Siesse - Soluções Integrais em Sistemas Software e Aplicações Ldª v Director da Alfândega de Alcântara.
Date: 1995-10-26
17 As regards trade with non-member countries, the Treaty contains no express provisions similar to those which prohibit the imposition of charges having an effect equivalent to customs duties in trade between Member States (Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders v Brachfeld and Another [1969] ECR 211, paragraph 28). Nevertheless, the establishment of the Common Customs Tariff means that the Member States may not subsequently introduce, unilaterally, new charges on goods imported directly from non-member countries or raise the level of those in existence at that time (Joined Cases 37/73 and 38/73 Sociaal Fonds voor de Diamantarbeiders v Indiamex and Another [1973] ECR 1609, paragraph 22).
20 It is settled case-law, confirmed in Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 55, and Case C-383/92 Commission v United Kingdom [1994] ECR I-2479, paragraph 40, that where Community legislation does not specifically provide any penalty for an infringement or refers for that purpose to national legislation, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized 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.
21 As regards customs offences, the Court has pointed out that in the absence of harmonization 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 Case C-210/91 Commission v Greece [1992] ECR I-6735, paragraph 19).
22 The purpose of a levy such as the surcharge in issue, which is intended to penalize traders who have failed to comply with the formalities and time-limits provided for in Article 15 of Regulation No 4151/88, does not appear to be contrary to Community law. As the Portuguese Government submits, in the absence of such a measure a failure to comply with the prescribed formalities would in fact be without consequence for a trader authorized to regularize his position after the expiry of the time-limits. The penalty incurred is thus intended to encourage traders to act within the periods laid down and to penalize those who, having failed to do so, place the customs authorities in the position of having to sell the goods, in the last resort, as provided for in Article 19 of Regulation No 4151/88, with the risk of loss which that entails.
23 Nor does it appear to be contrary to Community law to make the regularization of the situation of the goods conditional upon the payment of such a penalizing levy. Such a requirement is merely a safeguard measure intended to ensure the actual payment of the corresponding levy.
24 The amount of such a penalty must be determined, in accordance with the case-law cited above, under conditions which are analogous to those applicable in national law to infringements of the same nature and gravity and which, in any event, make the penalty effective, proportionate and dissuasive. It is for the national court to determine whether the 5% levy provided for in the Portuguese rules on the value of goods cleared through customs after the expiry of the statutory time-limits is consistent with those principles.