Belgische Staat v Direct Parcel Distribution Belgium NV.
Date: 2010-01-28
23. Thus, since Article 217 of the Customs Code does not lay down any practical procedures for ‘entry in the accounts’ within the meaning of that provision or, accordingly, any minimum requirements of a technical or formal nature, that entry in the accounts must be made in a way which ensures that the competent customs authorities enter the exact amount of the import duty or export duty resulting from a customs debt in the accounting records or on any other equivalent medium, so that, inter alia, the entry in the accounts of the amounts concerned may be established with certainty, including with regard to the person liable.
24. Moreover, the Court has already held that, having regard to the discretionary power conferred on them by Article 217(2) of the Customs Code, the Member States can provide that the entry in the accounts of the amount of duty resulting from a customs debt may be effected by the entry of that amount on the record which is drawn up by the competent customs authorities for the purpose of establishing an infringement of the applicable customs legislation, such as the authorities referred to in Article 267 of the General Law on Customs and Excise Duty, coordinated by the Royal Decree of 18 July 1977 ( Belgisch Staatsblad , 21 September 1977, p. 11425), confirmed by the Law of 6 July 1978 on Customs and Excise Duty ( Belgisch Staatsblad , 12 August 1978, p. 9013) (Case C‑126/08 Distillerie Smeets Hasselt and Others  [2009] ECR I-0000, paragraph 25).
26. The Court has pointed out that it follows from the wording of Article 221(1) of the Customs Code that entry in the accounts, which, pursuant to Article 217(1) of the code, consists in entry of the amount of duty by the customs authorities in the accounting records or on any other equivalent medium, is required to take place before the communication to the debtor of the amount of import or export duty (see, inter alia, Joined Cases C-124/08 and C-125/08 Snauwaert and Others  [2009] ECR I-0000, paragraph 21).
27. Such a chronological order in the procedure for entry in the accounts and communication of the amount of duty, which is affirmed in the very heading of Section 1 of Chapter 3 of Title VII of the Customs Code, namely ‘Entry in the accounts and communication of the amount of duty to the debtor’, must be observed if there are not to be differences in treatment as between the persons liable and if, moreover, the smooth operation of the customs union is not to be prejudiced (see, inter alia, Snauwaert and Others , paragraph 22).
28. The Court’s conclusion was thus that Article 221(1) of the Customs Code must be interpreted as meaning that the amount of import or export duty due can be validly communicated to the debtor by the customs authorities, in accordance with appropriate procedures, only if the amount of that duty has been entered in the accounts beforehand by the authorities (see Snauwaert and Others , paragraph 23).
29. The Court has also held that Member States are not required to adopt specific procedural rules on the manner in which communication of the amount of import or export duties is to be made to the debtor where national procedural rules of general application can be applied to that communication, which ensure that the debtor receives adequate information and which enable him, with full knowledge of the facts, to defend his rights (Case C-201/04 Molenbergnatie  [2006] ECR I‑2049, paragraph 54).
33. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law, provided that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and that they do not render in practice impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Case C‑526/04 Laboratoires Boiron [2006] ECR I‑7529, paragraph 51, and Case C-478/07 Budějovický Budvar  [2009] ECR I-0000, paragraph 88 and the case-law cited).
34. Those considerations also apply with regard, specifically, to evidential rules – and in particular the rules on the allocation of the burden of proof applicable to actions relating to a breach of Community law (see, inter alia, Case C-55/06 Arcor  [2008] ECR I‑2931, paragraph 191).
35. In order to ensure compliance with the principle of effectiveness, if the national court finds that the fact of requiring the person liable for the customs debt to prove that it was not entered in the accounts is likely to make it impossible or excessively difficult for such evidence to be produced, since inter alia that evidence relates to data which the person liable could not possess, it is required to use all procedures available to it under national law, including that of ordering the necessary measures of inquiry, in particular the production by one of the parties or a third party of a particular document (see, by analogy, Laboratoires Boiron , paragraph 55).
37. With regard to the question concerning the consequences of failure to enter the customs debt in the accounts before communicating that amount to the person liable, the Court has held that, while infringement of Article 221(1) of the Customs Code by the customs authorities of a Member State may hinder the recovery of the amount of the duties legally due or the collection of interest for late payment, the fact remains that such an infringement has no influence on the existence of those duties (see, inter alia, Case C-247/04 Transport Maatschappij Traffic  [2005] ECR I‑9089, paragraph 28).
39. Thus, the answer to the fifth question is that Article 221(1) of the Customs Code must be interpreted as meaning that the communication of the amount of duty to be recovered must have been preceded by the entry in the accounts of that amount by the customs authorities of the Member State concerned and that, if it has not been entered in the accounts in accordance with Article 217(1) of the Customs Code, that amount may not be recovered by those authorities, which however remain entitled to proceed with a new communication of that amount, in accordance with the conditions laid down by Article 221(1) of the Customs Code and the limitation rules in force at the time the customs debt was incurred.
Sixth question
40. The Court has held that the amount of the import duties or export duties remains ‘legally owed’ for the purposes of the first subparagraph of Article 236(1) of the Customs Code even where that amount has not been communicated to the debtor in accordance with Article 221(1) of the code ( Transport Maatschappij Traffic , paragraph 29).
43. However, if a communication of that kind is no longer possible because the period prescribed by Article 221(3) of the Customs Code has expired, the debt is time-barred and, consequently, extinguished within the meaning of Article 233 of the code ( Molenbergnatie , paragraphs 40 and 41).
45. According to well-established case-law, the right to a refund of charges levied in a Member State in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by Community provisions as interpreted by the Court. The Member State is therefore required in principle to repay charges levied in breach of Community law (see, inter alia, Case C-524/04 Test Claimants in the Thin Cap Group Litigation  [2007] ECR I‑2107, paragraph 110 and case-law cited).
46. In the absence of Community rules on the refund of charges levied though not due, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render in practice impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Test Claimants in the Thin Cap Group Litigation , paragraph 111 and the case-law cited).