62007CC0275_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I – Introduction
1. In the present case, the Commission is seeking a declaration from the Court that the Italian Republic has failed to fulfil its obligations under the Community legislation on the system of the Communities’ own resources by refusing to pay default interest in respect of delay in entering in the accounts own resources relating to customs operations in which the goods arrived at the office of destination within the time-limits but the related proof was presented at the office of departure out of time.
II – Legislative background
A – The TIR Convention
2. Article 2 of the Customs Convention on the international transport of goods under cover of TIR carnets (‘the TIR Convention’) (2) provides as follows:
‘This Convention shall apply to the transport of goods without intermediate reloading, in road vehicles, combinations of vehicles or in containers, across one or more frontiers between a customs office of departure of one Contracting Party and a customs office of destination of another or of the same Contracting Party, provided that some portion of the journey between the beginning and the end of the TIR operation is made by road’.
3. Article 4 of the TIR Convention is worded as follows:
‘Goods carried under the TIR procedure shall not be subjected to the payment or deposit of import or export duties and taxes at customs offices en route’.
4. Article 8 of the TIR Convention provides:
‘1. The guaranteeing association shall undertake to pay the import or export duties and taxes, together with any default interest, due under the customs laws and regulations of the country in which an irregularity has been noted in connection with a TIR operation. It shall be liable, jointly and severally with the persons from whom the sums mentioned above are due, for payment of such sums.
2. In cases where the laws and regulations of a Contracting Party do not provide for payment of import or export duties and taxes as provided for in paragraph 1 above, the guaranteeing association shall undertake to pay, under the same conditions, a sum equal to the amount of the import or export duties and taxes and any default interest.
…
7. When payment of sums mentioned in paragraphs 1 and 2 of this Article becomes due, the competent authorities shall so far as possible require payment from the person or persons directly liable before making a claim against the guaranteeing association.’
5. Article 11 of the TIR Convention provides:
‘1. Where a TIR carnet has not been discharged or has been discharged conditionally, the competent authorities shall not have the right to claim payment of the sums mentioned in Article 8(1) and (2) from the guaranteeing association unless, within a period of one year from the date of acceptance of the TIR carnet by those authorities, they have notified the association in writing of the non-discharge or conditional discharge. The same provision shall apply where the certificate of discharge was obtained in an improper or fraudulent manner, save that the period shall be two years.
2. The claim for payment of the sums referred to in Article 8(1) and (2) shall be made to the guaranteeing association at the earliest three months after the date on which the association was informed that the carnet had not been discharged or had been discharged conditionally or that the certificate of discharge had been obtained in an improper or fraudulent manner and at the latest not more than two years after that date. However, in cases which, during the above-mentioned period of two years, become the subject of legal proceedings, any claim for payment shall be made within one year of the date on which the decision of the court becomes enforceable.
3. The guaranteeing association shall have a period of three months, from the date when a claim for payment is made upon it, in which to pay the amounts claimed. The sums paid shall be reimbursed to the association if, within the two years following the date on which the claim for payment was made, it has been established to the satisfaction of the customs authorities that no irregularity was committed in connection with the transport operation in question.’
B – Community law
1. The Community Customs Code
6. Article 91 of Regulation No 2913/92 establishing the Community Customs Code (the ‘Community Customs Code’) (3) provides as follows:
‘1. The external transit procedure shall allow the movement from one point to another within the customs territory of the Community of:
(a) non-Community goods, without such goods being subject to import duties and other charges or to commercial policy measures;
(b) Community goods which are subject to a Community measure involving their export to third countries and in respect of which the corresponding customs formalities for export have been carried out.
2. Movement as referred to in paragraph 1 shall take place:
(a) under the external Community transit procedure; or
(b) under cover of a TIR carnet (TIR Convention) provided that such movement:
(1) began or is to end outside the Community; or
(2) relates to consignments of goods which must be unloaded in the customs territory of the Community and which are conveyed with goods to be unloaded in a third country; or
(3) is effected between two points in the Community through the territory of a third country;
…’
7. Article 92 of the Community Customs Code lays down that:
‘The external transit procedure shall end when the goods and the corresponding documents are produced at the customs office of destination in accordance with the provisions of the procedure in question’.
8. Under Article 204 of the Community Customs Code:
‘1. A customs debt on importation shall be incurred through:
(a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they are placed, or
(b) non-compliance with a condition governing the placing of the goods under that procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods,
in cases other than those referred to in Article 203 unless it is established that those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.
2. The customs debt shall be incurred either at the moment when the obligation whose non-fulfilment gives rise to the customs debt ceases to be met or at the moment when the goods are placed under the customs procedure concerned where it is established subsequently that a condition governing the placing of the goods under the said procedure or the granting of a reduced or zero rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.
3. The debtor shall be the person who is required, according to the circumstances, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they have been placed, or to comply with the conditions governing the placing of the goods under that procedure.’
9. Article 217(1) of the Community Customs Code provides:
‘1. Each and every amount of import duty or export duty resulting from a customs debt … shall be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities in the accounting records or on any other equivalent medium (entry in the accounts).’
10. Article 236(1) of the Community Customs Code lays down:
‘Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).
…’
2. Regulation No 2454/93 laying down provisions for the implementation of the Community Customs Code
11. Article 378 of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code (4) (‘the Implementing Regulation’), provides as follows:
‘1. Without prejudice to Article 215 of the Code, where the consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed:
– in the Member State to which the office of departure belongs, or
– in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given,
unless within the period laid down in Article 379(2), to be determined, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities.
2. Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State of departure or in the Member State of entry as referred to in the first paragraph, second indent, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or national provisions.’
12. Article 379 of the Implementing Regulation provides:
‘1. Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.
2. The notification referred to in paragraph 1 shall indicate, in particular, the time-limit by which proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed must be furnished to the office of departure to the satisfaction of the customs authorities. That time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of that period, the competent Member State shall take steps to recover the duties and other charges involved. In cases where that Member State is not the one in which the office of departure is located, the latter shall immediately inform the said Member State.’
13. Article 380 of the Implementing Regulation states:
‘Proof of the regularity of a transit operation within the meaning of Article 378(1) shall be furnished to the satisfaction of the customs authorities inter alia:
(a) by the production of a document certified by the customs authorities establishing that the goods in question were presented at the office of destination …’
14. Article 454 of the Implementing Regulation provides:
‘1. This Article shall apply without prejudice to the specific provisions of the TIR … Convention concerning the liability of the guaranteeing associations when a TIR … carnet is being used.
2. Where it is found that, in the course of or in connection with a transport operation carried out under cover of a TIR carnet …, an offence or irregularity has been committed in a particular Member State, the recovery of duties and other charges which may be payable shall be effected by that Member State in accordance with Community or national provisions, without prejudice to the institution of criminal proceedings.
3. Where it is not possible to determine in which territory the offence or irregularity was committed, such offence or irregularity shall be deemed to have been committed in the Member State where it was detected unless, within the period laid down in Article 455(1), proof of the regularity of the operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities.
Where no such proof is furnished and the said offence or irregularity is thus deemed to have been committed in the Member State in which it was detected, the duties and other charges relating to the goods concerned shall be levied by that Member State in accordance with Community or national provisions.
…
The customs administrations of the Member States shall take the necessary measures to deal with any offence or irregularity and to impose effective penalties.’
