02 November 2017 / article

Expansion of Refund Possibilities for Recalls

Succeeding our previous post on the conclusion of the Advocate General (AG) of the European Court of Justice (ECJ) in case C-661/15, this bit covers ECJs judgement in this case. This judgement confirms the conclusion of the AG and may have favourable consequences for the automotive sector.

Recap

In case C-661/15 the Dutch Supreme Court requested for, inter alia, the following two preliminary questions to be answered by the ECJ.

1. (a)Should Article 145(2) of the Community Customs Code Implementing Provisions (CCCIP), read in conjunction with Article 29(1) and (3) of the Community Customs Code (CCC), apply in a case where there was a manufacture-related risk that a component of the goods might become defective in use, and in view of this the seller, pursuant to a contractual warranty towards the buyer, grants the latter a price reduction in the form of reimbursement of the costs incurred by the buyer in modifying the goods in order to exclude that risk?

2. Is the condition laid down in Article 145(3) of the CCCIP for adjustment of the customs, namely that the adjustment of the price actually paid or payable for the goods must have been made within a period of twelve months following the date of acceptance of the declaration valid.

Decision

The ECJ basically ruled that:

  • CCC’s general refund provisions – which provide for a three years limitation period – does apply in a case, such as that at issue; and
  • the more specific provision on the basis of which such price adjustments can be taken into account only within a period of 12 months – thus basically limiting the three years term of the general refund provision – is invalid.

Consequences

It is clear now that irrespective of any established defects at the moment of importation, the repair costs covered by a warranty obligation in respect of the sale of export, can be deducted from the customs value – provided the conditions thereof are met. Consequently, refund of customs duties may be claimed for such adjustments of the customs value when they take place within 3 years after importation in the EU.

Please note however that this judgement has regard to a case where the CCC is in force. With the introduction of the Union Customs Code (UCC) as of 1 May 2016, the wording of the provisions regarding refund possibilities and terms changed.

At least with respect to situations where the CCC is in force it can be noted that importers could:

  • safeguard their right to a refund of import duties by extending their pending duty refund claims;
  • or file refund claims

with respect to vehicles repaired/modified under a warranty obligation.

With respect to situations where the UCC is applicable, importers may also try to apply a three years term when requesting for a refund in respect of vehicles repaired/modified under a warranty obligation. Such position is in our view defendable on the basis of the relevant provisions of the UCC. The relevant customs authorities may disagree to such position since the relevant provisions of the UCC leave room for discussion.

Please note further that the reach of this verdict may possibly also cover products other than cars.

For more information please contact your regular Loyens & Loeff adviser or Yassine El Bojaddaini.

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