Report s of C ases

OPINION OF ADVOCATE GENERAL CRUZ VILLALÓN 1 delivered on 3 April 2014

Case C-3/13

Baltic Agro AS v Maksu- ja Tolliameti Ida maksu- ja tollikeskus

(Request for a preliminary ruling from the Tartu Ringkonnakohus (Estonia))

(Common commercial policy — Dumping — Definitive anti-dumping duty on imports of ammonium nitrate originating in Russia — Regulation (EC) No 2022/95 — Expiry review — Regulation (EC) No 661/2008 — Price undertakings — Decision 2008/577/EC — Conditions governing exemption from anti-dumping duty — First independent customer — Importer having acquired ammonium nitrate fertiliser from a Russian exporter through another company — Union Customs Code — Regulation (EEC) No 2913/92 — Customs declaration — Invalidation, at the request of the declarant, after the goods have been released — Article 66)

1. In this case, the Court is asked to give a preliminary ruling, primarily, on various questions concerning the interpretation of EU legislation establishing anti-dumping duty on imports of ammonium nitrate originating in Russia and of European Union customs legislation governing the arrangements for invalidating customs declarations at the request of the declarant, and on one question as to the validity of the provisions of the customs legislation.

2. Those questions have been raised in a dispute between an importer of ammonium nitrate originating in Russia and the customs authorities of its Member State of establishment arising from the latter’s refusal to grant to the former the exemption from anti-dumping duty laid down in the legislation applying to goods purchased from a Russian exporting producer having entered into price undertakings accepted by the European Commission.

3. The reasoning given in this instance for the refusal being that the imports at issue in the main proceedings, made through another undertaking, did not meet the formal conditions for the grant of the exemption provided for in that legislation, the referring court asks the Court about the interpretation and scope of the provisions of the anti-dumping legislation laying down those formal conditions and about the validity, in the light of the principle of equality, of the provisions of customs legislation that prevent the importer from obtaining invalidation of the customs declarations for the import at issue and thus claiming that exemption.

1 — Original language: French. EN ECLI:EU:C:2014:221 1 OPINION OF MR CRUZ VILLALÓN — CASE C-3/13 BALTIC AGRO

I – Relevant legislation

A – Union law

1. The relevant anti-dumping legislation

2 4. On 16 August 1995, by Regulation (EC) No 2022/95, the Council of the European Union imposed a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia. The initial anti-dumping duty was subsequently altered before being extended several times, in particular following requests for expiry review or interim review sometimes made by representatives of Community industry and sometimes by the relevant exporting producers.

5. However, the various regulations adopted in this context are not directly relevant to settling the dispute in the main proceedings. The relevant instrument here is primarily Council Regulation (EC) 3 No 661/2008 of 8 July 2008.

6. Articles 1 and 2 of Regulation No 661/2008 impose definitive anti-dumping duty of varying amounts on ammonium nitrate and some fertilisers and other products containing ammonium nitrate produced by EuroChem and its related companies, on the one hand, and for all other Russian exporters on the other hand.

7. Article 3(1) of Regulation No 661/2008 provides:

‘1. Imports declared for release into free circulation which are invoiced by companies from which undertakings are accepted by the Commission and whose names are listed in Decision 2008/577/EC, as from time to time amended, shall be exempt from the anti-dumping duty imposed by Article 2, on condition that:

— they are manufactured, shipped and invoiced directly by the said companies to the first independent customer in the Community, and

— such imports are accompanied by an undertaking invoice which is a commercial invoice containing at least the elements and the declaration stipulated in the Annex [to] this Regulation, and

— the goods declared and presented to customs correspond precisely to the description on the undertaking invoice.’

4 8. Commission Decision 2008/577/EC of 4 July 2008, cited in Article 3 of Regulation No 661/2008, is that by which the Commission accepted the price undertakings offered pursuant to Article 8(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports 5 from countries not members of the European Community, by the Russian exporting producers of ammonium nitrate ‘JSC Acron, Veliky Novgorod, Russia and JSC Dorogobuzh, Dorogobuzh, Russia, members of “Acron” Holding Company’.

2 — Regulation imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 1995 L 198, p. 1). 3 — Regulation of 8 July 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 (EC) No 384/96 (OJ 2008 L 185, p. 1, and corrigendum OJ 2009 L 339, p. 59). 4 — Decision of 4 July 2008 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in Russia and Ukraine (OJ 2008 L 185, p. 43, corrigendum OJ 2009 L 339, p. 59). 5 — OJ 1996 L 56, p. 1.

