Internationaal Verhuis- en Transportbedrijf Jan de Lely BV v Belgische Staat.
Date: 2009-05-14
34. According to Article 2(1) of that regulation, the competent authorities are to notify the TIR carnet holder and the guaranteeing association within the period prescribed in Article 11(1) of the TIR Convention.
35. Article 11(1) of the TIR Convention provides that the competent authorities do not have the right to claim payment of the sums mentioned in Article 8, paragraphs 1 and 2, of the TIR Convention from the guaranteeing association unless, within a period of one year from the date of acceptance of the TIR carnet by those authorities, they have notified that association in writing of the non-discharge (see, in that regard, Case C-275/07 Commission  v Italy  [2009] ECR I-0000, paragraph 92).
36. Although it is clear that the notification period with respect to the TIR carnet holder is one year from the acceptance of the TIR carnet by those authorities (see Case C-312/04 Commission  v Netherlands  [2006] ECR I-9923, paragraph 50), the question remains open, however, as to whether the reference in Article 2(1) of the implementing regulation to the period prescribed in Article 11(1) of the TIR Convention concerns only the actual length of that period or whether, on the other hand, it also relates to the consequences of the expiry of that period, that is to say, failure to comply with that period has the consequence that the debt may no longer be recovered. Article 11(1) of the TIR Convention provides that it is only with respect to the guaranteeing association that a customs debt may no longer be recovered in the case where that period has not been observed.
37. As regards the TIR carnet holder, it must be observed, first, that neither Article 2(1) of the implementing regulation nor any other provision in that regulation sets out the effects of non-compliance with the notification period (see, to that effect, Case C-112/01 SPKR [2002] ECR I-10655, paragraph 28).
38. Next, it should be noted that an implementing regulation must be given, if possible, an interpretation that is consistent with the provisions of the basic regulation and of the international agreements concluded by the Community (see, inter alia, Case C‑61/94 Commission v Germany  [1996] ECR I-3989, paragraph 52; SPKR , paragraph 29; and Case C‑76/00 P Petrotub and Republica  [2003] ECR I‑79, paragraph 57).
40. No provision of Regulation No 719/91 or the TIR Convention suggests that failure to comply with the period for notification of the TIR carnet holder referred to in Article 2(1) of the implementing regulation would lead to the extinction of the debt on its part and would therefore exempt it from the obligation to pay that debt (see, to that effect, SPKR , paragraph 30).
46. Admittedly, in its judgment in SPKR , the Court was called on to interpret a provision also concerning the failure to comply with a notification period, namely that laid down in Article 379(1) of Regulation No 2454/93 concerning the external transit procedure. The Court held, in that regard, that non-compliance with the 11-month period laid down by that article did not exonerate the principal from the obligation to pay a customs debt where, in particular, the amount of that debt was notified to it within the limitation period provided for and the person concerned was unable to produce the evidence as to where the offence or irregularity had been committed, as laid down by another article of the same regulation (see SPKR , paragraph 32).
48. However, the Court held in the SPKR  judgment that failure to comply with the notification period concerned in that case did not by itself prevent recovery of the customs debt (see Case C-460/01 Commission  v Netherlands  [2005] ECR I-2613, paragraph 60). In paragraph 32 of the SPKR judgment the Court noted that, after the expiry of the notification period, the recoverability of that debt remains subject to other conditions such as, among others, the absence of proof of the place where the offence or irregularity was committed.
50. Lastly, it must be pointed out that the objective of Article 2(1) of the implementing regulation is to ensure diligent and uniform application of the provisions relating to the recovery of duties and taxes in order to secure rapid and effective availability of the Communities’ own resources (see Case C-312/04 Commission  v Netherlands , paragraph 54, and, by analogy, Case C-460/01 Commission  v Netherlands , paragraph 60).
51. In the light of that objective, the one-year period with respect to the TIR carnet holder must therefore, as the Commission observes, be regarded as constituting a procedural rule which is directed only at the administrative authorities with a view to encouraging them to intervene as soon as possible (see, to that effect, SPKR , paragraph 34).
66. Thus, as the Belgian Government and the Commission submit, given that there is no Community legislation governing the period within which proof must be furnished of the place where the offence or irregularity was committed, it is for the national court to determine, according to the principles of its national law on evidence, whether, in the specific case before it and in the light of all the circumstances, that proof was furnished within the period prescribed (see, by analogy, Joined Cases C-310/98 and C-406/98 Met-Trans and Sagpol  [2000] ECR I-1797, paragraphs 29 and 30).
67. However, it is for the Court to indicate certain criteria or principles of Community law which must be complied with when that assessment is being made (see, by way of analogy, Case C-309/06 Marks & Spencer  [2008] ECR I-2283, paragraph 61).
68. Therefore, the national court must, first of all, take account of the fact that the purpose of the proof of the place where the offence or irregularity is committed is to contest the jurisdiction of the Member State which recovers the duties and taxes while identifying the Member State which will have jurisdiction to recover those duties where the presumption as to the place of the offence or irregularity is considered to be rebutted ( BGL , paragraph 54).
69. That other Member State must be determined speedily, so that it can take the necessary measures to recover the amounts due. The full effectiveness of Community law would therefore be affected if national law provided for a period which is too long to make it legally and materially possible to recover amounts due in another Member State ( BGL , paragraph 55).
70. Second, it must be recalled that respect for the right to a fair hearing in any procedure brought against a person which may lead to an act adversely affecting that person in particular a procedure which may lead to the imposition of penalties, constitutes a fundamental principle of Community law. That principle requires that any person on whom a penalty may be imposed must be placed in a position in which he can effectively make known his view of the matters on the basis of which the penalty is imposed and can produce any evidence relevant to his defence (see Case C-142/87 Belgium  v Commission  [1990] ECR I-959 (‘ Tubemeuse ’), paragraphs 46 and 47; Case C-135/92 Fiskano  v Commission  [1994] ECR I-2885, paragraphs 39 and 40; and BGL , paragraph 52).
71. It follows that the national court, when determining the period within which proof is to be furnished of the place where the offence or irregularity was committed, in a case such as that in the main proceedings, must ensure that it is not materially impossible for the TIR carnet holder to furnish that proof (see, to that effect, BGL , paragraph 66).