OPINION OF ADVOCATE GENERAL STIX-HACKL

delivered on 26 January 2006 1( )

Case C-377/03

Commission of the European Communities

v

Kingdom of Belgium

(Proceedings for failure to fulfil Treaty obligations – Community own resources – Failure to discharge TIR carnets – Delay in crediting own resources to account)

I – Introduction

1. In the present action for failure to fulfil Treaty obligations, the Commission seeks a declaration that

– by failing properly to discharge certain transit documents (TIR carnets) and, as a result, properly to enter in the accounts and to make available to the Commission in good time the own resources resulting from those documents,

– by failing to inform the Commission of all the other customs duties not complained of which, as regards the non-discharge of TIR carnets, had undergone similar treatment by the Belgian customs authorities since 1996 (entry in the ‘B’ accounts instead of in the ‘A’ accounts), and

– by refusing to pay the interest due on the amounts owed to the Commission,

– the Kingdom of Belgium has failed to fulfil its obligations under Articles 6, 9, 10 and 11 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 ( ) (‘the regulation on own resources’) implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources, ( ) which, with effect from 31 May 2000, repealed and replaced Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 ( ) implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own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, ( ) the purpose of which is the same.

2. The present case concerns the establishment, entry in the accounts and making available of own resources resulting from the customs transit procedure under cover of TIR carnets (‘the TIR procedure’) and is therefore closely related, in factual terms, with Case C‑105/02 ( ), in which I delivered my opinion on 8 December 2005. Although the present case differs from Case C‑105/02 in terms of the specific complaints and omissions, reference can be made to my comments therein ( ) as regards the general legal and factual background to the present case, namely for an overview of the basic problems involved in entering own resources in the accounts, the TIR procedure, and the crisis relating to it. In so far as further areas of overlap arise below, I will also refer to the abovementioned opinion at the appropriate juncture.

II – Legal background

A – The regulation on own resources

3. In its application the Commission referred to Regulation No 1150/2000 which, with effect from 31 May 2000, repealed and replaced Regulation No 1552/89 which applied on the date on which the irregularities complained of were committed. Since, on the one hand, both the content and the numbering of Articles 6, 9, 10 and 11 of the regulation on own resources have essentially remained the same in all the different versions and therefore no problems arise regarding the right of defence of the defendant Member State and, on the other, according to the Court’s case-law the existence of an infringement must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission,( ) the Commission can, in the present case, apply for a declaration that the regulation on own resources has been infringed on the basis of the version of Regulation No 1150/2000. ( )

4. However, it should be added that in the present case the obligation to establish own resources, as laid down in Article 2 of the regulation on own resources, is examined also to a certain degree as a preliminary question in relation to the correct entry and crediting to account of own resources. Although this provision was incorporated verbatim into Regulation No 1150/2000 from Regulation No 1552/89, this article was amended by Council Regulation (Euratom, EC) No 1355/96 of 8 July 1996 ( ) with effect from 14 July 1996. Therefore, on the date on which the customs debts at issue were incurred, or until 14 July 1996, the establishment of own resources was subject to the following provisions:

‘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.’

5. Therefore, in principle Regulation No 1552/89 in its original version, at least – in accordance with the principle that procedural rules generally apply to all proceedings pending at the time when they enter into force( ) – until the amendments made by Regulation No 1355/96 entered into force on 14 July 1996, would be relevant to the assessment of the Belgian authorities’ conduct as regards the establishment of the carnets dating from the years 1992 to 1994, to which the present case relates, and in particular to the question of the time of establishment.

6. Unless I specifically state otherwise, I refer below, in accordance with the application, to the regulation on own resources in the version of Regulation No 1150/2000, the relevant provisions of which will be set out.

7. As regards the establishment of a Community entitlement, Article 2(1) and (2) of the regulation on own resources 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 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.’

8. Under Article 6(1) and (3)(a) and (b) of the regulation on own resources concerning the entry of own resources:

‘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.

…

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.’

9. As regards the time-limit for making available own resources, Article 10(1) of the regulation on own resources provides:

‘1. After deduction of 10% by way of collection costs in accordance with Article 2(3) of Decision 94/728/EC, 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 of this Regulation.

However, for entitlements shown in separate accounts under Article 6(3)(b) of the entry must be made at the latest on the first working day following the 19th day of the second month following the month in which the entitlements were recovered.’

B – The TIR convention

10. The customs transit procedure under cover of TIR carnets has its basis in the Customs Convention on the international transport of goods under cover of TIR carnets (‘the TIR Convention’) signed in Geneva on 14 November 1975, to which inter alia both the Kingdom of Belgium and the European Community are party. ( )

11. Chapter II of the TIR Convention, which lays down the provisions on the issue of TIR carnets and the liability of the guaranteeing associations, contains inter alia the following provisions:

‘Article 8

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.

3. Each Contracting Party shall determine the maximum sum per TIR carnet, which may be claimed from the guaranteeing association on the basis of the provisions of paragraphs 1 and 2 above.

