anti-dumping and countervailing duties.
16 By letter of 29 November 2021, it issued a final refusal to grant the remission of the disputed anti-dumping and countervailing duties requested by Tenergie.
17 On 25 February 2022, Tenergie lodged a second set of proceedings before the tribunal judiciaire de Marseille (Court of Marseille), which is the referring court, requesting, in particular, the annulment of the decision rejecting its requests for remission of the disputed anti-dumping and countervailing duties or, failing that, requesting that the French Customs Administration be ordered to re-examine the case and to transmit it to the Commission for review.
18 Tenergie maintains that the conditions for the remission of import duties were met in the present case. First, in its view, the Commission should have notified the companies concerned that the solar panels at issue in the main proceedings originated in China. Furthermore, the French Customs Administration, having carried out a number of checks and harbouring suspicions about the origin of those solar panels, should have conducted more thorough checks and informed Tenergie. By failing to do so, that administration erred within the meaning of Article 119 of the Customs Code, which was not detectable by Tenergie since it does not have the same means of investigation and examination available to the authorities.
19 Second, Tenergie asserts that its situation was the result of special circumstances within the meaning of Article 120 of the Customs Code, and that it had not engaged in any deception or obvious negligence aimed at circumventing the disputed anti-dumping and countervailing duties. It states that - on the contrary - it acted in good faith by conducting its own investigations and on-the-spot checks. In those circumstances, Tenergie contends that the French Customs Administration was required to transmit its request for remission of the disputed anti-dumping and countervailing duties to the Commission, since the check carried out by that administration was based primarily on the findings of the OLAF investigation referred to in paragraph 7 of the present judgment, which was conducted in accordance with Articles 2 and 20 of Regulation No 515/97.
20 The French Customs Administration maintains that it never provided Tenergie with any confirmation regarding the origin of the solar panels at issue in the main proceedings. That administration states, first, that until OLAF had delivered its findings, after November 2014, it had no evidence enabling it to refute that origin and, second, that the assessments made by the Taiwanese customs authorities are irrelevant in the context of the European Union’s anti-dumping policy. Furthermore, it believes that bad faith on the part of a supplier is not a special circumstance that should be taken into account when assessing a request for remission of anti-dumping and countervailing duties, but rather constitutes an inherent business risk. Consequently, the French Customs Administration believes that the conditions laid down in Articles 119 and 120 of the Customs Code were not met in the present case and that there was therefore no reason to transmit the file in question to the Commission under Article 116 of that code.
21 The referring court takes the view that the resolution of the dispute in the main proceedings depends on the clarification that the Court will provide on the interpretation of EU law.
22 In this regard, it points out that, according to Tenergie, first of all, the French Customs Administration never expressed the slightest reservation or pointed out any anomaly regarding the origin of the goods; next, the customs authorities’ acceptance of a customs declaration containing an incorrect tariff classification of the goods in question, even though all the necessary documents had been provided to them by the importer concerned, constitutes an error within the meaning of Article 119 of the Customs Code; and, lastly, that company should have been warned of the risks associated with the imports at issue in the main proceedings as soon as the OLAF investigation was opened by the French Customs Administration and the European authorities responsible, specifying that it appears from the OLAF report relating to that investigation that information concerning the transhipment via Taiwan of numerous solar panels originating in China had been provided to OLAF by the Taiwanese customs authorities as early as 24 November 2014. The referring court therefore considers that Tenergie is justified in asking whether the French Customs Administration was required to transmit its request for remission of the disputed anti-dumping and countervailing duties to the Commission.
23 In those circumstances the tribunal judiciaire de Marseille (Court of Marseille) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
24 The Commission contends that the present request for a preliminary ruling is inadmissible on account of the hypothetical nature of the first question, from which the other two questions referred by the referring court derive. Indeed, the Commission argues that, contrary to what is apparent from the first question, Tenergie cannot be regarded as having satisfied the conditions laid down in Articles 119 and 120 of the Customs Code, and it therefore cannot rely on those provisions to claim remission of the disputed anti-dumping and countervailing duties. It argues that the referring court has not established the facts from which it would follow that, in the present case, Tenergie has satisfied the conditions laid down in Articles 119 and 120. On the contrary, it appears from the order for reference and from the judgment of the tribunal judiciaire de Marseille (Court of Marseille) of 9 May 2023, referred to in paragraph 12 of the present judgment, that Tenergie did not meet those conditions. Consequently, questions concerning the implementation of Article 116 of the Customs Code are not relevant.
