Commission of the European Communities v Italian Republic.
Date: 2009-03-19
50. With regard to the argument put forward by the Italian Republic that default interest is not due in respect of the operations in question on the ground that no customs debt was ever incurred, the Commission argues first that the wording of Article 379 of the Implementing Regulation indicates precisely the contrary, that is to say, it shows that a customs debt can be incurred where one of the two structural conditions laid down in that provision materialise, in other words, where the customs operation is irregular or where the debtor has failed to furnish proof of its regularity.
65. Under Article 2 of Regulation No 1552/89, the Community’s entitlement to the own resources is to be established as soon as the amount due has been notified to the debtor by the competent department of the Member State. Notification to the debtor is to be given as soon as the competent customs authorities are in a position to calculate the amount of duties arising from a customs debt and to identify the debtor (Case C‑392/02 Commission  v Denmark  [2005] ECR I‑9811, paragraph 61).
66. Under Article 11 of Regulation No 1552/89, any delay in making the entries in the account referred to in Article 9(1) of that regulation gives rise to the payment of 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 Case C‑460/01 Commission  v Netherlands  [2005] ECR I‑2613, paragraph 91).
68. In the context of external Community transit, the customs authorities are in a position to calculate the amount of duties and to identify the debtor at the latest upon the expiry of the three-month time-limit referred to in Article 379(2) of the Implementing Regulation, that is to say, by the end of the 14th month following the date of registration of the Community transit declaration (see Commission  v Netherlands , paragraph 71). Consequently, the Community’s entitlement to the own resources must be established no later than that date.
78. It follows that, where the office of departure has no information concerning the arrival of the goods at the office of destination, the consequences are the same as those flowing from failure to present the consignment at the office of destination. That interpretation is in conformity with the objective of ensuring diligent uniform application, by the customs authorities, of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Community’s own resources (see, to that effect, Case C‑104/02 Commission  v Germany  [2005] ECR I-2689, paragraph 69).
79. Thus, on expiry of the period 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 (see, to that effect, Commission  v Netherlands , paragraph 72, and Commission  v Germany , paragraph 81).
80. It must therefore be considered that, at that stage, there is a presumption that a customs debt exists. As the Advocate General pointed out in point 69 of her Opinion, that presumption is open to rebuttal. Consequently, if it should subsequently emerge that the transit operation took place in a lawful manner, the principal may obtain reimbursement of the amounts paid (see, to that effect, Commission  v Germany , paragraph 88).
84. Since the objective of Article 379(1) of the Implementing Regulation is to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources, the notification of the offence or the irregularity must, in any event, be made as quickly as possible, that is to say, as soon as the customs authorities are aware of that offence or irregularity, hence well before expiry of the maximum period of 11 months referred to in that provision (see, by analogy, Case C‑377/03 Commission  v Belgium  [2006] ECR I‑9733, paragraph 69, and Case C‑312/04 Commission  v Netherlands  [2006] ECR I‑9923, paragraph 54).
87. Where the principal is not given notification, as was the case in the present proceedings, that person cannot be required to pay the customs debt (see, to that effect, Case C‑230/06 Militzer & Münch  [2008] ECR I‑0000, paragraph 39). It must nevertheless be held that at the end of that period, Community entitlement to the own resources arises. That interpretation is necessary in order to ensure diligent and uniform application by the competent authorities of the provisions governing recovery of customs debts, with a view to making Community own resources available efficiently and speedily (see, to that effect, Commission  v Germany , paragraph 69).
91. It is apparent from Article 455(1) of the Implementing Regulation, read in conjunction with Article 11(1) and (2) of the TIR Convention, that, in the event of non-discharge of the TIR carnet, the claim for payment of the customs debt must, in principle, be lodged no later than three years after the date of acceptance of the carnet ( Commission  v Belgium , paragraph 68).
92. In the absence of notification of the irregularity to the holder of the TIR carnet and the guaranteeing association within a period of one year from the date of acceptance of the carnet, the competent authorities will not have the right to claim payment of the customs debt from the guaranteeing association.
93. Notwithstanding the fact that the Italian customs authorities did not notify the guaranteeing association, it must be held that at the end of the maximum period of three years from the date of acceptance of the carnet, Community entitlement to the own resources arose, so as to ensure diligent uniform application by the competent authorities of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources (see, to that effect, Commission  v Germany , cited above, paragraph 69).
96. Admittedly, pursuant to that provision, any delay in making the entries in the account referred to in Article 9(1) of Regulation No 1552/89 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 regardless of the reason for the delay in making the entry in the Commission’s account (Case C‑460/01 Commission  v Netherlands , paragraph 91).
99. Secondly, it should be pointed out that it does not expressly follow from the terms of Article 11 of Regulation No 1552/89 that the default interest provided for therein applies to situations where it emerges subsequently that the principal obligation does not exist. If the Community legislature had wished to extend the scope of that provision to such situations, it could have expressly done so therein but it did not.
100. Thirdly, and lastly, it is certainly true that the Court has accepted that although an error committed by the customs authorities of a Member State results in the debtor not having to pay the duties in question, it does not affect that Member State’s obligation to pay default interest or the entitlements which should have been established, in the con text of making available own resources ( Commission  v Denmark , paragraph 63).