4. The liability of the guaranteeing association to the authorities of the country where the customs office of departure is situated shall commence at the time when the TIR carnet is accepted by the customs office. In the succeeding countries through which goods are transported under the TIR procedure, this liability shall commence at the time when the goods are imported or, where the TIR operation has been suspended under Article 26(1) and (2), at the time when the TIR carnet is accepted by the customs office where the TIR operation is resumed.

5. The liability of the guaranteeing association shall cover not only the goods which are enumerated in the TIR carnet but also any goods which, though not enumerated therein, may be contained in the sealed section of the road vehicle or in the sealed container. It shall not extend to any other goods.

6. For the purpose of determining the duties and taxes mentioned in paragraphs 1 and 2 of this Article, the particulars of the goods as entered in the TIR carnet shall, in the absence of evidence to the contrary, be assumed to be correct.

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.’

12. Article 11 of the TIR Convention lays down the following provisions on the procedure where TIR carnets have not been discharged or have been discharged conditionally:

‘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 abovementioned 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.’

C – The regulation for the implementation of the Customs Code

13. The TIR procedure, which also comprises the external transit procedure, has as its legal basis in Community law, in addition to the international TIR Convention, 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 ( ) (‘regulation for the implementation of the CC’), which in turn is based on the Community Customs Code ( ) (‘the CC’) and essentially incorporates and implements in Articles 451 et seq. the procedure introduced by the TIR Convention.

14. Article 454 of the regulation for the implementation of the CC provides inter alia:

‘1. This Article shall apply without prejudice to the specific provisions of the TIR and ATA Conventions concerning the liability of the guaranteeing associations when a TIR or an ATA 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 or a transit operation carried out under cover of an ATA 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.

…’

15. Article 455 provides inter alia:

‘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 or a transit operation carried out under cover of an ATA carnet, the customs authorities shall notify the holder of the TIR carnet or ATA carnet and the guaranteeing association within the period prescribed in Article 11(1) of the TIR Convention or Article 6(4) of the ATA Convention, as the case may be.

2. Proof of the regularity of the operation carried out under cover of a TIR carnet or an ATA 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 or Article 7(1) and (2) of the ATA Convention, as the case may be.

…’

III – Prelitigation procedure

16. The Commission bases the present case primarily on two inspections of own resources which it had carried out in Belgium in November 1996 and December 1997 and which, according to it, revealed irregularities regarding the establishment, entry in the accounts and crediting to account of Community own resources, which resulted in a delay in these own resources being made available.

17. The irregularities – in particular the delay in entering in the B accounts the established customs claims arising from undischarged TIR carnets in most of the cases under examination – which were established during the inspections of own resources carried out in 1996, were notified to the Belgian authorities again in May 1996 – after the inspection reports had been sent.

18. As regards the irregularities established during the inspection of own resources carried out in 1997, – according to the inspection report – the Belgian authorities did not enter the established amounts in respect of certain undischarged TIR carnets even though they were secured and unchallenged. They were entered in the B accounts only after the inspection of own resources with reference to the appeal against the recovery measures which had been lodged by the national guaranteeing association.

19. Since the Commission took the view that the customs debts were not contested, it requested, by letter of 2 February 2000, that the Belgian authorities enter the relevant amounts in the A accounts and also send it a summary in respect of the period from 1 January 1995 to 1 December 1997 concerning all undischarged TIR carnets with details of their establishment and entry in the accounts.

20. In their replies of 12 February 2001 concerning the 1996 inspection of own resources and of 31 May 2000 concerning the 1997 inspection of own resources, the Belgian authorities rejected the complaints and arguments raised by the Commission.

21. Since the Commission stood by its view that Belgian authorities’ conduct in the cases under investigation did not comply with the provisions on own resources, it restated this fact to the Belgian authorities in a letter of formal notice of 23 October 2001, which replied to it by letter of 17 January 2002. In their reply the Belgian authorities reiterated inter alia that the customs debts arising from undischarged TIR carnets should be regarded as disputed and furthermore referred to the structural crisis which had occurred in the TIR procedure in the years 1995 to 1997 as a result of the termination of the reinsurance agreement by the International Insurance Pool at the end of 1994.

22. On 26 June 2002 the Commission sent the Belgian authorities a reasoned opinion. Since the Belgian authorities failed to comply with the Commission’s requests contained therein, the Commission brought the present case.

IV – Consideration of the application

A – First complaint: failure correctly to discharge certain TIR carnets and consequently failure correctly to enter own resources in the accounts and failure to pay them in good time

1. Admissibility

a) (a) Main submissions of the parties

23. The Belgian Government first contends that the application is inadmissible in so far as it complains of a delay in the entry of the amounts concerned in the B accounts. It states that this entry was made as soon as the Commission drew the Belgian authorities’ attention to this matter by the report on own resources and therefore the infringement complained of had ceased to exist at the time the reasoned opinion was issued. Consequently, the action for failure to fulfil Treaty obligations is inadmissible in this regard.

