Case C-443/05 P
Common Market Fertilizers SA
v
Commission of the European Communities
(Appeal – Anti-dumping duties – Article 239 of the Customs Code – Remission of import duties – First paragraph of Article 907 of Regulation (EEC) No 2454/93 – Interpretation – Legality – Commission decision – Group of experts meeting in the framework of the Customs Code Committee – Distinct entity in functional terms – Articles 2 and 5(2) of Council Decision 1999/468/EC – Article 4 of the rules of procedure of the Customs Code Committee – Conditions for the application of Article 239 of the Customs Code – No obvious negligence)
Summary of the Judgment
1. European Communities’ own resources – Repayment or remission of import or export duties
(Commission Regulation No 2454/93, Art. 907, first and second paras)
2. European Communities’ own resources – Repayment or remission of import or export duties
(Commission Regulation No 2454/93, Art. 907)
3. Common commercial policy – Protection against dumping – Conditions for imposing the anti-dumping duty established by the second subparagraph of Article 1(3) of Regulation No 3319/94
(Council Regulation No 3319/94, Art. 1(3), second subpara.)
4. Customs union – Clearance procedures – Use of a customs agent
(Council Regulation No 2913/92, Arts 4(18), 5(2), and 201(3))
1. In the first paragraph of Article 907 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, the phrase “within the framework of the Committee” reflects the fact that the group of experts referred to in that article is clearly a distinct entity in functional terms from the Customs Code Committee. That interpretation is not inconsistent with the second paragraph of Article 906 of the same regulation. The second paragraph of Article 906 must be interpreted as meaning that matters are not placed before the Customs Code Committee as such, for the purposes of obtaining an opinion from that Committee itself, but as a body in the framework of which the group of experts, which is distinct from that body, will be led to express its opinion.
(see paras 99-102)
2. In Article 239 of Regulation No 2913/92 establishing the Community Customs Code, the Council conferred on the Commission, in accordance with the third indent of Article 202 EC, implementing powers for the purposes of determining, first, the situations in which customs duties may be repaid or remitted, and, second, the procedures to be followed to that end.
Since that article did not require the Commission to use any particular procedure for the actual consideration of the applications for repayment or remission of customs duties, the Commission could legitimately, as it did by the first paragraph of Article 907 of the regulation implementing the customs code, confer upon itself a power to take decisions following an advisory opinion of a group of experts that is distinct in functional terms from the Customs Code Committee, and not make the opinion of the group of experts dependent upon a qualified majority.
(see paras 124, 134-135)
3. The second subparagraph of Article 1(3) of Regulation No 3319/94 imposing a definitive anti-dumping duty on imports of urea ammonium nitrate solution originating in Bulgaria and Poland, exported by companies not exempted from the duty, and collecting definitively the provisional duty imposed refers to indirect invoicing and the import of a product of the ZAP undertaking as the only conditions for the imposition of a specific anti-dumping duty, and does not require evidence of an intention on the part of the operator to circumvent the anti-dumping duty.
(see paras 178-179)
4. It follows from the combined provisions of Articles 5(2), 4(18) and 201(3) of Regulation No 2913/92 establishing the Community Customs Code that an operator who uses a customs agent, whether for direct or indirect representation, is in any event the debtor in respect of the customs debt as far as the customs authorities are concerned.
(see paras 184-186)