25 Similarly, the French and Italian Governments, without formally raising a plea as to the inadmissibility of the request for a preliminary ruling, pointed out that it did not appear from that request that the conditions laid down in Articles 119 and 120 of the Customs Code were satisfied in the present case.
26 In that regard, it should be borne in mind that, according to settled case-law, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 1 August 2025, Alace and Canpelli, C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 38 and the case-law cited).
27 It has also consistently been held that the procedure provided for by Article 267 TFEU is an instrument for cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. It should be borne in mind that the justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute (order of 24 March 2025, Cajasur Banco, C‑443/24, EU:C:2025:253, paragraph 16 and the case-law cited).
28 As is apparent from the actual wording of Article 267 TFEU, the preliminary ruling sought must be ‘necessary’ to enable the referring court to ‘give judgment’ in the case before it. Indeed, the Court’s function in proceedings for a preliminary ruling is to help the referring court to resolve the specific dispute pending before that court. In such proceedings, there must therefore be a connecting factor between that dispute and the provisions of EU law whose interpretation is sought, by virtue of which that interpretation is objectively required for the decision to be taken by the referring court (order of 2 May 2025, Klinka-Geo Trans, C‑501/24, EU:C:2025:348, paragraph 36 and the case-law cited).
29 In the present case, it is apparent from the wording of the first question, which concerns the interpretation of Article 116 of the Customs Code, that that question relates to a specific ‘hypothesis’, namely a scenario in which a company satisfies the criteria laid down in Articles 119 and 120 of the Customs Code for obtaining repayment or remission of the amount of import duties it has paid. The referring court states on this point that this applies to Tenergie.
30 However, the referring court has not indicated, let alone demonstrated, how the conditions laid down in Articles 119 and 120 of the Customs Code were satisfied in the present case. Indeed, neither the elements of fact described in the order for reference nor the grounds for that order indicate that those conditions were met. As noted by the French Government, the referring court merely states, in the grounds for its request, that, according to Tenergie, the acceptance by the customs authorities of a customs declaration containing an incorrect tariff classification of the goods at issue in the main proceedings constitutes an error within the meaning of Article 119 of the Customs Code.
31 It should also be noted that the Commission has attached to its written observations the judgment delivered by the referring court on 9 May 2023 in the proceedings brought by Tenergie seeking the annulment of the recovery notice related to the disputed anti-dumping and countervailing duties issued by the French Customs Administration on 16 September 2020. That proceeding essentially concerned the same facts that are at issue in the main proceedings in the present case. However, it emerges from that judgment that - according to the referring court - Tenergie did not satisfy the conditions laid down in Articles 119 and 120 of the Customs Code.
32 In this context, in a request for information dated 20 December 2024, the referring court was asked by the Court to indicate whether it considered that the conditions laid down in Articles 119 and 120 of the Customs Code were met by Tenergie and, if so, to explain the reasons why.
33 On 3 February 2025, the referring court replied that, at that stage, it was impossible for it to confirm or deny whether those conditions were met by Tenergie since, pending a response to its request for a preliminary ruling, it had not yet ruled on the applications submitted to it.
34 In view of the foregoing, it must be noted that the premiss on which the first question referred for a preliminary ruling is based - namely the assumption that Tenergie ‘satisfies the conditions set out in Articles 119 and 120 of the [Customs Code]’ - is not supported either by the order for reference or, more generally, by the file before the Court.
35 However, the application of Article 116(3) of the Customs Code, which is the subject of the first question, as stated in paragraph 29 of the present judgment, presupposes that the conditions laid down in Articles 119 and 120 of that code are satisfied. Therefore, since the referring court acknowledges that it has not been established that the conditions laid down in Articles 119 and 120 were satisfied in the present case, it appears that that question must be regarded as hypothetical in nature, within the meaning of the case-law referred to in paragraphs 26 and 27 of the present judgment.
36 Consequently, since the second and third questions referred by the referring court depend on the answer to the first question, the present request for a preliminary ruling must be declared inadmissible in its entirety.
37 It should be noted, however, that the referring court retains the right to submit a new request for a preliminary ruling, providing the Court with all the information enabling it to rule (see, to that effect, judgment of 11 September 2019, Călin, C‑676/17, EU:C:2019:700, paragraph 41 and the case-law cited).
38 It follows that the request for a preliminary ruling is inadmissible.
39 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.