Case C-423/08

European Commission

v

Italian Republic

(Failure of a Member State to fulfil obligations – Own resources – Procedures for collecting import or export duties – Failure to comply with the time-limits for entry of the own resources – Late payment of own resources relating to those duties)

Summary of the Judgment

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

(Council Regulations No 1552/89, Arts 2, 6 and 9 to 11, No 2913/92, Art. 220(1), and No 1150/2000, Arts 2, 6 and 9 to 11)

Pursuant to Article 2(1) of Regulations Nos 1552/89 and 1150/2000 implementing, respectively, Decisions 88/376 and 94/728 on the system of the Communities’ own resources, the Member States are to establish entitlement to the own resources 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.

It follows from Article 220(1) of Regulation No 2913/92 establishing the Community Customs Code that the conditions for the subsequent entry into the accounts of the amount of duty to be recovered or which remains to be recovered are fulfilled when the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor.

In that context, when the customs authorities notify an administrative measure, regardless of how it is designated, to a debtor, finding that there has been a total or partial non-payment of customs debts and indicating the amount of customs duties which they consider to be legally owed, they are, at that time, in a position to calculate the amount of duties arising from a customs debt and to determine the debtor.

Consequently, the subsequent entry into the accounts of the amount of duty to be recovered or which remains to be recovered must take place, in principle, pursuant to Article 220(1) of the Customs Code, within two days of the date on which the minute which fulfils the conditions set out in the previous paragraph was notified to the debtor.

With regard to default interest, the obligation to establish the Communities’ own resources, the obligation to credit them to the Commission’s account within the prescribed time-limit and the obligation to pay default interest are inseparably linked, the last being payable regardless of the reason for the delay in making the entry in the Commission’s account.

A Member State that fails to comply with the time-limits for entry of the Communities’ own resources in the event of subsequent recovery and delays payment of those resources has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Regulation No 1552/89 and the same articles of Regulation No 1150/2000 and under Article 220 of Regulation No 2913/92.

(see paras 37-38, 41-42, 49, 51, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

17 June 2010 ( )

(Failure of a Member State to fulfil obligations – Own resources – Procedures for collecting import or export duties – Failure to comply with the time-limits for entry of the own resources – Late payment of own resources relating to those duties)

In Case C‑423/08,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 24 September 2008,

European Commission, represented by A. Aresu and A. Caeiros, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by I. Bruni, acting as Agent, and by G. Albenzio and F. Arena, avvocati dello Stato,

defendant,

supported by:

Republic of Finland, represented by J. Heliskoski, acting as Agent,

intervener,

THE COURT (Fourth Chamber),

composed of J.‑C. Bonichot, President of the Chamber, C. Toader (Rapporteur), K. Schiemann, P. Kūris and L. Bay Larsen, Judges,

Advocate General: V. Trstenjak,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 11 March 2010,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its application, the Commission of the European Communities asks the Court to declare that, by failing to comply with the time-limits for entry of the Communities’ own resources in the event of subsequent recovery and by delaying payment of those resources, the Italian Republic has failed to fulfil its obligations under Articles 2, 6, and 9 to 11 of 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), Articles 2, 6 and 9 to 11 of 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) and Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the Customs Code’).

European Union legislation

Decisions 94/728/EC, Euratom and 2000/597/EC, Euratom

2 In regard to the period relevant to the facts in the present case, two decisions on the European Communities’ own resources were applicable successively, namely, Council Decision 94/728/EC, Euratom of 31 October 1994 (OJ 1994 L 293, p. 9) and, since 1 January 2002, Council Decision 2000/597/EC, Euratom of 29 September 2000 (OJ 2000 L 253, p. 42).

3 According to Article 2(1)(b) of each of those decisions, revenue from, inter alia, ‘Common Customs Tariff duties and other duties established or to be established by the institutions of the Communities in respect of trade with non-member countries’ constitute own resources entered in the budget of the Communities.

4 Article 8(1) of those decisions provides, inter alia, that the Communities’ own resources referred to in Article 2(1)(a) and (b) are to be collected by the Member States in accordance with the national provisions imposed by law, regulation or administrative action, which are, where appropriate, to be adapted to meet the requirements of European Union rules, and that those resources are to be made available to the Commission.