24. The Commission rejects this argument and states that in most of the 33 cases at issue the Belgian authorities had still not made any entry in 1996 – either in the B or the A accounts – and did not enter the amounts in the B accounts until December 1997. Since the Belgian authorities refused to hand over other similar files, it could not be excluded that there were other such cases. Furthermore, the erroneous entry in the B accounts led to a delay in entry in the accounts and therefore default interest was payable.

b) (b) Appraisal

25. In this regard, it should be noted that failure to enter amounts of customs debt in the accounts – either a delay in entry in the A accounts or an incorrect entry in the B accounts – can result in a failure to comply with the obligation under the regulation on own resources to credit the amounts of customs debt to the Commission’s account in good time and that can thus give rise to an obligation to pay default interest.

26. Therefore, if the Commission’s complaint regarding the failure correctly to enter the amounts at issue in the accounts and the failure to pay them in good time is well-founded, the possibility cannot be ruled out that not all of the consequences of the infringement had been brought to an end when the time-limit prescribed in the reasoned opinion expired, particularly the payment of default interest pursuant to the regulation on own resources. Consequently, although the question whether the entry was correct in the present case and whether the amounts at issue could rightly be entered in the B accounts must be clarified only in the context of the merits of the application, there is still an interest in having that alleged infringement declared in a judgment. ( )

27. I therefore take the view the objection of inadmissibility is unfounded.

2. Merits

a) (a) Main submissions of the parties

28. The Commission states that irregularities in the establishment, entry in the accounts and crediting to account of Community own resources were established during the two inspections of own resources which it had carried out in Belgium in November 1996 and December 1997. The cases dating from the years 1992 to 1994 examined during these inspections were not one-off cases but rather part of an earlier and general practice. It complains that the Kingdom of Belgium failed to enter the relevant entitlements – even though they were secured and unchallenged – in the A accounts within the period prescribed in Article 6(3)(a) of the regulation on own resources and to credit them to the Commission’s account.

29. As specifically regards the cases examined in November 1996, the Commission complains that in 20 of the 33 cases under examination the established entitlements arising from undischarged TIR carnets had not been included in the accounts until one year after the inspection of own resources. In two cases the Belgian authorities had acknowledged the infringement of the provisions on own resources (failure to notify the customs debt and consequently the extinguishment thereof) but had still not made the relevant amounts available to the Commission.

30. Entitlements arising from a number of TIR carnets were not entered in the A accounts until after the national guaranteeing association had made payment in August 1999. Under Article 455 of the regulation for the implementation of the CC, in conjunction with Article 11 of the TIR Convention, the Belgian authorities were required to establish the relevant entitlements within a period of no more than 15 months (12 + 3) from the date of acceptance of the TIR carnet and to enter them in the A accounts within the period prescribed in Article 6(3)(a) of the regulation on own resources. Since the TIR carnets were accepted in 1993, default interest was due for the delay in entry in the accounts and crediting to account. In another set of cases the Belgian authorities had failed to enter the entitlements in the A accounts because the national guaranteeing association had lodged an appeal against the recovery measures.

31. As regards the cases examined in December 1997, the Commission complains that the Belgian authorities first failed to enter entitlements arising from certain undischarged TIR carnets and then erroneously entered them in the B accounts after the inspection of own resources on account of the appeal lodged by the national guaranteeing association.

32. The Commission rejects the various arguments by which the Belgian Government seeks to explain the lawfulness of the actions complained of.

33. It states that the delays in making entries in the accounts far exceeded the time-limits prescribed in Article 6(3) of the regulation on own resources both in relation to entry in the A and B accounts. The Belgian Government appeared to contend that all the (72) files concerned cases of fraud. However, the Commission had information on only 33 TIR carnets which formed the subject-matter of the 1996 inspections. In the view of the Commission, the delays in entry in A accounts gave rise to a delay in payment of the relevant own resources and consequently to default interest. The Belgian authorities had taken no action until several years after notification of the failure regarding the entry of the amounts at issue. The Commission specifically rejected the various arguments put forward by the Belgian Government to demonstrate that the entitlements at issue were unchallenged or unsecured entitlements under Article 6(3)(b) of the regulation on own resources. In particular, it also noted that the challenge by the national guaranteeing association was irrelevant in the present case because it had in any event not been made until after the entitlements at issue were to have been entered in the A accounts and made available to the Community.

34. As a preliminary point, the Belgian Government points to the crisis relating to the TIR procedure in which it had found itself since the beginning of the 1990s and was in the years 1995 to 1997 primarily on account of the termination of the reinsurance agreement at the end of 1994 by the International Insurance Pool which refused henceforth to pay customs debts incurred prior to 1994. It claims that all the customs files in the present case concern such customs debts and form the subject-matter of the arbitration proceedings against the International Insurance Pool which resulted in some payments in 1999 that were entered immediately in the A accounts. The Belgian guaranteeing association did not terminate the contract of guarantee but automatically opposed any claim arising from a TIR carnet which was secured through the old insurance pool. All own resources to which the present case relate arise from 72 TIR carnets subject to fraudulent (non-) discharge between June 1992 and November 1994 which were secured through the old international insurance pool.

