# C_2005296EN.01001703.xml

| 26.11.2005 | EN | Official Journal of the European Union | C 296/17 |
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26.11.2005

EN

Official Journal of the European Union

C 296/17

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Action brought on 7 October 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-372/05)

(2005/C 296/33)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 7 October 2005 by the Commission of the European Communities, represented by Dr. Günter Wilms, acting as Agent, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by refusing in the period from 1 January 1998 to 31 December 2002, to calculate and transfer own resources which were not levied on the import of military equipment exempt from duty and to pay to the Commission default interest as a result of not making available the own resources, the Federal Republic of Germany has failed to fulfil its obligations under Article 2, Article 9, Article 10 and Article 11 of Regulation No 1552/89 (1) and Regulation No 1150/2000 (2); |
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1.

declare that, by refusing in the period from 1 January 1998 to 31 December 2002, to calculate and transfer own resources which were not levied on the import of military equipment exempt from duty and to pay to the Commission default interest as a result of not making available the own resources, the Federal Republic of Germany has failed to fulfil its obligations under Article 2, Article 9, Article 10 and Article 11 of Regulation No 1552/89 (1) and Regulation No 1150/2000 (2);

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| 2. | order the Federal Republic of Germany to pay the costs. |
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2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Federal Republic of Germany granted exemptions from duty on the import of military goods as from 1 January 1998 and therefore paid no own resources. The defendant did not, despite the request made of it, calculate the amount of own resources which had not, on account of that exemption from duty, been paid and made available to the Commission in due time. Furthermore, the defendant refused to provide the detailed information relating to the actual imports which was needed in order to calculate the default interest and also refused to pay the default interest.

That exemption from duty constitutes a breach of Article 26 of the EC Treaty as well as of Article 20 of the Community Customs Code which cannot be justified by relying on Article 296 EC. Article 296 EC must, as an exception to the general principle of levying duty, be interpreted strictly and, in accordance with that strict interpretation, the Member State which wishes to rely on that provision must establish the existence of all the conditions for it to be applicable.

In the present case it means that it is for the German authorities to establish the extent to which the levying of duties jeopardises the essential security interests of the Federal Republic of Germany. The Member State must also establish that under the particular circumstances there was a concrete threat to state security. The German authorities, however, provided no concrete information or arguments as to how and why defence capabilities are impaired by the levy of certain duties. Other Member States levy duties on such imports without making the objection that this is a threat to their national security. In regard to those Member States, the acceptance of that exemption would be unjust and irresponsible as they would have to bear the financial consequences.

Nor can the taking into account of military secrecy, which has been argued by the German authorities, justify such a breach of Community law as the safeguarding of the confidentiality of sensitive data on the part of the Community institutions is only a procedural issue which cannot exempt the defendant from its substantive duty to pay the appropriate own resources to the Community.

The fact that Council Regulation No 150/2003 renders possible, subject to certain conditions, the suspension of import duties in respect of the specified goods after its coming into force on 1 January 2003 provides no basis for justifying a prior infringement of Community customs law: before the coming into force of that Regulation there had been no suspension of the Common Customs Tariff, the duties had to be levied and the appropriate own resources paid to the Community by 31 December 2002.

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(1)  OJ 1989 L 155, p. 1

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(2)  OJ 2000 L 130, p. 1

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