Hannl + Hofstetter Internationale Spedition GmbH v Finanzlandesdirektion für Wien, Niederösterreich und Burgenland.
Date: 2003-10-16
17.  It is settled case-law that where Community legislation does not specifically provide for any penalty for an infringement or refers for that purpose to national legislation, Article 10 EC requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalty remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (Case C-213/99   De Andrade   [2000] ECR I-11083, paragraph 19).
18.  As regards customs offences, the Court has pointed out that in the absence of harmonisation of the Community legislation in that field, the Member States are empowered to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality (see   De Andrade  , cited above, paragraph 20).
19.  As the Advocate General pointed out in point 36 of his Opinion, neither the Customs Code nor the implementing regulation provides for specific measures where the customs debt is incurred on the basis of Articles 202 to 205, 210 and 211 and 220 of the Customs Code, which all concern situations involving breach by the trader concerned of the Community customs legislation.
20.  Against that background it must be concluded that the Member States are empowered to adopt appropriate measures to ensure respect for the Community customs legislation, provided that, as is clear from paragraph 18 of this judgment, those measures respect the principle of proportionality.
22.  The amount of the increase must be determined, according to the case-law, under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity and which, in any event, make the penalty effective, proportionate and dissuasive (Case C-36/94   Siesse   [1995] ECR I-3573, paragraph 24, and   De Andrade  , paragraph 24). It is for the national court to determine whether the rate of increase at issue in the main proceedings, which does not appear disproportionate at first sight, is consistent with the rate applicable in national law for infringements of the same nature and gravity.
23.  In the light of the foregoing considerations, the answer to the question referred for a preliminary ruling must be that the Customs Code and the implementing regulation must be interpreted as not precluding legislation which provides for an increase in duty in the event of the incurrence of a customs debt under Articles 202 to 205 or 210 or 211 of the Customs Code or in the event of subsequent recovery under Article 220 of the Customs Code, corresponding to the amount which would have been incurred as interest on arrears for the period between the incurrence of the customs debt and the entry in the accounts or, in the case of subsequent recovery under Article 220 of the Customs Code, between the date when the customs debt originally entered in the accounts was due and the subsequent entry in the accounts of that debt, provided that the rate of interest is determined under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity and which make the penalty effective, proportionate and dissuasive. It is for the national court to determine whether the rate of increase at issue in the main proceedings is consistent with those principles.