15. Article 455 of the Implementing Regulation provides:
‘1. Where an offence or irregularity is found to have been committed in the course of or in connection with a transport operation carried out under cover of a TIR carnet …, the customs authorities shall notify the holder of the TIR carnet … and the guaranteeing association within the period prescribed in Article 11(1) of the TIR Convention … .
2. Proof of the regularity of the operation carried out under cover of a TIR carnet … within the meaning of the first subparagraph of Article 454(3) shall be furnished within the period prescribed in Article 11(2) of the TIR Convention … .
3. Such proof may be furnished to the satisfaction of the customs authorities inter alia:
(a) by production of a document certified by the customs authorities establishing that the goods in question have been presented at the office of destination. This document must include information enabling the goods to be identified; or
(b) by the production of a customs document issued in a third country showing release for home use, or a copy or photocopy thereof; such copy or photocopy must be certified as a true copy either by the body which endorsed the original document, or by the authorities of the third country concerned, or by the authorities of one of the Member States. This document must include information enabling the goods in question to be identified; or
…’.
3. Regulation on the Communities’ own resources
16. Article 2(1) of Regulation No 1552/89 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources (5) (‘Regulation No 1552/89’) provides:
‘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 amount due has been notified by the competent department of the Member State to the debtor. Notification shall be given as soon as the debtor is known and the amount of entitlement can be calculated by the competent administrative authorities, in compliance with all the relevant Community provisions.’
17. Article 2 of Regulation No 1150/2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (6) (‘Regulation No 1150/2000’), which repealed Regulation No 1552/89, lays down similar provisions:
‘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 94/728/EC, 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.
2. 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.
…’
18. Article 6 of Regulation No 1552/89 provides:
‘1. Accounts for own resources shall be kept by the Treasury of each Member State or by the body appointed by each Member State and broken down by type of resources.
2. (a)	Entitlements established in accordance with Article 2 shall, subject to point (b) of this paragraph, 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.
(b) Established entitlements not entered in the accounts referred to in point (a) because they have not yet been recovered and no security has been provided shall be shown in separate accounts within the period laid down in point (a). 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.’
19. Under Article 6 of Regulation No 1150/2000:
‘1. Accounts for own resources shall be kept by the Treasury of each Member State or by the body appointed by each Member State and broken down by type of resources.
2. For own-resources accounting purposes, the month shall end no earlier than 1pm. on the last working day of the month during which establishment took place.
3. (a)	Entitlements established in accordance with Article 2 shall, subject to point (b) of this paragraph, 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.
(b) Established entitlements not entered in the accounts referred to in point (a) because they have not yet been recovered and no security has been provided shall be shown in separate accounts within the period laid down in point (a). 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.
…’.
20. Article 8 of Regulation No 1552/89 lays down that:
‘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.’
21. Article 8 of Regulation No 1150/2000 is couched in almost identical terms:
‘Corrections carried out under Article 2(4) 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(3)(a) and (b) and in the statements as specified in Article 6(4) 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.’
22. Article 11 of Regulation No 1552/89 and Article 11 of Regulation No 1150/2000 present absolutely identical wording:
‘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.’
23. Article 17(1) and (2) of Regulations Nos 1152/89 and 1150/2000, which appear in Title VII ‘Provisions concerning inspection measures’, provides as follows:
‘1. Member States shall take all requisite measures to ensure that the amount corresponding to the entitlements established under Article 2 are made available to the Commission as specified in this Regulation.
2. Member States shall be free from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements solely if, for reasons of force majeure, these amounts have not been collected. In addition, Member States may disregard this obligation to make such amounts available to the Commission in specific cases if, after thorough assessment of all the relevant circumstances of the individual case, it appears that recovery is impossible in the long term for reasons which cannot be attributed to them. …’
24. Article 22 of Regulation No 1150/2000 provides:
‘Regulation (EEC, Euratom) No 1552/89 shall be repealed.
References to the said Regulation shall be construed as references to this Regulation and should be read in accordance with the correlation table set out in Part A of the Annex.’
25. Article 23 of Regulation No 1150/2000 provides:
‘This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.’
26. Regulation No 1150/2000 was published in the Official Journal of the European Communities on 31 May 2005.
III – The pre-litigation procedure and the action brought by the Commission
27. The action brought by the Commission relates to two infringement proceedings, No 2003/2241 and No 2006/2266.
A – Infringement proceeding No 2003/2241
28. In the course of an audit of own resources in April 1994, the Commission discovered that in a number of Community transit operations the Italian authorities had not initiated within the prescribed time-limits the procedure for the recovery of duties and other charges in respect of failure to furnish proof of the regularity of the operations in accordance with Article 379 of the Implementing Regulation.
29. By letter of 15 June 2001, the Commission therefore asked Italy under Article 11 of Regulation No 1150/2000 to pay default interest amounting to ITL 31 564 893 (EUR 16 301.90) in respect of the late entry in the accounts of own resources to which the Community was entitled by reason of a customs debt incurred as a result of the irregularity of the Community transit.
30. An investigation carried out by the Italian authorities found no irregularity in 11 of 201 documents. In those cases, the customs procedures had been discharged correctly, but the office of destination had been late in sending the proof of this to the office of departure. Accordingly, the Italian authorities informed the Commission by note of 31 July 2001 that they would pay default interest only in respect of the customs operations in which irregularities had been found. They refused to pay default interest in respect of the documents for which it had emerged only in the course of the investigation that there was no irregularity. In that regard they also maintained – in view of the fact that the transit documents had been presented to the customs office of destination – that no customs debt within the meaning of Article 204 of Regulation No 2913/92 had been incurred. The Italian authorities therefore asserted that they were not required to pay the default interest in question.
31. Since the Italian authorities were not prepared to pay the default interest in question, the Commission sent a letter of formal notice to the Italian Republic on 3 February 2004, requesting payment of EUR 847.06 by way of default interest in respect of customs operations which had been discharged correctly but for which the own resources were entered in the accounts out of time. Since, by letter of 8 June 2004, Italy again informed the Commission that it would not pay the default interest in question, the Commission delivered a reasoned opinion on 5 July 2005, in which it again enjoined the Italian authorities to pay the default interest within two months of receipt of the reasoned opinion.
32. In response to that reasoned opinion, the Italian authorities repeated their intention not to pay the default interest.
B – Infringement proceeding No 2006/2266
33. In infringement proceeding No 2006/2266, the Commission identified four transit operations under the TIR Convention in which it found that the relevant procedure had not been discharged within the time-limits laid down in Article 11 of the TIR Convention. Since the TIR carnet had not been discharged in good time, the competent authorities should have demanded payment of the duties. Since they had not done so, the transit operation was irregular, so that in the opinion of the Commission a customs debt had been incurred. Owing to the late entry in the accounts of the Community’s entitlement to own resources in respect of that customs debt, the Commission claimed the payment of default interest from the Italian authorities.
34. As in proceeding No 2003/2241, the Italian authorities refused to pay default interest in the procedure in question. They repeated that in the absence of a customs debt the payment of default interest changed the nature of such interest, converting it into a penalty for the formal breach of the time-limits laid down in Regulation No 1552/89 for performance of the operations provided for thereunder.
35. On 4 July 2006 the Commission sent a letter of formal notice to the Italian Republic requesting that the Italian authorities pay default interest in the amount of EUR 3 322. On receiving no reply to that letter of formal notice, the Commission sent the Italian authorities a reasoned opinion on 12 October 2006.
