Case C-104/02: Action brought on 20 March 2002 by the Commission of the European Communities against the Federal Republic of Germany
Date: 2002-06-01
Institutions: Court of Justice
Subjects: EU customs procedure, European Commission, Germany, Union transit, action for failure to fulfil an obligation, interest

C 131/4

EN

Official Journal of the European Communities

1.6.2002

Reference for a preliminary ruling by the Il Tribunale Di
Brescia, Seconda Sezione Civile by order of that Court of
21 January 2002 in the civil case of Società Dolomite
Italiana — SDI s.p.a. (C-88/02), Dolomite Franchi s.p.a.
(C-89/02) against Ministero delle Finanze; by order of
8 October 2001 Ugine Srl (C-95/02), TOMAR Srl (C-96/
02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA
(C-98/02) against Ministero delle Finanze

(Cases C-88/02, C-89/02, C-95/02, C-96/02 and C-98/02)

(2002/C 131/08)

Reference has been made to the Court of Justice of the
European Communities by orders of the Il Tribunale Di Brescia
(Brescia Regional Court) Seconda Sezione Civile (Second Civil
Chamber) of 21 January 2002, received at the Court Registry
on 14 March 2002, for a preliminary ruling in the civil cases
of Società Dolomite Italiana — SDI s.p.a. (C-88/02), Dolomite
Franchi s.p.a. (C-89/02) against Ministero delle Finanze; by
order of 8 October 2001, received at the Court Registry on
18 March 2002, in the cases of Ugine Srl (C-95/02), TOMAR
Srl (C-96/02), Rezzola Scavi Srl (97/02) and Villa Gemma SpA
(C-98/02) against Ministero delle Finanze, on the following
questions:

1.

2.

Is Article 11(1) of Italian Law No 448 of 23 December
1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
supplement) compatible with Community law, in particu-
lar with Articles 10 and 12 of Council Directive 69/335/
EEC (1) of 17 July 1969 concerning indirect taxes on the
raising of capital,
the
administrative charge is payable at a flat annual rate for
registration of other company documents for each of the
years from 1985 to 1992, equal to the sum of the
sum of ITL 750 000 for public limited companies and
partnerships limited by shares and ITL 400 000 for
private limited companies and ITL 90 000 for other
companies?

inasmuch as it provides that

Is Article 11(3) of Law No 448/98 compatible with
Community law, inasmuch as it provides that interest on
the sums to be reimbursed in so far as they exceed the
sum provided for by Article 11(1) should be calculated
according to the legal rate in force at the date on which
that Law entered into force (2,5 % per annum) and not
according to the rate provided for by Article 5 with
respect to Article 1 of Law No 29 of 26 January 1961, as
subsequently amended?

(1) OJ L 249 of 3.10.1969, p. 25.

Action brought on 20 March 2002 by the Commission of
the European Communities against the Federal Republic
of Germany

(Case C-104/02)

(2002/C 131/09)

An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 20 March 2002 by the Commission of the European
Communities, represented by Günter Wilms, of
its Legal
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:

(1) declare that

the Federal Republic of Germany has
infringed its obligations under Article 49 of Commission
Regulation (EEC) No 1214/92 (1) of 21 April 1992 on
provisions for the implementation of the Community
transit procedure and for certain simplifications of that
procedure and/or Article 379 of Commission Regulation
(EEC) No 2454/93 (2) of 2 July 1993 laying down
provisions for the implementation of Council Regulation
(EEC) No 2913/92 (3) establishing the Community Cus-
toms Code in conjunction with Article 2(1) of Council
Regulation (EEC, Euratom) No 1552/89 of 29 May
1989 (4) implementing Decision 88/376/EEC, Euratom
on the system of the Communities’ own resources, by
transferring own resources to the Community too late;

(2) 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
1150/2000 (5) for the period after 31 May 2000, to pay
into the Community budget the interest accrued as a
result of the late transfer;

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

Pleas in law and main arguments

Article 49 of Regulation No 1214/92 (on the implementation
of the Community transit procedure) and Article 379 of
Regulation No 2454/93 (implementing the Customs Code) set
a clear and mandatory time-limit by which the customs
authorities of the Member States must initiate post-clearance
recovery proceedings. This is not purely a procedural time-
limit. Had it intended to do so, the legislature would have
identified such a time-limit by using less binding wording. The
intention of the legislature and the unambiguous wording of
the statute permit solely the conclusion that Article 49 of
Regulation No 1214/92 and Article 379(2) of Regulation
No 2454/93 do not merely provide for action which the State
ought to take but, rather, prescribe a binding obligation. Post-
clearance recovery must be carried out by no later than the
expiry of a period of 14 months. Since both the debtor and
the amount of the debt to be claimed from him are known to
the custom authorities by that stage, the debtor must be

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