Regulations Nos 1552/89 and 1150/2000

5 Article 2 of Regulation No 1552/89, as amended by Council Regulation (Euratom, EC) No 1355/96 of 8 July 1996 (OJ 1996 L 175, p. 3) provides:

‘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 88/376/EEC, 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.

1a. 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.

…

4. Paragraph 1 shall apply when a notification must be corrected.’

6 Regulation No 1552/89 was repealed by the first paragraph of Article 22 of Regulation No 1150/2000, which entered into force on 31 May 2000. Article 2(1) and the first subparagraph of Article 2(2) of the latter regulation are worded in terms essentially identical to those of the article mentioned in the previous paragraph.

7 Article 6(2) of Regulation No 1552/89, now Article 6(3)(a) and (b) of Regulation No 1150/2000, provides that entitlements established in accordance with Article 2 are to 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. Established entitlements not entered in the accounts because they have not yet been recovered and no security has been provided are to be shown in separate accounts within the same period. 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.

8 Article 8 of Regulation No 1552/89, the terms of which were reproduced in Article 8 of Regulation No 1150/2000, provides:

‘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.’

9 According to Article 9(1) of both Regulation No 1552/89 and Regulation No 1150/2000:

‘In accordance with the procedure laid down in Article 10, each Member State shall credit own resources to the account opened in the name of the Commission with its Treasury or the body it has appointed.

This account shall be kept free of charge.’

10 Article 10(1) of Regulation No 1552/89, the terms of which were reproduced in Article 10(1) of Regulation No 1150/2000, provides:

‘After deduction of 10% by way of collection costs in accordance with Article 2(3) of Decision 88/376/EEC, Euratom, entry of the own resources referred to in Article 2(1)(a) and (b) of that Decision shall be made at the latest on the first working day following the 19th day of the second month following the month during which the entitlement was established in accordance with Article 2.’

11 Article 11 of Regulations Nos 1552/89 and 1150/2000 provides:

‘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.’

The Customs Code

12 Article 220(1) of the Customs Code provides:

‘Where the amount of duty resulting from a customs debt has not been entered in the accounts in accordance with Articles 218 and 219 or has been entered in the accounts at a level lower than the amount legally owed, the amount of duty to be recovered or which remains to be recovered shall be entered in the accounts within two days of the date on which the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (subsequent entry in the accounts). That time‑limit may be extended in accordance with Article 219.’

13 Article 221(1) of the Customs Code is worded as follows:

‘As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.’

National legislation

14 Article 11, entitled ‘Review of assessments, responsibilities and powers of offices’, of Legislative Decree No 374 of 8 November 1990 reorganising customs bodies and revising the procedure for assessment and inspection in the context of the implementation of Council Directive 79/695/EEC of 24 July 1979, Commission Directive 82/57/EEC of 17 December 1981 on procedures for the release of goods for free circulation, Council Directive 81/177/EEC of 24 February 1981 and Commission Directive 82/347/EEC of 23 April 1982 on procedures for the export of Community goods (Ordinary Supplement to GURI No 291 of 14 December 1990) provides, in paragraphs (1) and (5) to (8), as follows:

‘1. The customs office may review an assessment which has become final even if the goods which were the subject of it have been left at the disposal of the trader or if they have already left the customs territory. The review may be carried out on the office’s own initiative or by application, made not later than three years after the date on which the assessment becomes final.

…

5. Where the review, whether carried out on the office’s own initiative or on the application of a party, reveals inaccuracies, errors or omissions relating to the factors on which the assessment was based, the office shall make the corresponding correction and shall give the trader concerned appropriate notice thereof. If a review carried out on the office’s own initiative results in a correction, such notice must be given within a period of three years from the date on which the assessment became definitive, or it will otherwise lapse.

6. An application for review by the trader shall be deemed to have been rejected in the absence of receipt of a notice of correction within 90 days of its introduction. An appeal may be brought against such rejection, whether tacit or express, within 30 days before the departmental director, whose decision shall be final.

