Keywords

Summary



Keywords

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action

(Art. 226 EC)

2. Own resources of the European Communities – Establishment and making available by the Member States

(Council Regulation No 2913/92, Art. 243(1) and (2), and No 1150/2000, Arts 6(3)(a) and (b), 9, 10 and 11)

3. Member States – Obligations – Supervisory tasks assigned to the Commission – Duty of the Member States – Cooperation in inquiries into whether a Member State has failed to fulfil its obligations

(Arts 10 EC and 226 EC; Council Regulation No 1552/89, Art. 18)

Summary

1. In the context of an action for failure to fulfil obligations, although the heads of claim set out in the application cannot in principle be extended beyond the failures to fulfil obligations alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less the case that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the measure in question, as otherwise it would constitute a breach of the essential procedural requirements governing infringement proceedings.

(see para. 35)

2. The Member States are required to establish the Communities’ entitlement to own resources as soon as their customs authorities are in a position to calculate the amount of duties arising from a customs debt and to determine the debtor and, therefore, to enter those entitlements in the accounts in accordance with Article 6 of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources.

Concerning the Member States’ facility to enter the entitlements established in the separate accounts referred to in Article 6(3)(b) of that regulation (the B accounts), a mere failure to pay the amounts at issue cannot be treated as being the same as a challenge to the entitlements for the purposes of that provision. Pursuant to the third subparagraph of Article 243(1) of Regulation No 2913/92 establishing the Community Customs Code, such a challenge must form the subject-matter of an action lodged in the Member State where the decision has been taken or applied for, initially before the customs authorities, and then before an independent body. The requirement of a formal appeal is imposed for reasons of legal certainty and makes possible the diligent and uniform application of the customs provisions in order to secure rapid and effective availability of the own resources of the Communities.

Incorrect entering of entitlements in the B accounts may give rise to a delay in the crediting of the own resources in question to the Commission’s account, which must, in accordance with Articles 9 and 10 of Regulation No 1150/2000, be done within the same period as that which is laid down for the entry of those entitlements in the A accounts pursuant to Article 6(3)(a) of that regulation. Under Article 11 of Regulation No 1150/2000, any delay in making the entries in the account referred to in Article 9(1) of that regulation gives rise to the payment of default interest by the Member State concerned for the entire period of delay. That interest is payable regardless of the reason for the delay in crediting those entitlements to the Commission’s account.

(see paras 63, 68, 73-74)

3. Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose.

As regards the obligation on the Member States to take, in genuine cooperation with the Commission, the measures necessary to ensure the application of the Community provisions relating to the establishment of potential own resources, that obligation, which was given more specific expression with regard to verification in Article 18 of Regulation No 1552/89 implementing Decision 88/376 on the system of the Communities’ own resources, means in particular that where the Commission is largely dependent on information provided by the Member State concerned, that Member State is required to make supporting documents and other relevant documentation available to the Commission under reasonable conditions, to enable it to verify whether, and, as the case may be, to what extent the amounts concerned relate to the Communities’ own resources.

(see paras 82-83)