C & J Clark International (Anti-dumping - Judgment) [2019] EUECJ C-612/16 (19 June 2019)

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(Reference for a preliminary ruling — Anti-dumping — Interpretation and validity of regulations re-imposing anti-dumping duties following the delivery by the Court of a judgment declaring invalidity — Legal basis — Non-retroactivity — Limitation)

REQUEST for a preliminary ruling under Article 267 TFEU from the First-tier Tribunal (Tax Chamber) (United Kingdom), made by decision of 14 November 2016, received at the Court on 28 November 2016, in the proceedings

composed of F. Biltgen, President of the Chamber, J. Malenovský (Rapporteur) and C.G. Fernlund, Judges,

– C & J Clark International Ltd, by S. De Knop and M. Meulenbelt, advocaten, and by J. Bourgeois and A. Willems, avocats,

– the Italian Government, by G. Palmieri, acting as Agent, and by G. Albenzio, avvocato dello Stato,

– the European Commission, by L. Armati, N. Kuplewatzky and T. Maxian Rusche, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation and validity of Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 225, p. 52), and of Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 245, p. 16) (together, ‘the Implementing Regulations at issue’).

2 The request has been made in proceedings between C & J Clark International Ltd (‘Clark’) and the Commissioners for Her Majesty’s Revenue and Customs in relation to a request for repayment of anti-dumping duties paid on the import of footwear with uppers of leather into the European Union.

3 The facts and the legal measures at issue in the main proceedings occurred in a period when the adoption of anti-dumping measures within the European Union was successively governed by Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1, and corrigenda, OJ 1999 L 94, p. 27, and OJ 2000 L 263, p. 34), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17) (‘Regulation No 384/96’); then by 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, and corrigenda, OJ 2010 L 7, p. 22, and OJ 2016 L 44, p. 20), as amended by Regulation (EU) No 37/2014 of the European Parliament and the Council of 15 January 2014 (OJ 2014 L 18, p. 1) (‘Regulation No 1225/2009’); and, last, by Regulation (EU) 2016/1036 of the European Parliament and 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).

4 Article 9 of Regulation No 384/96, Article 9 of Regulation No 1225/2009 and Article 9 of Regulation 2016/1036, those articles being headed ‘Termination without measures; imposition of definitive duties’, each contain a paragraph 4 worded as follows:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [Community/Union] interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed …’

5 Article 10 of Regulation No 384/96, Article 10 of Regulation No 1225/2009 and Article 10 of Regulation 2016/1036, those articles being headed ‘Retroactivity’, each contain a paragraph 1, which provides:

‘… definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to [Article] … 9(4) … enters into force, subject to the exceptions set out in this Regulation.’

6 Article 14 of Regulation No 384/96, Article 14 of Regulation No 1225/2009 and Article 14 of Regulation 2016/1036, those articles being headed ‘General provisions’, each state, in paragraph 1:

‘Provisional or definitive anti-dumping duties shall be imposed by Regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the Regulation imposing such duties. …’

7 Article 21 of Regulation No 384/96 and Article 21 of Regulation No 1225/2009, those articles being headed ‘Community interest’, and Article 21 of Regulation 2016/1036, headed ‘Union interest’, provide, in paragraph 1 of each article, that a determination as to whether the interest of the Community or the interest of the Union, as the case may be, calls for intervention is to be based on an appreciation of all the various interests taken as a whole.

8 The facts and the legal measures at issue in the main proceedings occurred in a period when customs matters were successively governed by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), then by 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’).

9 Article 221(3) of Regulation (EEC) No 2913/92, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Community Customs Code’), the provisions of which are now reproduced in in Article 103(1) and (3) of the Union Customs Code, stated:

‘Communication [of the amount of duty] to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 [of the Community Customs Code] is lodged, for the duration of the appeal proceedings.’

10 On 23 March 2006 the Commission adopted Regulation (EC) No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3).

11 On 5 October 2006 the Council adopted Regulation (EC) No 1472/2006, imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

12 Article 1(1) and (3) of that regulation impose the definitive anti-dumping duty at issue, list the various products to which the duty is applicable and set its rate, according to the products concerned, at 9.7%, 10% and 16.5%.

