Judgment;Summary — ECLI:EU:C:2020:833
Date: 2020-10-15
Language of the case: Lithuanian
Court formation: Ninth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Translation C-117/19–1 
Case C-117/19 
Request for a preliminary ruling 
Date received: 
15 February 2019  
Referring court: 
Mokestinių ginčų komisija prie Lietuvos Respublikos vyriausybės 
(Lithuania) 
Date of the decision to refer: 
8 February 2019 
Applicant: 
AB Linas Agro 
Defendant:  
Muitinės departamentas prie Lietuvos Respublikos finansų 
ministerijos 
  
MOKESTINIŲ GINČŲ KOMISIJA PRIE 
LIETUVOS RESPUBLIKOS VYRIAUSYBĖS 
(Tax Disputes Commission under the Government of the Republic of Lithuania) 
DECISION 
REGARDING THE COMPLAINT OF AB LINAS AGRO OF 
12 DECEMBER 2018 
8 February 2019 […] 
Vilnius 
The Tax Disputes Commission under 
the Government of the Republic of Lithuania 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 8. 2. 2019 — CASE C-117/19 
 
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[full names of the members of the Tax Disputes Commission and representatives 
of the parties] 
having considered, on 15 January 2019, the complaint of AB Linas Agro (‘the 
applicant’) of 12 December 2018 regarding the decision of the Muitinės 
departamentas prie Lietuvos Respublikos finansų ministerijos (Customs 
Department under the Ministry of Finance of the Republic of Lithuania; ‘the 
Customs Department’ or ‘the central tax authority’) of 16 November 2018 […], 
found as follows: 
Article 267 of the Treaty on the Functioning of the European Union  (formerly 
Article 234) provides that where a question concerning the interpretation of acts 
falling within the jurisdiction of the Court of Justice of the European Union (‘the 
Court of Justice’) which have been adopted by the institutions of the European 
Union is raised before any court or tribunal of a Member State, that court or 
tribunal may, if it considers that a decision on the question is necessary to enable 
it to give judgment, request the Court of Justice to give a ruling thereon. In the 
judgment of 21 October 2010, Nidera Handelscompagnie (C-385/09, 
EU:C:2010:627), the Court of Justice concluded that the Tax Disputes 
Commission under the Government of the Republic of Lithuania (‘the Tax 
Disputes Commission’) is a court or tribunal within the meaning of Article 234 
EC (and therefore also within the meaning of Article 267 of the Treaty on the 
Functioning of the European Union). 
Community legislation 
1. Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical 
nomenclature and on the Common Customs Tariff, as amended by Commission 
Implementing Regulation (EU) 2016/1821 of 6 October 2016; Commission 
Implementing Regulation (EU) No 999/2014 of 23 September 2014 imposing a 
definitive anti-dumping duty on imports of ammonium nitrate originating in 
Russia following an expiry review pursuant to Article 11(2) of Council Regulation 
(EC) No 1225/2009 (Or. 2) (‘Regulation No 999/2014’). In accordance with 
Regulation No 999/2014, goods originating in Russia which are manufactured by 
the Russian company Dorogobuzh and classified under TARIC code 
3105 20 10 50 are subject to a definitive anti-dumping duty of EUR 42.83/1 000 
kg (TARIC additional code A999). 
2. Regulation No 999/2014 provides that the product concerned is the same as the 
product defined in Regulation (EC) No 661/2008, i.e. solid fertilisers with an 
ammonium nitrate content exceeding 80% by weight, currently falling inter alia 
within CN code ex 3105 20 10 and originating in Russia. Council Regulation (EC) 
No 661/2008 of 8 July 2008 imposed a definitive anti-dumping duty on imports of 
ammonium nitrate originating in Russia and on imports of solid fertilisers 
originating in Russia with an ammonium nitrate content exceeding 80% by weight 
falling inter alia within CN code ex 3105 20 10. The latter product was brought 
within the scope of the applicable measures by Council Regulation (EC) 
LINAS AGRO 
 
3 
No 945/2005 of 21 June 2005 amending Regulation (EC) No 658/2002 imposing a 
definitive anti-dumping duty on imports of ammonium nitrate originating in 
Russia and Regulation (EC) No 132/2001 imposing a definitive anti-dumping duty 
on imports of ammonium nitrate originating in, inter alia, Ukraine, following a 
partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 
(‘Regulation No 945/2005’).  