35. The Belgian Government states that, apart from two TIR carnets in respect of which that government admitted a delay in meeting the claim for payment of customs duties, the Commission has not contended that establishment has not been effected under Article 2 of the regulation on own resources. Four conditions have to be satisfied for establishment to be possible and that did not occur until the date on which the claim for payment was made to the guaranteeing association. Under Articles 11(1) and (2) of the TIR Convention, a Member State must claim payment within a period of three years and not 15 months – it has one year to notify non-discharge and two years to claim payment of the customs duties – from the date of acceptance of the TIR carnet save where, as in the present case, a fraudulently discharged TIR carnet is involved, in which case the period is four years.

36. In the view of the Belgian Government, the entitlements at issue were rightly entered in the B accounts. It disputes the contention that the entitlements in question were secured for the purposes of Article 6(3)(b) of the regulation on own resources. In this respect, it refers to the nature of the (personal) guarantee in the TIR procedure and to the refusal of International Insurance Pool to pay. A security must be enforceable on the date on which the principal debtor was unable to pay. In the present case the time-limit for entry in the accounts came at a time when the International Insurance Pool had already terminated the agreement.

37. It further states that a challenge under 6(3)(b) of the regulation on own resources does not have to be made by the immediate customs debtor. A challenge can also be made by the guaranteeing association. Furthermore, contrary to the Commission’s contention, a challenge is not subject to particular procedural requirements. Nor does it have to be made within the period prescribed for entering own resources.

b) (a) Appraisal

i) (i) Preliminary remarks

38. Apart from the difficulties stemming from the fact that the parties concerned do not always exercise great care in preparing the legal and factual background to proceedings for failure to fulfil Treaty obligations ( ) and that the relevant rules of Community law on own resources arising from customs revenue are sometimes very vague or even incoherent and contradictory ( ) and in many cases undergo amendment over a particular period of proceedings, a particular complication in cases such as the present case concerning own resources lies, one, in the close link between the various obligations laid down in the regulation on own resources and, two, in the relationship between these obligations arising from the regulation on own resources and those arising from the rules on the incurrence and recovery of the various own resources, in this case customs duties.

39. In the present case too the Commission has pointed to various obligations arising from the regulation on own resources and to Community rules on the recovery of customs duties (‘failure correctly to discharge certain TIR carnets’) and therefore, as a preliminary point, some explanation should be given of the abovementioned links, particularly as they are relevant to the aspects necessary to assess the existence of the failures to fulfil Treaty obligations asserted by the Commission.

40. Firstly, as regards the obligations arising from the regulation on own resources, those most worthy of mention are, as the Belgian Government has submitted, the establishment of Community entitlements under Article 2, the entry of these entitlements in the accounts under Article 6, the crediting thereof to the Commission’s account pursuant to Articles 9 and 10 and, finally, payment of default interest in the event of any delay in making the entry in the accounts pursuant to Article 11 of the regulation on own resources. As regards the relationship between these obligations, the obligation to pay default interest is linked to the crediting of the own resources to account. The (timely) crediting of own resources to account in turn depends on the establishment and also the entry in the accounts of own resources within the time-limits prescribed for each of these operations.

41. In this connection, it should be noted that according to the Court’s consistent case-law, 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.’ ( )

42. In addition, default interest is payable regardless of the reason for the delay in crediting the Commission’s account. The Court has therefore concluded that it is unnecessary to distinguish between a situation in which a Member State has established the Communities’ own resources without paying them and one in which it has wrongfully omitted to establish them. ( )

43. Accordingly, a delay in crediting to account – or even a complete failure to do so – which in turn entails an obligation to pay default interest, can result both from the fact that the prescribed period was exceeded when the own resources at issue were established and the fact that the establishment was made out of time or not at all, even though it should have been made pursuant to Article 2 of the regulation on own resources.

44. However, as I emphasised in my Opinion in Case C‑105/02, ( ) the entry in the accounts also has independent relevance to the (timely) crediting of own resources to account in so far as the regulation on own resources, in the version relevant to this case at least, takes as a basis, in respect of the time-limit for crediting the amounts entered in the B accounts, the recovery of these amounts, whilst the time-limit for crediting the amounts entered in the A accounts is linked to the establishment of these amounts. As regards the amounts entered in the B accounts, this in turn means that as long as no recovery is effected there can be no delay in crediting to account. On the other hand, the incorrect entry of amounts in the B rather than the A accounts entails a delay in crediting to account and consequently an obligation to pay default interest.

45. However, it should be observed that failure to fulfil obligations regarding entry in accounts under the regulation on own resources – in the same way as failure to fulfil the other obligations referred to above – constitutes per se, irrespective of the financial effects on the Community or their effect on the date on which the relevant amounts are credited, an infringement of Community law and must therefore be declared as such in proceedings for failure to fulfil Treaty obligations.