13 Article 1(4) of that regulation states, further, that, ‘unless otherwise specified, the provisions in force concerning customs duties shall apply’.

14 On 22 December 2009 the Council adopted Implementing Regulation (EU) No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 (OJ 2009 L 352, p. 1).

15 Article 1(1), (3) and (4) of that implementing regulation impose the definitive anti-dumping duty at issue, list the various products to which the duty is applicable and set its rate, according to the products concerned, at 9.7%, 10% and 16.5%.

16 Article 1(5) of that implementing regulation states, further, that ‘unless otherwise specified, the provisions in force concerning customs duties shall apply’.

17 In the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Court, asked to give a ruling on the validity of Regulation No 1472/2006 and of Implementing Regulation No 1294/2009 in the light of Regulation No 384/96, declared that those regulations were invalid (together, ‘the regulations declared to be invalid’) in that they had been adopted without the Council and the Commission having first examined the claims for market economy treatment and the claims for individual treatment submitted to them by some of the Chinese and Vietnamese exporting producers affected by the investigation.

18 On 17 February 2016 the Commission adopted Implementing Regulation (EU) 2016/223 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 41, p. 3).

19 In the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court, asked to give a ruling on the validity of Implementing Regulation (EU) 2016/223, concluded that examination of that issue revealed nothing capable of affecting the validity of that regulation.

20 For a fuller account of the background of the Implementing Regulations at issue, reference is made to paragraphs 23 to 40 of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), and to paragraphs 16 to 28 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187).

21 As is apparent from their titles, the purpose of the Implementing Regulations at issue is to implement the judgment of 4 February 2016 C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

22 To that end, the Commission undertook, in each of those implementing regulations, an examination of some of the claims for market economy treatment and claims for individual treatment referred to in paragraph 18 of the present judgment, in order to determine whether those claims justified the imports into the Union of products from the exporting producers who had submitted those claims being subject to anti-dumping duties set at rates lower than those laid down by the regulations declared to be invalid.

23 On the conclusion of that examination, the Commission considered that none of the claims at issue was well founded.

24 Consequently, the Commission re-imposed anti-dumping duties on the imports, into the Union, of products from the exporting producers concerned, at rates identical to those laid down by the regulations declared to be invalid.

The dispute in the main proceedings and the questions referred for a preliminary ruling

25 By means of two applications submitted to the Commissioners for Her Majesty’s Revenue and Customs on 30 June 2010 and 2 March 2012, Clark sought repayment of the anti-dumping duties that it had paid because of the import of footwear with uppers of leather into the Union, in a period from 1 July 2007 until 31 August 2010. The sum at issue amounts to GBP 42 592 829.52 (approximately EUR 50 000 000).

26 Since the Commissioners for Her Majesty’s Revenue and Customs rejected those applications by a decision of 13 March 2013, Clark brought, on 11 April 2013, an action against that decision before the First-tier Tribunal (Tax Chamber), which decided to stay the proceedings initially and to submit to the Court one of the two requests for a preliminary ruling that gave rise to the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

27 Following the delivery of that judgment and the adoption of Implementing Regulation 2016/223 and the Implementing Regulations at issue, that court decided to stay the proceedings for a second time and to submit a further request for a preliminary ruling to the Court.

28 The procedure before the Court was suspended until the delivery of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), following which the referring court, asked whether it wished to maintain or withdraw its request, replied that it wished to maintain the request.

29 The questions referred to the Court for a preliminary ruling by the First-tier Tribunal (Tax Chamber) are as follows:

‘1) Does a statute of limitations apply to the collection of the anti-dumping duty imposed by [the Implementing Regulations at issue], and, if so, on the basis of which legal provision?

2) Are the [Implementing Regulations at issue] invalid because they lack a valid legal basis, and as such violate Articles 5(1) and 5(2) TEU?

3) Are the [Implementing Regulations at issue] invalid because they violate Article 266 TFEU by failing to take the necessary measures to comply with [the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74)]?

4) Are the [Implementing Regulations at issue] invalid because they violate Article 10(1) of Regulation [2016/1036] or the principle of legal certainty (non-retroactivity) by imposing an anti-dumping duty on import of certain leather footwear originating in the People’s Republic of China and Vietnam which took place during the period of application [of the regulations declared to be invalid]?