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2. Union Customs Code

9. The dispute in the main proceedings also raises questions concerning the interpretation and validity of provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community 6 Customs Code, here specifically of Article 66 thereof, governing the conditions for invalidating a customs declaration at the request of the declarant, of Article 220(2) thereof, laying down the conditions for exemption from the subsequent charging of duty on importation following an error on the part of the customs authorities, and of Article 251 of Commission Regulation (EEC) No 2454/93 of 7 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by 8 Commission Regulation (EC) No 312/2009 of 16 April 2009, which defines, in derogation from Article 66(2) of the Customs Code, the conditions for invalidating a customs declaration after the goods have been released.

10. The content of those provisions will be cited as and when required in the course of the following reasoning.

II – The facts of the main proceedings

11. The main proceedings were born out of a decision by the Maksu- ja Tolliameti Ida maksu- ja 9 tollikeskus (Tax and Customs Office — Eastern Tax and Customs Centre) claiming from Baltic Agro AS, as a result of subsequent verification, payment of anti-dumping duty plus VAT on its imports of ammonium nitrate fertiliser originating in Russia.

12. The relevant anti-dumping duty on imports of ammonium nitrate originating in Russia, initially imposed by Regulation No 2022/95, which has since been amended on several occasions, is that imposed by Regulation No 661/2008.

13. In this case, Baltic Agro purchased between October 2009 and January 2010 several tonnes of ammonium nitrate fertiliser from JSC Acron, a company established in Russia, calling on the services 10 of another company, the Estonian company Magnet Group OÜ. Several purchase agreements were concluded for that purpose between Magnet Group and JSC Acron, on the one hand, and between Magnet Group and Baltic Agro, on the other.

14. In January and February 2010, two customs clearance agents filed five customs declarations relating to those imports, which mentioned, as the consignee of the goods imported, Baltic Agro and as consignor, JSC Acron on two occasions and the Latvian transportation company OOO Ventoil on the three other occasions.

15. On 1 March and 23 April 2010, the customs clearance agents applied to the MTA for the declarations to be declared invalid, inasmuch as Baltic Agro, instead of Magnet Group, had been entered in them as the consignee.

16. On 3 March 2010 the MTA carried out a verification procedure into the five customs declarations in order to clarify whether the customs value of the goods imported and the calculation and settlement of the charges levied on importation were correct.

6 — OJ 1992 L 302, p. 1, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006 (OJ 2006 L 363, p. 1, ‘the Customs Code’). 7 — OJ 1993 L 253, p. 1, ‘the Implementing Regulation’. 8 — OJ 2009 L 98, p. 3. 9 — ‘The MTA’. 10 — ‘Magnet Group’.

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17. On 31 May 2010 the MTA issued two tax assessment notices, based on the verification procedure, charging Baltic Agro customs duty plus VAT on the goods imported, taking the view that the conditions for exemption from customs duty provided for in Article 3(1) of Regulation No 661/2008 had not been met.

18. On 31 May 2010, Baltic Agro brought legal proceedings seeking annulment of those notices before the Tartu Halduskohus (Tartu Administrative Court, Estonia), claiming that the fact that it had used the services of another company for the imports at issue was of no relevance as regards taxation.

19. Its action was dismissed by judgment of 25 April 2011. The Tartu Halduskohus ruled that Baltic Agro could not qualify for the exemption, because it had not acquired the imported goods directly from the manufacturer.

20. On 25 May 2011, Baltic Agro lodged an appeal before the Tartu Ringkonnakohus (Tartu Administrative Court of Appeal, Estonia), seeking to have the judgment of the Tartu Halduskohus set aside, to have its claim allowed and to have the matter referred to the Court of Justice for a preliminary ruling concerning the interpretation of Article 3(1) of Regulation No 661/2008.

III – Questions referred for a preliminary ruling and procedure before the Court of Justice

21. It was in those circumstances that the Tartu Ringkonnakohus decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 3(1) of [Regulation No 661/2008] to be interpreted as meaning that the importer and the first independent customer in the Community must always be one and the same person?

(2) Is Article 3(1) of [Regulation No 661/2008], in conjunction with [Decision 2008/577], to be interpreted as meaning that exemption from anti-dumping duty applies only to such first independent customer in the Community as has not resold the goods to be declared before making the declaration?

