Commission of the European Communities v Federal Republic of Germany.
Date: 2005-04-14
45. According to the well-established case-law of the Court (see, inter alia, Case C-96/89 Commission  v Netherlands  [1991] ECR I-2461, paragraph 38), 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.
46. Therefore, if the Commission’s plea, relating to the delay in entering the amount of the customs debt in the accounts and crediting the appurtenant own resources to the Commission’s account, 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 time-limit prescribed in the reasoned opinion expired, particularly the payment of default interest pursuant to Regulation No 1552/89. Consequently, if the alleged infringement does exist, there is still an interest in having that fact declared in a judgment.
49. It is well established that the purpose of an action under Article 226 EC is to obtain a declaration that a Member State has failed to fulfil its Community obligations. When there is a finding of infringement, Article 228 EC expressly requires the Member State in question to take the measures necessary to comply with the judgment of the Court of Justice. The Court cannot, however, order the Member State to take specific measures.
50. Consequently, the Court cannot, in the context of infringement proceedings, rule on pleas like those in the present case which seek an order that the Member State pay default interest.
69. Although in Case C-112/01 SPKR  [2002] ECR I‑10655, paragraph 40, the Court held that non-compliance with the 11-month time-limit does not by itself prevent recovery of the customs debt from the principal, it also stated, at paragraph 34 of the same judgment, that that time-limit is directed at administrative authorities and has as its objective to ensure diligent uniform application, by those authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community’s own resources. Accordingly, compliance with the 11-month time-limit, although it does not have any effect on whether the customs debt is owed, is nevertheless mandatory for the Member States in respect of their Community obligations relating to the making available of Community own resources.
71. In paragraphs 24 and 25 of Case C-300/03 Honeywell Aerospace  [2005] ECR I‑0000, the Court held that it follows from the very wording of Article 378(1) and Article 379(2) of the implementing regulation that notification by the office of departure to the principal of the time-limit by which the proof requested must be furnished is mandatory and must precede recovery of the customs debt. The time-limit is intended to protect the interests of the principal by allowing him three months in which to furnish, where appropriate, proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed. In those circumstances, the Member State to which the office of departure belongs may recover import duties only if, in particular, it has indicated to the principal that he has three months in which to furnish the proof requested and such proof has not been provided within that period.
78. As rightly pointed out by the Commission, it is clear from the very wording of the third sentence of Article 379(2) of the implementing regulation that the Member States are obliged to instigate the recovery procedure provided for therein upon expiry of the three-month time-limit referred to therein. That interpretation is also necessary in order to guarantee diligent and uniform application by the competent authorities of the provisions governing recovery of customs debts, with a view to making Community own resources available efficiently and speedily.
80. Under Articles 217(1), 218(3), and 219 of the Customs Code, the entry in the accounts of the amount relating to customs debts such as those contemplated in the present action must take place within two days, which may be extended to but not exceed 14 days in all. In addition, the debtor must be informed of the amount of those debts as soon as it has been entered in the accounts, pursuant to Article 221(1) of the Customs Code. That time-limit starts to run from the date when the customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties and determine the debtor. Moreover, contrary to the position advocated by the German Government, this is precisely the case at the latest upon the expiry of the three-month time-limit referred to in Article 379(2) of the implementing regulation.
81. First, with respect to the finding that a customs debt was incurred, the Court notes that when, as in the cases contemplated in the present action, the consignments placed in the external Community transit procedure were not presented at the office of destination by the time-limit prescribed by the office of departure, the customs debt is presumed to have been incurred and the principal is presumed to be the debtor thereof. In such a case, and when the place of the offence or irregularity cannot be established, the office of departure must, pursuant to Article 379(1) of the implementing regulation, give notice of that fact to the principal before the end of the 11th month following the date of registration of the Community transit declaration.
86. Lastly, with respect to the decision by the competent customs authorities to take steps to recover the customs debt, Article 378(1) and (2) of the implementing regulation establishes a presumption of competence in favour of the Member State to which the office of departure belongs. In the three months provided for in Article 379(2) of that same regulation, proof that the offence was committed in another State may be produced by the principal. As rightly pointed out by the Commission, there is nothing to show that the assessment of the documents produced for that purpose, even assuming that they were provided on the last day of the three-month period, cannot be carried out within the two-day time-limit following the end of the three-month time-limit, increased in duly justified special cases by 12 supplementary days, giving a maximum time-limit of 14 days.
88. Lastly, the communication of the amount of the debt to the principal immediately after the end of the three-month time-limit does not represent a disproportionate burden for him. If it should subsequently emerge that the Community transit operation took place in a lawful manner and within the time-limits allowed or that it ended late without any other irregularities, the principal may obtain reimbursement of the amounts paid, which, since the adoption of the Customs Code, is expressly provided for in Article 236(1) thereof, once it is established that, in accordance with Article 204(1) of the Customs Code, read together with Article 859 of the implementing regulation, the breach did not have any real impact on the proper functioning of the customs scheme in question.