Belgische Staat v Molenbergnatie NV.
Date: 2006-02-23
30. The Commission of the European Communities and the agent, taking as a basis the judgment in Joined Cases 212/80 to 217/80 Salumi and Others  [1981] ECR 2735, paragraph 9, submit that those same articles, which contain both procedural and substantive rules, may not be considered in isolation with regard to the time at which they take effect since they form an indivisible whole. Nevertheless, their submissions vary. Thus, the Commission takes the view that only the provisions of Regulation No 1697/79 are to be applied to the post-clearance recovery of a customs debt incurred prior to 1 January 1994, recovery of which was initiated only after that date. The agent, for its part, puts forward the view that Articles 217 to 232 of the Customs Code should be applied to recovery of such a debt.
31. It must be recalled that, according to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (see, inter alia, Salumi and Others , paragraph 9; Joined Cases C‑121/91 and C‑122/91 CT Control (Rotterdam) and JCT Benelux  v Commission  [1993] ECR I-3873, paragraph 22; Case C‑61/98 De Haan [1999] ECR I-5003, paragraph 13; and Case C‑251/00 Ilumitrónica  [2002] ECR I-10433, paragraph 29).
32. At paragraph 11 of its judgment in Salumi and Others , the Court, by way of exception to the rule of interpretation recalled above, held that Regulation No 1697/79, which was intended to establish a body of rules covering the post-clearance recovery of customs duties, contained both procedural and substantive rules forming an indivisible whole, the individual provisions of which could not be considered in isolation with regard to the time at which they took effect. As the Advocate General observes in points 42 to 46 of his Opinion, the reason for such an exception was the replacement of the existing national rules with new Community rules, the aim of which was to achieve a consistent and uniform application of the Community legislation thus established in the area of customs.
34. A distinction must therefore be made between substantive rules and procedural rules. It is, therefore, for the national court, in respect of the facts of the main proceedings to which the customs debts relate and which arose before the date on which the code became applicable, to refer, on the one hand, to the substantive rules in the legislation in force prior to that date and, on the other hand, to the procedural rules in the Customs Code (see, to that effect, De Haan , paragraph 14, and Case C‑156/00 Netherlands  v Commission  [2003] ECR I‑2527, paragraphs 35 and 36).
37. As regards the scope and, therefore, nature of the rule established by Article 221(3), that rule is precisely the subject of the national court’s third question. That court thus raises the question of the effects of late notification of the amount of duties to the debtor – that is to say, notification made after expiry of the three-year period laid down by that provision, which reproduces in substance the provision set out at Article 2(1) of Regulation No 1697/79 (see, to that effect, Netherlands  v Commission , paragraph 6).
39. It is beyond question that expiry of the three-year period laid down in Article 221(3) of the Customs Code, for the customs authorities to notify the debtor of the amount of the customs debt, is a bar on the right of those authorities to recover the debt, unless it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due. However, the provision at issue at the same time enacts a rule governing the customs debt itself, and thus establishes a rule on limitation in respect of the debt.
40. Moreover, Article 233 of the Customs Code states that the list of the different causes of extinction of the customs debt set out at points a to d of that article is without prejudice, inter alia, to the provisions relating to the time-barring of the customs debt (see, to that effect, Case C‑112/01 SPKR  [2002] ECR I-10655, paragraphs 30 and 31).
41. It must therefore be held that, since on expiry of the period prescribed by Article 221(3) of the Customs Code the debt is time-barred and, consequently, extinguished, that provision enacts a substantive rule.
46. It follows from the wording of Article 221(1) of the Customs Code which, as the Advocate General observes in point 68 of his Opinion, is wholly unambiguous, that entry in the accounts, which consists of 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.
47. 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 Title VII, Chapter 3, Section 1 of the Customs Code (‘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. The same approach was adopted in Regulation No 1854/89, the fourth recital in the preamble to which referred to ‘the periods within which the amounts of import duties or export duties entered in the accounts must be paid’.
48. That conclusion is not in any way inconsistent with the case-law of the Court to which the Commission refers, by virtue of which failure to observe the time-limits laid down for entry by the customs authorities of the amount of duty in the accounting records does not preclude post-clearance recovery, as failure to observe the time‑limits prescribed for entry in the accounts can give rise only to the Member State concerned paying interest in respect of delay, in the context of making available own resources (see inter alia, in support of this, Case C‑370/96 Covita  [1998] ECR I-7711, paragraphs 36 and 37, and De Haan , paragraph 34). Those judgments decide only as to the question of the effects of a delay in entry in the accounts and are concerned exclusively with relations between Member States and the Community.
52. In order to reply to the question raised, it should be noted that, according to the general principles on which the Community is based and which govern the relations between it and the Member States, it is for the Member States, under Article 10 EC, to ensure that Community rules are implemented within their territories. In so far as Community law, including its general principles, does not include common rules to that effect then, when the national authorities implement Community rules, they are to act in accordance with the procedural and substantive rules of their own national law (see, in particular, Case C‑285/93 Dominikanerinnen-Kloster Altenhohenau  [1995] ECR I-4069, paragraph 26, and Case C‑495/00 Azienda Agricola Giorgio, Giovanni e Luciano Visentin and Others [2004] ECR I-2993, paragraph 39).
53. Given the absence in the Community customs legislation of provisions on the meaning of ‘appropriate procedures’ or of any provision conferring power on entities other than the Member States and their authorities to determine those procedures, it must be held that the procedures are within the scope of the national legal systems of the Member States. Should the latter not have enacted specific procedural rules, it is the responsibility of the competent State authorities to guarantee a form of communication which allows persons liable for customs debts to have full knowledge of their rights.
54. In the light of the foregoing, the answer to the fourth question is 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.
Costs