(3) Is Article 66 of the [Customs Code], in conjunction with Article 251 of [the Implementing Regulation] and the other procedural rules relating to subsequent amendments to a customs declaration, to be interpreted as meaning that, where the wrong consignee is entered in a customs declaration on the importation of goods, it must be possible, on request, for the declaration to be invalidated and the consignee’s details to be corrected even after the goods have been released if the customs duty exemption provided for in Article 3(1) of [Regulation No 661/2008] would have had to be applied if the correct consignee had been entered, or is Article 220(2)(b) of the [Customs Code] to be interpreted, in those circumstances, as meaning that the customs authorities are not entitled to make a subsequent entry in the accounts?

(4) If both of the alternatives in Question (3) should be answered in the negative, must it be considered compatible with Article 20 of the Charter of Fundamental Rights of the European Union, in conjunction with Articles 28(1) and 31 [TFEU], for Article 66 of the [Customs Code], in conjunction with Article 251 of [the Implementing Regulation] and the other procedural rules relating to subsequent amendments to a customs declaration, not to permit a declaration to be invalidated and the consignee’s details to be corrected, on request, after the goods have been released, if the customs duty exemption provided for in Article 3(1) of [Regulation No 661/2008] would have had to be applied if the correct consignee had been entered?’

22. The Estonian Government, the Council of the European Union and the European Commission have submitted written observations. Considering itself to have sufficient information to give a ruling, the Court has decided, pursuant to Article 76(2) of its Rules of Procedure, not to hold a hearing.

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IV – The first and second questions referred

A – Preliminary observations

23. By its first two questions, which it is appropriate to consider together, the referring court is asking the Court of Justice, in essence, about the scope ratione personae of the exemption from anti-dumping duty on ammonium nitrate imports originating in Russia which follows from the application of Article 3 of Regulation No 661/2008 in conjunction with Article 1 of Decision 2008/577.

24. Article 3 of Regulation No 661/2008 provides for an exemption from the anti-dumping duty charged under that regulation on imports of ammonium nitrate originating in Russia which are invoiced by companies from which undertakings have been accepted by the Commission and whose names are listed in Decision 2008/577. Article 1 of that decision refers, in this case, to ‘JSC Acron, Veliky Novgorod, Russia and JSC Dorogobuzh, Dorogobuzh, Russia, members of “Acron” Holding Company’.

25. The grant of that exemption is, however, subject to, inter alia, the condition, laid down in Article 3(1), first indent, of Regulation No 661/2008, that the imports should be manufactured, shipped and invoiced directly by the said companies to the first independent customer in the Community. The annex to Regulation No 661/2008 provides, moreover, at point 8 thereof, that the commercial invoice which must accompany imports into the Community that are subject to an undertaking must state the ‘name of the company acting as an importer in the Community’.

26. It is common ground that, in the case in the main proceedings, Baltic Agro’s imports of ammonium nitrate fertiliser were made through the Estonian company Magnet Group, that the undertaking invoices were issued in the name of Magnet Group and that it was Baltic Agro that submitted the customs declaration for the imported goods. The parties also agree that the MTA refused to grant to Baltic Agro the exemption from anti-dumping duty precisely because that company had not purchased the imported ammonium nitrate fertiliser direct from JSC Acron.

27. That is why the referring court seeks to ascertain more specifically from the Court, first, whether the importer and the first independent customer must necessarily be the same person and, secondly, whether the exemption applies only in respect of a first independent customer who has not resold the goods to be declared before making the declaration.

B – Observations of the parties

28. The Estonian Government and the Commission, which are the only parties to have addressed these 11 questions, concur, albeit supported by different lines of reasoning, that the exemption from anti-dumping duty as laid down in Article 3 of Regulation No 661/2008 applies only to the person who is both the importer and the first independent customer in the Community which has not resold the goods to be declared before making the declaration.

29. In the case in the main proceedings, neither Baltic Agro nor Magnet Group qualified for the exemption. Baltic Agro, which is indeed the importer, is not the first independent customer in the Community, since it purchased the goods from Magnet Group. Magnet Group is the first independent customer in the Community, but resold the goods, before they were introduced into the customs territory of the Community, to Baltic Agro which undertook to complete the customs declaration formalities.

11 — The Council confined itself, in its written observations, to answering the third and fourth questions referred.