46. As regards the relationship between the rules on own resources, which lay down the procedures by which the Member States make own resources available to the Communities, and the rules on the incurrence and recovery of customs duties, which are guided primarily by Community customs provisions (that is to say principally by the CC, the regulation for the implementation of the CC and the TIR Convention) and national provisions imposed by law, regulation or administrative action, it should first be observed that, according to the application, the Commission’s complaints are limited to infringements of the regulation on own resources and consequently the Court does not have specifically to establish infringements of the rules of Customs law in this case.

47. However, such infringements could be relevant in the present case in so far as they could also entail infringements of the rules on own resources or prejudice the making available of own resources. ( ) This holds true in particular with regard to the establishment of entitlements since it is linked to customs provisions and, as I stated above, the obligation to credit the Commission’s account and, where applicable, the obligation to pay default interest, applies not only to entitlements actually established but also to entitlements which a Member State wrongly omitted to establish or established out of time in breach of Community customs provisions. ( )

48. In so far as the application of the rules of customs law are relevant to the making available of own resources, as governed by the regulation on own resources, or can produce effects in this regard, there is therefore a certain ‘overlapping’ of these two areas of legislation. For example, the (procedural) time-limits laid down in the customs provisions must be construed as ensuring that own resources are made available efficiently and speedily and could therefore be regarded as mandatory having regard to the obligations arising from the regulation on own resources. ( )

ii) (ii) Individual criticisms

49. As regards the content of the Commission’s complaint, it should be observed that it refers to ‘certain transit documents’ but fails to define the transit documents or to mention a specific amount in the application. Also in the grounds for the application the Commission refers in somewhat sweeping terms to the results of the two inspections of own resources or singles out the treatment of individual transit documents by way of example. In the light of the Commission’s arguments and the information which it has provided, it is instead necessary to examine the Belgian customs authorities’ conduct in relation to the TIR procedure which is contrary to the Community provisions, at any rate in certain cases, without having, in my view, to prove that the complaint relating to all the TIR carnets at issue – the information relating to the TIR Carnets concerned provided by the Commission and the Belgian Government being different – is well-founded.

50. It should then also be noted that in relation to two TIR carnets the Belgian Government has conceded that recovery of the relevant customs debts was not effected through the default of the Belgian authorities, that is to say failure to make notifications, and it has not contested the Commission’s complaint in this respect.

51. As regards the other cases referred to by the Commission, the Commission’s rather indistinct complaint basically comprises two main criticisms to which the other arguments are linked, that is to say, one, the delay in the entry of the own resources arising from the TIR carnets – which was not effected until one year after the relevant inspection of own resources – and, two, the – in the Commission’s opinion – erroneous entry of the own resources in the B rather than the A accounts.

52. Neither of the two criticisms are contested in relation to the facts underlying them, that is to say that the entry of the entitlements arising from the TIR carnets accepted in the years 1992 to 1994 was not effected until approximately one year after the 1996 and 1997 inspections of own resources respectively, and was also effected in the B accounts. Instead, the Belgian Government disputes the assertion that there was a delay in the entry in the accounts and contends that the amounts at issue were correctly entered in the B accounts.

53. First, as regards the question of the delay in the entry in the accounts, under Article 6 of the regulation on own resources, A account entitlements and B account entitlements are to 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 relevant entitlement was established.

54. Under Article 2 of the regulation on own resources in the version relevant to the establishment in the present case, ( ) the Community’s entitlement is ‘established as soon as the amount due has been notified by the competent department of the Member State to the debtor.’

55. In this respect, it should be pointed out that this establishment, which the Member States are required to effect, ( ) is not a separate act which the competent department of the Member State has to perform. The notion of establishment is instead linked to certain procedural steps or administrative measures (notification of the duty owed) in connection with the recovery of the relevant own resources, in this case customs duties. This linking of the notion of establishment to operations in connection with the recovery procedure may also explain the indistinct definition of the conditions under which the obligation to establish the own resources is met in the various versions of the regulation on own resources because these conditions, one, must be applicable to the various types of own resources and duties and, two, must also take account of the remaining differences in the Member States’ administrative procedures.

56. As for the notification of the duty owed, the second paragraph of Article 2 of the regulation on own resources, as applicable at the material time, ( ) refers on the one hand to the relevant Community customs provisions, that is to say in this case the Community customs provisions. More precisely, the rules on the recovery of customs debts arising from infringements in connection with the TIR procedure stem partly from the TIR Convention and partly from the specific provisions on the TIR procedure contained in the regulation for the implementation of the CC which, for its part, refers to the TIR Convention and Community and national provisions, and otherwise from the Customs Code.

57. In my view – and as the Commission and the Belgian Government also conclude – in the present case the claim for payment within the meaning of Article 11(2) of the TIR Convention must be regarded as notification within the meaning of Article 2 of the regulation on own resources.

58. Under the second sentence of Article 2(1) of the regulation on own resources, 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.

