Commission of the European Communities v Kingdom of Denmark.
Date: 2005-11-15
40. According to the Danish Government, the question which arises in the present case, however, is which party must suffer the loss of own resources caused by unavoidable administrative errors, regardless of the quality or efficiency with which the administrative machinery was organised.
54. As a preliminary point, the Court notes, as the Advocate General observed in point 7 of his Opinion, that it follows from the third paragraph of Article 268 EC, which provides that the revenue and expenditure shown in the budget must be in balance, that shortfalls in revenues of own resources must be offset either by another own resource or by an adjustment of expenditure.
59. As evidenced by Articles 217, 218 and 221 of the Customs Code, 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  [2005] ECR I-0000, paragraph 71, and Case C‑104/02 Commission  v Germany [2005] ECR I-0000, paragraph 80).
60. It should in this regard be borne in mind that the Member States have the obligation to establish the Communities’ own resources (see Case C‑96/89 Commission  v Netherlands  [1991] ECR I‑2461, paragraph 38, and Commission  v Germany , cited above, paragraph 45). Article 2(1) of Regulation No 1552/89 must be interpreted as meaning that the 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 (see, to that effect, Case C‑96/89 Commission  v Netherlands , cited above, paragraph 37, and Case C‑348/97 Commission  v Germany  [2000] ECR I‑4429, paragraph 64).
61. It follows that 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.
62. This finding is not invalidated by Article 220(2)(b) of the Customs Code. That provision is intended to safeguard debtors’ legitimate expectations as to the soundness of all of the particulars used in the decision to make or not to make a subsequent entry of customs duties in the accounts (see, with respect to Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1), reproduced in Article 220(2)(b) of the Customs Code, Case C-348/89 Mecanarte  [1991] ECR I-3277, paragraph 19, and Case C-251/00 Ilumitrónica  [2002] ECR I-10433, paragraph 39). While it covers situations in which the Member States’ customs authorities cannot make a subsequent entry in the accounts of the duties in question and, therefore, cannot effect a post-clearance recovery, either, it does not release Member States from their obligation to establish the Communities’ entitlement to own resources.
63. This distinction between the rules governing the obligation to establish the Communities’ entitlement to own resources and those pertaining to the possibility for Member States to recover duties has already been upheld by the Court in Case C‑61/98 De Haan  [1999] ECR I‑5003. Whilst failure by the national customs authorities to observe the time‑limits imposed by the Community customs legislation may result in the Member State concerned paying default interest to the Communities, in the context of making available own resources, such failure does not have any bearing on the fact that the customs debt is payable or the authorities’ right to proceed with post-clearance recovery within the three years provided for by Article 221(3) of the Customs Code, as evidenced by paragraph 34 of De Haan , cited above. Likewise, although an error committed by the customs authorities of a Member State results in the debtor not having to pay the duties in question, it does not affect that Member State’s obligation to pay default interest and duties which should have been established, in the context of making available own resources.
64. As to the argument put forward by the Danish and Belgian Governments that, in the procedure provided for in Articles 871 and 873 of Regulation No 2454/93, the Commission consented to the application of Article 220(2)(b) of the Customs Code, the Court notes that that procedure does not pertain to the Member States’ obligation to establish the Communities’ entitlement to own resources. The purpose of Articles 871 and 873 of Regulation No 2454/93 is to ensure the uniform application of Community law (see, to that effect, Mecanarte , cited above, paragraph 33) and, together with Article 220(2)(b) of the Customs Code, to safeguard debtors’ legitimate expectations (see paragraph 62 of this judgment).
66. Furthermore, under Article 17(1) and (2) of Regulation No 1552/89, 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.
67. It is, moreover, clear from the Court’s case-law 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; in addition, default interest is payable regardless of the reason for the delay in making the entry in the Commission’s account. It follows that it is unnecessary to distinguish between a situation in which a Member State has established the own resources without paying them and one in which it has wrongfully omitted to establish them, even in the absence of a mandatory time-limit (see, inter alia, Case C‑96/89 Commission  v Netherlands , cited above, paragraph 38).
68. Accordingly, Member States are required to establish the Communities’ own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and determine the debtor, regardless of the issue of whether the criteria for the application of Article 220(2)(b) of the Customs Code are met and therefore whether or not it is possible to proceed with a subsequent entry in the accounts or post-clearance recovery of the customs duties in question. In those circumstances, a Member State which fails to establish the Communities’ own resources and to make the corresponding amount available to the Commission, without one of the conditions laid down in Article 17(2) of Regulation No 1552/89 being met, falls short of its obligations under Community law, in particular Articles 2 and 8 of Decision 94/728.
69. As to Article 10 EC, also relied on by the Commission, there are no grounds for holding that there has been a failure to fulfil the general obligations contained therein which is separate from the established failure to fulfil the more specific Community obligations by which the Kingdom of Denmark was bound under, inter alia, Articles 2 and 8 of Decision 94/728.