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30. Baltic Agro, on the other hand, essentially considers that Regulation No 661/2008 does not stipulate that the importer and the first independent customer must be the same person or that specifically the first independent customer must in all cases submit the declaration in its own name in order to be entitled to the exemption. It further argues that there is no reason to refuse that exemption, given that there is no doubt as to the origin, content, quantity or value of the goods or as to the identity of the purchaser, or that the exporting producer has honoured its undertakings.

C – Analysis

31. It is apparent from recital 159 to Regulation No 661/2008 that the three conditions laid down in Article 3 of that regulation, one of which specifies that imports must be manufactured, shipped and invoiced directly by the exporting companies to the first independent customer in the Community, are established in view of the need ‘[t]o further enable the Commission and the customs authorities to effectively monitor the compliance of the companies with the undertakings, when the request for release for free circulation is presented to the relevant customs authority’. Recital 21 to Decision 2008/577 essentially reproduces the same reasoning.

32. Furthermore, the Commission stated in its written observations that the provisions relating to direct sale were intended in essence to enable it to verify in a transparent manner compliance with the minimum price on import undertaken by the exporting producers, given that any subsequent resale could give rise to additional costs affecting those prices.

33. Those are, therefore, conditions relating to the verification, both by the Commission and by the competent authorities of the Member States, that the exporting producers have fulfilled the undertakings offered by them and allowing them to benefit from the exemption from anti-dumping duty on ammonium nitrate, that warrant the specific requirements laid down in the first indent of Article 3(1) of Regulation No 661/2008.

34. It may be observed, in this regard, that the mechanism previously in place, introduced into the legislation imposing anti-dumping duty on imports of ammonium nitrate originating in Russia by 12 Council Regulation (EC) No 993/2004, did not include those requirements. That regulation, which had been adopted in order to adjust the legislation on the occasion of the accession to the European Union of the 10 new Member States on 1 May 2004, had inserted an Article 1A into Council 13 Regulation (EC) No 658/2002, which comprised requirements similar, but not identical, to that set 14 out in Article 3(1), first indent, of Regulation No 661/2008. Nor did latter requirement appear in the regulations accepting the undertakings offered in return for the exemption established by Regulation 15 No 993/2004.

12 — Regulation of 17 May 2004 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 and collecting definitively the provisional duty imposed on imports of ammonium nitrate originating in Poland and Ukraine, and terminating the anti-dumping proceeding in respect of imports originating in Lithuania (OJ 2004 L 182, p. 28). 13 — Regulation of 15 April 2002 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2002 L 102, p. 1). 14 — As is clear from the explanations provided, in particular in recitals 9, 10 and 17 to Regulation No 993/2004, it was intended to establish special treatment, in the form of an exemption, applying exclusively to ammonium nitrate imports in the 10 new Member States, in order to prevent the application of anti-dumping duty on ammonium nitrate originating in Russia, provision for which at that time was made by Regulation No 658/2002, from leading to a sudden sharp price increase in those countries, from rendering ammonium nitrate prohibitively expensive for the end users and from disrupting the traditional trade flows. 15 — Commission Regulation (EC) No 1001/2004 of 18 May 2004 accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in the Russian Federation and Ukraine and making imports of ammonium nitrate originating in the Russian Federation or Ukraine subject to registration (OJ 2004 L 183, p. 13), and Commission Regulation (EC) No 1996/2004 of 19 November 2004 accepting undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in the Russian Federation and Ukraine and continuing to make imports of ammonium nitrate originating in the Russian Federation or Ukraine subject to registration (OJ 2004 L 344, p. 24).

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35. However, neither Regulation No 661/2008 nor Decision 2008/577 provides further detail on the specific reasons that were the principal factor in the introduction of that new requirement.

36. Clearly, therefore, neither Regulation No 661/2008 nor Decision 2008/577 makes it possible to ascertain whether the importer and the first independent customer must necessarily be one and the same person or to understand the reasons why it should necessarily be so.

37. However, the requirements laid down in Article 3(1), first indent, of Regulation No 661/2008, which operate within the very logic of the undertakings and of the verification requirements they impose, very clearly subject entitlement to the exemption from anti-dumping duty to the condition, in particular, that the imports should be shipped and invoiced directly by the exporting producers to the first independent customer in the Community.

38. It clearly follows from the order for reference that Baltic Agro cannot be considered to meet that twofold condition.