7. A correction may be challenged by the trader within 30 days of receipt of the notice. At the time of the challenge, a minute shall be drawn up to provide for the possibility of initiating the administrative procedures for dispute resolution laid down in Article 66 et seq. of the single legislative text concerning customs matters, approved by Decree No 43 of the President of the Republic of 23 January 1973.

8. Once the correction has become final, the office shall recover the additional duties owed by the trader or set in motion, on its own initiative, the procedure for reimbursement of overpayments. Where appropriate, correction of the assessment shall include charges of infringements arising from false declarations or more serious infringements which may have been detected.’

15 Where the review of the assessment requires premises to be inspected, Law No 212/2000 of 27 July 2000 on the rights of taxpayers (GURI No 177 of 31 July 2000) provides that, in addition to the daily minutes recording the operations carried out, a minute noting the termination of operations must be drafted at the end of the inspection of premises by the officials in charge of it. A copy of that minute is presented to the taxpayer and a second copy is sent to the person responsible for the procedure in the relevant customs office, who examines it, along with any observations or claims submitted by the taxpayer under Article 12(7) of that law, and who will adopt, in complete independence, the decision terminating the procedure or the notice of assessment.

16 In that regard, Article 12(7) of Law No 212/2000, entitled ‘Rights and guarantees of taxpayers subject to a tax inspection’ provides:

‘In accordance with the principle of co-operation between the authorities and the taxpayer, after publication of the minute terminating the operations carried out by the inspecting bodies, the taxpayer may, within 60 days, transmit his observations and claims, which shall be examined by the tax offices. The notice of assessment cannot be issued before the expiry of that time-limit, except in cases of special urgency, for which reasons must be stated.’

Pre-litigation procedure

17 During an inspection relating to the Communities’ own resources, carried out in Italy from 6 to 10 November 2000 and which covered the period from 1 January 1998 to the date of the inspection, the Commission’s agents discovered irregularities in the establishment of the Communities’ own resources which could lead to delays in making those resources available to the Community, contrary to Articles 2, 6 and 9 to 11 of Regulations Nos 1552/89 and 1150/2000.

18 Following an exchange of letters between the Italian authorities and the Commission, the latter noted that the Italian administrative procedure of subsequent inspection provides for prior communication to the debtor of a minute terminating the inspection and grants the latter 60 days within which to submit his observations and ask for additional information. The customs debt is communicated to the debtor, by means of a notice of assessment, only on the expiry of that period.

19 The Commission considered that the consequences of the application of such a procedure by the Italian Republic are incompatible with the relevant Community provisions, inasmuch as they delay making the own resources available. The time‑limit for entering own resources into the accounts, laid down in Article 220 of the Customs Code, should accordingly start to run from the date on which the minute of the operations is communicated.

20 The Italian authorities argued, essentially, that the minute terminating the operations does not constitute a final decision but merely a preparatory measure, of no independent legal value. In addition, the Commission’s arguments have no legal basis in the Customs Code, inasmuch as entry into the accounts and notification to the debtor are operations which follow the adoption of a final decision.

21 Following those exchanges of correspondence, the Commission decided, in accordance with Article 226 EC, to send a letter of formal notice to the Italian Republic on 13 July 2005, calling on it to submit its observations within a period of two months as from receipt of that letter.

22 The Italian Government replied by letter of 12 September 2005, essentially repeating the points put forward when it had replied earlier.

23 In its letter of 28 June 2006, the Commission drew the attention of the Italian authorities to the judgment of the Court in Case C‑546/03 Commission v Spain [2006] ECR I‑29 and called upon them to set out their position before 1 September 2006.

24 Since it received no information concerning the Italian Republic’s position in that regard, the Commission decided, in accordance with Article 226 EC, to send a reasoned opinion to that Member State based on Articles 2, 6 and 9 to 11 of Regulations Nos 1552/89 and 1150/2000 and on Article 220 of the Customs Code, in which it called on the Italian Republic to take the measures required to comply within two months of its receipt.

25 The Italian Government replied by a letter of 12 February 2007 in which it maintained its position.

26 Taking the view that the Italian Republic had not remedied the infringement complained of, the Commission decided to bring the present action before the Court.