59. Moreover, the actual notification of the amount of duty is not decisive as regards the date of the establishment referred to in the regulation on own resources where this is not effected on that date, that is to say as soon as the debtor is known and the amount of entitlement can be calculated. This is apparent from the fact that the Member States are required to establish the Communities’ entitlements and may not dispense with doing so as otherwise it would have to be accepted that the financial equilibrium of the Community may be disrupted by the arbitrary conduct of a Member State. ( )

60. Therefore, the time at which the conditions for notifying the amount of the duties are met, that is to say when the customs authorities are in a position to calculate the amount of duties and determine the debtor, in principle determines the date of the establishment. ( )

61. In the present case the Belgian Government takes the view that the Member States have three or – in the event of fraudulently discharged TIR carnets – four years to effect establishment, whereas the Commission considers that the establishment must be effected in any event no later than 15 months after the acceptance of the TIR carnets concerned. In my view, it is not possible to concur in general with either of these statements.

62. As regards the Belgian Government’s view, it should be noted that the two-year period for notifying non-discharge or conditional discharge laid down in Article 11(1) of the TIR Convention (no sooner than after three months within one year or – in the event of fraudulent discharge – within two years) and the period for the claim for payment referred to in Article 11(2) of the TIR Convention (no later than two years) are maximum periods and notification of the customs debt must be made as speedily as possible for the purposes for the regulation on own resources. ( ) Therefore, it is not possible simply to add these periods together and to conclude that the establishment of entitlements in the cases concerned did not have to be effected in general until three or four years after the TIR carnet had been accepted.

63. Furthermore, as the Commission has stated, it must be noted in this connection that in at least 31 cases notification of non-discharge or conditional discharge was in fact made considerably earlier than within the maximum two-year period laid down in Article 11(1), that is to say within a few months or even days.

64. As regards the Commission’s view that the establishment must be made no later than 15 months after the TIR carnet is accepted, I should first like to point out that in certain situations at least it may not be possible to comply with this time-limit. Under Article 454 of the regulation for the implementation of the CC, 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 is to be effected by that Member State, the incurrence of the customs debt being otherwise guided by the CC (Articles 202 and 203 in particular are applicable depending on the type of infringement). Of decisive important here is the fact that a customs office of entry – the present case relates to recovery by such a customs office – must be aware of the infringement or the incurrence of the customs debt in order to be able to take further steps in connection with the recovery and establishment of own resources. It generally becomes aware thereof through notification by the customs office of departure or through the return by it of a counterfoil No 2. Where no counterfoil No 2 is received by the customs office of entry after the expiry of the period prescribed for presenting the goods referred to TIR carnet, including an appropriate period for returning the counterfoil, it could still be required, where necessary, that the customs office of entry presume that an infringement has been committed at this time and therefore initiate the necessary steps to recover and establish the own resources concerned. On the other hand, in a situation such as the present in which it receives falsified counterfoils No 2, a customs office of entry cannot – until this fraud has been revealed – assume that an irregularity has occurred and consequently may initiate procedural steps to effect recovery or establishment only when it becomes aware of this irregularity or the incurrence of a customs debt.

65. Moreover, it should be observed that the prescribed periods which apply to the incurrence of customs debts arising from TIR carnets are not, as regards the date of establishment, necessarily comparable with those relating to the Community transit procedure to which Cases C‑460/01 ( ) and C‑104/02 ( ) related. Those cases related to the eleven-month period for notifying failure to present a consignment under Article 379(1) of the implementing regulation and the three-month period for proving the regularity of the transit operation under Article 379(2) thereof, which runs from the date of the above notification. The Court has ruled, one, that the eleven-month period for notifying failure to present a consignment constitutes a mandatory maximum period for the Member States in the light of the obligations arising from the regulation on own resources, ( ) and two, that the customs debt has to be notified or recovered immediately after the expiry of the three-month period for proving regularity because the customs authorities are by that time at the latest in a position to calculate the amount of duties and determine the debtor. ( ) The Court has also ruled that this interpretation is not precluded by the fact that under the applicable provisions of the Customs Code notification of the amount of duties is permitted during a period of three years after the customs debt is incurred because this maximum period does not affect the obligations vis-à-vis the Community arising from the rules on own resources. ( )

66. In the present case, it is necessary, in the light of this case-law, to concur with the Commission’s contention that where it is established that an infringement has been committed, a mandatory maximum twelve-month period for notifying the infringement or failure to discharge applies under Article 455(1) of the implementing regulation, in conjunction with Article 11(1) of the TIR Convention (or where the discharge is effected in an improper or fraudulent manner a two-year period applies). However, as regards the three-month period to which the Commission refers, under Article 11(2) of the TIR Convention this period merely indicates the earliest date on which the claim for payment can be made to the guaranteeing association. Otherwise, under Article 455(2), in conjunction with Article 11(2) of the TIR Convention, the holder of the TIR carnet and the guaranteeing association have two years from the notification of the infringement to prove the regularity of the operation carried out under cover of a TIR carnet. Therefore, whilst, according the Court’s findings in Cases C‑104/02 ( ) and C‑460/01, ( ) the period available to the Member States’ authorities for notifying the custom debt, and therefore for establishing the own resources under Article 379 of the implementing regulation, takes full account of the period for proving the regularity of the transit operation or the place where the offence or irregularity was actually committed, if the Commission’s view were taken as a basis the claim for payment within the TIR procedure would have to follow automatically if the period for proving the regularity of the operation carried out under cover of a TIR carnet was still open. Furthermore, this period is not intended primarily for the customs authorities but is rather a period available to the holder of the TIR carnet or the guaranteeing association and therefore may not – in the light of the provisions on own resources – be shortened in respect of them.