39. Moreover, it has been neither established nor even maintained that those requirements are manifestly inappropriate or even disproportionate for achieving the aim of verification pursued by them.

40. Consequently, I propose that the Court’s answer to the first and second questions referred should be that on a proper construction of Article 3 of Regulation No 661/2008, the exemption from anti-dumping duty laid down by that provision for the exporting producers cited in Decision 2008/577 applies only to goods shipped and invoiced directly by those exporting producers to the first independent customer in the Community which has not resold them before making the customs declaration for them.

V – The third and fourth questions referred

A – Preliminary observations

41. By its third question, the referring court is putting to the Court a twofold question of interpretation regarding various provisions of the Customs Code and of the Implementing Regulation. It is uncertain, primarily, whether it is possible for the national customs authorities, on request, to invalidate a customs declaration after the goods have been released, in accordance with Article 66 of the Customs Code and Article 251 of the Implementing Regulation, when that request cites an incorrect entry as to the consignee of the goods and when those goods would have come under an exemption from anti-dumping duty if it had not been for that error. It then seeks to determine, in the alternative, whether Article 220(2)(b) of the Customs Code must, in circumstances such as those of the case in the main proceedings, be interpreted as precluding those authorities from making a subsequent entry of that duty in the accounts.

42. By its fourth question, dependent on the answer to be given to the third question, the national court refers to the Court a question concerning the validity of Article 66 of the Customs Code in conjunction with Article 251 of the Implementing Regulation. More specifically, the court is uncertain whether it is compatible with Article 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and Articles 28(1) and 31 TFEU for the former provisions to preclude the invalidation, on request, of an incorrect customs declaration and, consequently, preclude entitlement to the exemption from anti-dumping duty under Article 3 of Regulation No 661/2008.

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B – Observations of the parties

43. The Estonian Government takes the view that the third and fourth questions are inadmissible, in that they rely on the erroneous premiss that the wrong consignee of the goods had been entered in the customs declaration. Given that it was Baltic Agro that completed the customs formalities for the release of the goods into free circulation, Magnet Group could not be entered in the customs declaration as the consignee of those goods. Therefore, the situation in dispute in the main proceedings does not come within any of the cases envisaged by Article 66 of the Customs Code in conjunction with Article 251 of the Implementing Regulation or by Article 220(2) of the Customs Code. At all events, the Customs Code and the Implementing Regulation are not incompatible with Article 20 of the Charter or with Articles 28(1) or 31 TFEU.

44. The Council, which has confined itself to answering the fourth question only, takes the view that the principle of equality guaranteed by Article 20 of the Charter could not be applied to a situation in which a customs declaration had been filled in incorrectly.

45. The Commission essentially considers that the conditions for applying Article 66 of the Customs Code and Article 251 of the Implementing Regulation or Article 220(2) of the Customs Code have not been met. Furthermore, it claims, the principle of equality does not apply to a situation such as that arising in the case in the main proceedings.

C – Analysis

46. It should be noted, in the first place, that Article 66(1) of the Customs Code makes it possible for the declarant to have the customs declaration made by it and accepted by the competent customs authorities invalidated, thus derogating from the principle of its irrevocability, on condition that the declarant furnishes proof that the goods were declared in error for the purposes of the customs 16 procedure covered by that declaration. However, Article 66(2) of the Customs Code provides that the declaration is not to be invalidated after the goods have been released, except in the cases defined in Article 251 of the Implementing Regulation.

47. As the Commission has pointed out, Article 66 of the Customs Code does not apply to the circumstances arising in the main proceedings, because it has never been claimed that the goods were placed in error under the import procedure specified by the customs declaration, that is to say, the procedure for release into free circulation; it is merely claimed that the declaration wrongly named Baltic Agro, instead of Magnet Group, as the consignee of the goods.

48. Furthermore, and as the Estonian Government has observed, the conditions for applying Article 78 of the Customs Code, under which the national customs authorities are permitted to amend an incorrect customs declaration, have not been met either, the details of the consignee of the goods not being incorrect in the circumstances of the case in the main proceedings.

49. It should be stated, in the second place, that Article 220(2) of the Customs Code defines the conditions in which a person liable for payment may be exempted from the subsequent charging of 17 import duty following an error on the part of the customs authorities.

16 — See judgment in DP grup (C-138/10, EU:C:2011:587, paragraphs 41 and 42). 17 — See, inter alia, judgment in Beemsterboer Coldstore Services (C-293/04, EU:C:2006:162).