5) Are the [Implementing Regulations at issue] invalid because they violate Article 21 of Regulation [2016/1036] by re-imposing an anti-dumping duty without conducting a fresh Union interest assessment?’

30 By a letter of 8 May 2019, Clark submitted a request to open the oral part of the procedure, arguing, in essence, that the holding of a hearing could enable it to provide the Court with additional information in relation to the first question submitted by the referring court, particularly in the light of decisions recently delivered by other national courts.

31 Under Article 83 of the Rules of Procedure of the Court, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where, after the close of that part of the procedure, there has been submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the parties or the interested persons referred to in Article 23 of the Statute of the Court of Justice of the European Union.

32 In this case, the Court considers, after hearing the Advocate General, that it has all the information necessary to give a ruling on the present case and, consequently, that there is no need to order the opening of the oral part of the procedure.

33 It is clear, at the outset, that the referring court is asking the Court not only to interpret the Implementing Regulations at issue (the first question), but also to assess their validity (the second to fifth questions). An interpretation of those implementing regulations that is to serve any purpose necessarily presupposes, having regard to the issue of interpretation referred in this case, that those regulations are valid. Consequently, it is appropriate to examine, first, the questions concerning the validity of those implementing regulations, and then, if it is the case that they are valid, the question concerning their interpretation.

34 By its second question, the referring court seeks, in essence, to ascertain whether the Implementing Regulations at issue are invalid on the ground that they have no valid legal basis.

35 Although the wording of that question does not itself indicate the reasons that underlie it, it is clear from the grounds stated in the request for a preliminary ruling that the referring court wants to know whether the legal bases to which the Implementing Regulations at issue refer, namely Article 266 TFEU, on the one hand, and Articles 9 and 14 of Regulation 2016/1036, on the other, empower the Commission to re-impose the anti-dumping duties imposed by the regulations declared to be invalid.

36 In those circumstances, it must be determined whether at least one of those articles constitutes a legal basis that empowers the Commission to re-impose those anti-dumping duties.

37 As regards, in the first place, Article 266 TFEU, the first paragraph of that provision states that the institution, body, office or entity of the Union whose act has been declared void is required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union.

38 Admittedly, the obligation to act which that provision lays down is applicable, by analogy, in a situation where a judgment of the Court has declared an EU act to be invalid, since the legal effect of that judgment is to require the competent institution, body, office or entity to take the necessary measures to remedy the illegality identified by the Court (judgments of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 123, and of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87).

39 However, that obligation to act does not constitute a source of competence nor does it enable the competent institution, body, office or entity to rely on a legal basis which has in the meantime been repealed (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 38).

40 Consequently, that obligation to act does not relieve the institution, body, office or entity concerned of the need to base the act containing measures to comply with a judgment annulling or declaring a measure to be invalid on a legal basis that, first, empowers it to adopt that act, and, second, is in force on the date of adoption of that act (see, to that effect, judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraphs 40 and 45).

41 As regards, in the second place, Articles 9 and 14 of Regulation 2016/1036, it must be observed, first, that, in accordance with Article 25 thereof, that regulation entered into force on 20 July 2016, so that it was in force on the respective dates of adoption of the Implementing Regulations at issue, namely 18 August and 13 September 2016.

42 Further, Article 9(4) of Regulation 2016/1036 states that where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention, a definitive anti-dumping duty is to be imposed by the Commission. For its part, Article 14(1) of Regulation 2016/1036 provides that the anti-dumping duties are to be imposed by regulation. Those two provisions, read together, therefore empower the Commission to ‘impose’ anti-dumping duties by regulation.

43 Last, it follows from settled case-law that, although those provisions do not expressly refer to the possibility of ‘re-imposing’ anti-dumping duties following the delivery of a judgment annulling an act or declaring it to be invalid, those provisions are no less apt to empower the Commission to undertake such a re-imposition, after the Commission has resumed the proceedings that gave rise to the regulations annulled or declared to be invalid by the Courts of the European Union and has thereby, in accordance with the procedural and substantive rules applicable ratione temporis, remedied the illegalities identified (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 55, 73 and 74 and the case-law cited).