36. In their reply of 12 December 2006 to the reasoned opinion, the Italian authorities refused to pay the default interest.
C – Action brought by the Commission
37. Since in pre-litigation proceedings Nos 2003/2241 and 2006/2266 the Italian authorities refused to pay the default interest, the Commission decided to bring an action against Italy for failure to fulfil its obligations.
38. In its application the Commission claims that the Court should:
– declare that:
– by refusing to pay the Commission default interest totalling EUR 847.06 in respect of delay in entering customs duties in the accounts and by refusing to bring national provisions into line with Community rules concerning entry in the accounts of uncontested customs operations covered by comprehensive security in respect of a Community transit operation, and
– by refusing to pay the Commission default interest totalling EUR 3 322 concerning failure to comply within the time-limits prescribed by Community rules in respect of entry in ‘A’ accounts of duties in the field of transit operations as provided for in the TIR Convention,
the Italian Republic has failed to fulfil its obligations under 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, in particular, under Article 6(2)(a) thereof, as replaced with effect from 31 May 2000 by 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, in particular, under Article 6(3)(a) thereof;
– order the Italian Republic to pay the costs.
39. The Italian Republic contends that the Court should:
– dismiss the action;
– order the Commission to pay the costs.
IV – Proceedings before the Court
40. The Commission’s application was lodged at the Registry of the Court of Justice on 8 June 2007 and the statement of defence on 19 July 2007. The representatives of the Commission and of the Italian Republic presented oral argument and answered the questions put to them by the Court at the hearing on 17 April 2008.
V – Arguments of the parties
41. With regard to Proceeding No 2003/2241, the Commission
maintains that, since the office of departure did not receive proof of discharge of the customs operation within the period prescribed, the operation in question must be deemed to be irregular, a fact which triggers the creation of a customs debt. The Commission bases its claim on case-law, from which it is clear that where ‘the consignments placed under the external Community transit procedure [are] not presented at the office of destination within 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’. (7)
42. The Commission maintains that in such cases the Member State concerned is required to demand that the principal furnish proof of the regularity of the transit operation and, if such proof is not furnished within the time-limits, the Member State must take steps to recover the duties owed. The Commission points out that the time-limits laid down in this regard by Community law are absolute, so as to ensure the uniform application of the provisions on the recovery of duties. If the time‑limits laid down in Article 379 of the Implementing Regulation have expired, the Member State is required, under Article 6 of Regulation No 1552/89, to enter the relevant amounts in the account for own resources without delay and to make them available to the Commission in accordance with Article 10 of that regulation.
43. The Commission then refers to Article 11 of Regulation No 1552/89, under which the Member State must pay interest for any delay in making the entry in the account in question. In the opinion of the Commission, the very wording of that provision makes it clear that the obligation to pay interest stems from the failure to make the entry in the account, irrespective of any other condition. The Commission states that the interest which it is claiming in the present case is not interest for late payment, but interest owed directly because of failure to enter the customs debt in the own resources account or failure to do so in good time. That obligation remains effective even if the principal debt is not payable because it has subsequently been found that the customs operation was carried out correctly.
44. The Commission also challenges the argument of the Italian Government that the payment of interest in the present case is tantamount to a penalty. It points out that it is an established principle of civil law that the purpose of default interest is, first, to compensate the creditor for the non-availability of specific financial resources at the prescribed date and, secondly, to induce the debtor to meet his obligations on time. The Commission also point s out that the payment of interest stems from the infringement of obligations established by Community law, regardless of whether the Community actually suffered any financial loss.
45. With regard to Proceeding No 2006/2266, the Commission maintains that the customs office of departure should have taken steps to recover the duties on expiry of the time-limits laid down in Article 11 of the TIR Convention. Since the office of departure did not receive proof of the discharge of the transit operation within 15 months of the date of its acceptance of the TIR carnet, the operations in question must be deemed to be irregular, which triggers the creation of a customs debt. In such cases, the Community’s entitlement to own resources as referred to in Article 2 of Regulation No 1552/89 should have been entered in the accounts by the Member State as soon as the competent administrative authorities were able to calculate the amount of the entitlement. Thus, in accordance with Article 6(2)(a) of Regulation No 1552/89, the Italian authorities should have entered the Community’s entitlement to own resources 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. The Commission adds that, in accordance with Article 11(2) of the TIR Convention, those authorities should have sent the demand for payment of the amounts at the earliest three months after the date on which the guaranteeing association was informed that the TIR carnet had not yet been discharged.
46. Italy argues first and foremost that the pre-conditions for the obligation to pay default interest under Article 11 of Regulation No 1150/2000 have not been met. On the basis of that provision, the payment of interest is to be demanded for any delay in making an entry in the account, but in its opinion there was no obligation in the present case to make such an entry.
47. Italy points out that in the present case the late discharge of the customs operations did not cause the Community any loss of revenue and that, accordingly, there was no obligation to pay interest. To demand the payment of default interest in the present case would be tantamount to using the interest in question as a penalty, which is not its proper role. According to the Italian authorities, default interest is related to the late payment of sums owed and its purpose is to compensate the creditor for the financial loss suffered as a result of the non-availability of those sums of money. By contrast, a penalty is associated with the formal breach of obligations and does not relate to a particular financial loss.
48. Italy contends that the judgments in Commission
v Germany (8) and Commission
v Netherlands, (9) to which the Commission refers in its application, cannot be applied to the present case, because those cases concerned amounts actually owed. In both cases, the customs debt had actually arisen owing to the irregularity of the transit operations, a factual circumstance that the defendant Member States had not challenged. In the present case, by contrast, the Commission is seeking the enforcement of an ancillary obligation – that is to say, the payment of default interest – in the absence of any principal obligation, in other words, where there is no customs debt.
49. Italy also maintains that the transit operations in question were carried out in 1996 and 1997, when difficulties were being experienced in the operation of Community transit. For that very reason, in the absence of evidence of the irregularity of the customs operations, the Italian authorities took no steps to initiate the immediate recovery of the entitlements in order to avoid having to repay sums unlawfully paid. During that period, the European Parliament set up a special commission, whose remit was to tighten up the forwarding of transit documents and to computerise customs procedures.
VI – Assessment by the Advocate General
A – Introduction
50. In the present case the Commission is seeking a ruling that the Italian Republic has failed to fulfil its obligations by refusing to pay default interest for the delay in entering own resources in the Community account in a case in which the goods had arrived at the office of destination within the time-limits but the proof thereof was furnished to the office of departure out of time.
51. In this Opinion I shall first tackle the question of the period to which the Commission’s action relates; I shall then briefly describe the external transit procedure; and, lastly, I shall consider whether the Commission’s action is well founded. In examining the merits of the Commission’s application to the Court, I shall address three fundamental questions: (i) whether a customs debt was incurred in the present case; (ii) whether, in those circumstances, the Italian authorities were under an obligation to enter a Community entitlement to own resources in the accounts; and (iii) whether, in the circumstances of the present case, Italy is required to pay default interest.
B – The period to which the Commission’s action relates
52. From the parties’ written pleadings, it is far from clear in which period the alleged infringements were committed and to which period the Commission’s action relates. In its application, the Commission merely indicates that the audit of own resources was carried out in April 1994. Italy, by contrast, states in its written observations that the audit was conducted in 1993, 1994, 1995 and 1996, while later in those observations it states that the transit operations at issue were carried out in 1996 and 1997.