67. For the above reasons, I doubt that it can generally be concluded that the notification of the amount of duties, and therefore the establishment referred to in Article 2 of the regulation on own resources, is possible at the latest on the expiry of 15 months after the acceptance of the TIR carnet. Nevertheless, it is clear that in the present case the claim for payment must be made as soon as the customs authorities are in a position to do so. In this connection, it should be added that in a TIR procedure the customs authorities are not in a position to determine the customs debtor only where the ‘actual customs debtor’ has been identified as at least one customs debtor is always known, namely the guaranteeing association which is jointly and severally liable with the person or persons who directly owe the amounts due.

68. In any event, in the present case it is clear from the files that in most of the cases which formed the subject-matter of the 1996 inspection of own resources, the claim for payment of the customs debts due was issued both to the holder of the TIR carnets and the guaranteeing association in February 1995. Therefore, it must be noted in any case that by this time at the latest the Belgian authorities must clearly have had the information necessary to determine the amount of the customs debt and customs debtor so that the relevant entitlements should have been established at this time at the latest. Consequently, there was a delay in the entry in the accounts of these entitlements at least, which, it is not disputed, was not carried out until one year after the inspection of own resources, that is to say in 1997.

69. Therefore, it must be held that the Belgian authorities established entitlements arising from the TIR carnets out of time and consequently – by failing to them in the B accounts until approximately one year after the 1996 and 1997 inspections of own resources – also credited them to account out of time or, if the establishment was in fact effected at the time at which the customs authorities were in a position for the first time to determine the amount owed and the customs debtor, the crediting to account at least was out of time.

70. Second, as regards the Commission’s criticism that the amounts arising from the TIR carnets were wrongly entered in the B accounts, one, established entitlements which have not yet been recovered for which no security has been provided and, two, established entitlements for which security has been provided but which have been challenged and might upon settlement of the disputes which have arisen be subject to change may, as I stated in my Opinion in Case C‑105/02, ( ) in principle be entered in the B accounts.

71. As regards the various arguments put forward by the Belgian Government to demonstrate that the entitlements at issue were not secured entitlements for the purposes of Article 6(3)(b) of the regulation on own resources, I likewise refer to my Opinion in Case C‑105/02 in which I found that the guarantee referred to in Article 8 of the TIR Convention basically constitutes a security for the purposes of this provision and consequently the established entitlements arising from the TIR carnet must, at least up to the ceiling agreed in the TIR system up to which the guaranteeing associations are liable for the customs debts, be included in the A accounts and must be made available to the Community within the time-limit laid down in first subparagraph of Article 10(1) of the regulation on own resources. ( )

72. In the light of my comments in that Opinion, I consider that irrespective of the extent to which the crisis relating to the TIR procedure and the consequences thereof, such as the termination of the reinsurance agreement by the International Insurance Pool in 1994, actually affected the guarantees to be provided by the Belgian guaranteeing association at the material time, the Belgian authorities should not, under the regulation on own resources and according to the principle of cooperation in good faith, have omitted, without authorisation and consultation with the Commission, to enter the customs debts arising from TIR carnets in the A accounts, as set out above. ( )

73. As is clear from the files, no relevant prior consultation took place and on the contrary the Commission pointed out several times after the inspections of own resources that it did not agree with the entry being made in the B accounts.

74. For these reasons the arguments put forward by the Belgian Government concerning the crisis relating to the TIR procedure and the effects thereof must be dismissed.

75. The Belgian Government’s contention that the relevant amounts could be entered in the B accounts because they were ‘challenged entitlements’ for the purposes of Article 6(3)(b) of the regulation on own resources must also be dismissed.

76. I do agree with the Belgian Government that a relevant challenge can in principle be made by the guarantor, that is to say the guaranteeing association. In my view, this is clear primarily from the fact that under Article 8(1) of the TIR Convention it is liable, jointly and severally with the holder of the TIR carnet, for payment of the customs duties due and therefore should have the same rights of defence.( )

77. Nevertheless, I share the Commission’s view that the ‘challenge’ must, as is clear from the wording of Article 6(3)(b) of the regulation on own resources, relate to the entitlement itself and to the security, that is to say a challenge to the underlying customs debt is meant.( ) However, according to the files and the submissions of the Belgian Government, the present case does not concern such challenges. On the contrary, in the wake of the termination of the reinsurance agreement by the International Insurance Pool and its imminent insolvency the Belgian guaranteeing association has clearly refused to make payments arising from the guarantees as a matter of course.

