Commission of the European Communities v Kingdom of the Netherlands.
Date: 2005-04-14
54. The third sentence of Article 379(2) of the implementing regulation also merely states that ‘the competent Member State shall take steps to recover’ the amount of duties owing. Those words do not have the same meaning as the expression ‘entered in the accounts’ by the ‘customs authorities’ referred to in Article 218(3) of the Customs Code. The two provisions in question have two different addressees and the time-limit referred to in the latter provision cannot therefore be transposed to Article 379(2) of the implementing regulation.
60. 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, as acknowledged moreover by the Netherlands Government, 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.
62. 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 Articles 378(1) and 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 princ ipal that he has three months in which to furnish the proof requested and such proof has not been provided within that period.
71. 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 Netherlands 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.
72. 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.
80. Consequently, the Court finds that the first plea is founded as regards both the provisions of the Customs Code and of the implementing regulation and those of the regulations, in substance identical, which were applicable previously during the period covered by the present action.
Plea alleging infringement of Articles 2, 9 and 10 of Regulation No 1552/89
Arguments of the parties
85. The late communication, in breach of Articles 221(1) and 218(3) of the Customs Code, of the amount of the relevant duties, as established in the course of the examination of the first plea, necessarily implies a delay in the establishment of the Communities’ entitlement to own resources within the meaning of Article 2 of Regulation No 1552/89. Under that provision, the entitlement in question is established ‘as soon as’ the competent authorities notify the debtor of the amount due, which must be done as soon as the debtor is known and the amount of entitlement can be calculated by the competent administrative authorities, in compliance with the relevant applicable Community provisions, in this case the Customs Code and the implementing regulation.
91. Under Article 11 of Regulation No 1552/89, any delay in making the entry in the account referred to in Article 9(1) of that regulation gives rise to the payment of default 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-96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 38, and Case C-363/00 Commission v Italy [2003] ECR I-5767, paragraph 44).