Commission of the European Communities v Kingdom of Belgium.
Date: 2006-10-05
33. Regarding the first plea of inadmissibility, the Court notes that it is settled case-law that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C-61/94 Commission  v Germany  [1996] ECR I-3989, paragraph 42, and Case C‑365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 32).
34. Although the claims as stated in the application cannot in principle be extended beyond the failures to fulfil obligations alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less the case that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community act, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the act in question, as otherwise it would constitute a breach of the essential formal requirements of the infringement procedure (see, to that effect, Case C‑363/00 Commission  v Italy  [2003] ECR I-5767, paragraph 22).
36. As to the second plea of inadmissibility, the Court notes that 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 (see, inter alia, Case C-96/89 Commission  v Netherlands  [1991] ECR I-2461, paragraph 38).
37. Therefore, if the Commission’s plea, relating to incorrect accounting entries of the customs debt and a delay in making available the corresponding own resources, is well founded, the possibility cannot be excluded that not all of the consequences of the infringement had been brought to an end when the period prescribed in the reasoned opinion expired, particularly the payment of default interest pursuant to Regulation No 1150/2000. Consequently, if the alleged infringement does exist, there is still an interest in having that fact declared in a judgment (see, to that effect, Case C-104/02 Commission  v Germany  [2005] ECR I-2689, paragraphs 45 and 46).
38. Furthermore, as pointed out by the Court in paragraph 47 of its judgment in Case C‑363/00 Commission  v Italy , failure by a Member State to fulfil an obligation imposed by a rule of Community law is sufficient to constitute a breach of Treaty obligations and the fact that the failure had no adverse effects is irrelevant, as is the view that it gave the Member State concerned no advantage.
67. Under Article 11(2) of the TIR Convention, the claim for payment is to be made to the guaranteeing association at the earliest three months after the notification of the non-discharge or discharge obtained in an improper or fraudulent manner and at the latest not more than two years after that date, save in cases which, during the abovementioned period of two years, become the subject of legal proceedings, in which event any claim for payment is to be made within one year of the date on which the decision of the court becomes enforceable.
68. It is apparent from a combined reading of those provisions that, in the event of non-discharge, the claim for payment of the customs debt must, in principle, be lodged no later than three years after the date of acceptance of the TIR carnet, that period being extended to four years in the event of a discharge obtained in a fraudulent manner.
69. It must be borne in mind, however, that since the objective of Article 455(1) of the implementing regulation is to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources (see, by analogy, inter alia Case C-460/01 Commission  v Netherlands  [2005] ECR I-2613, paragraphs 60, 63, 69 and 70), the notification of the offence or the irregularity must, in any event, be lodged as quickly as possible, namely as soon as the customs authorities are aware of that offence or irregularity, such as in this case where they were aware in at least 31 cases, well before expiry of the maximum periods of one year and, in the case of fraud, two years, as referred to in Article 11(1) of the TIR Convention.
70. For the same reasons, the claim for payment for the purposes of Article 11(2) of the TIR Convention must be sent as soon as the customs authorities are able to send it, such as in this case where that was possible in most of the cases relating to the 1996 inspection, about which the Commission had relevant information before the expiry of the period of two years from the notification of the offence or irregularity to the parties concerned, that is, from February 1995.
75. As noted by the Court in paragraph 59 of Case C-392/02 Commission  v Denmark  [2005] ECR I-9811, it follows from Articles 217, 218 and 221 of the Customs Code that those conditions are met when the customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties and determine the debtor (see, to that effect, Case C‑460/01 Commission  v Netherlands , paragraph 71, and Case C‑104/02 Commission  v Germany , paragraph 80). Member States may not dispense with determining claims, even where these are disputed; otherwise, it would have to be accepted that the financial equilibrium of the Communities may be disrupted by the conduct of a Member State (Case C-392/02 Commission  v Denmark , paragraph 60).
76. Consequently, the Member States are required to establish the Communities’ entitlement to own resources as soon as their customs authorities are in a position to calculate the amount of duties arising from a customs debt and determine the debtor (Case C-392/02 Commission  v Denmark , paragraph 61) and, therefore, to enter those entitlements in the accounts in accordance with Article 6 of Regulation No 1150/2000.