44 It follows that, in that they refer to Articles 9 and 14 of Regulation 2016/1036, the Implementing Regulations at issue have a legal basis that empowers the Commission to re-impose the anti-dumping duties imposed by the regulations declared to be invalid.

45 Consequently, the answer to the second question is that the Implementing Regulations at issue are not invalid on the ground that they have no valid legal basis.

46 By its third question, the referring court seeks to ascertain whether the Implementing Regulations at issue are invalid on the ground that they infringe Article 266 TFEU by not taking the measures necessary to comply with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

47 As is apparent from the grounds stated in the request for a preliminary ruling, the doubts experienced by the referring court on this subject have three aspects. First, that court is uncertain as to whether the Commission was entitled to direct the national customs authorities to suspend, until the adoption of the Implementing Regulations at issue, the repayment of the anti-dumping duties imposed by the regulations declared to be invalid. Second, the referring court seeks to ascertain whether the Commission could properly limit the examination made in the Implementing Regulations at issue to the question of which rates were to be set for those anti-dumping duties. Last, that court states that, in the Implementing Regulations at issue, the Commission did not make findings with respect to all the claims for market economy treatment and individual treatment referred to in paragraph 18 of the present judgment.

48 As regards the first aspect of the doubts expressed, the Court has already stated, after the lodging of the present case, that the Commission was entitled to direct the national customs authorities to suspend, until the adoption of acts such as the Implementing Regulations at issue, repayment of the anti-dumping duties imposed by the regulations declared to be invalid (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 59, 60, 69 and 70).

49 As regards the second aspect of those doubts, the Court stated, on the same occasion, that, taking into account the extent of the grounds underpinning the operative part of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), and the illegalities identified in that judgment with respect to the rates at which some of the anti-dumping duties imposed by the regulations declared to be invalid had been fixed, the Commission was entitled to take the view that compliance with that judgment was to be achieved by carrying out an assessment limited to the question of the rates at which those anti-dumping duties were to be set (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 68).

50 Last, as regards the third aspect of those doubts, the Commission did not err in law by failing to make any finding on all the claims for market economy treatment and individual treatment referred to in paragraph 18 of the present judgment, but confining itself to dealing with those submitted by the exporting producers whose products were affected, when they were imported into the European Union, by the anti-dumping duties the repayment of which has been subsequently requested from the national customs authorities. That limitation is compatible not only with the procedure laid down by Implementing Regulation 2016/223, as is apparent from paragraphs 27 and 28 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), but also with Article 236 of the Community Customs Code, from which it follows that, as a general rule and except as a result of unforeseeable circumstances or force majeure, the repayment of duties that were not legally owed at the time when they were paid can occur, after the expiry of a period of 3 years from the communication of the amount of those duties to the debtor, only if the debtor has validly submitted, within that period, an application to that effect to the national customs authorities (see, to that effect, judgments of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraphs 17 to 21, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 187 to 189).

51 In those circumstances, the answer to the third question is that the Implementing Regulations at issue are not invalid on the ground that they infringe Article 266 TFEU by not taking the necessary measures to comply with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

52 By its fourth question, the referring court seeks to ascertain whether the Implementing Regulations at issue are invalid on the ground that they infringe the general principle of non-retroactivity or Article 10(1) of Regulation 2016/1036 by re-imposing anti-dumping duties on imports that were made during the period of application of the regulations declared to be invalid.

53 Prior to an examination of the substance of that question, it must be observed, in the first place, that the general principle of non-retroactivity was enshrined, in the area of anti-dumping measures, in the rule initially laid down in Article 10(1) of Regulation No 384/96 and subsequently reproduced, in the same terms, in Article 10(1) of Regulation No 1225/2009, then in Article 10(1) of Regulation 2016/1036 (see, to that effect, judgments of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 48, and of 30 June 2016, Selena România, C‑416/15, EU:C:2016:501, paragraph 30).

54 In the second place, it is clear from the case-law of the Court that, in a situation where, following the delivery of a judgment annulling or declaring invalid a regulation imposing anti-dumping duties, the Commission resumes the procedure that gave rise to the regulation that was annulled or declared to be invalid with a view to re-imposing anti-dumping duties, 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 that regulation (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 76 and the case-law cited).

