–

Krohn & Schröder GmbH, by L. Harings, Rechtsanwalt,

–

the European Commission, by A. Caeiros, B.-R. Killmann, T. Maxian Rusche and F. Clotuche-Duvieusart, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 212a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 648/2005 of the European Parliament and of the Council of 13 April 2005 (OJ 2005 L 117, p. 13) (‘the Customs Code’), of Article 3(1)(a) to (c) of Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1) and of Article 2(1)(a) to (c) of Council Implementing Regulation (EU) No 1239/2013 of 2 December 2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 66).

2

The request has been made in proceedings between Krohn & Schröder GmbH and the Hauptzollamt Hamburg-Hafen (Principal Customs Office of the Port of Hamburg, Germany) (‘the Principal Customs Office’) concerning the imposition of anti-dumping and countervailing duties on that company because of the non-fulfilment of an obligation relating to the temporary storage of the goods at issue in the main proceedings.

3

Under Article 4(10) of the Customs Code:

‘“Import duties” means:

…’

4

Article 36a of that code provides:

‘1.   Goods brought into the customs territory of the Community shall be covered by a summary declaration, with the exception of goods carried on means of transport only passing through the territorial waters or the airspace of the customs territory without a stop within this territory.

2.   The summary declaration shall be lodged at the customs office of entry.

…’

5

Article 49(1) of that code states:

‘Where goods are covered by a summary declaration, the formalities necessary for them to be assigned a customs-approved treatment or use must be carried out within:

…

6

Article 53(1) of that code provides:

‘The customs authorities shall without delay take all measures necessary, including the sale of the goods, to regularise the situation of goods in respect of which the formalities necessary for them to be assigned a customs-approved treatment or use are not initiated within the periods determined in accordance with Article 49.’

7

Article 184 of the Customs Code provides:

‘The Council shall, acting by a qualified majority on a proposal from the Commission, determine the cases in which, on account of special circumstances, relief from import duties or export duties shall be granted where goods are released for free circulation or exported.’

8

Article 204(1)(a) of that code states:

‘A customs debt on importation shall be incurred through:

9

Under Article 212a of that code:

‘Where customs legislation provides for favourable tariff treatment of goods by reason of their nature or end-use or for relief or total or partial exemption from import or export duties pursuant to Articles 21, 82, 145 or 184 to 187, such favourable tariff treatment, relief or exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211, on condition that the behaviour of the person concerned involves neither fraudulent dealing nor obvious negligence and he produces evidence that the other conditions for the application of favourable treatment, relief or exemption have been satisfied.’

10

According to recitals 6 and 8 of Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26):

…

11

Recitals 13 and 14 of Commission Implementing Decision 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214) state:

12

Article 1(3) of Implementing Regulation No 1238/2013 provides:

‘Unless otherwise specified, the provisions in force concerning customs duties shall apply.’

13

Article 3(1) and (2) of that implementing regulation provides:

‘1.   Imports declared for release into free circulation for products currently falling within CN code ex85414090 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) which are invoiced by companies from which undertakings are accepted by the Commission and whose names are listed in the Annex to Implementing Decision 2013/707/EU, shall be exempt from the anti-dumping duty imposed by Article 1, on condition that:

2.   A customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation:

…’

14

Annex III to that implementing regulation lists the elements which must be indicated on the commercial invoice accompanying the goods which are subject to an undertaking that has been accepted, and which are sold in the European Union. Paragraph 9 of that annex states what must be indicated on that invoice:

‘The name of the official of the Company that has issued the Commercial Invoice and the following signed declaration:

“I, the undersigned, certify that the sale for direct export to the European Union of the goods covered by this invoice is being made within the scope and under the terms of the Undertaking offered by [company], and accepted by the European Commission through Implementing Decision 2013/707/EU. I declare that the information provided on this invoice is complete and correct”.’

15

Under Article 1(3) of Implementing Regulation No 1239/2013:

‘Unless otherwise specified, the provisions in force concerning customs duties shall apply.’

16

Article 2(1) and (2) of that implementing regulation provides:

‘1.   Imports declared for release into free circulation for products currently falling within CN code ex85414090 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) which are invoiced by companies from which undertakings are accepted by the Commission and whose names are listed in the Annex to Implementing Decision 2013/707/EU, shall be exempt from the anti-subsidy duty imposed by Article 1, on condition that:

2.   A customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation:

…’

17

Annex 2 to that implementing regulation lists the elements which must be indicated on the commercial invoice accompanying the goods which are subject to an undertaking that has been accepted, and which are sold in the European Union. Paragraph 9 of that annex states what must be indicated on that invoice:

‘The name of the official of the Company that has issued the Commercial Invoice and the following signed declaration:

“I, the undersigned, certify that the sale for direct export to the European Union of the goods covered by this invoice is being made within the scope and under the terms of the Undertaking offered by [company], and accepted by the European Commission through Implementing Decision 2013/707/EU. I declare that the information provided in this invoice is complete and correct”.’