53. At the hearing, the Commission made clear that its action relates to irregularities discovered in 1994.
C – The external transit procedure
54. Under Article 91(1) of the Community Customs Code, the external transit procedure permits goods on which customs duties are not payable to move from one point to another within the customs territory of the Community. (10) In accordance with Article 91(2)(a) and (b) of the Community Customs Code, the movement of goods under the external transit procedure may take place either on the basis of the external Community transit procedure or under cover of a TIR carnet. Article 92 of the Community Customs Code provides that the external transit procedure ends when the goods and the corresponding documents are produced at the customs office of destination in accordance with the provisions of the procedure in question.
55. I feel I should point out that a distinction has to be made between the ‘end’ (la fin)
and the ‘discharge’ (l’apurement)
of the customs procedure. As indicated above, the customs procedure ends when the goods and the related documents are produced at the customs office of destination. By contrast, the customs procedure is discharged when the office of departure receives proof of the end of the customs operation from the office of destination and when the office of departure discharges the customs documentation. (11) In the present case, the customs procedure therefore ended in due time, but was not discharged within the time-limits. I must then point out that Article 92 of the original version of the Community Customs Code contains only the definition of the end of the customs procedure, whereas subsequently a second paragraph was added defining the discharge of that procedure. (12)
1. The external Community transit procedure
56. The external Community transit procedure is governed by Part II of the Implementing Regulation and, specifically, by Chapter 4 of Title II thereof. That chapter lays down the rules for the special external Community transit procedure and all the stages into which it is divided. If a consignment under that procedure has not been presented at the office of departure, the irregularity is deemed, under Article 378 of the Implementing Regulation, to have been committed in the Member State to which the office of departure belongs or in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given.
57. Under Article 379 of the Implementing Regulation, the Member State of departure must in such cases notify the principal accordingly before the end of the 11th month following the date of registration of the Community transit declaration and require the principal to furnish proof of the regularity of the transit operation within three months. On expiry of that three-month period, the office of departure must take steps to recover the related duties, which must then be entered in the accounts in accordance with Article 6 of Regulation No 1552/89, in other words, at the latest on the first working day after the 19th day of the second month following the month during which the Community entitlement to own resources was established.
2. Procedure under cover of a TIR carnet
58. The TIR Convention was signed in Geneva (Switzerland) on 14 November 1975 and Italy is party to that convention. (13) The European Economic Community approved the convention by Council Regulation (EEC) No 2112/78 of 25 July 1978. (14) The Convention entered into force for the Community on 20 June 1983. (15)
59. Article 4 of the TIR Convention lays down that goods carried under the TIR procedure established under the convention are not to be subject to the payment or deposit of import or export duties, or taxes, at customs offices en route. In order to enjoy those privileges, the goods must be accompanied for the entire journey by a standard document – the TIR carnet – which serves as verification of the regularity of the operation.
60. If a TIR carnet has not been discharged, the customs operation has not been carried out correctly. Article 11(1) of the TIR Convention provides that in such cases the competent authorities must, within one year of the date of acceptance of the TIR carnet by the customs authorities, notify the guaranteeing association in writing that the carnet has not been discharged. Under Article 11(2) of the TIR Convention, the claim for payment of the duties must be made to the guaranteeing association no earlier than three months after the date on which the association was informed that the TIR carnet had not yet been discharged and at the latest no more than two years after that date. (16)
61. Under Article 454 of the Implementing Regulation, where it is found that, in the course of a transport operation carried out under cover of a TIR carnet, an offence or irregularity has been committed in a particular Member State, the recovery of duties and other charges which may be payable must be effected by that Member State in accordance with Community
or national provisions . As soon as the competent authorities are entitled to recover the duties from the guaranteeing association, they must enter them in the accounts in accordance with Article 6 of Regulation No 1552/89. This means that Community law applies to the relationship between the Member State and the Community as regards own resources and to the crediting of those resources to the Community. In the present case, therefore, the provisions of Community law on own resources also apply to the entry in the accounts of own resources arising from non-compliance with the TIR Convention.
D – Customs debt
62. The first question to be answered regarding the Italian authorities’ obligation to pay interest is whether a customs debt was incurred in the present case.
63. In this regard, let us be clear that a distinction has to be made between, on the one hand, the legislative basis for the creation of a customs debt or the relationship giving rise to such a debt and, on the other, the legislative basis for the Member State’s obligation to enter the Community’s own resources in the accounts or the relationship giving rise to that obligation. (17) The relations between the Member States and undertakings in connection with customs declarations and the imposition and collection of import and export duties are governed by the customs provisions, (18) whereas the relationship between the Community and the Member States as far as the establishment and making available of own resources is concerned is governed by the provisions on own resources.
64. In its application, the Commission maintains that if the office of departure does not receive proof that the customs procedure has been discharged within the period prescribed, the customs operation must be deemed to be irregular, which triggers the creation of a customs debt. Italy, by contrast, contends that a customs debt never arose, because the consignment was presented at the office of destination in good time; in its opinion, the fact that the office of destination was late in sending confirmation of the regularity of the customs operation has no effect on the creation of a customs debt.
65. With regard to those assertions, it is first necessary to clarify the actual situation in the present case. The office of departure set the time-limits for presentation of the goods at the office of destination. (19) The goods were presented at the office of destination within the period prescribed but that office did not immediately send to the office of departure the documents that should have proved this. (20)
66. Article 379(1) of the Implementing Regulation lays down that where ‘a consignment has not been presented at the office of destination’ the office of departure is to notify the principal accordingly. On the basis of a strict literal interpretation, that provision is not really applicable to the present case, since the goods were presented at the office of destination within the prescribed period and the office of departure was not informed accordingly. Nevertheless, in my opinion, the provision should be interpreted from the viewpoint of the office of departure, in other words, as meaning that where that office is not informed of the timely presentation of the goods, it must assume that they have not been presented at the office of destination. (21) If a different interpretation of Article 379(1) of the Implementing Regulation were to be adopted, the procedure for proving the regularity of the transit operation, in accordance with Article 379(2), would be rendered meaningless. If Article 379(1) simply governed situations in which the goods are not actually presented at the office of destination, it would not subsequently be possible to prove that the goods had been presented at the office of destination. That line of argument is corroborated by Article 380(a) of the Implementing Regulation, under which proof of the regularity of the transit operation can be furnished by the production of ‘a document certified by the customs authorities establishing that the goods in question were presented at the office of destination’.
67. Thus, since from the point of view of the office of departure the consignment has not been presented at the office of destination, the office of departure must demand certification of the regularity of the transit operation from the principal. If it does not demand such certification from the principal, the consequence of that failure for the office of departure (and not for the principal) is, to my mind, the same as where that office does not receive certification of the regularity of the transit operation from the principal – in other words, under Article 2 of Regulation No 1552/89, a Community entitlement to own resources arises and with it an obligation for the office of departure to enter those resources in the Community’s account for own resources.
68. The judgments in Commission
v Germany (22) and Commission
v Netherlands, (23) to which the Commission refers, state that when ‘the consignments placed under the external Community transit procedure [are] not presented at the office of destination within the time-limit 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’. (24) That reasoning is also upheld in the Opinions delivered in those two cases by Advocate General Stix-Hackl, who states that in the circumstances envisaged by Article 378(1) and (2) of the Implementing Regulation – in other words, where the consignment has not been presented at the office of destination in good time – a ‘statutory presumption’ arises concerning the creation of a customs debt and the principal’s identity as debtor. (25) That case-law can be applied by analogy to the situation in which the office of departure does not receive proof that the goods have been presented at the office of destination.