55 Accordingly, and as the Court has previously held, the validity of acts such as the Implementing Regulations at issue must be assessed, taking into account the period covered by the facts that were the subject of the regulations declared to be invalid, in the light of Article 10(1) of Regulation No 384/96 (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77).

56 That being the case, the fourth question must be understood as meaning that the referring court seeks to ascertain whether the Implementing Regulations at issue are invalid on the ground that they infringe the general principle of non-retroactivity, as enshrined in Article 10(1) of Regulation No 384/96, by re-imposing anti-dumping duties on imports that were made during the period of application of the regulations declared to be invalid.

57 As regards the substance, and as is clear from the case-law of the Court, Article 10(1) of Regulation No 384/96 does not preclude acts such as the Implementing Regulations at issue from re-imposing anti-dumping duties on imports that were made during the period of application of the regulations declared to be invalid (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 77 and 78).

58 Therefore, the answer to the fourth question is that the Implementing Regulations at issue are not invalid on the ground that they infringe the general principle of non-retroactivity, as enshrined in Article 10(1) of Regulation No 384/96, by re-imposing anti-dumping duties on imports that were made during the period of application of the regulations declared to be invalid.

59 By its fifth question, the referring court seeks to ascertain whether the Implementing Regulations at issue are invalid on the ground that they infringe Article 21 of Regulation 2016/1036 by re-imposing anti-dumping duties without conducting a fresh Union interest assessment.

60 At the outset, it must be recalled that, as regards the rules that are applicable ratione temporis, the adoption of acts such as the Implementing Regulations at issue must comply with the substantive rules laid down by Regulation No 384/96, as set out in paragraphs 52 and 53 of the present judgment.

61 Consequently, the fifth question must be understood as meaning that the referring court seeks to ascertain whether the Implementing Regulations at issue are invalid on the ground that they infringe Article 21 of Regulation No 384/96 by re-imposing anti-dumping duties without conducting a fresh Union interest assessment.

62 As regards the substance, Article 21 of Regulation No 384/96 provided that, in order to determine whether the Community interest calls for measures to be taken, there must be an appreciation of all the various interest taken as a whole.

63 Since the wording of that article uses only the term ‘measures’, it cannot, considered in isolation, be determined whether acts such as the Implementing Regulations at issue constitute ‘measures’, the adoption of which requires that an assessment of the Union interest be undertaken.

65 In that regard, it must be noted that there is an explicit reference in Article 9(4) of Regulation No 384/96 to Article 21 of that regulation, so that it is plain that regulations concerning the imposition of anti-dumping duties constitute measures whose adoption requires that an assessment of the Community interest be undertaken.

66 However, it is apparent from paragraphs 22 to 25 of the present judgment that the Implementing Regulations at issue constitute measures the object of which is not to impose anti-dumping duties, but solely to re-impose such duties, while remedying the illegalities identified by the Court in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). Further, and as stated in paragraph 47 of the present judgment, the illegalities identified by the Court did not at all relate to the assessment of the Union interest.

67 Having regard to the foregoing, it cannot be held, in the light of Article 9(4) of Regulation No 384/96, that Article 21 of that regulation should be understood as meaning that acts such as the Implementing Regulations at issue, which re-impose anti-dumping duties following the identification, by the Court, of illegalities that do not relate to the assessment of the Community interest, constitute measures whose adoption requires that a fresh assessment of the Community interest be undertaken.

68 In the light of the foregoing, the answer to the fifth question is that the Implementing Regulations at issue are not invalid on the ground that they infringe Article 21 of Regulation No 384/96 by re-imposing anti-dumping duties without conducting a fresh Union interest assessment.

69 Since an examination of the questions concerning the validity of the Implementing Regulations at issue has revealed nothing capable of affecting their validity, an answer must be given to the first question of the referring court.

70 By that question, that court seeks to ascertain whether there is a statute of limitations that applies to the collection of the anti-dumping duties established by the Implementing Regulations at issue and, if so, on what legal provision that statute of limitations is based.

71 In that regard, it must be stated, first, that the Implementing Regulations at issue are, as is apparent from their very titles, acts that implement EU legislation applicable in the area of anti-dumping measures and that re-impose anti-dumping duties following the declaration, in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), that the regulations that had imposed those duties were invalid.

72 As stated in paragraph 3 of the present judgment, that legislation has been found, in the period in the course of which the facts and legal acts at issue in the main proceedings occurred, in Regulation No 384/96, then in Regulation No 1225/2009, and, last, in Regulation 2016/1036.

73 However, in none of those three regulations is there any provision laying down any rules concerning limitation applicable to the collection of anti-dumping duties.

74 That said, all three regulations state in the same terms, in Article 14(1) of each, that anti-dumping duties are to be collected by the Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties.

75 It follows from that wording that it is in the regulations imposing anti-dumping duties, in implementation of Regulations No 384/96, No 1225/2009 and 2016/1036, that the criteria relating to the collection of those anti-dumping duties are to be laid down.

76 Further, and as the Court has previously held, it follows from that wording that the EU legislature did not intend to set out an exhaustive list of such criteria (the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 58).

77 It follows that the regulations imposing anti-dumping duties may prescribe, among other relevant criteria, rules concerning limitation to be applicable to the collection of those duties.

78 As regards, second, whether, in this case, the Implementing Regulations at issue provide for the application of rules concerning limitation, it is clear that the operative part of each contains nothing on that subject.

79 However, the object of those Implementing Regulations is not, as has been stated in paragraph 64 of the present judgment, to impose anti-dumping duties, but only to re-impose such anti-dumping duties following the declaration, in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), that regulations which had imposed them were invalid. They must therefore be construed taking account of that situation.

80 In that regard, the Court has previously stated that, taking account of the extent of the grounds that constitute the necessary support for the operative part of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), according to which the regulations imposing those anti-dumping duties are invalid only in so far as they infringe certain specific provisions of Regulation No 384/96, the declaration of invalidity made in that judgment must be understood as relating exclusively to the provisions of those regulations relating to the imposition of certain anti-dumping duties and the setting of the rates applicable to those anti-dumping duties (see, to that effect, the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 64 to 69). That declaration does not, therefore, affect the other provisions of those regulations.

81 However, the provisions of the regulations declared to be invalid which were not affected by the declaration of invalidity made in the judgment of 4 February 2016 C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) state, inter alia, that ‘the provisions in force concerning customs duties shall apply’, as is apparent from paragraphs 14 and 17 of the present judgment.

82 Consequently, those ‘provisions in force concerning customs duties’ are applicable to the anti-dumping duties that are re-imposed by the Implementing Regulations at issue, as from the date of entry into force of those regulations.

83 In that regard, the provisions in force concerning customs duties, in the version applicable to the Implementing Regulations at issue, contain rules with respect to limitation, which are applicable to the collection of the anti-dumping duties established by those acts.

84 More specifically, that collection is subject to the limitation rule laid down in Article 221(3) of the Community Customs Code, which provides that the amount of the duties can no longer be communicated to the debtor after the expiry of the three-year period from the date on which that customs debt arose, that period being however suspended as from the date of bringing an appeal, within the meaning of Article 243 of that code.

85 Accordingly, it is the task of the competent national authorities and courts to determine on a case-by-case basis whether such communication can still be made or whether it is time-barred by reason of the expiry of that period, taking account of the date on which the debtor’s customs debt arose and, in the event that the debtor has brought an appeal, the suspension of that period (the judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 84).

86 Accordingly, the answer to the first question is that the limitation rules laid down in Article 221(3) of the Community Customs Code are applicable to the collection of the anti-dumping duties established by the Implementing Regulations at issue.

87 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.

1. An examination of the questions of validity referred to the Court has revealed nothing capable of affecting the validity of Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14, or the validity of Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14.

2. The rules on limitation laid down in Article 221(3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000, are applicable to the collection of the anti-dumping duties established by the implementing regulations referred to in point 1 of the operative part of the present judgment.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> C & J Clark International (Anti-dumping - Judgment) [2019] EUECJ C-612/16 (19 June 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C61216.html Cite as: ECLI:EU:C:2019:508, EU:C:2019:508, [2019] EUECJ C-612/16

Court of Justice of the European Communities (including Court of First Instance Decisions)