Case C-304/18: Action brought on 4 May 2018 — European Commission v Italian Republic

Action brought on 4 May 2018 — European Commission v Italian Republic

(Case C-304/18)

Parties

Applicant: European Commission (represented by: Z. Malůšková, M. Owsiany-Hornung, F. Tomat, acting as Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— Declare that, by refusing to make available traditional own resources in the amount of EUR 2120309,50 concerning communication on ineligibility IT (07)08-917, the Italian Republic has failed to fulfil its obligations under Article 8 of Council Decision 94/728/EC, Euratom, ( 1 ) Article 8 of Council Decision 2000/597/EC, Euratom, ( 2 ) Article 8 of Council Decision 2007/436/EC, Euratom ( 3 ) and Article 8 of Council Decision 2014/335/EU, ( 4 ) as well as Articles 6, 10, 11 and 17 of Council Regulation (EEC, Euratom) No 1552/1989, ( 5 ) Articles 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 ( 6 ) and Articles 6, 10, 12 and 13 of Council Regulation (EC, Euratom) No 609/2014; ( 7 )

— Order the Italian Republic to pay the costs of the proceedings.

Pleas in law and main arguments

The information available to the Commission, which are based on communications and information provided by the Italian Republic in the course of the pre-litigation procedure, show that, in an anti-fraud operation aimed at tackling the trafficking in foreign manufactured tobacco, in 1997 the Italian authorities established the customs debt at issue, included it in separate accounts and then notified the debtor of the amount of the duties owed. Since the debt at issue was included in separate accounts (accounts B) and was not contested, the Italian authorities should have proceeded to its immediate recovery, which they have failed to do. The Italian authorities waited for the outcome of the relevant criminal proceedings brought against the debtors before initiating a recovery procedure, which ended approximatively six years after the debt arose and was established.

Customs duties constitute EU own resources, which must be collected by the Member States and made available to the Commission. The obligation on Member States to establish the Union’s own resources arises as soon as the conditions provided for by customs legislation are met (establishment of the amount of the duties that stem from the customs debt and identification of the liable person).

The regulation on making such resources available also provides that the Member States must take all requisite measures to ensure that the amounts corresponding to the duties established are made available to the Commission. Member States are released from the obligation to place at the disposal of the Commission the amounts corresponding to the duties established only if it has not been possible to recover them for reasons of force majeure or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them. If a Member State fails to make available to the Commission the amount of own resources established, without one of the conditions laid down by the regulation in question being fulfilled, that Member State fails to fulfil its obligations under EU rules. Any delay in making available own resources gives rise moreover to an obligation on the part of that Member State to pay default interest for the whole of the period of the delay.

Since the Italian authorities waited, in essence, six years before initiating the debt collection procedure in question, and that delay is attributable solely to the Italian authorities, the Italian Republic cannot maintain that it took all the requisite measures to ensure that the amounts corresponding to the duties established were made available to the Commission. The Italian authorities have always refused to make the amount established available to the Commission.

The Commission considers, therefore, that, in the present case, the Italian Republic has failed to fulfil its obligations under Article 8 of the Decision on the system of own resources and Articles 6, 10, 11 and 17 (now Articles 6, 10, 12 and 13) of the Regulation on making own resources available.

( 1 ) 94/728/EC, Euratom: Council Decision of 31 October 1994 on the system of the European Communities’ own resources (OJ 1994 L 293, p. 9).

( 2 ) 2000/597/EC, Euratom: Council Decision of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42).

( 3 ) 2007/436/EC, Euratom: Council Decision of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17).

( 4 ) 2014/335/EU, Euratom: Council Decision of 26 May 2014 on the system of own resources of the European Union (OJ 2014 L 1684, p. 105).

( 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 ) Council Regulation (EU, Euratom) No 609/2014 of 26 May 2014 on the methods and procedure for making available the traditional, VAT and GNI-based own resources and on the measures to meet cash requirements (recast) (OJ 2014 L 168, p. 39).