Openbaar Ministerie and Federale Overheidsdienst Financiën v Profit Europe NV and Gosselin Forwarding Services NV.

• Jurisdiction: European Union
• Date: 15 July 2021
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

15 July 2021 (*)

(Reference for a preliminary ruling – Commercial policy – Regulation (EU) No 1071/2012 – Implementing Regulation (EU) No 430/2013 – Common Customs Tariff – Tariff classification – Combined Nomenclature – Subheadings 7307 11 10, 7307 19 10 and 7307 19 90 – Scope – Tariff classification resulting from a Court judgment – Definitive anti-dumping duties on imports of threaded tube or pipe cast fittings, of malleable cast iron – Whether definitive anti-dumping duties are applicable on imports of threaded tube or pipe cast fittings, of spheroidal graphite cast iron)

In Case C‑362/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Hof van beroep te Antwerpen (Court of Appeal, Antwerp, Belgium), made by decision of 18 June 2020, received at the Court on 5 August 2020, in the proceedings

Openbaar Ministerie,

Federale Overheidsdienst Financiën

v

Profit Europe NV,

Gosselin Forwarding Services NV,

THE COURT (Tenth Chamber),

composed of M. Ilešič (Rapporteur), President of the Chamber, E. Juhász and C. Lycourgos, Judges,

Advocate General: G. Pitruzzella,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Profit Europe NV, by P. Diaz Gavier, advocaat,

– Gosselin Forwarding Services NV, by A. Poelmans, advocaat,

– the Belgian Government, by S. Baeyens, J.-C. Halleux and C. Pochet, acting as Agents,

– the Spanish Government, by J. Rodríguez de la Rúa Puig, acting as Agent,

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

– the European Commission, by P.-J. Loewenthal and G. Luengo, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Commission Regulation (EU) No 1071/2012 of 14 November 2012 imposing a provisional anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in the People’s Republic of China and Thailand (OJ 2012 L 318, p. 10) (‘the Provisional Regulation’) and Council Implementing Regulation (EU) No 430/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in the People’s Republic of China and Thailand and terminating the proceeding with regard to Indonesia (OJ 2013 L 129, p. 1) (‘the Definitive Regulation’) (together ‘the Anti-dumping Regulations’).

2 The request has been made in proceedings between the Openbaar Ministerie (Public Prosecutor’s Office, Belgium) and the Federale Overheidsdienst Financiën (Federal Public Finance Service, Belgium), on the one hand, and Profit Europe NV and Gosselin Forwarding Services NV (formerly Crosstainer NV) (‘Gosselin’), on the other, concerning, in particular, the criminal liability of those companies in respect of several customs offences allegedly committed on the importation of threaded tube or pipe cast fittings, of spheroidal graphite cast iron, originating in China.

Legal context

EU legislation on tariff classification

The Community Customs Code

3 Article 20 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the Community Customs Code’) provided, in paragraphs 1 to 3 and 6 thereof:

‘1. Duties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities.

2. The other measures prescribed by Community provisions governing specific fields relating to trade in goods shall, where appropriate, be applied according to the tariff classification of those goods.

3. The Customs Tariff of the European Communities shall comprise:

(a) the combined nomenclature of goods;

(b) any other nomenclature which is wholly or partly based on the combined nomenclature or which adds any subdivisions to it, and which is established by Community provisions governing specific fields with a view to the application of tariff measures relating to trade in goods;

…

6. The tariff classification of goods shall be the determination, according to the rules in force, of:

(a) the subheading of the combined nomenclature or the subheading of any other nomenclature referred to in paragraph 3(b); or

(b) the subheading of any other nomenclature which is wholly or partly based on the combined nomenclature or which adds any subdivisions to it, and which is established by Community provisions governing specific fields with a view to the application of measures other than tariff measures relating to trade in goods,

under which the aforesaid goods are to be classified.’

4 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 and corrigendum OJ 2013 L 287, p. 90), which entered into force on 30 October 2013 in accordance with Article 287 thereof, repealed the Community Customs Code. However, a large part of its provisions, in particular Article 57, which corresponds, in essence, to Article 20 of the Community Customs Code, did not become applicable, pursuant to Article 288(2) thereof, until 1 May 2016.