78. Accordingly, the Belgian Government’s argument that the amounts concerned were correctly entered in the B accounts at least cannot be accepted, irrespective of whether and to what extent the circumstances which, in its view, justified entry therein, already existed at the time relevant to the entry, as the Commission has submitted.

79. Consequently, it must be held that the Commission’s criticisms concerning the belated and incorrect entry in the accounts of the own resources arising from the TIR carnets are well-founded.

80. In the light of the foregoing, it must therefore be held that the Commission’s first complaint is well-founded.

B – Second complaint: failure to notify the Commission of certain other unchallenged amounts of customs duties which were entered in the accounting ledgers in a similar manner

a) (a) Main submissions of the parties

81. By its second complaint the Commission objects that Belgian authorities failed to inform it of all the other unchallenged amounts of customs duty relating to TIR carnets not discharged with the Belgian customs authorities as of 1996 which underwent similar treatment (as the TIR carnets examined), that is to say which were included in the B accounts, even though the Commission had requested it to do so. The Kingdom of Belgium has thereby failed to fulfil its obligation to cooperate in good faith, as underlies the regulation on own resources and Article 10 EC.

82. The Belgian Government take the view that it cannot be criticised for having failed to fulfil its obligation to cooperate in good faith.

b) (b) Appraisal

83. As I stated in my Opinion in Case C‑105/02, according to the principle of cooperation in good faith, as also underlies the regulation on own resources, a Member State is required to comply with a request for information from the Commission, such as that to which the present case relates, by which the Commission seeks information on the treatment for accounting purposes of certain TIR carnets following the inspections which it has carried out to establish whether the rules on own resources are being applied correctly. ( )

84. Since the Belgian Government has not disputed that it received a relevant request from the Commission or that it failed to comply with it, it must therefore be held that the Kingdom of Belgium thereby has failed to fulfil its obligations under the regulation on own resources.

85. Therefore, the Commission’s second complaint is well-founded.

C – Third complaint: failure to pay the interest due on the amounts owed to the Commission

a) (a) Main submissions of the parties

86. The Commission takes the view that since the Belgian authorities have not yet made available to the Community a large proportion of the amounts owed and there was a great delay in paying the amounts already credited, interest is payable under Article 11 of the regulation on own resources. It refers in particular to the amount arising from the two undisputed cases which has already been pledged by the Belgian authorities but still not been made available to the Commission. The objections raised by the Belgian Government must be dismissed because the entitlements arising from the TIR carnets at issue should have been entered in the A accounts, at least in so far as they were covered by the guarantee.

87. The Belgian Government reiterates its view that the amounts at issue could be correctly entered in the B accounts. Since it had already received the outstanding amounts (in 1999), it credited them to account within the prescribed period. Furthermore, the Commission appears to have miscalculated the interest.

b) (b) Appraisal

88. Under Article 11 of the regulation on own resources, any delay in making the entry in the account is to give rise to the payment of default interest which, according to settled case-law, is payable regardless of the reason for the delay in making the entry in the Community’s account. ( )

89. First, as I have already found, the Belgian Government has acknowledged that it infringed the regulation on own resources in relation to two TIR carnets and promised to credit to the Commission the relevant own resources plus default interest but, as the Commission has stated without being challenged, those own resources have not yet been paid.

90. Second, I have found in connection with the first complaint that the entry in the accounts or establishment of own resources was effected out of time by the Belgian authorities, at least in certain circumstances, and that the amounts of own resources were incorrectly entered in the B accounts. Since the relevant amounts of own resources were therefore credited later than they should have been had the regulation on own resources or the customs provisions been applied correctly or were not credited at all because, for example, they were wrongly entered in the B accounts and the relevant customs debts have not yet in fact been recovered, ( ) default interest is payable which, it is not disputed, has not been paid since.

91. Furthermore, since the Commission did not specify the amount of the unpaid default interest in its application, there is no need to establish the amount of the outstanding amounts of own resources or default interest for the purpose of determining whether there has been a failure to fulfil Treaty obligations in this case. ( )

92. Therefore, the Commission’s third complaint is also well-founded.

V – Costs

93. 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. As the Kingdom of Belgium has been unsuccessful in its submissions, I propose that it be ordered to pay the costs.

VI – Conclusion

94. In view of the foregoing considerations, I propose that the Court should:

1. declare that the Kingdom of Belgium has failed to fulfil its obligations under Articles 6, 9,10 and 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, which, with effect from 31 May 2000, repealed and replaced 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, the purpose of which is the same

– by failing properly to discharge certain transit documents (TIR carnets) and, as a result, failing properly to enter in the accounts and to make available to the Commission in good time the own resources resulting from those documents,

– by failing to inform the Commission of all the other customs duties not complained of which, as regards the non-discharge of TIR carnets, had undergone similar treatment by the Belgian customs authorities since 1996 (entry in the B accounts instead of in the A accounts), and

– by omitting to pay the interest due on the amounts owed to the Commission.

2. order the Kingdom of Belgium to pay the costs of the proceedings.