Case C-105/02: Action brought on 21 March 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-06-01
Institutions: Court of Justice
Subjects: European Commission, Germany, action for failure to fulfil an obligation, customs document, customs duties

1.6.2002

EN

Official Journal of the European Communities

C 131/5

notified in accordance with Article 2(1) of Regulation
No 1552/89. Should the Member State fail within that time-
limit to fulfil its obligation to effect post-clearance recovery of
the duties and to determine the own resources, this may —
depending on the length of the period exceeding the time-limit
— lead to a delay in the transfer of the corresponding own
resources.

(2) by failing to inform the Commission of all other uncon-
tested customs duties relating to TIR carnets not proces-
sed at German customs posts from 1994 until amend-
ment of the decree adopted in 1996 by the Federal
Ministry of Finance (Decree of 11 September 1996, III B
1 — Z 0912 — 31/96), which received similar treatment
(entry in the ‘B’ accounts instead of the ‘A’ accounts);

The German authorities did not comply with the time-limits
laid down by Article 49 of Regulation No 1214/92 and
Article 379 of Regulation No 2454/93 and therefore deter-
mined own resources too late. Article 11 of Regulation
No 1552/89 is applicable to the extent that the late determi-
nation led to delays in the transfer of own resources. That
article imposes on the Member States an obligation to pay
interest irrespective of the reason for the delay.

(1) OJ L 132 of 16.5.1992, p. 1.
(2) OJ L 253 of 11.10.1993, p. 1.
(3) OJ L 302 of 19.10.1992, p. 1.
(4) OJ L 155 of 7.6.1989, p. 1.
(5) OJ L 130 of 31.5.2000, p. 1.

Action brought on 21 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-105/02)

(2002/C 131/10)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 21 March 2002 by the Commission of the European
its Legal
Communities, represented by Günter Wilms, of
Service, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, of its Legal Service, Wagner Centre
C 254, Kirchberg.

The applicant claims that the Court should:

declare that the Federal Republic of Germany has failed to
comply with its obligations under Council Regulation (EEC,
Euratom) No 1552/89 (1) of 29 May 1989 on the system of
the Communities’ own resources, as replaced with effect from
31 May 2002 by Council Regulation (EC, Euratom) No 1150/
2000 (2),

(1) by failing properly to process certain transit documents
(TIR carnets) and, as a result, to enter correctly and to
transfer to the Commission within the specified time-
limit the own resources resulting from those documents;
and

(3) declare that the Federal Republic of Germany is obliged
forthwith to credit to the Commission the own resources
not transferred as a result of the infringements set forth
under 1(a) and (b) above;

(4) declare that, with respect to any amounts already trans-
ferred, the Federal Republic of Germany is obliged to
state the date on which each amount fell due, the amount
owed and, where appropriate, the date of transfer;

(5) declare that the Federal Republic of Germany is obliged,
pursuant to Article 11 of Regulation No 1552/89 for the
period up to 31 May 2000 and Article 11 of Regulation
No 1150/2000 for the period after 31 May 2000, to pay
into the Community budget the interest accrued as a
result of the late transfer;

(6) order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Commission concedes that, pursuant to Article 6 of
Regulation No 1552/89, the entry of import duties in the
‘A’ accounts for own resources can only be required to the
extent that the Member State concerned has been provided
with security corresponding to cash payment. However, this
does not mean that such security must be ‘directly and
immediately realisable’.

The German authorities dispute in a general — and thus
in the case of goods
unsubstantiated — manner — that,
taxable at a high rate, the security of ECU 60 024 per TIR
carnet, which is provided in the same way for national import
duties and EU own resources, is sufficient to cover duty claims
in the majority of cases. They also do not — and cannot —
dispute that, in all cases, the security in question is at least
partially sufficient to cover the claims. Consequently, such
security should, at least to this extent, have been entered in the
‘A’ accounts, provided that no other assessment is called for in
view of the termination by the reinsurer, because, as a result
thereof — and as the German authorities claim — the risk
cover existed ‘only on paper’. However, since, in principle, the
point in time at which the TIR procedure begins and at which
the corresponding security is provided is decisive, claims
arising before 1995 should in any event have been entered in
the ‘A’ accounts and transferred.

If the German Government’s assertion that from 1995 the
duties claims had to be regarded as unsecured on account of
the termination by the reinsurer were correct, the German
authorities should not have permitted the TIR procedure due
to the lack of security.
If they nevertheless accepted the
procedure without security and therefore entered the claims in
the ‘B’ accounts, they must themselves bear the risk relating to
collection of those claims. It must be assumed that there was

C 131/6

EN

Official Journal of the European Communities

1.6.2002

at least partial security. The Federal Republic temporarily
waived enforcement of its existing claims against the guarantor
association AIST only on the condition that the association
continued to be liable with an appropriate own share and
assigned its claims against the reinsurer by way of security.
Consequently, the claims arising in 1995 and the subsequent
years were secured and should, to the extent that they had not
been contested within the time-limit provided, have been
entered, at least partly, in the ‘A’ accounts and transferred.

The German authorities have not as yet supplied substantiated
proof for their submission that they acted vicariously in the
Community interest to prevent a collapse of the TIR system.
If, however, actual evidence of such a serious crisis existed, it
is difficult to see why the German authorities did not, in the
Community interest, consult the Commission and the other
Member States before reaching their decision temporarily to
waive collection of the claims. The unilateral action of the
German authorities is just as much an infringement of the
duty of co-operation laid down in Article 10 of the EC Treaty
as the fact that it was only in their response to the letter setting
the deadline that the German authorities complied with the
Commission’s repeated request for notification of the details
of the agreement concluded by the Federal Republic with the
guarantor association and of further agreements with other
security providers.

(1) OJ L 155 of 7.6. 1989, p. 1.
(2) OJ L 130 of 31.5.2000, p. 1.

The Commission claims that the Court should:

1. Declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Council Directive 97/43/Euratom (1) of 30 June 1997 on
health protection of individuals against the dangers of
ionising radiation in relation to medical exposure, and
in the field of
repealing Directive 84/466/Euratom,
medical exposure in the operation of radiological instal-
lations, and in any event by failing to notify the Com-
mission of them, the Federal Republic of Germany has
failed to fulfil its obligations under that directive;

2. Order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

It follows from the binding nature of directives under the third
paragraph of Article 161 EA and from the first paragraph of
Article 192 EA that the Member States to which a directive is
addressed are obliged to transpose its provisions into national
law in such a way that they become fully effective in practice
from the date of expiry of the period for transposition.

In accordance with Article 14 of the directive, the Member
States were obliged to comply with it before 13 May 2000.
Although the Federal Republic of Germany has now largely
transposed the directive by means of the Strahlenschutzverord-
nung of 20 July 2001, the necessary provisions for the
operation of radiological installations are still lacking.

(1) OJ L 180 of 9.7.1997, p. 22.

Action brought on 22 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-106/02)

(2002/C 131/11)

Action brought on 22 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-108/02)

(2002/C 131/12)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser
of the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser
of the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.