Opinion of the Advocate General — ECLI:EU:C:2014:221
Date: 2014-04-03
Language of the case: Estonian
Subject matter: Dumping;External relations;Free movement of goods;Commercial policy;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Estonia

Summary — Judgment of the Court (Third Chamber), 17 September 2014 1. Common commercial policy — Protection against dumping — Definitive anti-dumping duty on imports of ammonium nitrate originating in Russia — Conditions for exemption — First independent customer in the European Union — Definition — Use of another company established in a Member State — Not included (Council Regulation No 661, Art. 3(1)) 2. Own resources of the European Union — Post-clearance recovery of import or export duties — Subsequent entry in the accounts of anti-dumping duty when the customs authority accepted a request to invalidate an incorrect declaration — Lawfulness (Council Regulation No 2913/92, as amended by Regulation No 1791/2006, Arts 66 and 220(2)(b)) 3. Customs union — Customs declarations — Submission of an incorrect declaration without the possibility of rectifying it subsequently — Exclusion from the benefit of exemption from antidumping duty — No beach of the right to equality before the law (Arts 28 TFEU and 31 TFEU; Charter of Fundamental Rights of the European Union, Art. 20; Council Regulations No 2913/92, as amended by Regulation No 1791/2006, Art. 66 and No 661/2008, Art. 3; Commission Regulation No 2454/93, as amended by Regulation No 312/2009, Art. 251) 1. Article 3(1) of Regulation No 661/2008, imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of Regulation No 384/96, must be interpreted as meaning that a company established in a Member State, which purchased ammonium nitrate originating in Russia, through another company also established in a Member State, with a view to importing it into the Union, may not be considered to be the first independent customer in the Union, within the meaning of that provision, and may not therefore be eligible for the exemption from definitive anti-dumping duty laid down by Regulation No 661/2008 in respect of the ammonium nitrate. Under the three cumulative conditions laid down in Article 3(1) of Regulation No 661/2008, to which the exemption from anti-dumping duty is subject, the imported goods must be manufactured, shipped and invoiced directly by the exporting companies to the first independent customer in the Union. In this respect, the first indent of Article 3(1) of the regulation explicitly requires, through the use of the term ‘directly’, a close link between, on the one hand, the company responsible for the manufacture, shipping and invoicing of the goods imported and, on the other hand, the first independent customer in the Union. The exemption from anti-dumping duties may be made only under certain conditions, in cases specifically provided for, and thus constitutes an exception to the normal regime for anti-dumping duties. The provisions which provide for such an exemption are, therefore, to be interpreted strictly. (see paras 24, 25, 32, operative part 1) 2. Articles 66 and 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006, must be interpreted as not precluding a customs authority from making a subsequent entry in the accounts of anti-dumping duty when, as in the circumstances of the case in the main proceedings, the requests to invalidate the customs declarations were brought on the ground that the entry for the consignee was incorrect and that the authority had accepted those declarations or put in hand a verification exercise after receiving those requests. (see para. 40, operative part 2) 3. Article 66 of Regulation No 2913/92 establishing the Community Customs Code, as amended by Regulation No 1791/2006, and Article 251 of Regulation No 2454/93, laying down provisions for the implementation of Regulation No 2913/92, as amended by Regulation No 312/2009, are compatible with the fundamental right to equality before the law affirmed in Article 20 of the Charter of Fundamental Rights of the European Union in circumstances where, in the context of the common customs tariff, referred to in Articles 28 TFEU and 31 TFEU, those provisions of Regulation No 2913/92 and of Regulation No 2454/93 do not permit the invalidation, on request, of an incorrect customs declaration and thus the grant of the benefit of the exemption from anti-dumping duty to the consignee that the latter could have claimed, if the error had not been made. The obligation to provide correct information in a customs declaration falls on the declarant. That obligation is no more than the corollary of the principle of irrevocability of the customs declaration once it has been accepted, a principle the exceptions to which are strictly defined by the relevant EU legislation. In that regard, a company that has complied with the requirements laid down in Article 3 of Regulation No 661/2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia following an expiry review pursuant to Article 11(2) and a partial interim review pursuant to Article 11(3) of basic anti‑dumping Regulation No 384/96, and that has correctly completed a customs declaration in order to be eligible for an exemption from anti-dumping duty is not in a situation comparable with that of a company that has not complied with those requirements. (see paras 43, 44, 46, operative part. 3)