29.4.2019

Official Journal of the European Union

C 148/22

(Case C-117/19)

(2019/C 148/21)

Language of the case: Lithuanian

Referring court

Parties to the main proceedings

Applicant: AB ‘Linas Agro’

Defendant: Muitinės departamentas prie Lietuvos Respublikos finansų ministerijos

Questions referred

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 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 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?

Council Regulation (EC) 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 (OJ 2005 L 160, p. 1).

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 (OJ 2014 L 280, p. 19).