CELEX: 62008CJ0423
Failure of a Member State to fulfil obligations
Own resources
Procedures for collecting import or export duties
Failure to comply with the time-limits for entry of the own resources
Late payment of own resources relating to those duties

By its application, the Commission of the European Communities asks the Court to declare that, by failing to comply with the
time-limits for entry of the Communities’ own resources in the event of subsequent recovery and by delaying payment of those
resources, the Italian Republic has failed to fulfil its obligations under Articles 2, 6, and 9 to 11 of Council Regulation
(EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources
(OJ 1989 L 155, p. 1), Articles 2, 6 and 9 to 11 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing
Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1) and Article 220 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the Customs
Code’).

European Union legislation

Decisions 94/728/EC, Euratom and 2000/597/EC, Euratom
In regard to the period relevant to the facts in the present case, two decisions on the European Communities’ own resources
were applicable successively, namely, Council Decision 94/728/EC, Euratom of 31 October 1994 (OJ 1994 L 293, p. 9) and, since
1 January 2002, Council Decision 2000/597/EC, Euratom of 29 September 2000 (OJ 2000 L 253, p. 42).
According to Article 2(1)(b) of each of those decisions, revenue from, inter alia, ‘Common Customs Tariff duties and other
duties established or to be established by the institutions of the Communities in respect of trade with non-member countries’
constitute own resources entered in the budget of the Communities.
Article 8(1) of those decisions provides, inter alia, that the Communities’ own resources referred to in Article 2(1)(a) and
(b) are to be collected by the Member States in accordance with the national provisions imposed by law, regulation or administrative
action, which are, where appropriate, to be adapted to meet the requirements of European Union rules, and that those resources
are to be made available to the Commission.

Regulations Nos 1552/89 and 1150/2000
Article 2 of Regulation No 1552/89, as amended by Council Regulation (Euratom, EC) No 1355/96 of 8 July 1996 (OJ 1996 L 175,
p. 3) provides:
‘1.      For the purpose of applying this Regulation, the Community’s entitlement to the own resources referred to in Article 2(1)(a)
and (b) of Decision 88/376/EEC, Euratom shall be established as soon as the conditions provided for by the customs regulations
have been met concerning the entry of the entitlement in the accounts and the notification of the debtor.
1a. The date of the establishment referred to in paragraph 1 shall be the date of entry in the accounting ledgers provided
for by the customs regulations.
…
4.      Paragraph 1 shall apply when a notification must be corrected.’
Regulation No 1552/89 was repealed by the first paragraph of Article 22 of Regulation No 1150/2000, which entered into force
on 31 May 2000. Article 2(1) and the first subparagraph of Article 2(2) of the latter regulation are worded in terms essentially
identical to those of the article mentioned in the previous paragraph.
Article 6(2) of Regulation No 1552/89, now Article 6(3)(a) and (b) of Regulation No 1150/2000, provides that entitlements
established in accordance with Article 2 are to be entered in the accounts at the latest on the first working day after the
19th day of the second month following the month during which the entitlement was established. Established entitlements not
entered in the accounts because they have not yet been recovered and no security has been provided are to be shown in separate
accounts within the same period. Member States may adopt this procedure where established entitlements for which security
has been provided have been challenged and might, upon settlement of the disputes which have arisen, be subject to change.
Article 8 of Regulation No 1552/89, the terms of which were reproduced in Article 8 of Regulation No 1150/2000, provides:
‘Corrections carried out under Article 2(2) shall be added to or subtracted from the total amount of established entitlements.
They shall be recorded in the accounts as specified in Article 6(2)(a) and (b) and in the statements as specified in Article
6(3) in accordance with the date of these corrections.
Corrections in respect of cases of fraud and irregularities already notified to the Commission shall be singled out.’
According to Article 9(1) of both Regulation No 1552/89 and Regulation No 1150/2000:
‘In accordance with the procedure laid down in Article 10, each Member State shall credit own resources to the account opened
in the name of the Commission with its Treasury or the body it has appointed.
This account shall be kept free of charge.’
Article 10(1) of Regulation No 1552/89, the terms of which were reproduced in Article 10(1) of Regulation No 1150/2000, provides:
‘After deduction of 10% by way of collection costs in accordance with Article 2(3) of Decision 88/376/EEC, Euratom, entry
of the own resources referred to in Article 2(1)(a) and (b) of that Decision shall be made at the latest on the first working
day following the 19th day of the second month following the month during which the entitlement was established in accordance
with Article 2.’
Article 11 of Regulations Nos 1552/89 and 1150/2000 provides:
‘Any delay in making the entry in the account referred to in Article 9(1) shall give rise to the payment of interest by the
Member State concerned at the interest rate applicable on the Member State’s money market on the due date for short-term public
financing operations, increased by two percentage points. This rate shall be increased by 0,25 of a percentage point for each
month of delay. The increased rate shall be applied to the entire period of delay.’