18

The applicant in the main proceedings manages a warehouse in the port of Hamburg (Germany). On 21 August 2014, it stored in its warehouse two deliveries of photovoltaic modules, for which it made a summary declaration and which it put in temporary storage.

19

On 11 September 2014, the Principal Customs Office drew the attention of the applicant in the main proceedings to the fact that no formalities had been completed in order to assign those goods another customs-approved treatment or use within the 20-day period provided for in Article 49 of the Customs Code. It also requested the applicant in the main proceedings to submit the documents required for the setting of the applicable customs duties.

20

By letter of 26 September 2014, the applicant in the main proceedings forwarded to the Principal Customs Office documents from which it was apparent that the relevant goods had been manufactured by Wuxi Suntech Power, a Chinese company whose name is indicated in the Annex to Implementing Decision 2013/707, and that they had been consigned to a company affiliated with Wuxi Suntech Power in Germany. Amongst those documents were an invoice from Wuxi Suntech Power of 11 July 2014, which included a reference to Decision 2013/423, and an export undertaking certificate of the China Chamber of Commerce for Import & Export of Machinery & Electronic Products, which contained a reference to Implementing Decision 2013/707.

21

By a notice of 24 November 2014, the Principal Customs Office set, inter alia, an anti-dumping and a countervailing duty on the goods after finding that, in accordance with Article 204 of the Customs Code, a customs debt had been incurred on 11 September 2014 as a result of the failure to comply with the obligation to observe the time limit set in Article 49 of that code.

22

On 28 November 2014, the applicant in the main proceedings appealed against that notice. It claimed, inter alia, that even if a customs debt had been incurred as a result of a breach of a temporary storage obligation, the exemptions from anti-dumping and countervailing duties provided for in Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013, respectively, were to be applied pursuant to Article 212a of the Customs Code as favourable tariff treatment or relief from import duties, as referred to in the latter article. The applicant indicated that the reference on the commercial invoice to Decision 2013/423, instead of to Decision 2013/707, was irrelevant.

23

On 4 May 2015, the Principal Customs Office reduced the rate of anti-dumping and countervailing duties to the rates applicable to photovoltaic modules manufactured by Wuxi Suntech Power, as provided for by Implementing Regulation No 1238/2013 and Implementing Regulation No 1239/2013 (together, ‘the implementing regulations’). By contrast, it refused the exemption from those duties on the ground that the conditions for that exemption being granted were not fulfilled, since the undertaking invoice submitted by the applicant in the main proceedings contained a reference not to Implementing Decision 2013/707, but to Decision 2013/423.

24

On 19 May 2015, the applicant in the main proceedings submitted a corrected undertaking invoice with a reference to Implementing Decision 2013/707.

25

After the requested security was provided, the Principal Customs Office granted release of the goods and they were delivered to the company affiliated with the relevant Chinese exporter.

26

On 7 July 2015, the Principal Customs Office rejected the appeal brought by the applicant in the main proceedings, reiterating its argument that the goods had not been assigned a new customs-approved treatment or use upon expiry of the time limit for temporary storage. Furthermore, it stated that the anti-dumping and countervailing duties did not constitute favourable treatment or an exemption from import duties under Article 212a of the Customs Code.

27

The Principal Customs Office took the view that the exemption provided for in the implementing regulations could not be granted since the relevant goods had not been released for free circulation and the invoice produced did not fulfil the formal requirements laid down by those regulations.

28

The applicant in the main proceedings brought an action against that decision before the Finanzgericht Hamburg (Finance Court, Hamburg, Germany).

29

The applicant in the main proceedings argues that the exemptions from anti-dumping and countervailing duties constitute favourable tariff treatment or, at least, exemption from customs duties under Article 212a of the Customs Code. It also takes the view that the invoice which it initially submitted to the Principal Customs Office fulfilled the conditions set out in the implementing regulations and that that is a fortiori true of the corrected invoice. The applicant points out that free circulation is not relevant in the light of the conditions for the application of Article 212a and that, therefore, it cannot be required to produce an undertaking invoice on the date upon which the time limit laid down in Article 49(1) of the Customs Code has not been complied with.