3. Recital 20 of Regulation No 945/2005 states: ‘The product concerned is 
manufactured from ammonia (NH3) and nitric acid (HNO3), the combination of 
which results in ammonium nitrate (NH4NO3, hereinafter referred to as “AN”). 
The N content of the product concerned exceeds 28% by weight (it normally 
ranges between 33% and 34%). The ratio between the AN content and the N 
content, which depends on the atomic weight of the elements, is 2.86. 
Consequently, since the product concerned contains more than 28% by weight of 
N, it automatically contains more than 80% by weight of AN (normally between 
94% and 97%). […] ...’. 
4. Recital 21 of Regulation No 945/2005 states: ‘Two key features characterise the 
chemical composition of the product concerned: the expression of the N content 
and the overall level of the N and AN content. The N is expressed as nitric 
nitrogen (nitrate ion NO3
-) and as ammoniacal nitrogen (ammonium ion NH4
+), 
and the ratio between the two is 1:1. The level of the N content always exceeds 
28% by weight and, consequently, as seen above, the level of AN always exceeds 
80% by weight.’ 
5. Recital 22 of Regulation No 945/2005 states: ‘With respect to the new product 
types mentioned in the request, it was found that they were also manufactured 
from ammonia and nitric acid, the N content exceeded 28% by weight and, 
consequently, the AN content exceeded 80% by weight. Beside AN, these new 
product types could also incorporate marginal substances and/or nutrients. In these 
products the N was also expressed as nitric nitrogen and ammoniacal nitrogen and 
the ratio between the two was also approximately 1:1.’ 
6. Recital 23 of Regulation No 945/2005 states: ‘However, the new product types 
mentioned in the request underwent an additional process aimed at adding primary 
nutrients […] other than N, i.e. P and/or K, whose presence transformed the 
product into a compound fertiliser. This compound fertiliser could be obtained 
chemically or by blending. In spite of this addition of other primary nutrients and 
regardless of the type of transformation (chemical or blending), it was found that 
this process did not affect any of the key chemical features of the AN contained 
therein, that is to say the expression of the N content and the overall level of N 
and AN, which exceeded, respectively, 28% and 80% by weight.’ 
Facts 
7. During the period from 1 January 2016 to 31 December 2017, the applicant 
imported from the Russian undertaking PAO Dorogobuzh ammonium nitrate 
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fertiliser NPK 30-4-4, which it declared in the import declarations under TARIC 
code 3105 (Or. 3) 20 90 00 (Other mineral or chemical fertilisers containing the 
three fertilising elements nitrogen, phosphorus and potassium) or TARIC code 
3105 20 10 90 (Other mineral or chemical fertilisers with a nitrogen content 
exceeding 10% by weight on the dry anhydrous product). 
8. Kauno teritorinė muitinė (Kaunas Customs Office) carried out an audit of the 
applicant covering the period from 1 January 2016 to 31  December 2017 and 
drew up an audit report dated 31 July 2018 […] in which it stated that the 
goods  — fertiliser NPK 30-4-4 — declared in the import declarations completed 
during the said period (a total of 29 import declarations) had to be classified under 
TARIC code 3105 20 10 50 (solid fertilisers with an ammonium nitrate content 
exceeding 80% by weight, and a phosphorus content evaluated as P2O5 and a 
potassium content evaluated as K2O of 6% by weight or more but less than 9%), 
while specifying  TARIC additional code A999, applying a rate of import duty of 
6.5% for tax calculation and, correspondingly, imposing a definitive anti-dumping 
duty of EUR 42.83/1 000 kg. 