The Customs Code
Article 220(1) of the Customs Code provides:
‘Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218
and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered
or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities
become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent
entry in the accounts). That time‑limit may be extended in accordance with Article 219.’
Article 221(1) of the Customs Code is worded as follows:
‘As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with
appropriate procedures.’

National legislation
Article 11, entitled ‘Review of assessments, responsibilities and powers of offices’, of Legislative Decree No 374 of 8 November
1990 reorganising customs bodies and revising the procedure for assessment and inspection in the context of the implementation
of Council Directive 79/695/EEC of 24 July 1979, Commission Directive 82/57/EEC of 17 December 1981 on procedures for the
release of goods for free circulation, Council Directive 81/177/EEC of 24 February 1981 and Commission Directive 82/347/EEC
of 23 April 1982 on procedures for the export of Community goods (Ordinary Supplement to GURI No 291 of 14 December 1990)
provides, in paragraphs (1) and (5) to (8), as follows:
‘1.      The customs office may review an assessment which has become final even if the goods which were the subject of it have been
left at the disposal of the trader or if they have already left the customs territory. The review may be carried out on the
office’s own initiative or by application, made not later than three years after the date on which the assessment becomes
final.
…
5.      Where the review, whether carried out on the office’s own initiative or on the application of a party, reveals inaccuracies,
errors or omissions relating to the factors on which the assessment was based, the office shall make the corresponding correction
and shall give the trader concerned appropriate notice thereof. If a review carried out on the office’s own initiative results
in a correction, such notice must be given within a period of three years from the date on which the assessment became definitive,
or it will otherwise lapse.
6.      An application for review by the trader shall be deemed to have been rejected in the absence of receipt of a notice of correction
within 90 days of its introduction. An appeal may be brought against such rejection, whether tacit or express, within 30 days
before the departmental director, whose decision shall be final.
7.      A correction may be challenged by the trader within 30 days of receipt of the notice. At the time of the challenge, a minute
shall be drawn up to provide for the possibility of initiating the administrative procedures for dispute resolution laid down
in Article 66 et seq
.
of the single legislative text concerning customs matters, approved by Decree No 43 of the President of the Republic of 23
January 1973.
8.      Once the correction has become final, the office shall recover the additional duties owed by the trader or set in motion,
on its own initiative, the procedure for reimbursement of overpayments. Where appropriate, correction of the assessment shall
include charges of infringements arising from false declarations or more serious infringements which may have been detected.’
Where the review of the assessment requires premises to be inspected, Law No 212/2000 of 27 July 2000 on the rights of taxpayers
(GURI No 177 of 31 July 2000) provides that, in addition to the daily minutes recording the operations carried out, a minute
noting the termination of operations must be drafted at the end of the inspection of premises by the officials in charge of
it. A copy of that minute is presented to the taxpayer and a second copy is sent to the person responsible for the procedure
in the relevant customs office, who examines it, along with any observations or claims submitted by the taxpayer under Article 12(7)
of that law, and who will adopt, in complete independence, the decision terminating the procedure or the notice of assessment.
In that regard, Article 12(7) of Law No 212/2000, entitled ‘Rights and guarantees of taxpayers subject to a tax inspection’
provides:
‘In accordance with the principle of co-operation between the authorities and the taxpayer, after publication of the minute
terminating the operations carried out by the inspecting bodies, the taxpayer may, within 60 days, transmit his observations
and claims, which shall be examined by the tax offices. The notice of assessment cannot be issued before the expiry of that
time-limit, except in cases of special urgency, for which reasons must be stated.’