30

The Principal Customs Office primarily takes the view that Article 212a of the Customs Code is not applicable, on the ground that an exemption from anti-dumping and countervailing duties constitutes neither favourable treatment, by reason of the nature of the goods, nor non-tariff relief. Moreover, the conditions laid down by the implementing regulations are not all fulfilled, since the debtor of the customs duties is not the person whose name is referred to on the invoice. Furthermore, it is not possible to submit a posteriori amended commercial invoices.

31

In those circumstances, the Finanzgericht Hamburg (Finance Court, Hamburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

32

By its first question, the referring court asks whether Article 212a of the Customs Code must be interpreted as applying to the exemptions from anti-dumping and countervailing duties provided for in Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013, respectively.

33

As a preliminary point, it should be noted that customs legislation as a whole, as given specific expression in the Customs Code in particular, applies to anti-dumping or to countervailing duties only if the regulations establishing such duties provide for that.

34

In the present case, Article 1(3) of the implementing regulations states that, unless otherwise specified, the provisions in force concerning customs duties are to apply. Consequently, in the absence of any indication to the contrary in those regulations, Article 212a of the Customs Code is, in principle, applicable to the exemptions from anti-dumping and countervailing duties provided for by those regulations.

35

However, Article 212a of the Customs Code is applicable only if those exemptions are considered to be, under that article, favourable tariff treatment of goods by reason of their nature or end-use or for relief or total or partial exemption from import or export duties pursuant to Articles 21, 82, 145 or 184 to 187 of that code.

36

In the first place, Article 4(10) of the Customs Code includes, among import duties, customs duties and charges having an effect equivalent to customs duties payable on the importation of goods.

37

In that regard, the Court has held that any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect (judgments of 8 June 2006, Koornstra, C‑517/04, EU:C:2006:375, paragraph 15, and of 26 October 2006, Koninklijke Coöperatie Cosun, C‑248/04, EU:C:2006:666, paragraph 30).

38

Anti-dumping and countervailing duties are pecuniary charges imposed unilaterally on goods by reason of the fact that those goods cross the EU frontier and enter the customs territory of the European Union. They are, therefore, charges having an effect equivalent to customs duties within the meaning of Article 4(10) of the Customs Code.

39

In the second place, for the purposes of the application of Article 212a of the Customs Code, the concept of ‘relief’ in that article must be understood as referring, in particular, to a threshold set in terms of quantity or value, applied to goods imported into the European Union, below which the importer is granted an exemption from import duties.

40

By referring to Implementing Decision 2013/707, Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013 must be interpreted as establishing relief from import duties within the meaning of Article 212a of the Customs Code.

41

Recitals 13 and 14, 16 to 23, and 26 of that implementing decision, read in conjunction with recitals 6 and 8 of Decision 2013/423, reflect, as the Commission pointed out in its observations, the content of the undertakings which it accepted in that context, which concern Chinese exporting producers respecting not only a minimum import price, but also an annual level of imports into the European Union.

42

In the light of the foregoing considerations, the answer to the first question is that Article 212a of the Customs Code must be interpreted as applying to the exemptions from anti-dumping and countervailing duties provided for in Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013, respectively.

43

By its second question, the referring court asks, in essence, whether Article 212a of the Customs Code must be interpreted as meaning that, when it applies to the incurrence of a customs debt pursuant to Article 204(1) of that code, for exceeding the time limit under Article 49(1) of that code, the conditions laid down in Article 3(1)(a) of Implementing Regulation No 1238/2013 and Article 2(1)(a) of Implementing Regulation No 1239/2013 are fulfilled when the company which is affiliated with the company listed in the Annex to Implementing Decision 2013/707, and which manufactured, consigned and invoiced the goods concerned, did not act as the importer of those goods and did not ensure the release of the goods into free circulation, even if it had the intention to do so and was the company to which the goods were actually delivered.

44

In the first place, it should be noted that the Court has held that the concept of ‘person concerned’, within the meaning of Article 212a of the Customs Code, must be understood, in the light of the wording of that provision, as referring to any natural or legal person who is considered to be a customs debtor under any of Articles 202 to 205 of that code, in particular on the ground that that person, by his actions, was the cause of the unlawful introduction of goods into the customs territory of the European Union (judgment of 25 January 2017, Ultra-Brag, C‑679/15, EU:C:2017:40, paragraph 38).

45

Since the applicant in the main proceedings is considered to be a customs debtor under Article 204 of the Customs Code, it is a ‘person concerned’ within the meaning of Article 212a of that code.

