Commission of the European Communities v Federal Republic of Germany.
Date: 2006-10-05
44. 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 (see, inter alia, Case C-104/02 Commission  v Germany  [2005] ECR I-2689, paragraph 49).
46. As to the reformulation of the fifth head of claim, the Court notes that in principle it is not permissible for a party to alter the very subject-matter of the case during the proceedings, and the merits of the action must be examined solely in the light of the claims contained in the application initiating the proceedings (see, to that effect, Case 232/78 Commission  v France  [1979] ECR 2729, paragraph 3; Case C-256/98 Commission  v France  [2000] ECR I‑2487, paragraph 31; and Case C-508/03 Commission  v United Kingdom  [2006] ECR I-0000, paragraph 61).
47. The Court has also consistently held (see, inter alia, Case C-365/97 Commission  v Italy  [1999] ECR I-7773, paragraph 23, and Case C-441/02 Commission  v Germany  [2006] ECR I-3449, paragraph 59) that the letter of formal notice sent by the Commission to a Member State, and the reasoned opinion issued by the Commission, delimit the subject-matter of the dispute, so that it cannot thereafter be extended. The opportunity for the Member State concerned to submit its observations, even if it chooses not to avail itself thereof, constitutes an essential guarantee intended by the EC Treaty, adherence to which is an essential formal requirement of the procedure for finding that a Member State has failed to fulfil its obligations.
48. The Court has also held that there can be no requirement that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, where the subject-matter of the proceedings as defined in the reasoned opinion has not been extended or altered but simply limited (Case C-441/02 Commission  v Germany , cited above, paragraph 61 and case-law cited).
73. As noted by the Court in paragraph 66 of the judgment in Case C-392/02 Commission  v Denmark  [2005] ECR I-9811, 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.
74. In regard to the accounting entries of own resources, Article 6(1) of Regulation No 1552/89 states that each Member State is to keep accounts for those resources with its Treasury or with the body appointed by it. Under Article 6(2)(a) and (b), Member States are obliged to include in the A accounts the entitlements established in accordance with Article 2 of that regulation, at the latest on the first working day after the 19th day of the second month following the month during which the entitlement was established, without prejudice to the option of entering in the B accounts, within the same prescribed period, the established entitlements which have ‘not yet been recovered’ and for which ‘no security has been provided’, and also entitlements established and ‘for which security has been provided [and which] have been challenged and might, upon settlement of the disputes which have arisen, be subject to change’.
76. In the course of the present proceedings, the German Government has not stated that the entitlements in dispute were challenged within the prescribed periods and might, upon settlement of the disputes which had arisen, be subject to change within the meaning of Article 6(2)(b) of Regulation No 1552/89. It is common ground in the present case that the disputes concern the enforcement of the security and not the existence or amount of the claims in dispute, as that amount has been definitively established.
78. 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 German law, which it concluded with the Federal Republic of Germany (Case C-78/01 BGL  [2003] ECR I‑9543, paragraph 45).
80. 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 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.
82. 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.
87. Article 17(1) 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 Federal Republic of Germany acted unilaterally, even after the Commission had expressed objections.
88. 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 , cited above, shortfalls in revenues of own resources must be offset either by another own resource or by an adjustment of expenditure.
89. Nor may the German Government rely on there being a case of force majeure within the meaning of Article 17(2) of Regulation No 1552/89. 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). In acting unilaterally in the manner described in paragraph 86 of this judgment, the Federal Republic of Germany did not exercise all due care to avoid the consequences alleged.
93. Article 10 EC makes it clear that the Member States are required to cooperate in good faith with the enquiries of the Commission pursuant to Article 226 EC, and to provide the Commission with all the information requested for that purpose (see, inter alia, Case C-478/01 Commission  v Luxembourg  [2003] ECR I-2351, paragraph 24).
94. Regarding the Member States’ obligation to take, in genuine cooperation with the Commission, the measures needed to ensure the application of the Community provisions relating to establishment of possible own resources, the Court has held that it follows in particular from that obligation, laid down more specifically in respect of checks in Article 18 of Regulation No 1552/89, that where the Commission is largely dependent on the information provided by the Member State concerned, that Member State is required to make supporting documents and other relevant documentation available to the Commission under reasonable conditions, to enable it to verify whether and, as the case may be, to what extent the amounts concerned relate to the Communities’ own resources (Case C-10/00 Commission  v Italy , cited above, paragraphs 89 to 91).