April 15, 2014

Three-Year Deadline for Recovery of Invalid Anti-Dumping Duties

The judgment of the Court of Justice of the European Union in CIVAD (C-533/10, 14 June 2012) reminds all importers that even if the Court declares an anti-dumping duty or countervailing duty invalid, an importer will not be able to recover the duty from the national customs authority unless a claim was filed with that authority within three years of the assessment of duties. 

This result follows from the strict application of Article 236 of the Customs Code and a narrow interpretation of the exception in cases offorce majeure. 

This judgment arose in the following scenario.  Importer A made imports of cotton-type bed linen from Pakistan and paid the relevant anti-dumping duties.  Importer B challenged the validity of the anti-dumping duties before the national court, which referred the question of validity to the EU Court of Justice.  The Court ruled that the duties were invalid (Case C-351/04 [2007] ECR 1-7723).

In reliance upon this judgment, Importer A applied to the national customs authority for reimbursement of the duties.  The national customs authority refused to reimburse the duties in respect of imports made more than three years prior to Importer A’s application because Article 236 of the Customs Code imposes a three year limitation period except in cases of force majeure.  Importer A argued that the invalidity of the duties was an act of force majeure beyond its control.

The Court of Justice rejected this argument, observing that the illegality of anti-dumping duties is not an abnormal circumstance and Importer A could have registered its objection to paying the duties at the time of import.  It could also have filed an application for the repayment at that time.

It follows from this judgment that when an importer suspects that anti-dumping duties are invalid, for example because another importer is challenging them in court, it should itself file a formal challenge and maintain that challenge on the record until final judgment has been given on the validity of the duties.  Although this could be burdensome if the importer is importing into several Member States, it may well be the safest measure to take.

© 2014 McDermott Will & Emery

About the Author

Philip Bentley, QC, McDermott WIll Emery law Firm, Antitrust Attorney

Philip Bentley is a partner in the international law firm of McDermott Will & Emery/Stanbrook LLP based in its Brussels office.  He is a member of the Firm’s EU regulatory practice and European Competition and Trade Groups.  His practice focuses on EU anti-dumping, trade defense and customs, EU competition (including State aid and public procurement), EU regulatory matters, notably GMOs, and EU litigation.

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