Pre-litigation procedure
During an inspection relating to the Communities’ own resources, carried out in Italy from 6 to 10 November 2000 and which
covered the period from 1 January 1998 to the date of the inspection, the Commission’s agents discovered irregularities in
the establishment of the Communities’ own resources which could lead to delays in making those resources available to the
Community, contrary to Articles 2, 6 and 9 to 11 of Regulations Nos 1552/89 and 1150/2000.
Following an exchange of letters between the Italian authorities and the Commission, the latter noted that the Italian administrative
procedure of subsequent inspection provides for prior communication to the debtor of a minute terminating the inspection and
grants the latter 60 days within which to submit his observations and ask for additional information. The customs debt is
communicated to the debtor, by means of a notice of assessment, only on the expiry of that period.
The Commission considered that the consequences of the application of such a procedure by the Italian Republic are incompatible
with the relevant Community provisions, inasmuch as they delay making the own resources available. The time‑limit for entering
own resources into the accounts, laid down in Article 220 of the Customs Code, should accordingly start to run from the date
on which the minute of the operations is communicated.
The Italian authorities argued, essentially, that the minute terminating the operations does not constitute a final decision
but merely a preparatory measure, of no independent legal value. In addition, the Commission’s arguments have no legal basis
in the Customs Code, inasmuch as entry into the accounts and notification to the debtor are operations which follow the adoption
of a final decision.
Following those exchanges of correspondence, the Commission decided, in accordance with Article 226 EC, to send a letter of
formal notice to the Italian Republic on 13 July 2005, calling on it to submit its observations within a period of two months
as from receipt of that letter.
The Italian Government replied by letter of 12 September 2005, essentially repeating the points put forward when it had replied
earlier.
In its letter of 28 June 2006, the Commission drew the attention of the Italian authorities to the judgment of the Court in
Case C‑546/03
Commission
v
Spain
[2006] ECR I‑29 and called upon them to set out their position before 1 September 2006.
Since it received no information concerning the Italian Republic’s position in that regard, the Commission decided, in accordance
with Article 226 EC, to send a reasoned opinion to that Member State based on Articles 2, 6 and 9 to 11 of Regulations Nos
1552/89 and 1150/2000 and on Article 220 of the Customs Code, in which it called on the Italian Republic to take the measures
required to comply within two months of its receipt.
The Italian Government replied by a letter of 12 February 2007 in which it maintained its position.
Taking the view that the Italian Republic had not remedied the infringement complained of, the Commission decided to bring
the present action before the Court.
By order of the President of the Court of 12 March 2009, the Republic of Finland was granted leave to intervene in support
of the form of order sought by the Italian Republic.

