CELEX: C2002/131/10
Language: en
Date: 2002-06-01 00:00:00
Title: Case C-105/02: Action brought on 21 March 2002 by the Commission of the European Communities against the Federal Republic of Germany

1.6.2002                 EN                    Official Journal of the European Communities                                        C 131/5
notified in accordance with Article 2(1) of Regulation                    (2) by failing to inform the Commission of all other uncon-
No 1552/89. Should the Member State fail within that time-                      tested customs duties relating to TIR carnets not proces-
limit to fulfil its obligation to effect post-clearance recovery of             sed at German customs posts from 1994 until amend-
the duties and to determine the own resources, this may —                       ment of the decree adopted in 1996 by the Federal
depending on the length of the period exceeding the time-limit                  Ministry of Finance (Decree of 11 September 1996, III B
— lead to a delay in the transfer of the corresponding own                      1 — Z 0912 — 31/96), which received similar treatment
resources.                                                                      (entry in the ‘B’ accounts instead of the ‘A’ accounts);
                                                                          (3) declare that the Federal Republic of Germany is obliged
The German authorities did not comply with the time-limits                      forthwith to credit to the Commission the own resources
laid down by Article 49 of Regulation No 1214/92 and                            not transferred as a result of the infringements set forth
Article 379 of Regulation No 2454/93 and therefore deter-                       under 1(a) and (b) above;
mined own resources too late. Article 11 of Regulation
No 1552/89 is applicable to the extent that the late determi-             (4) declare that, with respect to any amounts already trans-
nation led to delays in the transfer of own resources. That                     ferred, the Federal Republic of Germany is obliged to
article imposes on the Member States an obligation to pay                       state the date on which each amount fell due, the amount
interest irrespective of the reason for the delay.                              owed and, where appropriate, the date of transfer;
                                                                          (5) declare that the Federal Republic of Germany is obliged,
( 1) OJ L 132 of 16.5.1992, p. 1.                                               pursuant to Article 11 of Regulation No 1552/89 for the
( 2) OJ L 253 of 11.10.1993, p. 1.                                              period up to 31 May 2000 and Article 11 of Regulation
( 3) OJ L 302 of 19.10.1992, p. 1.                                              No 1150/2000 for the period after 31 May 2000, to pay
( 4) OJ L 155 of 7.6.1989, p. 1.                                                into the Community budget the interest accrued as a
( 5) OJ L 130 of 31.5.2000, p. 1.                                               result of the late transfer;
                                                                          (6) order the Federal Republic of Germany to pay the costs.
                                                                          Pleas in law and main arguments
Action brought on 21 March 2002 by the Commission of                      The Commission concedes that, pursuant to Article 6 of
the European Communities against the Federal Republic                     Regulation No 1552/89, the entry of import duties in the
                             of Germany                                   ‘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
                          (Case C-105/02)                                 does not mean that such security must be ‘directly and
                                                                          immediately realisable’.
                          (2002/C 131/10)
                                                                          The German authorities dispute in a general — and thus
                                                                          unsubstantiated — manner — that, in the case of goods
                                                                          taxable at a high rate, the security of ECU 60 024 per TIR
An action against the Federal Republic of Germany was                     carnet, which is provided in the same way for national import
brought before the Court of Justice of the European Communi-              duties and EU own resources, is sufficient to cover duty claims
ties on 21 March 2002 by the Commission of the European                   in the majority of cases. They also do not — and cannot —
Communities, represented by Günter Wilms, of its Legal                    dispute that, in all cases, the security in question is at least
Service, with an address for service in Luxembourg at the office          partially sufficient to cover the claims. Consequently, such
of Luis Escobar Guerrero, of its Legal Service, Wagner Centre             security should, at least to this extent, have been entered in the
C 254, Kirchberg.                                                         ‘A’ accounts, provided that no other assessment is called for in
                                                                          view of the termination by the reinsurer, because, as a result
The applicant claims that the Court should:                               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
declare that the Federal Republic of Germany has failed to                the corresponding security is provided is decisive, claims
comply with its obligations under Council Regulation (EEC,                arising before 1995 should in any event have been entered in
Euratom) No 1552/89 (1) of 29 May 1989 on the system of                   the ‘A’ accounts and transferred.
the Communities’ own resources, as replaced with effect from
31 May 2002 by Council Regulation (EC, Euratom) No 1150/                  If the German Government’s assertion that from 1995 the
2000 (2),                                                                 duties claims had to be regarded as unsecured on account of
                                                                          the termination by the reinsurer were correct, the German
(1) by failing properly to process certain transit documents              authorities should not have permitted the TIR procedure due
      (TIR carnets) and, as a result, to enter correctly and to           to the lack of security. If they nevertheless accepted the
      transfer to the Commission within the specified time-               procedure without security and therefore entered the claims in
      limit the own resources resulting from those documents;             the ‘B’ accounts, they must themselves bear the risk relating to
      and                                                                 collection of those claims. It must be assumed that there was
 ---pagebreak--- C 131/6                EN                     Official Journal of the European Communities                                           1.6.2002
at least partial security. The Federal Republic temporarily              The Commission claims that the Court should:
waived enforcement of its existing claims against the guarantor
association AIST only on the condition that the association              1.     Declare that, by failing to adopt the laws, regulations
continued to be liable with an appropriate own share and                        and administrative provisions necessary to comply with
assigned its claims against the reinsurer by way of security.                   Council Directive 97/43/Euratom (1) of 30 June 1997 on
Consequently, the claims arising in 1995 and the subsequent                     health protection of individuals against the dangers of
years were secured and should, to the extent that they had not                  ionising radiation in relation to medical exposure, and
been contested within the time-limit provided, have been                        repealing Directive 84/466/Euratom, in the field of
entered, at least partly, in the ‘A’ accounts and transferred.                  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;
The German authorities have not as yet supplied substantiated
proof for their submission that they acted vicariously in the
                                                                         2.     Order the Federal Republic of Germany to pay the costs.
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              Pleas in law and main arguments
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            It follows from the binding nature of directives under the third
as the fact that it was only in their response to the letter setting     paragraph of Article 161 EA and from the first paragraph of
the deadline that the German authorities complied with the               Article 192 EA that the Member States to which a directive is
Commission’s repeated request for notification of the details            addressed are obliged to transpose its provisions into national
of the agreement concluded by the Federal Republic with the              law in such a way that they become fully effective in practice
guarantor association and of further agreements with other               from the date of expiry of the period for transposition.
security providers.
                                                                         In accordance with Article 14 of the directive, the Member
                                                                         States were obliged to comply with it before 13 May 2000.
(1) OJ L 155 of 7.6. 1989, p. 1.                                         Although the Federal Republic of Germany has now largely
(2) OJ L 130 of 31.5.2000, p. 1.                                         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                                   Action brought on 22 March 2002 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                                       of Germany
                         (Case C-106/02)
                                                                                                     (Case C-108/02)
                         (2002/C 131/11)
                                                                                                     (2002/C 131/12)
An action against the Federal Republic of Germany was                    An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-             brought before the Court of Justice of the European Communi-
ties on 22 March 2002 by the Commission of the European                  ties on 22 March 2002 by the Commission of the European
Communities, represented by Götz zur Hausen, Legal Adviser               Communities, represented by Götz zur Hausen, Legal Adviser
of the Commission of the European Communities, with an                   of the Commission of the European Communities, with an
address for service in Luxembourg at the office of Luis Escobar          address for service in Luxembourg at the office of Luis Escobar
Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.          Guerrero, of its Legal Service, Wagner Centre C 254, Kirchberg.