9. On the basis of the documents provided during customs clearance and the 
description of the goods in the customs declarations, Kaunas Customs Office 
found that in all cases the applicant imported fertiliser NPK 30-4-4, which means 
that the nitrogen (N) content of the fertiliser is 30% by weight, the phosphorus (P) 
content 4%, and the potassium (K) content 4%. In the presence of undisputed 
evidence from the manufacturer (quality certificates) that the nitrogen content of 
the product at issue is 30% by weight, i.e. more than 28%, while the phosphorus 
content and the potassium content are each 4% by weight, it was found that the 
ammonium nitrate content of the product at issue exceeded 80% by weight. 
Therefore, the fertiliser NPK 30-4-4 imported by the applicant corresponds to the 
product described in Regulation No 945/2005 and, having regard to the primary 
nutrient content of the fertiliser (nitrogen content exceeding 28% by weight and 
total phosphorus and potassium content of 8% by weight), it was classified under 
TARIC code 3105 20 10 50 (solid fertilisers with an ammonium nitrate content 
exceeding 80% by weight, and a phosphorus content evaluated as P2O5 and a 
potassium content evaluated as K2O of 6% by weight or more but less than 9%) 
and definitive anti-dumping duty of EUR 42.83/1 000 kg was applied to that 
product. 
10. Kaunas Customs Office also analysed samples of the products declared by the 
applicant (the Sampling Reports of 27 March 2018 and 12 April 2018). Having 
analysed the samples, the customs laboratory found that the IR spectra of the 
samples corresponded to the IR spectra specimens for nitrogen–phosphorus–
potassium fertiliser (NPK) available at the laboratory. It was found that the 
nitrogen content of the fertiliser NPK 30-4-4 under investigation exceeds 28% by 
weight, while the phosphorus and potassium content is more than 6% by weight 
but not more than 9% by weight, i.e. the investigated product should also be 
classified under TARIC code 3105 20 10 50 in accordance with the parameters 
established during the investigations. 
LINAS AGRO 
 
5 
11. The audit report […] of 31 July 2018 established for the applicant the following 
tax obligation: definitive anti-dumping duty amounting to EUR 496 302, import 
VAT amounting to EUR 104 220, default interest on outstanding anti-dumping 
duty amounting to EUR 12 954, VAT default interest amounting to EUR 14 808, 
and a penalty of EUR 120 104. 
12. As the applicant disagreed with the audit report of Kaunas Customs Office, it 
submitted a complaint to the Customs Department and thus initiated a tax dispute. 
By decision […] of 16 November 2018, the Customs Department rejected the 
applicant’s complaint. 
13. In the decision, the Customs Department supported the position of Kaunas 
Customs Office. The Customs Department noted that, on the basis of the 
presumption established in recitals 21 to 23 of Regulation No 945/2005, when the 
nitrogen content in fertiliser is known, exact determination of ammonium nitrate 
content by laboratory tests is not necessary because it is presumed. The documents 
provided by the fertiliser manufacturer, which specify the primary nutrients 
contained in the fertiliser and their level, are sufficient for classification of the 
fertiliser NPK 30-4-4 imported by the applicant and, accordingly, imposition of 
anti-dumping duty. 
(Or. 4) 
14. As the applicant disagreed with the decision […] of 16 November 2018 of the 
Customs Department, on 12 December 2018 it submitted a complaint to the Tax 
Disputes Commission. The applicant does not dispute the fact that the content of 
the primary nutrient nitrogen (N) in the fertiliser NPK 30-4-4 imported by it 
amounts to 30% by weight; however, the applicant claims that the mere fact that 
the nitrogen (N) content in the fertiliser NPK 30-4-4 exceeds 28% does not in 
itself constitute a basis for maintaining that the ammonium nitrate content of the 
fertiliser exceeds 80% by total weight and that the fertiliser NPK 30-4-4 had to be 
(should be) classified under TARIC code 3105 20 10 50. In other words, the 
proportion of ammonium nitrate in the fertiliser NPK 30-4-4 could not be 
determined only by declaratively referring to the relation, as specified (calculated) 
in the preamble to Regulation No 945/2005, between the weight of ammonium 
nitrate and weight of nitrogen contained in that ammonium nitrate. The applicant 
has emphasised that the preamble to Regulation No 945/2005 does not have 
binding legal force; therefore, the Customs Department decided without lawful 
ground to rely not on factual data of laboratory tests but on the theoretical 
presumptions specified in the preamble to Regulation No 945/2005 (especially in 
recitals 20 to 23) regarding the ammonium nitrate content of compound fertiliser 
NPK 30-4-4. 
