Commission of the European Communities v Kingdom of Belgium.
Date: 2006-10-05
34. It is the Court’s settled case-law in that regard that, in the context of proceedings under Article 226 EC, the existence of a failure to fulfil obligations must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (see, inter alia, Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C‑365/97 Commission v Italy [1999] ECR I‑7773, paragraph 32).
35. Although the heads of claim set out in the application cannot in principle be extended beyond the failures to fulfil obligations alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less the case that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the measure in question, as otherwise it would constitute a breach of the essential procedural requirements governing infringement procedings (see, to that effect, Case-363/00 Commission v Italy [2003] ECR I-5767, paragraph 22).
36. It is not in dispute that the obligations arising under Articles 3, 6(1) and (3)(a) and (b), 9(1), 10(1) and 11 of Regulation No 1150/2000 were already applicable by virtue of Articles 3, 6(1) and (2)(a) and (b), 9(1), 10(1) and 11 of Regulation No 1552/89 (see, as regards Articles 9(1) and 11, Case C-363/00 Commission v Italy , paragraph 23).
37. As regards Article 2(1) of Regulation No 1552/89, the Court has held that the Communities’ entitlement to own resources for the purposes of that provision 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 the entitlement can be calculated by the competent administrative authorities, in compliance with the relevant applicable Community provisions (see, inter alia, Case C‑460/01 Commission  v Netherlands [2005] ECR I-2613, paragraph 85). Similarly, the Court has held that Article 2 of Regulation No 1552/89, as amended by Regulation No 1355/96 and replicated in Article 2 of Regulation No 1150/2000, must be interpreted as meaning that the 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 (Case C‑392/02 Commission  v Denmark [2005] ECR I-9811, paragraph 61).
62. As the Court held in paragraph 59 of Commission v Denmark , it is apparent from Articles 217, 218 and 221 of the Customs Code that those conditions are met when the customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and to determine the debtor (see, to that effect, Case C-460/01 Commission v Netherlands , paragraph 71, and Case C‑104/02 Commission v Germany [2005] ECR I-2689, paragraph 80). 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).
63. Consequently, the 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 to determine the debtor ( Commission v Denmark , paragraph 61) and, therefore, to enter those entitlements in the accounts in accordance with Article 6 of Regulation No 1150/2000.
82. According to settled case-law, 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).
83. As regards the obligation on the Member States to take, in genuine cooperation with the Commission, the measures necessary to ensure the application of the Community provisions relating to the establishment of potential own resources, the Court has held that that obligation, which was given more specific expression with regard to verification in Article 18 of Regulation No 1552/89, means in particular that where the Commission is largely dependent on 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 , paragraphs 89 to 91).