69. Thus, contrary to what the Commission maintains, in the case under consideration it cannot be said that a customs debt actually arose. On the expiry of the period prescribed by the office of departure for presentation of the goods at the office of destination, all that arose in fact was a presumption
of a customs debt. (26) Such a presumption is open to rebuttal ( praesumptio iuris tantum ), and it is therefore possible to dislodge that presumption if the party concerned demonstrates that the customs operation was discharged correctly. The burden of proof in such cases rests on the party challenging the presumption. (27) With regard to the question of who is entitled to challenge the presumption, a distinction should be made between two possible situations.
70. The first possible situation is where the office of departure has asked the principal for proof of the regularity of the transit operation in accordance with Article 379(2) of the Implementing Regulation. In such cases, as Advocate General Stix-Hackl pointed out in point 49 of her Opinion in Commission
v Netherlands
(Case C‑460/01) and Commission
v Germany
(Case C‑104/02), (28) the principal may, within three months of receiving notification of the irregularity of the transit operation, challenge the presumption regarding the existence of a customs debt by proving that the irregularity was not caused by his conduct. After the expiry of the prescribed period, the principal may no longer contest that presumption, whereas the customs authorities, on the other hand, can challenge it by proving that the goods were presented at the office of destination in good time. The second possible situation is where the office of departure has not requested such proof from the principal. In such cases, in my opinion, both the principal and the customs authorities are entitled to challenge the presumption regarding the existence of a customs debt, even after 14 months have elapsed from the date on which the goods were admitted to transit.
71. In the present case, it must therefore be considered that a presumption regarding the existence of a customs debt arose, only to be rebutted when the office of destination presented the office of departure with proof that the goods had arrived at the office of destination within the period prescribed.
E – Obligation to enter a Community entitlement to own resources in the accounts
72. The second question that must be answered is whether the Italian authorities had an obligation to enter own resources in the accounts in favour of the Community. Article 2 of Regulation No 1552/89, or Article 2 of Regulation No 1150/2000, is relevant for determining the Community’s entitlement to own resources.
73. In its application the Commission refers both to Regulation No 1552/89 and to Regulation No 1150/2000, which replaced the former with effect from 31 May 2000. It is first necessary, therefore, to clarify which regulation should be applied in the present case. (29) With regard to the application of the provisions of both regulations, I must point out that, where Community law has been amended during the course of the pre-litigation procedure, the Commission may properly seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community act, subsequently amended, and which have been maintained in force under the new provisions. (30) On the other hand, the subject-matter of the dispute cannot be extended to cover obligations laid down in the new provisions for which there was no equivalent in the initial version of the act concerned, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings. (31)
74. Article 2 of Regulation No 1552/89 was replaced by Article 2 of Regulation No 1150/2000. Article 2 of Regulation No 1552/89 provided that the Community’s entitlement to 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 is to be given as soon as the debtor is known and the amount of entitlement can be calculated by the competent administrative authorities, in compliance with all the relevant Community provisions. Article 2 of Regulation No 1150/2000, by contrast, provides that the Community’s entitlement to own resources is to 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. Thus, the wording of Article 2 was amended with the entry into force of the new regulation, and for that reason it is the wording of the former regulation that must be taken into account in the present case.
75. The Italian Government stated at the hearing that the Italian authorities did not notify the principal of the amount owed. That aside, however, the Community’s entitlement to own resources arose in any case immediately upon the expiry of the time-limits laid down in Article 379 of the Implementing Regulation, in other words, at the latest 14 months after the goods had been presented at the office of departure. In the case of the TIR Convention, the Community’s entitlement arose upon the expiry of the time-limits laid down in Article 11 of the Convention, that is to say, after a period of at least one year and three months – hence 15 months in total – from the date of acceptance of the TIR carnet and no later than three years thereafter.
76. The Italian authorities should have entered the Community’s entitlement to own resources in the accounts in accordance with Article 6(2)(a) of Regulation No 1552/89, which provides that entitlements established in accordance with Article 2 must 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. A provision identical to Article 6(2)(a) of Regulation No 1552/89 is contained in Article 6(3)(a) of Regulation No 1150/2000; it is therefore possible, on the basis of the principles indicated above, to apply the later regulation as well. According to case-law, the Member State may not dispense with determining claims, even where they dispute them, since otherwise it would have to be accepted that the financial equilibrium of the Community may be disrupted by the conduct of a Member State. (32) Member States are free from the obligation to make the amounts in question available to the Commission solely if, for reasons of force majeure, those amounts could not be collected or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them. (33)
77. Once the above-mentioned time-limits have expired, the presumption of a customs debt is sufficient to generate the obligation to enter the Community’s entitlement to own resources in the accounts. From that standpoint it is therefore irrelevant whether the customs office of departure knows with certainty whether the principal has incurred a customs debt. From the point of view of the customs office, the customs debt in question is deemed to exist and, on the basis of that presumption, it must enter the Community’s entitlement to own resources in the accounts. The view of the problem from the perspective of the principal – on which the Italian Government relies in its observations – is not conclusive in such a case; the fact that the principal has not, on the facts, incurred a customs debt under Article 204 of the Community Customs Code acquires relevance for the customs office of departure only when that office compares the customs documents and finds that no irregularity has occurred in the customs operation and that the customs procedure has been discharged. I can therefore state that the principal fulfilled his obligations under the external transit procedure when he presented the goods and the corresponding documents at the office of destination and that the customs office of departure met its obligations when it compared the customs documents and found that no irregularity had been committed in connection with the external transit procedure.
78. Accordingly, the Italian authorities had an obligation to enter own resources in favour of the Community in the accounts.
F – Default interest
79. The third and decisive question in the present case is whether the Member State of the customs office which had an obligation to enter the Community’s entitlement to own resources in the accounts must pay default interest from the date on which that obligation arose until the date on which the presumption of a customs debt was rebutted. Indeed, the customs office’s obligation to enter own resources in the accounts in the context of the legal customs relationship corresponds to the Member State’s obligation to credit the Community’s account in the context of the relationship with the Community. Accordingly, the Member State is required to pay default interest for the period during which the own resources should have been in the Community’s account if the customs authorities of the Member State had entered them in the accounts at the correct time.
80. With regard to default interest, Article 11 of Regulation No 1552/89 provides that ‘ any delay ’ (34) in making the entry in the Community’s own resources account gives rise to the payment of interest by the Member State concerned. Article 11 of Regulation No 1150/2000 contains an identical provision. Moreover, it is clear from the case-law of the Court 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 period and the obligation to pay default interest. (35) That interest is payable regardless of the reason for the delay in crediting the resources to the Commission’s account. (36) It follows that, according to case-law, it is unnecessary to distinguish between a situation in which a Member State has established the own resources without paying them and one in which it has omitted to establish them. (37)
81. However, in my opinion, those principles are applicable only where the customs debt actually exists or only while there is a presumption that it exists and, in consequence, the resources are actually owed. The application of those principles is not possible, however, once it emerges that the customs debt was not in fact incurred and consequently the Community’s entitlement to the crediting of own resources or to own resources that have already been credited ceases to exist.
