Case C-546/03: Action brought on 23 December 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2004-03-06
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, own resources

C 59/12

EN

Official Journal of the European Union

6.3.2004

Reference for a preliminary ruling by the Bundesfinanzh-
of by order of that court of 18 November 2003 in
the case of Hauptzollamt Hamburg-Jonas against Milupa
GmbH & Co KG

(Case C-542/03)

(2004/C 59/20)

Reference has been made to the Court of Justice of the
European Communities by order of
the Bundesfinanzhof
(Federal Finance Court, Germany) of 18 November 2003,
received at the Court Registry on 23 December 2003, for a
preliminary ruling in the case of Hauptzollamt Hamburg-Jonas
against Milupa GmbH & Co KG on the following question:

subparagraph of
the first
Are the second sentence of
the first subparagraph of Article 7(2) and
Article 7(1),
Article 7(5) of Regulation (EC) No 1222/94, as amended by
Regulation (EC) 229/96, (1) to be interpreted as meaning that
the party concerned is not entitled to grant of an export refund
if, in the production of the exported goods, it was not the
product declared by him, which under the first indent of
Article 1(2)(c) of Regulation (EC) No 1222/94 (2) is assimilated
to skimmed milk powder of the type described in Annex A
(PG 2), that was used but another product which, in respect of
the non-fat part of its dry matter content, is also assimilated to
skimmed milk powder of the type described in Annex A (PG 2)
by virtue of the first indent of Article 1(2)(f) of Regulation (EC)
No 1222/94?

(1) OJ 1996 L 30, p. 24.
(2) OJ 1994 L 136, p. 5.

Action brought on 23 December 2003 by the Commission
of the European Communities against the Kingdom of
Spain

(Case C-546/03)

(2004/C 59/21)

An action against the Kingdom of Spain was brought before the
Court of Justice of the European Communities on 23 December
2003 by the Commission of the European Communities,
represented by M. Díaz-Llanos La Roche and G. Wilms, acting
as Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1.

2.

declare that, by failing to observe the mandatory time-
limits for entry in the accounts laid down by Article
220(1) of the Community Customs Code (1)
(and by
Article 5 of Regulation No 1854/89 (2)) the Kingdom of
Spain has failed to fulfil
its obligations under those
provisions of Community law;

declare, furthermore, that inasmuch as late establishment
caused delays to the making available of own resources,
in accordance with
by not paying default
Article 11 of Regulation 1552/89 (3) up until 31 May
2000 and in accordance with Article 11 of Regulation
No 1150/2000 (4) from 31 May 2000, the Kingdom of
Spain has failed to fulfil its obligations under the relevant
provision of Community law;

interest

3.

order the Kingdom of Spain to pay the costs.

Pleas in law and main arguments

The Community rules on own resources are clear in that they
refer to the time when the Spanish authorities are obliged to
establish such resources: that moment is when the national
authorities are in a position to calculate the amount due and
to notify the chargeable person that all the relevant Community
provisions have been complied with. In the event of a failure
to enter duties deriving from a customs debt in the accounts,
those rules do not allow the national administration to apply
time-limits provided for in their national legislation, which are
different
from the compulsory time-limits laid down by
Community law. Such time-limits must be observed once the
debtor is identified and the amount of the debt can be
calculated.

The time at which establishment of own resources must take
place is independent of notification to the debtor or of a
definitive decision adopted by the national authorities. Those
circumstances are relevant only to the relationship between the
national authorities and the debtor, whereas the relationship
between the Member State and the Community, as regards
own resources, is governed exclusively by compliance with
objective conditions concerning entry in the accounts. The
obligation to establish own resources and subsequently the
obligation to make them available is independent of the
additional time-limits provided for by the national legislation
in order to allow the debtor to submit his observations.
Therefore, the practice followed by the Spanish authorities
does not comply with Community rules.

6.3.2004

EN

Official Journal of the European Union

C 59/13

As a result of its failure to fulfil those obligations, Spain must
pay default interest, in accordance with Community rules on
own resources. According to settled case-law, there is an
indissoluble link between the obligation to establish the
Community’ own resources, the obligation to credit them to
the Commission’s account within the prescribed time-limit
and, finally, the obligation to pay default interest, which is
owed for the whole period of delay and is payable regardless
of the reason for the delay in making the entry in the
Commission’s account. Consequently, the reference made by
the Spanish authorities to their internal procedures, has no
influence as regards its obligation to pay default interest. In
order to enable the Commission to calculate the default
interest, Spain must communicate to it all the information
necessary on the periods which elapsed between the entry in
the accounts, as the relevant time for the establishment of own
resources, according to the provisions of Community law on
the collection of those resources, and the practice followed by
the Spanish authorities. The Kingdom of Spain has failed to
fulfil that obligation.

(1) Council Regulation (EEC) No 2913 of 12 October 1992 estab-
lishing the Community Customs Code (OJ 1992 L 302, p. 1).
(2) Council Regulation (EEC) No 1854/89 of 14 June 1989 on the
entry in the accounts and terms of payment of the amounts of
import duties or export duties resulting from a customs debt (OJ
1989 L 186, p. 1).

(3) 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).

(4) 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).

— 2001/12/EC of the European Parliament and of the
Council of 26 February 2001 amending Council
Directive 91/440/EEC on the development of the
Community’s railways (1);

— 2001/13/EC of the European Parliament and of the
Council of 26 February 2001 amending Council
Directive 95/18/EC on the licensing of railway
undertakings (2);

— 2001/14/EC of the European Parliament and of the
Council of 26 February 2001 on the allocation of
railway infrastructure capacity and the levying of
charges for the use of railway infrastructure and
safety certification (3);

and in any event by failing to notify the provisions in
question to the Commission, the Hellenic Republic has
failed to fulfil its obligations under those directives.

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for transposing the directives into
national law expired on 15 March 2003.

(1) OJ L 75 of 15.03.2001, p. 1.
(2) OJ L 75 of 15.03.2001, p. 26.
(3) OJ L 75 of 15.03.2001, p. 29.

Action brought on 23 December 2003 by the Commission
of the European Communities against the Hellenic
Republic

(Case C-550/03)

(2004/C 59/22)

Appeal brought on 29 December 2003 by Unilever
Bestfoods (Ireland) Ltd, formerly HB Ice Cream Ltd,
against the judgment delivered on 23 October 2003 by
the Fifth Chamber of the Court of First Instance of the
European Communities in case T-65/98 between Van den
Bergh Foods Ltd, formerly HB Ice Cream Ltd, and the
Commission of the European Communities

An action against the Hellenic Republic was brought before the
Court of Justice of the European Communities on 23 December
2003 by the Commission of the European Communities,
represented by Georgios Zavvos and Wouter Wils, of its Legal
Service.

(Case C-552/03 P)

(2004/C 59/23)

The applicant claims that the Court should:

— declare that, by failing to adopt the laws, regulations
and administrative provisions necessary to comply with
Directives:

An appeal against the judgment delivered on 23 October 2003
by the Fifth Chamber of the Court of First Instance of the
European Communities in case T-65/98 (1) between Van den
formerly HB Ice Cream Ltd, and the
Bergh Foods Ltd,