Importers start claiming back wrongful duties paid on SSSPT

Heartening news for the importers of seamless stainless steel pipes and tubes (SSSPT) who were impacted by OLAF’s investigation of 2019 into circumvention via India of the antidumping duties imposed on imports of these products from the People’s Republic of China. The European Court of Justice has issued a preliminary judgement on OLAF’s interpretation of the rules of origin and affected importers stand to claim retroactive taxes paid and securities held since 2016 (and possibly even earlier). Four national European customs agencies have already confirmed their position, as detailed below. Others will surely follow shortly.

What Happened?

In a nutshell, the EU imposed an antidumping duty on imports of SSSPT from China back in 2011. Over time, questions arose as to whether some suppliers might be trying to unfairly circumvent these measures. The EU’s Directorate General for Trade (DG Trade) conducted an in-depth investigation, and in 2017 concluded that this was not the case.

However, in 2019, the European Anti-Fraud Office (OLAF) concluded the polar opposite and recommended customs agencies charge antidumping duties of 71.9% on these imports. Additionally, further charges could be brought for ‘fraud’. As previously reported, the discrepancy between OLAF’s findings and those of DG Trade have been hotly contested by EURANIMI and its members.

In March 2023, one of our members took the German customs authority to court. The German court was amenable to their plea and referred the opposing OLAF and DG Trade interpretations to the European Court of Justice for a preliminary ruling. As an ECJ ruling is binding for all EU courts, a favourable decision here would mean the ruling applied to all EURANIMI member cases. A potential massive win for the importers.

End of Investigation

On 21 September 2023, the European Court of Justice came with a preliminary ruling that largely agreed with our position, stating that OLAF’s interpretation of the rule of origin is a manifest error of assessment. OLAF’s interpretation is based on the list rule of Annex 22-01 UCC-DA, which in the case of SSSPT does not comply with the provisions of Article 60(2) of the Customs Code.

Concretely, the Court’s decision confirms that the cold forming of hot formed seamless stainless steel blanks isn’t simply a “minor process” designed to circumvent antidumping measures; it is significant enough to warrant a new country of origin. Following this ruling, OLAF is now finally putting this investigation to bed.

OLAF has now formally closed all ongoing investigations into the period 2020-2021 into potential circumvention of antidumping measures against China by way of India with regards to cold formed seamless stainless steel pipes and tubes.

National Customs Agencies

OLAF is unlikely to send out a statement detailing the end of all investigations to the 27 national customs agencies of the EU. For now, they are leaving it up to national customs agencies to decide how they wish to handle things moving forward.

Some customs agencies inform individual companies of their right to claim back monies unduly paid, others leave it up to the companies to do the chasing. Four national customs agencies have already issued clear statements, with others surely set to follow in the coming weeks and months.

Italy

In January 2024, the Italian customs authorities issued a cancellation act, basing their decision on the ECJ’s preliminary ruling of case C-210/22, stating “the documentation produced represents a confirmatory element of the reliability of the Indian origin of the goods declared upon import”.

Poland

Similarly, the Polish customs authority concluded an audit in January 2024 with the words “taking into account the documents and explanations submitted […] and taking into account the provisions in the legal acts and the judgment of the European Court of Justice case C-210/22 […], it should be stated that the cold rolling process is sufficient to give Indian origin to the pipes admitted […]”.

United Kingdom

The UK has taken a similar position on the matter, agreeing that the OLAF case should not go to court with His Majesty’s Revenue and Customs stating that “having reviewed its position following the decision of the CJEU in Stappert Deutschland (C-210/22), I can confirm that HMRC no longer intends to contest the origin of the goods [….]”.

The Netherlands

Dutch Customs also acted at the end of January, confirming that interested parties whose cases are at the appeal stage before the court (2^nd stage appeal in the meaning of 44 UCC) have now received:

1) a copy of a letter from Customs to the Court in which Customs confirms in principle that no anti-dumping duty is due as has emerged following the judgment of the EU Court of Justice and

2) a letter addressed to themselves in which Customs ex officio reduces the additional assessments to EUR 0 and ex officio proceeds to reimbursement / remission pursuant to Article 116 in conjunction with 117 UCC.

What Does This Mean for Me?

If you’re an importer or distributor based in Italy, the Netherlands, Poland or the UK, and you’ve been charged antidumping duties on imports of seamless stainless steel pipes and tubes that have been cold formed in India on the basis of tube blanks originating form China, you may now be able to claim back the duties wrongfully paid since 2019.

Although national customs authorities will undoubtedly assess every claim on a case-by-case basis to ensure it meets with the ECJ’s ruling of September 2023, we believe this news is a fantastic beginning to 2024. After all, with retroactive duties of over 70% wrongfully imposed – in some EU countries going as far back as 2011 – the financial impact is immense for all involved.

Why EURANIMI?

Above all, the outcome of this 13-year to-and-fro shows quite how imperative it is that EURANIMI and its members continue to highlight the intricacies and market subtleties of our industry to the European Commission.

Together with our members, we’re shaping the discourse on the import and distribution of stainless steel and aluminium in Europe. Together, we stand strong. Perhaps it’s time to join our ranks…