Commission of the European Communities v Federal Republic of Germany.
Date: 2000-06-15
38 It should be noted at the outset that Article 10 of the Treaty of 31 August 1990 on the establishment of German Unity (BGBl. 1990 II, p. 889) rendered Community legislation applicable in the GDR as from that country's accession to the Federal Republic of Germany, namely from 3 October 1990 (see Case C-223/95 Moksel v Hauptzollamt Hamburg-Jonas [1997] ECR I-2379, paragraph 22). It follows that, until that date, the GDR constituted a non-member country vis-à-vis the Community and the customs rules normally applicable to products coming from non-member countries applied, in principle, to those coming from the GDR.
44 As regards the German Government's argument that the establishment of a customs and agricultural union was based on an agreement between the two German States, it is clear from the case-law that a Member State cannot rely on an agreement concluded by it with a non-member country to justify failure to observe existing provisions of Community law (see, to that effect, Case 22/70 Commission v Council [1971] ECR 263, paragraph 17).
45 As regards the German Government's assertion that the establishment of a customs and agricultural union was expressly required by the Commission, it need merely be pointed out that the Commission may not, except where such powers are expressly conferred upon it, give guarantees concerning the compatibility of particular practices with Community law. In no circumstances does it have the power to authorise practices which are contrary to Community law (Case C-340/96 Commission v United Kingdom [1999] ECR I-2023, paragraph 31).
53 As regards the German Government's argument concerning the reference made by Article 2 of Regulation No 2252/90 to Articles 2 to 5 of Regulation No 1795/90, it must be held that, although Article 2 of Regulation No 2252/90 does not expressly refer to the products which are shown to meet one of the conditions laid down in the first subparagraph of Article 1(2) of that regulation, it is clear from settled case-law of the Court that, where a provision of Community law is open to several interpretations, preference must be given to that interpretation which ensures that the provision retains its effectiveness (see, in particular, Case C-434/97 Commission v France [2000] ECR I-1129, paragraph 21).
61 As regards the Boterlux judgment, cited above, the Court held in paragraph 37 thereof that the exporter of a product destined for a non-member country loses his right to a refund where the product is fraudulently re-imported into the Community notwithstanding the fact that he did not take part in the fraud or that he acted in good faith. However, it said nothing about the obligation to charge import levies when the exporter is deprived of his right to a refund.
62 As to the German Government's argument that the Community budget was not adversely affected, it need merely be pointed out that failure by a Member State to fulfil an obligation imposed by a rule of Community law is sufficient to constitute a breach of Treaty obligations and the fact that the failure had no adverse effects is irrelevant (see Case C-150/97 Commission v Portugal [1999] ECR I-259, paragraph 22).
64 Next, it is clear from paragraph 49 of this judgment that an import levy should have been charged on the consignments of butter concerned. Under Article 2(1) of Regulation No 1552/89, an entitlement of the Community to own resources such as those at issue in this case is established as soon as the amount due is notified by the competent department of the Member State to the person from whom it is due. According to the case-law, that provision must be interpreted as meaning that the Member State may not dispense with determining the claims, even where they dispute them, since otherwise it would have to be accepted that the financial equilibrium of the Community may be disrupted, even temporarily, by the arbitrary conduct of a Member State (see, to that effect, Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 37).