15. The applicant also disagrees with the Customs Department’s interpretation of the 
preamble to Regulation No 945/2005. In Regulation No 945/2005, the term 
‘product concerned’ means ammonium nitrate and not compound NPK fertiliser 
(recital 17). Therefore, nitrogen must be measured not in the total weight of NPK 
REQUEST FOR A PRELIMINARY RULING OF 8. 2. 2019 — CASE C-117/19 
 
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fertiliser but only to the extent that it is in ammonium nitrate. Thus, the 
aforementioned presumption may be applied only to nitrogen contained in 
ammonium nitrate (i.e. ammonium nitrate nitrogen). The same conclusion is also 
confirmed by the content of Regulation (EC) No 2003/2003 of the European 
Parliament and of the Council of 13 October 2003 relating to fertilisers, which is 
currently in force: ‘ammonium nitrate fertilisers [...], straight or compound, are 
ammonium nitrate based products manufactured for use as fertilisers and 
containing more than 28% by mass of nitrogen in relation to ammonium nitrate’. 
16. Having regard to the foregoing grounds, the Tax Disputes Commission asks: Are 
the statements set out in the preamble to Regulation No 945/2005, in particular in 
recitals 20 to 23, that, ‘if the nitrogen content of the product concerned exceeds 
28% by weight, it consequently always contains more than 80% by weight of 
ammonium nitrate’ to be regarded as a settled presumption enabling it to be 
concluded that, if the product concerned (ammonium nitrate fertiliser) contains 
28% or more of nitrogen (N), its ammonium nitrate (AN) content is always more 
than 80%? 
17. Is that presumption applicable to the new types of product concerned that are 
specified in Regulation No 945/2005, that is to say, to NPK fertilisers with a 
nitrogen (N) content equal to or exceeding 28% by weight, a ratio between 
ammoniacal and nitric nitrogen of approximately 1:1, and a phosphorus (P) and/or 
potassium (K) content not exceeding 12% by weight, for example, the NPK 30-4-
4 fertiliser discussed in the present dispute? 
18. If the answer to the questions set out in paragraphs 16 and 17 is in the affirmative, 
does the aforementioned presumption in Regulation No 945/2005 have binding 
legal force, that is to say, can it be relied on in classifying the NPK fertilisers 
specified in paragraph 17 under the TARIC codes, and, accordingly, for the 
purposes of the application of the measures (anti-dumping duty) in force, although 
Article 1(1) and Article 1(3) of Regulation No 945/2005 (and, correspondingly, 
Article 1(1) and Article 1(2)(c) of Regulation No 999/2014 which was in force at 
the time of completion of the import procedures at issue) relate the imposition of 
definitive anti-dumping duty not to the content of the chemical element nitrogen 
(N) in a product but to the content of the chemical compound ammonium nitrate 
(AN) and the content of phosphorus and potassium in a product? 
19. For the purposes of the classification under TARIC codes of the NPK fertilisers 
referred to in paragraph 17 and, accordingly, for the purposes of the application of 
the measures (anti-dumping duty) in force – having regard to the objectives set out 
in recitals 35 and 36 of Regulation No 945/2005 of applying the measures in force 
to the new product types on the basis of the principle of proportionality, and of 
simplifying the customs procedure and the application of the appropriate duty 
rates corresponding to the amount of product concerned incorporated in the 
compound – can the presumption specified in paragraph 16 be relied upon when 
calculating (determining) the ammonium nitrate content of such fertilisers? In 
other words, after the content of nitrogen (N) in the NPK fertilisers referred to in 
LINAS AGRO 
 
7 
paragraph 17 has been determined (on the basis of the documents provided by the 
importer (Or. 5) at the time of customs clearance, or during laboratory tests), is 
the ammonium nitrate content calculated (determined) having regard to the ratio 
between the ammonium nitrate (AN) content and nitrogen (N) content defined in 
recital 20 of Regulation No 945/2005, which depends on the atomic weight of the 
elements and is 2.86, without any additional laboratory tests being conducted to 
determine the exact ammonium nitrate content? 
