Case C‑3/13

Baltic Agro AS

v

Maksu- ja Tolliameti Ida maksu- ja tollikeskus

(Request for a preliminary ruling from the Tartu ringkonnakohus)

‛Reference for a preliminary ruling — Dumping — Regulation (EC) No 661/2008 — Definitive anti-dumping duty on imports of ammonium nitrate originating in Russia — Conditions for exemption — Article 3(1) — First independent customer in the European Union — Acquisition of ammonium nitrate fertiliser through another company — Release of the goods — Application for invalidation of the customs declaration — Decision 2008/577/EC — Customs Code — Articles 66 and 220 — Error — Regulation (EEC) No 2454/93 — Article 251 — Post-release verification’

Summary — Judgment of the Court (Third Chamber), 17 September 2014

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

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)

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)