Interests on reimbursed import duties which have been levied in breach of EU law

16 Oct 2017

Did German customs authorities fix the customs duties by mistake? If so, please check for chances to get interests on this!

1. Case

Within a short time, two German financial courts had to deal with the question whether and to what extent customs authorities have to pay interests on anti-dumping duties which have been levied in breach of EU law.

The first case concerned a company which paid anti-dumping duty on the import of canned mandarins from China (FG Hamburg, decision dated 19.07.2017, 4 K 10/07). In another case, a company paid anti-dumping duty on shoes with uppers of leather imported from China and Vietnam (FG Düsseldorf, decision dated 03.05.2017, 4 K 3268/14 Z). The European Court of Justice (ECJ) lifted the anti-dumping customs regulations since they were not in line with EU law.

Subsequently, German customs authorities refunded the anti-dumping duties to the companies. However, the authorities refused to pay also interests on the refunded amounts.

2. Decision

The financial courts disagreed with the customs authorities and decided that interests accrue in the favor of the importers. 

Interest from the day of payment
The financial courts directly referred to a preliminary of the ECJ which stated that the interest begin to accrue from the day the import duties have been paid to the customs authorities (ECJ, decision dated 18.01.2017, C-365/15). 

Interest Rate of 6 % per year 
Since the EU law does not regulate the interest rate in such cases the German courts applied national regulations which provide an interest rate of 6 % per year (§ 238 AO).

The courts made also clear that it does not matter whether the importer charged the import duties on the customers. It is also not relevant that the national customs authorities transferred the collected anti-dumping duties to the European Union. 

Breach of EU law
The customs law of the European Union has basically specific provisions for interest on import duties (Art. 116 para. 6 Union Customs Code). These provisions grant interests only for the case that the reimbursement of customs duties does not take place within 3 month since the refund decision has been taken. 

However, the ECJ does not consider these provisions as exclusively applicable. If customs duties have been levied in breach of EU law there is an obligation for the Member States, arising directly from the EU law, to pay not only the reimbursement but also corresponding interest.

Although the ECJ made its statements in relation to the former legislation under the Community Customs Code these principles should also be applicable under the current Union Customs Code.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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For more information

Lutz Meyer Lutz Meyer

Partner
Treuhand Oldenburg GmbH
Germany
Phone: +49 (0)441 9710 123

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