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50. As the Commission has pointed out, it has never been claimed that the national customs authorities made an error in the circumstances arising in the main proceedings; on the contrary, the issue raised by the referring court takes as its basis solely the fact that the wrong consignee was named in the customs declaration. The obligation to provide accurate information lies with the 18 declarant.

51. It is apparent from those observations that the third question referred by the national court relates to provisions of EU law which, in view of the factual information provided by the court, clearly do not apply to the circumstances of the case in the main proceedings. I am of the opinion, in these circumstances, that the third question is redundant and does not call for an answer.

52. In the third place, recourse may not be had to the equality in law guaranteed by Article 20 of the Charter for the purpose of establishing that Union customs legislation is invalid on the ground that it does not allow Baltic Agro to have the customs declaration invalidated and to benefit as a result from the exemption from anti-dumping duty laid down in Article 3 of Regulation No 661/2008.

53. The referring court has, in essence, pointed out in this regard that it was appropriate to compare the situation of an importing undertaking which had entered the first independent customer in the Union as the consignee in its customs declaration with the situation of an importing undertaking which had entered an importer calling on the services of an agent as the consignee in its customs declaration. The unequal treatment lies in the fact that the former situation is covered by the exemption from anti-dumping duty whereas the latter is not.

54. It must be recalled in this regard that, according to settled case-law, it is a requirement of the principle of equal treatment, which is a general principle of EU law, now affirmed in Articles 20 19 and 21 of the Charter, that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified.

55. However, the comparison proposed by the referring court cannot be accepted. After all, an importer which has failed to satisfy the procedural requirements laid down in Article 3 of Regulation No 661/2008 cannot be considered to be in the same situation as an importer which has satisfied those requirements. Article 20 of the Charter could, indeed, if necessary, preclude those requirements if they were found to be unreasonable, arbitrary or manifestly disproportionate in relation to the objective pursued by the legislation establishing them. However, it is not in any way apparent from the documents before the Court that such a claim was ever made in the main proceedings, and examination of that provision does not lead to the conclusion that such could be the case.

56. Furthermore, the act of charging Baltic Agro anti-dumping duty on the importing of ammonium nitrate cannot be considered to constitute an infringement of Common Customs Tariff law or, consequently, of Articles 28(1) and 31 TFEU. As is clear from the foregoing reasoning, the levying of that duty is, ultimately, more the consequence of failure to comply with the requirements laid down by Article 3 of Regulation No 661/2008 than that of the application of the customs rules of the European Union. Even if Baltic Agro had been able to obtain the invalidation of its customs declaration and to correct the consignee details in it so that it read ‘Magnet Group’, it would not in any case have been in a position to meet the requirements concerned in the circumstances arising in the main proceedings.

18 — See judgment in DP grup (EU:C:2011:587, paragraphs 39 and 40). 19 — See, inter alia, judgments in Akzo Nobel Chemicals and Akcros Chemicals v Commission (C-550/07 P, EU:C:2010:512, paragraph 54), and Schaible (C-101/12, EU:C:2013:661, paragraph 76).

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57. Accordingly, I suggest that the Court should answer the fourth question referred to the effect that examination of that question has disclosed nothing capable of affecting the validity of Article 66 of the Customs Code in conjunction with Article 251 of the Implementing Regulation in the light of Article 20 of the Charter and Articles 28(1) and 31 TFEU.

VI – Conclusion

58. In conclusion, I propose that the Court should answer the questions by the Tartu Ringkonnakohus as follows:

(1) On a proper construction of Article 3 of Council Regulation (EC) No 661/2008 of 8 July 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 (EC) No 384/96, that exemption from anti-dumping duty laid down by that provision for the exporting producers cited in Commission Decision2008/577/EC of 4 July 2008 accepting the undertakings offered in connection with the anti-dumping proceeding concerning imports of ammonium nitrate originating in Russia and Ukraine applies only to goods shipped and invoiced directly by those exporting producers to the first independent customer in the European Union which has not resold them before making the customs declaration for them.

(2) Examination of the fourth question referred by the national court for a preliminary ruling has disclosed nothing capable of affecting the validity of Article 66 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, in conjunction with Article 251 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 312/2009 of 16 April 2009, in the light of Article 20 of the Charter of Fundamental Rights of the European Union and Articles 28(1) and 31 TFEU.

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