Commission of the European Communities v Kingdom of the Netherlands.
Date: 2006-10-05
35. As regards the second plea of inadmissibility, deriving from the absence of any legal interest in proving a failure to fulfil obligations concerning the period prior to 1 January 1992 where there is no claim for payment of default interest, suffice it to note that the failure by a Member State to fulfil an obligation imposed by a rule of Community law in itself constitutes a failure to fulfil obligations (see, inter alia, Case C‑363/00 Commission  v Italy  [2003] ECR I-5767, paragraph 47).
50. In accordance with Article 10(2) of Regulation No 719/91, where it is found that, in the course of or in connection with a transport operation carried out under cover of a TIR carnet, an offence or irregularity has been committed in a particular Member State, the recovery of the duties and other charges which may be payable is to be effected by that Member State in accordance with Community or national provisions, without prejudice to the institution of criminal proceedings. In the event of such a finding, under Article 2(1) of Regulation No 1593/91, the customs authorities are required to notify the holder of the TIR carnet and the guaranteeing association within the period prescribed in Article 11(1) of the TIR Convention, that is to say, within a period of one year from the date of the TIR ca rnet’s acceptance by those authorities where the carnet was not discharged or two years in the event of the certificate of discharge being obtained in an improper or fraudulent manner.
53. Article 8(7) of the TIR Convention requires the competent authorities, so far as possible, to require payment from the person or persons directly liable for that debt before making a claim against the guaranteeing association. It also follows from Article 10(3) of Regulation No 719/91 and Article 2(2) of Regulation No 1593/91, in that they do not distinguish between the holder of a TIR carnet and the guaranteeing association as regards the competence to provide evidence that the operation was properly carried out under the cover of a TIR carnet, that the aforementioned periods of three and four years apply to both the holder and the guaranteeing association (in this regard, concerning Articles 454 and 455 of the implementing regulation, see inter alia Joined Cases C‑310/98 and C-406/98 Met‑Trans and Sagpol  [2000] ECR I-1797, paragraph 49).
54. It must, however, be pointed out that, as the objective of Article 2(1) of Regulation No 1593/91 is to ensure diligent and uniform application of the provisions relating to the recovery of customs debts in order to secure rapid and effective availability of the Communities’ own resources (see, by analogy, inter alia, Case C-460/01 Commission v Netherlands  [2005] ECR I-2613, paragraphs 60, 63, 69 and 70), notification of the offence or the irregularity must, in any event, be made as soon as possible, that is to say, as soon as the customs authorities know of that infringement or irregularity and, if necessary, well before the expiry of the maximum respective periods of one year and, in the event of fraud, of two years, referred to in Article 11(1) of the TIR Convention.
58. Under Article 2(1) of Regulation No 1552/89, the Communities’ entitlement to own resources 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 (see, inter alia, Commission  v Netherlands , paragraph 85), that is to say, Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, the ‘Customs Code’), Regulations No 719/91 and No 1593/91, and the TIR Convention. The claim for payment under Article 11(2) of the TIR Convention must therefore be considered to be a notification within the meaning of Article 2 of Regulation No 1552/89.
59. As the Court observed in paragraph 59 of the judgment in Case C‑392/02 Commission  v Denmark  [2005] ECR I-9811, it follows from Articles 217, 218 and 221 of the Customs Code that the abovementioned 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, Commission  v Netherlands , paragraph 71, and Case C‑104/02 Commission  v Germany  [2005] ECR I-2689, paragraph 80). 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 ( Commission  v Denmark , paragraph 60).
61. As a result, 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 ( Commission  v Denmark , paragraph 61) and, accordingly, to enter those entitlements in the accounts in compliance with Article 6 of Regulation No 1552/89.