27 By order of the President of the Court of 12 March 2009, the Republic of Finland was granted leave to intervene in support of the form of order sought by the Italian Republic.

The action

Arguments of the parties

28 The Commission complains, essentially, that the Italian authorities are systematically late in making the Communities’ own resources available, inasmuch as they apply an administrative procedure under which those own resources are established only after a period has been granted to the taxpayer to study the minute of the operations and to transmit his observations. The Commission therefore asks the Court to declare that the Italian Republic has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Regulations Nos 1552/89 and 1150/2000 and under Article 220 of the Customs Code.

29 According to the Commission, the conditions for establishment of the Communities’ own resources entitlement are fulfilled, inter alia, once the national authorities notify to the taxpayer the minute closing the operations, a document which indicates both the name of the debtor and the duties to be recovered.

30 The Italian Republic contends that the opportunity given to the debtor to submit observations before adoption of the notice of assessment is an application of the fundamental principles of the protection of the rights of the defence and of sound administration. Moreover, since such rules form part of the procedural autonomy of the Member States, they cannot contravene the provisions of the Customs Code.

31 The Italian Government, supported by the Finnish Government, also considers that the conditions laid down in Article 220(1) of the Customs Code are not fulfilled on the date on which the minute of the inspection is communicated to the taxpayer. Only the identity of the debtor is certain at that date. On the other hand, neither the existence of an irregularity nor the amount of import or export duties legally owed has been definitively decided. Although the procedural rules did not regulate the contents of the minute of the inspection, the Italian Government nevertheless admitted in its defence and in its rejoinder, as well as at the hearing, that it is possible, in principle, to determine at that time the amount of the debt, as is often done in practice.

32 Having regard to the legal consequences of entering the customs debt into the accounts, the Finnish Government considers that that should be done by means of a final administrative decision, as is apparent from Article 220(1) of the Customs Code and in particular the words ‘become aware’ in that article.

33 In addition, Article 2(3) of Regulation No 1150/2000, read in conjunction with Article 2(1) thereof, permits the customs authorities to inform the debtor of provisional calculations before a final decision is adopted.

34 Furthermore, according to the Finnish Government, by reason of the diversity of national procedures, the judgment in Commission v Spain cannot provide guidance for determining whether the various national systems are in conformity with European Union law.

35 Unlike the Spanish rules at issue in Commission v Spain, the provisions at issue in the present case do not define the contents of the minute of the operations and, in particular, they do not require notification of the amount of the customs debt. Such notification is merely the result of an administrative practice.

36 Moreover, although the proposal for payment provided for by the Spanish legislature became final after 30 days if the debtor accepted it and if the administration did not correct it, the contested Italian rules require, in all cases, the issue of a final decision in the form of a notice of assessment.

Findings of the Court

37 With regard to the failure to fulfil obligations complained of, it is to be noted that Article 2(1) of Regulations Nos 1552/89 and 1150/2000 states that the Member States are to establish entitlement to the own resources ‘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’.

38 In addition, it follows from Article 220(1) of the Customs Code that the conditions for the subsequent entry into the accounts of the amount of duty to be recovered or which remains to be recovered are fulfilled when the customs authorities become aware of the situation and are in a position to calculate the amount legally owed and to determine the debtor (Commission v Spain, paragraph 27).

39 It should also be borne in mind in this regard that, according to settled case-law, the Member States have the obligation to establish the Communities’ own resources. Article 2(1) of Regulations Nos 1552/89 and 1150/2000 must be interpreted as meaning that the Member States may not dispense with determining claims, even where these are disputed; otherwise, it would have to be accepted that the financial equilibrium of the Communities may be disrupted, even if only temporarily, by the conduct of a Member State (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; Case C‑392/02 Commission v Denmark [2005] ECR I‑9811, paragraph 60; and Commission v Spain, paragraph 28).

40 The Member States are required to establish the Communities’ own resources entitlement as soon as their customs authorities have the necessary particulars and are accordingly in a position to calculate the amount of duties arising from a customs debt and determine the debtor (Commission v Denmark, paragraph 59, and Commission v Spain, paragraph 29).