78. As noted by the Court in paragraph 66 of the judgment in Case C-392/02 Commission  v Denmark , under Article 17(1) and (2) of Regulation No 1150/2000, Member States are required to take all requisite measures to ensure that the amounts corresponding to the duties established under Article 2 thereof are made available to the Commission. Member States are to be free from that obligation solely if, for reasons of force majeure , those amounts could not be collected or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them.
82. Indeed, as the Belgian Government correctly submits, the guaranteeing associations, which, under Article 8(1) of the TIR Convention, are jointly and severally liable with the holder of the TIR carnet to pay the customs duties which may be due, may, like the holder, bring a challenge against the entitlements themselves (see, to that effect, concerning proof of the place where the irregularity occurred, Case C-78/01 BGL  [2003] ECR I‑9543, paragraphs 50 to 53). The Commission contends, however, that the disputes referred to by the Belgian Government concern the enforcement of the security and not the existence or amount of the claims in dispute. The Belgian Government has, moreover, failed to demonstrate that the conditions laid down in Article 6(3)(b) of Regulation No 1150/2000 are met in the present case, namely that the entitlements at issue in the present proceedings were challenged by those associations within the prescribed periods and might, upon settlement of the disputes which have arisen, be subject to change.
84. The Court notes that the guaranteeing association’s rights and obligations under the TIR Convention are governed simultaneously by that convention, Community law and the security agreement, subject to Belgian law, which it concluded with the Kingdom of Belgium (see, to that effect, Case C-78/01 BGL , paragraph 45).
86. With more specific reference to the transport of goods under cover of TIR carnets, referred to in Article 91(2)(b) of the Customs Code, Article 8(1) of the TIR Convention indicates that, through the security agreement, the guaranteeing associations likewise undertake to pay the customs duties owed by the debtor and are jointly and severally liable with those the debtors for the payment of those amounts, even though, under Article 8(7) thereof, the competent authorities are, so far as possible, to require payment from the person directly liable before making a claim against the guaranteeing association.
88. However, under Article 8(3) of the TIR Convention, it is for the Member States to determine the maximum sum per TIR carnet which may be claimed from the guaranteeing association.
93. Article 17(1) of Regulation No 1150/2000 is a specific expression of the obligation of genuine cooperation under Article 10 EC, which requires Member States, when they encounter problems in the application of Community law, to submit those problems to the Commission (see, by analogy, inter alia Case C-499/99 Commission  v Spain  [2002] ECR I-6031, paragraph 24) and, in addition, does not allow them to introduce national safeguard measures in response to objections, reservations or conditions which the Commission might put forward (see, by analogy, Case 804/79 Commission  v United Kingdom  [1981] ECR 1045, paragraph 32). In the present case, it is common ground that the Kingdom of Belgium acted unilaterally, without submitting the problems encountered in the application of Community law to the Commission, even after the latter had expressed objections.
94. That obligation is all the more important because, as the Court noted in paragraph 54 of its judgment in Case C-392/02 Commission  v Denmark , shortfalls in revenues of own resources must be offset either by another own resource or by an adjustment of expenditure.
95. Nor may the Belgian Government rely on there being a case of force majeure  within the meaning of Article 17(2) of Regulation No 1150/2000. It is settled case-law that the concept of force majeure  must be understood in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided (see, inter alia, Case 145/85 Denkavit  [1987] ECR 565, paragraph 11). By its unilateral decision to enter the entitlements in dispute in the B accounts, without submitting the problem to the Commission and despite the latter’s objections, the Kingdom of Belgium clearly did not exercise all due care to avoid the consequences alleged.
102. Under Article 11 of Regulation No 1150/2000, any delay in making the entries in the account referred to in Article 9(1) of that regulation gives rise to the payment of interest by the Member State concerned at the interest rate applicable to the entire period of delay. That interest is payable in respect of any delay, regardless of the reason for the delay in making the entry in the Commission’s account (see, inter alia, Case C-460/01 Commission  v Netherlands , paragraph 91).