# C_2004228EN.01003101.xml

| 11.9.2004 | EN | Official Journal of the European Union | C 228/31 |
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Action brought on 23 July 2004 by the Commission of the European Communities against the Kingdom of the Netherlands.

(Case C-312/04)

(2004/C 228/64)

An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 23 July 2004 by the Commission of the European Communities, represented by Günter Wilms and Alexander Weimar, acting as Agents.

The applicant claims that the Court should:

| 1. | Declare that, by
(a)
not consistently deploying the necessary activity in order to effect the timely determination of the rights of the Communities to their own resources during the period up to and including 1 January 1992 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, (b)
determining too late the rights of the Communities to their own resources and thus making those resources available to the Commission too late, during the period from 1 January 1992 to the end of 1994 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, and (c)
refusing to pay the attendant interest on arrears, the Kingdom of the Netherlands has failed to fulfil its obligations under Council Regulation (EEC, Euratom) No 1552/89( 1 ) of 29 May 1989 implementing Decision 88/376/EEC, Euratom, on the system of the Communities' own resourses, | (a) | not consistently deploying the necessary activity in order to effect the timely determination of the rights of the Communities to their own resources during the period up to and including 1 January 1992 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, | (b) | determining too late the rights of the Communities to their own resources and thus making those resources available to the Commission too late, during the period from 1 January 1992 to the end of 1994 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, and | (c) | refusing to pay the attendant interest on arrears, |
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| (a) | not consistently deploying the necessary activity in order to effect the timely determination of the rights of the Communities to their own resources during the period up to and including 1 January 1992 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, | | | | | | |
| (b) | determining too late the rights of the Communities to their own resources and thus making those resources available to the Commission too late, during the period from 1 January 1992 to the end of 1994 in a number of cases of suspected irregularities in relation to transports covered by TIR carnets, and | | | | | | |
| (c) | refusing to pay the attendant interest on arrears, | | | | | | |

| 2. | Order the Kingdom of the Netherlands to pay the costs. |
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Pleas and main arguments

As a result of an inspection in 1997 in the Netherlands, the Commission found there to have been a delay in establishing own resources from customs duties. That delay related to uncleared TIR carnets registered in the period from 1991 to 1993 and in respect of which the requests for payment were sent out too late by the Netherlands authorities.

Notwithstanding the fact that prior to 1992 there was no specific provision indicating the period of time after normal completion of the transaction within which the office of departure was required to act, it cannot be concluded that the Member States are not bound to act prior to establishment of the infringement and, in an appropriate case, prior to determination of the place where the infringement took place. The Netherlands authorities did not act with the care required in order to secure the financial interests of the Community. In the cases here referred to the requests for payment were issued after periods of time varying between 2 years and 4 1/2 months and 2 years and 10 months after registration of the carnets. In the Commission's view, such lengthy periods of time cannot be regarded as consistent with targeted activity.

From 1 January 1992 the applicable Community provisions in the matter, in conjunction with Article 11 of the TIR agreement, provided for specific deadlines within which the Member States had to adopt the necessary measures. The Commission disagrees with the observations of the Netherlands authorities to the effect that the deadlines referred to are merely laid down in administrative provisions and not in legislative enactments and that it is in law not correct to embark on collection before the supplementary claim procedure has been completed.

As the inspection carried out by the Commission has shown, the Netherlands embarked on collection on average one year after expiry of the (final) deadline of 15 months and, in doing so, was therefore too late in making own resources available to the Commission; on that account, the Netherlands are liable to interest on the arrears.

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( 1 )  OJ L 155 of 7.6.1989, p. 1.

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