20. Answers to these questions are essential and must be settled in examining the 
complaint of the applicant because it is the interpretation […] of the legal 
provisions being analysed that determines the validity of taxation of the applicant 
and the right of the Customs Department to charge the applicant additionally 
payable amounts of definitive anti-dumping duty and VAT. 
21. The Tax Disputes Commission also considers that a reference to the Court of 
Justice at the pre-litigation stage of examination of the tax dispute is expedient 
with a view to the expeditious examination of tax disputes. 
22. Pursuant to Article 267 of the Treaty on the Functioning of the European Union 
[…] [references to national law], the Tax Disputes Commission decides: 
– to refer the following questions to the Court of Justice for a preliminary ruling: 
1. Are the statements set out in the preamble to Regulation No 945/2005, 
in particular in recitals 20 to 23, that, ‘if the nitrogen content of the 
product concerned exceeds 28% by weight, it consequently always 
contains more than 80% by weight of ammonium nitrate’ to be 
regarded as a settled presumption enabling it to be concluded that, if 
the product concerned (ammonium nitrate fertiliser) contains 28% or 
more of nitrogen (N), its ammonium nitrate (AN) content is always 
more than 80%? 
2. Is that presumption applicable to the new types of product concerned 
that are specified in Regulation No 945/2005, that is to say, to NPK 
fertilisers with a nitrogen (N) content equal to or exceeding 28% by 
weight, a ratio between ammoniacal and nitric nitrogen of 
approximately 1:1, and a phosphorus (P) and/or potassium (K) content 
not exceeding 12% by weight, for example, the NPK 30-4-4 fertiliser 
discussed in the present dispute? 
3. If the answer to the above questions is in the affirmative, does the 
aforementioned presumption in Regulation No 945/2005 have binding 
legal force, that is to say, can it be relied on in classifying the NPK 
fertilisers specified in paragraph 17 of the decision of the Tax Disputes 
Commission under the TARIC codes, and, accordingly, for the 
purposes of the application of the measures (anti-dumping duty) in 
force, although Article 1(1) and Article 1(3) of Regulation 
No 945/2005 (and, correspondingly, Article 1(1) and Article 1(2)(c) of 
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Regulation No 999/2014 which was in force at the time of completion 
of the import procedures at issue) relate the imposition of definitive 
anti-dumping duty not to the content of the chemical element nitrogen 
(N) in a product but to the content of the chemical compound 
ammonium nitrate (AN) and the content of phosphorus and potassium 
in a product? 
4. For the purposes of the classification under TARIC codes of the NPK 
fertilisers referred to in paragraph 17 of the decision of the Tax 
Disputes Commission and, accordingly, for the purposes of the 
application of the measures (anti-dumping duty) in force – having 
regard to the objectives set out in recitals 35 and 36 of Regulation 
No 945/2005 of applying the measures in force to the new product 
types on the basis of the principle of proportionality, and of 
simplifying the customs procedure and the application of the 
appropriate duty rates corresponding to the amount of product 
concerned incorporated in the compound – can the presumption 
specified in paragraph 16 of the decision of the Tax Disputes 
Commission be relied upon when calculating (determining) the 
ammonium nitrate content of such fertilisers? In other words, after the 
content of nitrogen (N) in the NPK fertilisers referred to in 
paragraph 17 of the decision of the Tax Disputes Commission has been 
determined (on the basis of the documents provided by the importer at 
the time of customs clearance, or during laboratory tests), is the 
ammonium nitrate (Or. 6) content calculated (determined) having 
regard to the ratio between the ammonium nitrate (AN) content and 
nitrogen (N) content defined in recital 20 of Regulation No 945/2005, 
which depends on the atomic weight of the elements and is 2.86, 
without any additional laboratory tests being conducted to determine 
the exact ammonium nitrate content? 
– to suspend examination of the applicant’s complaint […] until the Court of 
Justice gives a preliminary ruling or the proceedings before the Court of Justice 
are closed by a different decision. 
[…] 
[references to national procedural law and full names of the members of the Tax 
Disputes Commission]