The action

Arguments of the parties
The Commission complains, essentially, that the Italian authorities are systematically late in making the Communities’ own
resources available, inasmuch as they apply an administrative procedure under which those own resources are established only
after a period has been granted to the taxpayer to study the minute of the operations and to transmit his observations. The
Commission therefore asks the Court to declare that the Italian Republic has failed to fulfil its obligations under Articles
2, 6 and 9 to 11 of Regulations Nos 1552/89 and 1150/2000 and under Article 220 of the Customs Code.
According to the Commission, the conditions for establishment of the Communities’ own resources entitlement are fulfilled,
inter alia, once the national authorities notify to the taxpayer the minute closing the operations, a document which indicates
both the name of the debtor and the duties to be recovered.
The Italian Republic contends that the opportunity given to the debtor to submit observations before adoption of the notice
of assessment is an application of the fundamental principles of the protection of the rights of the defence and of sound
administration. Moreover, since such rules form part of the procedural autonomy of the Member States, they cannot contravene
the provisions of the Customs Code.
The Italian Government, supported by the Finnish Government, also considers that the conditions laid down in Article 220(1)
of the Customs Code are not fulfilled on the date on which the minute of the inspection is communicated to the taxpayer. Only
the identity of the debtor is certain at that date. On the other hand, neither the existence of an irregularity nor the amount
of import or export duties legally owed has been definitively decided. Although the procedural rules did not regulate the
contents of the minute of the inspection, the Italian Government nevertheless admitted in its defence and in its rejoinder,
as well as at the hearing, that it is possible, in principle, to determine at that time the amount of the debt, as is often
done in practice.
Having regard to the legal consequences of entering the customs debt into the accounts, the Finnish Government considers that
that should be done by means of a final administrative decision, as is apparent from Article 220(1) of the Customs Code and
in particular the words ‘become aware’ in that article.
In addition, Article 2(3) of Regulation No 1150/2000, read in conjunction with Article 2(1) thereof, permits the customs authorities
to inform the debtor of provisional calculations before a final decision is adopted.
Furthermore, according to the Finnish Government, by reason of the diversity of national procedures, the judgment in
Commission
v
Spain
cannot provide guidance for determining whether the various national systems are in conformity with European Union law.
Unlike the Spanish rules at issue in
Commission
v
Spain
, the provisions at issue in the present case do not define the contents of the minute of the operations and, in particular,
they do not require notification of the amount of the customs debt. Such notification is merely the result of an administrative
practice.
Moreover, although the proposal for payment provided for by the Spanish legislature became final after 30 days if the debtor
accepted it and if the administration did not correct it, the contested Italian rules require, in all cases, the issue of
a final decision in the form of a notice of assessment.

Findings of the Court
With regard to the failure to fulfil obligations complained of, it is to be noted that Article 2(1) of Regulations Nos 1552/89
and 1150/2000 states that the Member States are to establish entitlement to the own resources ‘as soon as the conditions provided
for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification
of the debtor’.
In addition, it follows from Article 220(1) of the Customs Code that the conditions for the subsequent entry into the accounts
of the amount of duty to be recovered or which remains to be recovered are fulfilled when the customs authorities become aware
of the situation and are in a position to calculate the amount legally owed and to determine the debtor (
Commission
v
Spain
, paragraph 27).
It should also be borne in mind in this regard that, according to settled case-law, the Member States have the obligation
to establish the Communities’ own resources. Article 2(1) of Regulations Nos 1552/89 and 1150/2000 must be interpreted as
meaning that the Member States may not dispense with determining claims, even where these are disputed; otherwise, it would
have to be accepted that the financial equilibrium of the Communities may be disrupted, even if only temporarily, by the conduct
of a Member State (Case C‑96/89
Commission
v
Netherlands
[1991] ECR I‑2461, paragraph 37; Case C‑348/97
Commission
v
Germany
[2000] ECR I‑4429, paragraph 64; Case C‑392/02
Commission
v
Denmark
[2005] ECR I‑9811, paragraph 60; and
Commission
v
Spain
, paragraph 28).
The Member States are required to establish the Communities’ own resources entitlement as soon as their customs authorities
have the necessary particulars and are accordingly in a position to calculate the amount of duties arising from a customs
debt and determine the debtor (
Commission
v
Denmark
, paragraph 59, and
Commission
v
Spain
, paragraph 29).
In that context, it must be considered that when the customs authorities notify an administrative measure, regardless of how
it is designated, to a debtor, finding that there has been a total or partial absence of payment of customs debts and indicating
the amount of customs duties which they consider to be legally owed, they are, at that time, in a position to calculate the
amount of duties arising from a customs debt and to determine the debtor.
Consequently, the subsequent entry into the accounts of the amount of duty to be recovered or which remains to be recovered
must take place, in principle, pursuant to Article 220(1) of the Customs Code, within two days of the date on which the minute
which fulfils the conditions set out in the previous paragraph was notified to the debtor (
Commission
v
Spain
, paragraph 32).
The Italian and Finnish Governments argued, both in their written pleadings and at the hearing, that notification of the minute
terminating the operations permits the debtor to submit his observations before a decision is taken in regard to him and,
therefore, contributes to the protection of the rights of the defence. Thus, application of such a procedure cannot constitute
a failure to fulfil the Member States’ obligations under Regulations Nos 1552/89 and 1150/2000 of the Customs Code.
In that regard, it must be noted that, as the Court held in Case C‑349/07
Sopropé
[2008] ECR I‑10369, point 36, observance of the rights of the defence is a general principle of Community law which applies
where the authorities are minded to adopt a measure which will adversely affect an individual.
However, although the principle of observance of the rights of the defence applies, inter alia, to a subsequent recovery procedure,
in regard to relations between a debtor and a Member State, it cannot, as regards the relations between the Member States
and the Communities, result in a Member State being entitled to disregard its obligation to enter into the accounts, within
the time-limits laid down in the Community legislation, the Communities’ own resources entitlement (
Commission
v
Spain
, paragraph 33).
Furthermore, it should be noted that entry into the accounts and notification of the amount of customs duty owed, as well
as the crediting of the own resources, does not prevent the debtor challenging, under Article 243 et seq
.
of the Customs Code, the obligation imposed on him by means of all the arguments at his disposal.
In addition, the national authorities can always show own resources which have been challenged and might be changed, upon
settlement of the disputes which have arisen, in separate accounts, by virtue of Article 6(2) of Regulation No 1552/89 and
Article 6(3) of Regulation No 1150/2000.
Moreover, if the national authorities have already entered the duties established in the accounts before they are challenged,
Articles 2 and 8 of Regulations Nos 1552/89 and 1150/2000 permit the national authorities to correct notifications and to
subtract those corrections from the total amount of established entitlements where the challenges are subsequently found to
be justified.
With regard to default interest, it must be recalled that it follows from settled case‑law that there is an inseparable link
between the obligation to establish the Communities’ own resources, the obligation to credit them to the Commission’s account
within the prescribed time-limit and the obligation to pay default interest, the latter being payable regardless of the reason
for the delay in making the entry in the Commission’s account (see, in particular, Case 68/88
Commission
v
Greece
[1989] ECR 2965, paragraph 17; Case C‑363/00
Commission
v
Italy
[2003] ECR I‑5767, paragraphs 43 and 44; and Case C‑150/07
Commission
v
Portugal
[2009] ECR I‑7, paragraph 62).
Under Article 11 of Regulations Nos 1552/89 and 1150/2000, any delay in making the entries in the account referred to in Article
9(1) of those regulations gives rise to the payment of interest by the Member State concerned at the interest rate applicable
to the entire period of delay. (
Commission
v
Netherlands
, paragraph 91, and Case C‑275/07
Commission
v
Italy
[2009] ECR I‑2005, paragraph 66).
Consequently, it must be held that, by failing to comply with the time-limits for entry of the Communities’ own resources
in the event of subsequent recovery and by delaying payment of those resources, the Italian Republic has failed to fulfil
its obligations under Articles 2, 6 and 9 to 11 of Regulation No 1552/89 and the same articles of Regulation No 1150/2000,
and under Article 220 of the Customs Code.

Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Italian
Republic and the latter has been unsuccessful, the Italian Republic must be ordered to pay the costs.
In accordance with the first paragraph of Article 69(4), the Republic of Finland, which has intervened in the proceedings,
must bear its own costs.
On those grounds, the Court (Fourth Chamber) hereby:
1.
Declares that, by failing to comply with the time-limits for entry of the Communities’ own resources in the event of subsequent
recovery and by delaying payment of those resources, the Italian Republic has failed to fulfil its obligations under Articles
2, 6 and 9 to 11 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom
on the system of the Communities’ own resources, and the same articles of Council Regulation (EC, Euratom) No 1150/2000 of
22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources, and under Article 220
of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code;
2.
Orders the Italian Republic to pay the costs;
3.
Orders the Republic of Finland to bear its own costs.
[Signatures]
*
Language of the case: Italian.