46

In the second place, exemptions from anti-dumping and countervailing duties may be made only under certain conditions, in cases specifically provided for, and thus constitute exceptions to the normal regime for anti-dumping and countervailing duties. The provisions which provide for such exemptions are, therefore, to be interpreted strictly (judgment of 17 September 2014, Baltic Agro, C‑3/13, EU:C:2014:2227, paragraph 24).

47

Therefore, for the purposes of the application of Article 212a of the Customs Code and, more specifically, the concept of ‘other conditions for the application’ in that article, the various conditions set by the provisions of the implementing regulations which provide for an exemption from anti-dumping and countervailing duties must be fulfilled.

48

In that regard, Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013 lay down several conditions for exemption from anti-dumping and countervailing duties.

49

First, those two provisions provide, as the Advocate General noted in point 42 of his Opinion, that imports of goods must be declared for release for free circulation.

50

It is apparent from the file before the Court that no declaration for release for free circulation of the goods at issue in the main proceedings was submitted within the temporary storage time limit set out in Article 49(1) of the Customs Code, and that the failure of the applicant in the main proceedings to comply with that time limit led to a customs debt being incurred under Article 204(1)(a) of that code.

51

Second, Article 3(1)(a) of Implementing Regulation No 1238/2013 and Article 2(1)(a) of Implementing Regulation No 1239/2013 state that a company listed in the Annex to Implementing Decision 2013/707 must have manufactured, shipped and invoiced the products concerned, either to their related companies in the European Union acting as importers and clearing the goods for free circulation in the European Union, or to the first independent customer acting as an importer and clearing those goods for free circulation in the European Union.

52

In the present case, the goods at issue in the main proceedings were intended for a company affiliated with the Chinese exporting producer involved in the main proceedings, but that company had neither taken delivery of those goods, nor cleared them for free circulation when the customs debt was incurred, due to the failure to comply with the temporary storage time limit set out in Article 49(1) of the Customs Code. The fact that such a company intended to act as importer of those goods, to clear them for free circulation and subsequently actually took delivery of them does not mean that the condition referred to in the preceding paragraph may be considered to have been fulfilled.

53

Finally, it should also be noted that Article 3(1)(b) of Implementing Regulation No 1238/2013 and Article 2(1)(b) of Implementing Regulation No 1239/2013 require imports to be accompanied by an undertaking invoice, that is, a commercial invoice containing at least the elements and the declaration stipulated in Annex III to Implementing Regulation No 1238/2013 and Annex 2 to Implementing Regulation No 1239/2013, respectively.

54

In that regard, it is apparent from the file before the Court that no invoice was submitted on the date upon which the customs debt at issue in the main proceedings was incurred. Furthermore, the invoice dated 11 July 2014, submitted after that date, namely on 26 September 2014, did not contain all the information required in accordance with the relevant annexes to the implementing regulations, because the declaration which had to be signed by the official of the company which issued that invoice did not contain a reference to Implementing Decision 2013/707.

55

It should be noted that such a reference is of particular importance in the context of the rules laid down in the implementing regulations, inasmuch as it permits the customs authorities to verify, at the material time, that all the requirements regarding the exemption from anti-dumping and countervailing duties at issue have been satisfied (see, to that effect, judgment of 29 July 2010, Isaac International, C‑371/09, EU:C:2010:458, paragraph 43).

56

Thus, the application of Article 212a of the Customs Code cannot, in those circumstances, lead to the result that such an exemption, which is subject, by virtue of Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013, to conditions, could be granted even where those conditions have not been satisfied (see, by analogy, judgment of 29 July 2010, Isaac International, C‑371/09, EU:C:2010:458, paragraph 44).

57

Consequently, the answer to the second question is that Article 212a of the Customs Code must be interpreted as meaning that, when it applies to the incurrence of a customs debt pursuant to Article 204(1) of that code, for exceeding the time limit under Article 49(1) of that code, the conditions laid down in Article 3(1)(a) of Implementing Regulation No 1238/2013 and in Article 2(1)(a) of Implementing Regulation No 1239/2013 are not fulfilled when the company which is affiliated with the company listed in the Annex to Implementing Decision 2013/707, and which manufactured, consigned and invoiced the goods concerned, did not act as the importer of those goods and did not ensure the release of the goods into free circulation, even if it had the intention to do so and was the company to which the goods were actually delivered.

58

In the light of the answer given to the second question, there is no need for the Court to answer the third to fifth questions.

59

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national 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.

On those grounds, the Court (Fourth Chamber) hereby rules: