In a memorable judgment, the European Court of Justice (ECJ) ruled that it is in principle possible to lodge documents in the case of anti-dumping duties. In this respect, the ECJ followed the Opinion of the Advocate General, on which we have reported here.
In the case of the ECJ, the company concerned has even presented retrospectively issued commercial invoices to benefit from individual anti-dumping duties. Importing companies should therefore now consider whether they can still claim reimbursement of overpaid anti-dumping duties.
Subsequent commitment invoice for individual anti-dumping duty
For years it has been controversial, particularly in Germany, whether the subsequent submission of anti-dumping duties is permissible. The German customs administration refused to present the documents retrospectively and its opinion was mostly confirmed by the tax courts. However, the FG Munich referred the question to the ECJ for a preliminary ruling.
In its judgment of 12.10.2017, the ECJ followed the opinion of the Advocate General and declared the subsequent submission of documents admissible in principle. The rules to be applied in this particular case did not specify when a commercial invoice should be presented. They did not rule out subsequent presentation of the invoice. Under general customs law, which was expressly applicable under the Anti-Dumping Regulation, the customs authorities are in principle even officially obliged to take new information and documents into account even after a customs declaration has been lodged. The basic idea of that provision is to adapt the customs procedure to the actual situation.
It can be concluded from this judgement that documents can in principle be submitted later in accordance with general customs law. Nevertheless, the anti-dumping regulation applicable in each individual case must always be examined in more detail. Unless the Anti-dumping Regulation precludes a subsequent referral, companies are in principle entitled to a refund of overpaid anti-dumping duties.
Lodge a claim for reimbursement – observe deadlines
Operators who were unable to present valid commercial invoices at the time of importation should check whether they can submit the invoices subsequently. If there is a prospect of subsequent presentation, applications for refunds should already be submitted to customs. In principle, a refund can only be applied for within three years. With reference to the ECJ ruling, the chances of reimbursement of overpaid anti-dumping duties increase significantly.