41 In that context, it must be considered that when the customs authorities notify an administrative measure, regardless of how it is designated, to a debtor, finding that there has been a total or partial absence of payment of customs debts and indicating the amount of customs duties which they consider to be legally owed, they are, at that time, in a position to calculate the amount of duties arising from a customs debt and to determine the debtor.

42 Consequently, the subsequent entry into the accounts of the amount of duty to be recovered or which remains to be recovered must take place, in principle, pursuant to Article 220(1) of the Customs Code, within two days of the date on which the minute which fulfils the conditions set out in the previous paragraph was notified to the debtor (Commission v Spain, paragraph 32).

43 The Italian and Finnish Governments argued, both in their written pleadings and at the hearing, that notification of the minute terminating the operations permits the debtor to submit his observations before a decision is taken in regard to him and, therefore, contributes to the protection of the rights of the defence. Thus, application of such a procedure cannot constitute a failure to fulfil the Member States’ obligations under Regulations Nos 1552/89 and 1150/2000 of the Customs Code.

44 In that regard, it must be noted that, as the Court held in Case C‑349/07 Sopropé [2008] ECR I‑10369, point 36, observance of the rights of the defence is a general principle of Community law which applies where the authorities are minded to adopt a measure which will adversely affect an individual.

45 However, although the principle of observance of the rights of the defence applies, inter alia, to a subsequent recovery procedure, in regard to relations between a debtor and a Member State, it cannot, as regards the relations between the Member States and the Communities, result in a Member State being entitled to disregard its obligation to enter into the accounts, within the time-limits laid down in the Community legislation, the Communities’ own resources entitlement (Commission v Spain, paragraph 33).

46 Furthermore, it should be noted that entry into the accounts and notification of the amount of customs duty owed, as well as the crediting of the own resources, does not prevent the debtor challenging, under Article 243 et seq. of the Customs Code, the obligation imposed on him by means of all the arguments at his disposal.

47 In addition, the national authorities can always show own resources which have been challenged and might be changed, upon settlement of the disputes which have arisen, in separate accounts, by virtue of Article 6(2) of Regulation No 1552/89 and Article 6(3) of Regulation No 1150/2000.

48 Moreover, if the national authorities have already entered the duties established in the accounts before they are challenged, Articles 2 and 8 of Regulations Nos 1552/89 and 1150/2000 permit the national authorities to correct notifications and to subtract those corrections from the total amount of established entitlements where the challenges are subsequently found to be justified.

49 With regard to default interest, it must be recalled that it follows from settled case‑law 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 time-limit and the obligation to pay default interest, the latter being payable regardless of the reason for the delay in making the entry in the Commission’s account (see, in particular, Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 17; Case C‑363/00 Commission v Italy [2003] ECR I‑5767, paragraphs 43 and 44; and Case C‑150/07 Commission v Portugal [2009] ECR I‑7, paragraph 62).

50 Under Article 11 of Regulations Nos 1552/89 and 1150/2000, any delay in making the entries in the account referred to in Article 9(1) of those regulations gives rise to the payment of interest by the Member State concerned at the interest rate applicable to the entire period of delay. (Commission v Netherlands, paragraph 91, and Case C‑275/07 Commission v Italy [2009] ECR I‑2005, paragraph 66).

51 Consequently, it must be held that, by failing to comply with the time-limits for entry of the Communities’ own resources in the event of subsequent recovery and by delaying payment of those resources, the Italian Republic has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of Regulation No 1552/89 and the same articles of Regulation No 1150/2000, and under Article 220 of the Customs Code.

Costs

52 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Italian Republic and the latter has been unsuccessful, the Italian Republic must be ordered to pay the costs.

53 In accordance with the first paragraph of Article 69(4), the Republic of Finland, which has intervened in the proceedings, must bear its own costs.

On those grounds, the Court (Fourth Chamber) hereby:

1. Declares that, by failing to comply with the time-limits for entry of the Communities’ own resources in the event of subsequent recovery and by delaying payment of those resources, the Italian Republic has failed to fulfil its obligations under Articles 2, 6 and 9 to 11 of 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 the same articles of 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 under Article 220 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code;

2. Orders the Italian Republic to pay the costs;

3. Orders the Republic of Finland to bear its own costs.

[Signatures]