82. At this point, I must clarify in greater detail the link between the legal rules on the relationship between a Member State and an undertaking (legal customs relationship) and the legal rules on the relationship between a Member State and the Community (relationship relating to the Community’s own resources). In general, the protection of the financial interests of the Community does not follow from the establishment of the customs union, but constitutes an independent objective which, under the scheme of the Treaty, is placed in Title II (Financial provisions) of Part V, and not in Part III, which governs Community policies and, inter alia, in the first section of Title I, the customs union. (38) Despite this – as stated in the Opinion of Advocate General Geelhoed in Commission
v Denmark
– there is a connection between the customs provisions and the provisions on the Community’s own resources, in the sense that, under the customs provisions applicable, customs duties established as own resources have to be assessed, imposed and collected by the competent national customs authorities. (39) The Member States are therefore required to take all requisite measures to ensure that the Community receives the own resources to which it is entitled. The Member States are free from that obligation solely if, for reasons of force majeure, those amounts could not be collected or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them. (40)
83. In certain cases the legal customs relationship can be kept completely separate from the relationship relating to the Community’s own resources. That situation was dealt with by the Court in De Haan Beheer . (41) In that context, the Court recognised that there was a distinction between the obligation to determine the Community’s entitlement to own resources and the power of the Member States to require the principal to pay the customs debt. In paragraph 34 of that judgment, the Court stated that whilst failure on the part of the customs authorities to observe the time-limits laid down in the Community customs legislation may result in the Member State concerned paying default interest in the context of making own resources available to the Community, such failure does not affect the fact that the customs debt is payable or the authorities’ right to proceed with post-clearance recovery. In subsequent cases, the Court has pointed out that, although an error committed by the customs authorities of a Member State results in the debtor not having to pay the duties in question, it does not affect that Member State’s obligation to pay the own resources together with default interest for the delay in entering such resources in the accounts. (42)
84. There is, however, an essential difference between situations in which a customs debt exists and the Member State cannot recover it
owing to errors by its customs offices and situations where it later emerges that the customs debt does not exist, as in the case under consideration. Accordingly, the principles developed by the Court in the De Haan Beheer
case (43) cannot be transposed to the present situation.
85. Similarly, it cannot be claimed in the present case that, after an obligation for the Member State to credit own resources to the Community’s account has arisen, the relationship between the Member State and the Community becomes completely divorced from the relationship between the Member State and the principal. The Commission itself also implicitly acknowledges that the two procedures remain connected even after the obligation to credit own resources to the Community’s account has arisen. If the Commission had been of the opinion that the obligation to credit own resources persists even where it transpires that no customs debt has been incurred, in its application it would also have requested a finding that the Member State had failed to meet its obligations because of its failure to credit such resources to the Community’s account. By contrast, the Commission refers in its arguments to the fact that, if it is found that a customs debt does not exist, there is no longer an obligation to credit own resources either.
86. There is another reason why the own resources procedure cannot be totally separate from the legal customs procedure. Article 236 of the Community Customs Code provides that import duties or export duties are to be repaid ‘in so far as it is established that when they were paid the amount of such duties was not legally owed’. (44) In its case-law, the Court, too, has stated that the principal may demand reimbursement of the amounts paid if it emerges that the customs operation was terminated correctly. (45) Thus, if the principal can demand that the Member State repay sums that were wrongly paid, whereas the Member State – quite apart from this – continues to have an obligation to credit such resources to the Community’s account, the Member State in question would be required to pay the same amount twice – once to the Community and once to the principal. In my opinion, however, that cannot be the objective of either the customs regulations or the legislation on the Community’s own resources.
87. It must therefore be held that where the presumption that a customs debt exists is rebutted this also means that own resources were credited unlawfully to the Community’s account. That finding is not altered by the fact that, while the presumption of a customs debt was still valid, the national customs authorities had an obligation to enter own resources in the accounts.
88. The fact that the Community no longer has an entitlement to the amounts in question as own resources also has significant consequences on any interest that the Member State may owe for delay in crediting those amounts as own resources. In my view, it must be found in this regard that, since the Community no longer has an entitlement to the amounts as own resources, its entitlement to default interest for any delay in entering them as own resources also ceases to exist. A number of arguments can be advanced to support that finding.
89. The relationship between the obligation to credit own resources and the obligation to pay default interest for delay in crediting them is that of principal obligation to ancillary obligation. As there is no longer an obligation to credit the amounts in question as own resources – the principal obligation – the ancillary obligation to pay interest for delay in crediting them also ceases to exist, in accordance with the principle of accessorium sequitur principale . Default interest is admittedly a typical institution of civil law, but the fundamental principles relating to it can be transposed by analogy to the case-law of customs law and the legislation on the Community’s own resources. By proceeding by analogy from civil law, it can be seen that default interest is always related to the payment of a principal debt.
90. The secondary Community legislation applicable to default interest is based on the principle regarding the ancillary nature of interest. (46) That principle is also recognised in the law of many Member States of the EU. (47) The ancillary nature of interest also emerges from the documents of various groups of experts on the standardisation of European law and from instruments of international law. For example, Article III.‑3:708(1) of the Draft Common Frame of Reference provides that the debtor must pay default interest if he is late paying a specific sum of money. (48) Article 4.507(1) of the Principles of European Contract Law contains a similar provision. (49) Article 78 of the Convention on contracts for the international sale of goods also provides that a party is entitled to default interest if the counterparty is late in paying the price or any other sum. (50) None of those instruments governs cases in which the creditor is entitled to default interest where there is no longer an obligation to pay the sum owed.
91. As for the civil relationship, this is really a relationship on two levels, consisting of a principal obligation and an ancillary one, in that the debtor in payment arrears must pay default interest directly on the strength of the principal pecuniary obligation. In the present case, by contrast, the relationship is on three levels: first a customs debt is incurred, then there arises an obligation to credit a specified sum as own resources and, lastly, there is an obligation to pay default interest for delay in crediting that sum. However, the existence of that three-level relationship cannot, in my opinion, alter the finding that in the present case the Community is not entitled to the payment of default interest. The Community’s entitlement to own resources ceases to exist where the presumption that a customs debt has been incurred is rebutted, because the legal rules governing the Community’s own resources cannot be independent of the legal customs relationship to such an extent as to permit an obligation that arose in the context of that relationship to exist wholly autonomously.
92. The validity of the line of argument concerning the ancillary nature of default interest is corroborated by the fact that the ratio
for that argument can also be applied to the contrary case, that is to say, in the situation where – by contrast with the present case – own resources have been credited, albeit late, and the Member State has paid default interest for late crediting but it has subsequently been ascertained that no customs debt existed. As I stated in my Opinion in Commission
v Denmark, if the Community receives revenue by way of own resources to which it is not entitled, the financial equilibrium of the Community is altered to the detriment of the Member States. (51) In that case there could be a transfer of assets with no legal basis, to the benefit of the Community and, accordingly, undue enrichment of the latter. (52) If in a similar case own resources of the Community have been credited late and the Member State has paid interest for late payment, in my opinion it could demand that the Community repay both the amount of own resources in question and the default interest paid.
93. As the Italian Government correctly states, as a result of the obligation to pay default interest in the present case such interest would take on the nature of a penalty. Admittedly, the purpose of default interest may be punitive, in that it is designed to induce the debtor to pay on time by punishing him for each day of delay. However, even that punitive aspect of the interest is predicated upon the existence of the principal obligation. (53) In its application to the Court, the Commission is in reality seeking to close a legal loophole that clearly exists with regard to the punishment of a failure to fulfil the obligation on Member States to credit own resources. That attempt on the part of the Commission may be understandable, in view of the possibility that abuses are being committed and the obligation to credit own resources evaded, (54) but it would be contrary to the nature of default interest if such interest were to be used as a substitute for an effective system of penalties for infringements of Community legislation.
