Opinion of the Advocate General — ECLI:EU:C:2008:334
Date: 2008-06-11
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Financial provisions;Own resources
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Italy

Summary of the Judgment 1. Own resources of the European Communities – Establishment and making available by the Member States – Obligation to establish entitlement once the debtor has been notified – Crediting the amount to the Commission’s account (Council Regulation No 1552/89, Arts 2 and 11) 2. Free movement of goods – Community transit – External Community transit – Offences or irregularities (Commission Regulation No 2454/93, Arts 348(1) and 379(1) and (2)) 3. Free movement of goods – Community transit – External Community transit – Offences or irregularities (Council Regulation No 1552/89, Arts 2(1), 6(2)(a) and 11; Commission Regulation No 2454/93, Arts 379(1) and 455(1)) 1. Under Article 2 of Regulation No 1552/89 implementing Decision 88/376 on the system of the Communities’ own resources, the Community’s entitlement to the own resources is to be established as soon as the amount due has been notified to the debtor by the competent department of the Member State. Notification to the debtor is to be given as soon as the competent customs authorities are in a position to calculate the amount of duties arising from a customs debt and to identify the debtor. Under Article 11 of that regulation, any delay in making the entries in the account referred to in Article 9(1) of that regulation gives rise to the payment of interest by the Member State concerned at the interest rate applicable to the entire period of delay. That interest is payable in respect of any delay, regardless of the reason for the delay in making the entry in the Commission’s account. (see paras 65-66) 2. Article 379(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code should be interpreted as meaning that if the office of departure has not been informed, by the end of the period which it prescribed pursuant to Article 348(1) of the abovementioned implementing regulation, that the goods have been presented at the office of destination, it must assume that the goods have not been presented at the office of destination. A different interpretation of Article 379(1) would render meaningless the procedure provided for in Article 379(2) for proving the regularity of the transit operation. It follows that, where the office of departure has no information concerning the arrival of the goods at the office of destination, the consequences are the same as those flowing from failure to present the consignment at the office of destination. On expiry of the period prescribed by the office of departure, the customs debt is presumed to have been incurred and the principal is presumed to be the debtor thereof. That presumption is open to rebuttal. Consequently, if it should subsequently emerge that the transit operation took place in a lawful manner, the principal may obtain reimbursement of the amounts paid. Similarly, in the context of consignments under cover of TIR carnets, it must be held that there is a presumption that a customs debt exists when the customs authorities have not, by the end of the period prescribed for presentation of the goods, received any document from the customs office of destination concerning the carrying out of the transit operations in question. (see paras 76-80, 88, 90) 3. Although, where the principal is not given notification within the period laid down in Article 379(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, that person cannot be required to pay the customs debt, the fact remains that at the end of the period referred to in Article 379(2), it must be considered that a Community entitlement to the own resources arises. It is also apparent from Article 455(1) of Regulation No 2454/73, read in conjunction with Article 11(1) and (2) of the Customs Convention on the International Transport of Goods under Cover of TIR Carnets (TIR Convention), that, in the event of non-discharge of the TIR carnet, the claim for payment of the customs debt must, in principle, be lodged no later than three years after the date of acceptance of the carnet. Notwithstanding the fact that the customs authorities did not notify the guaranteeing association, it must be held that, at the end of that maximum period, Community entitlement to the own resources has arisen. That interpretation is necessary in order to ensure diligent and uniform application by the competent authorities of the provisions governing recovery of customs debts, with a view to making Community own resources available efficiently and speedily. In those circumstances, the Member State concerned is required under Article 2(1) of Regulation No 1552/89 implementing Decision 88/376 on the system of the Communities’ own resources to establish the existence of the Community’s entitlement to the own resources and enter it in the own resources account, as provided for in Article 6(2)(a) of that regulation. However, if it emerges subsequently that the consignments had been presented to the office of destination in good time, with the result that the customs debts had ceased to exist, that non-existence entails the non-existence of a right to default interest under Article 11 of Regulation No 1552/89 on the part of the Commission. (see paras 86-87, 91, 93-94, 101-102)