Court judgment in Tigers GmbH anti-dumping duty refund case

On 12 October 2017, the CJEU delivered its judgment in Case C-156/16 (Tigers Gmbh v. Hauptzollamt Landhut). German importer Tigers GmbH in late 2012 imported ceramics from China and was asked by German customs to secure the highest amount for provisional anti-dumping duties applicable at the time for "all other companies", even though the goods had been purchased from a manufacturer who was entitled to a lower individual duty rate. This was because the invoice when it was submitted with the import declaration did not contain the special declaration required by the Regulation imposing the provisional anti-dumping duties. When the definitive duties were adopted in 2013, German customs asked Tigers to pay the duty for "all other companies". A week later, Tigers produced such invoice and asked for a refund of the anti-dumping duties paid in excess of the individual company rate. The German customs authorities refused that request on the grounds that they could not accept an invoice drawn up or presented retroactively.

The CJEU noted that while it is clear under the Regulation imposing the anti-dumping duties that presentation of a valid commercial invoice with the special manufacturer's declaration is required to benefit from the individual company rate, that Regulation does not specify when such invoice must be presented. It thus ruled that such invoice can still be presented after the customs declaration has been accepted. In other words, a refund was appropriate here.

Court judgment on customs debt liability for a person not directly involved in customs clearance but involved in fictitious transactions to avoid certain duties

On 19 October 2017, the CJEU delivered its judgment in Case C-522/16 (A v. Staatssecretaris van Financin) concerning duty liability of a party involved in designing artificial arrangements intended to avoid additional import duties duty on poultry meat that can be imposed if the CIF import price is below a trigger price. Although the import (by German company F through the Netherlands) appeared to involve a price well above the relevant trigger price, upon inspection, the Dutch customs authorities discovered a special scheme. Under this scheme, through various related companies, the initial price of the poultry meat paid to South American suppliers by a related company was artificially increased through a chain of fictitious transactions so that the CIF price at import into the EU would be well above the trigger price, but the price ultimately charged to EU customers was well below that trigger price. The customs authorities sent notice of payment of the additional duties based on the initial price paid to the South American suppliers to shareholder "A" of the company that owned the importing company F, on the basis that A had asked for the invoices submitted with the import declarations to be drawn up, and he should have known that these were based on artificial transactions.

Upon unsuccessful successive appeals by A through the Dutch court system, the Supreme Court (which agreed that the transactions were carried out solely for the purpose of avoiding the additional duties) nevertheless referred the matter to the CJEU. The key question was whether or not A could be held liable here as he did not himself supply the information required for the drawing up of the customs declaration. In his defence, A had argued that he only designed the special scheme after he had obtained confirmation from customs experts that this structure was in compliance with applicable legal rules and the referring court asked if that was a relevant factor in assessing if A "ought to have reasonably known" that the information was false, which is a criterion to make parties other than the declarant liable for customs debt under the EU customs rules.

The CJEU ruled that even though A had not himself provided the invoices, he could be held liable as he was involved in acts connected to the supply of those invoices as he was closely and knowingly involved in the design and artificial set-up of the structure of companies and artificial transactions. A's defence that he had a reassuring customs expert opinion was considered to be irrelevant as he clearly knew that the invoices were fictitious as he had been involved in the entire set-up which was not in the ordinary course of trade.