94. In my opinion, there are several ways to close that legal loophole in Community legislation. The Commission can propose an amendment to Community legislation in order to set an effective penalty for the above infringements – possibly even a financial penalty – which is independent of the payment of default interest. By way of comparison, I would point out that as a matter of principle civil law does not preclude the possibility for the creditor to claim from a debtor in arrears further compensation unconnected with the payment of default interest. (55) Thus, civil law also permits additional penalties for infringement of the obligation to pay on time. Apart from this, the Commission could bring an action under Article 226 EC against the Member State for failure to fulfil its obligations on account of the late crediting of own resources. The fact that a Member State has not credited the resources in question when there was still a presumption that a customs debt existed may, in my opinion, entail failure on the part of that State to fulfil an obligation. The question whether an obligation to credit resources has been infringed when there was still a presumption that a customs debt existed is distinct from the question of the obligation to pay interest once that presumption has been rebutted.
95. On the basis of the arguments set out above, I consider that the Member State of the customs office that was required to enter the Community’s entitlement to own resources in the accounts does not have an obligation to pay default interest from the date on which that State was obliged to credit such resources to the Community’s account until the date on which the presumption as to the existence of the customs debt was rebutted.
VII – Conclusions
96. In view of the foregoing considerations, I propose that the Court should:
– dismiss the action;
– order the Commission of the European Communities to pay the costs.
(1) .
(2)  –	OJ 1978 L 252, p. 2.
(3)  –	Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).
(4)  –	Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).
(5)  –	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).
(6)  –	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).
(7)  –	Case C‑104/02 Commission
v Germany
[2005] ECR I‑2689, paragraph 81, and Case C‑460/01 Commission
v Netherlands
[2005] ECR I‑2613, paragraph 72.
(8)  –	Case C‑104/02 Commission
v Germany, paragraph 81.
(9)  –	Case C‑460/01 Commission
v Netherlands, paragraph 72.
(10)  –	On the transit procedure, see, for example, Olbrich, V., Der Zollkodex im Überblick. Eine Einführung in die Systematik, Jehle, Munich, 1994, p. 31 et seq.; Lyons, T., EC Customs Law, Oxford University Press, Oxford, 2001, p. 306 et seq.; Witte, P., and Wolffgang, H.‑M. (eds.), Lehrbuch des Europäischen Zollrechts, 4th edition, Verlag Neue Wirtschafts-Briefe, Herne/Berlin, 2003, p. 145 et seq.; Berr, C. J., and Trémeau, H., Le droit douanier. Communautaire et national, 7th edition, Economica, Paris, 2006, p. 370 et seq.
(11)  –	See, to that effect, Witte, P. (ed.), Zollkodex, C. H. Beck’sche Verlagsbuchhandlung, Munich, 1994, commentary on Article 92, p. 583, which expressly distinguishes between the end and the discharge of the customs procedure. On the distinction between the end and the discharge of the customs procedure, see also Lyons, T., EC Customs Law, Oxford University Press, Oxford, 2001, p. 318.
(12)  –	Article 92 was amended by Article 1(2) of Regulation (EC) No 955/1999 of the European Parliament and of the Council of 13 April 1999 amending Council Regulation (EEC) No 2913/92 with regard to the external transit procedure (OJ 1999 L 119, p. 1). The first paragraph was not significantly amended and a second paragraph was added which provides: ‘The customs authorities shall discharge the procedure when they are in a position to establish, on the basis of a comparison of the data available to the office of departure and those available to the customs office of destination, that the procedure has ended correctly’. For a commentary, see Witte, P. (ed.), Zollkodex, 4th edition, C. H. Beck’sche Verlagsbuchhandlung, Munich, 2006, commentary on Article 92, p. 1008.
(13)  –	Italy signed the TIR Convention on 28 December 1976 and ratified it on 20 December 1982. Information on the signatories to the convention can be found on the website http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXI/subchapA/treaty16.asp.
(14)  –	Council Regulation (EEC) No 2112/78 of 25 July 1978 concerning the conclusion of the Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 at Geneva (OJ 1978 L 252, p. 1).
(15)  –	Entry into force of the Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) (OJ 1983 L 31, p. 13).
(16)  –	For more detailed information on the external transit procedure under cover of a TIR carnet, see, for example, Kampf, H.‑J., ‘Das Versandverfahren mit Carnet TIR’, Zeitschrift für Zölle und Verbrauchsteuern, No 6/2002, p. 182; Berr, C. J., and Trémeau, H., Le droit douanier. Communautaire et national, 7th edition, Economica, Paris, 2006, p. 385.
(17)  –	In this regard it should be added that customs duties are not the only source of the Community’s own resources.
Own resources are also obtained from the contributions on Member States’ GDP or from VAT.
For more details about the Community’s own resources, see Messal, R., and Klein, A., ‘Finanzlasten und Eigenmittelstruktur der Europäischen Gemeinschaft’, Europäisches Wirtschafts- und Steuerrecht, Supplement to No 11/1993, p. 1 et seq.;
Aubert, M.-H., Rapport:
Système des ressources propres des Communautés européennes, Assemblée Nationale (Documents d'information de l'Assemblée Nationale. Onzième Législature; No 3436), Paris, 2001. On duties as a source of own resources, see for example Meermagen, B., Beitrags- und Eigenmittelsystem.
Die Finanzierung inter- und supranationaler Organisationen, insbesondere der Europäischen Gemeinschaften, Beck, Munich, 2002, p. 152. On possible new own resources of the Community, see Plasschaert, S., ‘Towards an Own Tax Resource for the European Union?
Why?
How?
And when?’, European Taxation, No 11/2004, p.  470 et seq.
(18)  –	See the Opinion of Advocate General Geelhoed in Case C‑392/02 Commission
v Denmark, point 62. See also my Opinion in Case C‑19/05 Commission
v Denmark [2007] ECR I‑8597, point 65.
(19)  –	Article 348(1) of the Implementing Regulation lays down, inter alia, that the office of departure shall ‘prescribe the period within which the goods must be presented at the office of destination’.
(20)  –	Under Article 356(2) of the Implementing Regulation, after presentation of the goods, the office of destination is to ‘record on the copies of the T1 document the details of controls carried out and shall without delay
send a copy to the office of departure and retain the other copy’. Emphasis added.
(21)  –	Witte, P. (ed.), Zollkodex, C. H. Beck’sche Verlagsbuchhandlung, Munich, 1994, in the commentary on Articles 378 to 380 of the Implementing Regulation, p. 570, states that those provisions are applicable where the goods do not reach the office of destination or where it has not been proved that the customs procedure has ended, and that in such cases it has to be inferred that the goods have entered into free circulation in the economic space of the Community.
(22)  –	Case C‑104/02 Commission
v Germany .
(23)  –	Case C‑460/01 Commission
v Netherlands .
(24)  –	Case C‑104/02 Commission
v Germany, paragraph 81, and Case C‑460/01 Commission
v Netherlands, paragraph 72.
(25)  –	Opinion of Advocate General Stix-Hackl in Case C‑460/01 Commission
v Netherlands
and Case C‑104/02 Commission
v Germany, point 53.
