Cure of anti-dumping exemptions?

By decision of 22.02.2018 (AZ 4 K 119/15), the FG Hamburg referred several important questions for a preliminary ruling to the European Court of Justice (ECJ) for importers of photovoltaic modules from China. Among other things, the ECJ will consider whether an anti-dumping exemption under the undertaking system will also apply to a tariff debt arising from irregularities[/bold]. Furthermore, the Finance Court asks whether the undertaking invoice must also be available if customs debt arises due to irregularities at the time of import or whether it can also be submitted. Finally, the FG Hamburg would like to know whether formal errors in the retrospectively submitted undertaking invoice preclude an anti-dumping exemption. The ECJ ruling could have far-reaching consequences for importers of solar modules from China. Entrepreneurs making use of the exemption from customs duties under the Undertaking System should therefore take appropriate measures to ensure a possible refund of customs duties until the ECJ decision.

Anti-dumping duties for exceeding the period of custody

In the underlying case, the plaintiff had imported solar modules in temporary custody at the minimum import price. However, due to a labour error, the period of custody was exceeded and the main customs office imposed anti-dumping duties in full for breach of duty. The applicant submitted an undertaking invoice and an export undertaking certificate, invoking that the anti-dumping exemption must be granted despite a breach of duty under Article 212a of the Customs Code (CC). The statement of commitments erroneously referred to Decision 2013/423/EU and not to the implementing Decision 2013/707/EU actually to be cited. Furthermore, the prescribed words “and accepted by the” were missing. In the opposition proceedings, the plaintiff filed an improved commitment invoice.

Finance court for anti-dumping exemption despite breach of duty

First, the FG Hamburg asks the ECJ whether the anti-dumping exemption under the Undertaking System constitutes a”duty exemption” within the meaning of Art. 212a CC with the consequence that the exemption can also be granted in the event of customs debt arising due to irregularities. The tax court itself believes that the violation can be cured here as well.

Furthermore, the Fiscal Court does not consider it necessary for the undertaking invoice to be submitted at the time of import, as provided for in principle in the anti-dumping measures for solar modules. In the view of the Fiscal Court, a depositary cannot be expected, as a precautionary measure, to keep the necessary commitment invoices for all goods subject to anti-dumping requirements in the event of an infringement. It is therefore necessary to distinguish the dispute from the normal case of notification for free circulation from which the anti-dumping measures are based. In the normal case of a declaration for free circulation, an economic operator may also be required to submit all documents required for this purpose at that time.

In doing so, the tax court does not comment on a possible contradiction in the assessment that the person who commits a breach of duty can subsequently submit documents, which is denied to the person who submits an application for free circulation in good time.

Not every formal error in the commitment invoice is harmful

As a particularly important finding, economic operators should note from the reference decision that not every formal inconsistency in the commitment invoice leads to the refusal of the anti-dumping exemption. Even the main customs office was of the opinion that the absence of the words “and accepted by the” could not lead to the rejection of the commitment invoice.

Contrary to the main customs office, the Hamburg Finance Court does not consider it harmful that the commitment invoice erroneously referred to Decision 2013/423/EU and not to the actually correct implementing Decision 2013/707/EU. According to the Court, there can be little doubt for an objective consignee that this is an erroneous misnomer which does not jeopardise the objective of that formality (transparent control of the minimum import price). Even if this incorrect commitment calculation should be insufficient, the FG Hamburg considers it admissible in the present case that the plaintiff submitted an amended commitment calculation in the context of the opposition proceedings.

The ECJ’s decision remains to be awaited with suspense. At present, entrepreneurs should ensure that a possible refund of anti-dumping duties on solar modules does not become statute-barred. This applies in particular to cases where anti-dumping duties have arisen as a result of irregularities or where incorrect invoices have been submitted.

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