The CN

5 The tariff classification of goods imported into the European Union is governed by the Combined Nomenclature set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Implementing Regulation (EU) No 1001/2013 of 4 October 2013 (OJ 2013 L 290, p. 1) (‘the CN’).

6 The CN is based on the Harmonised Commodity Description and Coding System, drawn up by the Customs Cooperation Council, now the World Customs Organisation (WCO), and established by the International Convention on the Harmonised Commodity Description and Coding System concluded in Brussels on 14 June 1983. That convention, and the Protocol of Amendment thereto of 24 June 1986, were approved on behalf of the European Economic Community by Council Decision 87/369/EEC of 7 April 1987 (OJ 1987 L 198, p. 1). In accordance with Article 3(1) of Regulation No 2658/87, the CN reproduces the six-digit headings and subheadings of the Harmonised Commodity Description and Coding System, with only the seventh and eighth digits forming subdivisions specific to it.

7 The second part of the CN contains Section XV, under the heading ‘Base metals and articles of base metal’, which includes Chapters 72 to 83 of the CN. Chapter 73, under the heading ‘Articles of iron or steel’, concerns headings 7301 to 7326 of the CN.

8 Heading 7307 is structured as follows:

‘7307	Tube or pipe fittings (for example, couplings, elbows, sleeves), of iron or steel:
	– cast fittings:
7307 11	– – of non-malleable cast iron:
7307 11 10	– – – of a kind used in pressure systems
7307 11 90	– – – other
7307 19	– – other
7307 19 10	– – – of malleable cast iron
7307 19 90	– – – other
	– other, of stainless steel:
…
	– other:’

9 Under Article 9(1) of Regulation No 2658/87, as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16) (‘Regulation No 2658/87’), the Commission is to adopt explanatory notes to the Combined Nomenclature of the European Union (‘the Explanatory Notes to the CN’).

10 The Explanatory Notes to the CN published in the Official Journal of the European Union on 6 May 2011 (OJ 2011 C 137, p. 1), relating to subheadings 7307 11 10 and 73 07 11 90 of the CN, state:

‘The expression “non-malleable” includes lamellar graphite cast iron.

These subheadings cover cast-iron fittings, such as elbows, bends, sleeves, ties, collars and tees. They are connected to tubes or pipes of cast iron or steel by screwing, contact or by mechanical assembly.’

11 The Explanatory Notes relating to subheading 7307 19 10 of the CN provide:

‘Malleable cast iron is an intermediate product between lamellar graphite iron (grey iron) and cast steel. It can be easily cast and becomes tough and malleable after suitable heat treatment. During the heat treatment, the carbon partly disappears or changes its make-up; it finally deposits in the form of nodules which do not impair metallic cohesion to such an extent as the graphite flakes in grey cast iron.

Where the carbon content is 2% or less by weight, the products are regarded as being of cast steel and fall in subheading 7307 19 90 (see note 1 to this chapter).

The expression malleable includes spheroidal graphite cast iron.

…’

12 By the Explanatory Notes to the CN published in the Official Journal of the European Union on 4 January 2019 (OJ 2019 C 2, p. 2), following the judgment of 12 July 2018, Profit Europe (C‑397/17 and C‑398/17, EU:C:2018:564), first, the third paragraph of the Explanatory Note relating to subheading 7307 19 10 was deleted from it. Second, the new Explanatory Note relating to subheading 7307 19 90 was added, stating that that subheading now includes fittings of spheroidal graphite cast iron.

The Integrated Tariff of the European Communities

13 Article 2 of Regulation No 2658/87 provides:

‘An Integrated Tariff of the [European Union], hereinafter referred to as the “Taric”, which meets the requirements of the Common Customs Tariff, external trade statistics, the commercial, agricultural and other [EU] policies concerning the importation or exportation of goods, shall be established by the Commission.

The tariff shall be based on the [CN] and include:

(a) the measures contained in this Regulation;

(b) the additional [EU] subdivisions, referred to as “Taric subheadings”, which are needed for the implementation of specific [EU] measures listed in Annex II;

…’

14 The EU measures provided for in Article 2 of that...