(26)  –	The argument that we are dealing here with a putative customs debt is also supported in the literature by Dulmet, A., ‘Dette douanière et ressources propres des Communautés’, Europe, No 206/2005, p. 22.
(27)  –	Henninger, M., Die Frage der Beweislast im Rahmen des UN – Kaufrechts.
Zugleich eine rechtsvergleichende Grundlagenstudie zur Beweislast, VVF, Munich, 1995, p. 53.
(28)  –	Opinion of Advocate General Stix-Hackl, referred to in footnote 25.
(29)  –	In both cases, the Commission delivered the reasoned opinion after the new regulation had entered into force; in pre-litigation procedure No 2003/2241, it was delivered on 5 July 2005 and in pre-litigation procedure No 2006/2266, it was delivered on 12 October 2006.
(30)  –	See, for example, Case‑363/00 Commission
v Italy
[2003] ECR I‑5767, paragraph 22.
(31)  –	Case‑363/00 Commission
v Italy, paragraph 22, and Case C‑275/04 Commission
v Belgium
[2006] ECR I‑9883, paragraph 35.
(32)  –	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; and Case C‑392/02 Commission
v Denmark, paragraph 60.
(33)  –	Case C‑392/02 Commission
v Denmark, paragraph 66. See also my Opinion in Case C‑19/05 Commission
v Denmark, point 74.
(34)  –	Emphasis added.
(35)  –	See Case C‑96/89 Commission
v Netherlands, paragraph 38; Case C‑104/02 Commission
v Germany, paragraph 45; and Case C‑392/02 Commission
v Denmark, paragraph 67.
(36)  –	See Case C‑96/89 Commission
v Netherlands, paragraph 38; Case C‑392/02 Commission
v Denmark, paragraph 67; C‑275/04 Commission
v Belgium, paragraph 74; and Case C‑378/03 Commission
v Belgium
[2006] ECR I‑9805, paragraph 53.
(37)  –	See Case C‑96/89 Commission
v Netherlands, paragraph 38, and Case C‑392/02 Commission
v Denmark, paragraph 67.
(38)  –	See, to that effect, Case C‑209/97 Commission
v Council
[1999] ECR I‑8067, paragraph 29. In the literature, see Lyons, T., EC Customs Law, Oxford University Press, Oxford, 2001, pp. 52 and 53.
(39)  –	See the Opinion of Advocate General Geelhoed in Case C‑392/02 Commission
v Denmark, point 62. In the literature, Berr, C. J., and Natarel, E., point out that the collection of duties is subject first and foremost to the customs provisions, whereas the provisions on own resources are applied only at the stage following collection of the duties. See Berr, C. J., and Natarel, E., ‘Chronique de jurisprudence du Tribunal et de la Cour de Justice des Communautés Européennes. Échanges commerciaux’, Journal du Droit International, No 2/2007, p. 633.
(40)  –	See Article 17(1) and (2) of Regulation No 1552/89 and of Regulation No 1150/2000. In the case-law, see, for example, Case C‑392/02 Commission
v Denmark, paragraph 66. In the literature, see Meisse, É., ‘Application du système des ressources propres des Communautés’, Europe, No 346/2006, p. 9.
(41)  –	Case C‑61/98 De Haan Beheer [1999] ECR I‑5003.
(42)  –	See, to that effect, Case C‑392/02 Commission
v Denmark, paragraph 63. See also my Opinion in Case C‑19/05 Commission
v Denmark, point 61.
(43)  –	Case C‑61/98.
(44)  –	Under Article 236(2) of the Community Customs Code, the principal may apply for reimbursement within three years of being notified of the amount of the duties. With regard to that right, see also Lyons, T., EC Customs Law, Oxford University Press, Oxford, 2001, p. 411; Lux, M., Guide to Community Customs Legislation, Bruylant, Brussels, 2002, p. 494;
Berr, C. J., and Trémeau, H., Le droit douanier. Communautaire et national, 7th edition, Economica, Paris, 2006, p. 237 et seq.
(45)  –	See, to that effect, Case C‑104/02 Commission
v Germany, paragraph 88.
(46)  –	See Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35), Article 3(1)(c)(ii) of which provides that ‘the creditor shall be entitled to interest for late payment to the extent that … he has not received the amount due on time …’. Thus the sum must actually be owed if the creditor is to be able to demand default interest.
(47)  –	I shall mention only some of the legal systems which uphold the principle that interest is payable only for delay in actual payment of the amount owed: Belgian law (Article 1153 of the Code Civil); Czech law (Articles 121(3) and 517(2) of the Občanský zakonik); Estonian law (Article 113(1) of the vôlaôigusseadus); French law (Article 1153 of the Code Civil); Italian law (Article 1224 of the Codice Civile); German law (Article 288(1) of the Bürgerliches Gesetzbuch); Portuguese law (Article 561 of the Código Civil); Romanian law (Articles 1082 to 1089 of the Cod Civil); Slovenian law (Article 378 of the Obligacijskega zakonika); Spanish law (Article 1108 of the Código Civil).
(48)  –	Article III.‑3:708(1) of the Draft Common Frame of Reference provides: ‘If payment of a sum of money is delayed, whether or not the non-performance is excused, the creditor is entitled to interest on that sum …’. See von Bar and Others (eds.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition, Sellier, Munich, 2008, p. 170. The Common Frame of Reference does not at present form part of binding Community law.
(49)  –	Article 4.507(1) of the Principles of European Contract Law provides: ‘If payment of a sum of money is delayed, the aggrieved party is entitled to interest on that sum …’. See Lando, O., and Beale, H. (eds.), Principles of European Contract Law. Part I: Performance, Non-performance and Remedies, Kluwer Law International, The Hague, London, Boston, 1995, p. 212. The Principles of European Contract Law do not at present form part of binding Community law.
(50)  –	The United Nations Convention on Contracts for the International Sale of Goods was adopted on 11 April 1980 and entered into force on 1 January 1988.
(51)  –	See my Opinion in Case C‑19/05 Commission
v Denmark, point 89.
(52)  –	Ibid.
(53)  –	In this regard, I would point out that in the literature there are a number of authors who maintain that the incurring of a customs debt because of formal infringements of an obligation to some extent constitutes a penalty.
See Müller-Eiselt, K. P., ‘Die Entstehung der Zollschuld bei Verstoβ gegen Verfahrensvorschriften nach dem Zollkodex – Das Zollschuldrecht auf dem Irrweg zu einem Sanktionszollrecht?’, Zeitschrift für Zölle und Verbrauchsteuern, No 12/2001, p. 398; Fuchs, K., ‘Zollschuld – Probleme der Rechtsfolgen und der Abgrenzung’, Zeitschrift für Zölle und Verbrauchsteuern, No 2/2004, p. 38.
(54)  –	Vervaele, J.A.E., La fraude communautaire et le droit pénal européen des affaires, Presses Universitaires de France, Paris, 1994, p. 45, mentions fraud committed in connection with the export and/or import of goods as one of the forms of fraud.
(55)  –	To that effect, see Article 4.507(2) of the PECL, which permits the injured party to claim not only default interest but also compensation for any further damage. See Lando, O., and Beale, H. (eds.), Principles of European Contract Law. Part I: Performance, Non-performance and Remedies, Kluwer Law International, The Hague, London, Boston, 1995, p. 212. An identical provision appears in Article III.‑3:708(2) of the Draft Common Frame of Reference. See von Bar et al. (eds.), Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Interim Outline Edition, Sellier, Munich, 2008, p. 170.