Action brought on 14 January 2010 — European Commission v Portuguese Republic

(Case C-23/10)

2010/C 100/24

Language of the case: Portuguese

Parties

Applicant: European Commission (represented by: A. Caeiros, Agent)

Defendant: Portuguese Republic

Form of order sought

Pleas in law and main arguments

Article 290a of Regulation (EEC) No 2454/93 provides that: Examination of bananas falling within CN code 0803 00 19 for the purposes of checking the net mass on importation shall involve a minimum of 10 % of declarations per year and per customs office. Examination of bananas shall be carried out at the time of release for free circulation, in accordance with the rules laid down in Annex 38b.

Annex 38b provides: ‘1. For the purposes of the application of Article 290a, the customs authorities of the customs office at which the declaration for free circulation of fresh bananas is lodged shall determine the net mass, based on a sample of units of packaging for each type of packaging and for each place of origin …’

Having regard to the Community legislation, in particular, to Article 290a of, and Annex 38b to, Regulation No 2454/93, cited above, which were, as such, the provisions applicable during the period in question, the Commission takes the view that the arguments put forward by the Portuguese authorities to explain why they had not made available the own resources and default interest owing pursuant to Article 11 of Regulation No 1150/2000 cannot be accepted, and that it is unarguable that Article 290a of, and Annex 38b to, Regulation No 2454/93 were quite clear in respect of the weight that must serve as the basis for the application of customs duties.

Article 290a of, and Annex 38b to, Regulation No 2454/93 unequivocally provide that it is the ‘net mass’, that is to say, the ‘true weight’ of the bananas, which must be indicated in the declaration for the release of bananas into free circulation and that it is that ‘true weight’ which must, in consequence, serve as the basis for the application of customs duties.

The Commission was under no legal obligation to publish, in the C series of the Official Journal of the European Union, a notice to importers to the effect that they should not use the weight of 18.14 kg or an overall average weight when preparing customs declarations.

Article 290a of, and Annex 38b to, Regulation No 2454/93 being clear with regard to the question of the weight to be taken into account for the computation of the customs duties, it would be very easy for traders whose usual activity is the importing of bananas and who are, for that reason, aware of the legislation applicable to that activity, to know that the customs declaration that they had to present must state the ‘net mass’, in other words, the true weight of the bananas and not a ‘commercial’ weight which is, as proved in the vast majority of cases, a fictitious weight.

The Portuguese authorities may not plead that the Commission was at fault in not performing a possible obligation to alert the Member States following information sent to it by the Italian authorities. Without a doubt, it would have been possible for the Portuguese customs authorities, present at the place where the imported bananas were cleared through customs, to discover — without receiving any information at all from the Commission — that, in the vast majority of cases, the true weight was greater than the ‘standard’ weight declared. It fell, therefore, to the Portuguese authorities alone, in the ambit of their sphere of action and inspection, to ascertain whether those declarations were correct.

Article 13 of the Community Customs Code gives customs authorities the power to carry out ‘all the controls they deem necessary to ensure that customs legislation is correctly applied’.

The Portuguese authorities knew that it had become common practice for traders to present customs declarations for the release of bananas into free circulation taking as the basis the commercial weight of 18.14 kg per box.

In those circumstances, the authorities cannot maintain that Article 290a required them to examine only 10 % of declarations for the release of bananas into free circulation.

The power given to the customs authorities to carry out additional controls of the weight of bananas, over and above the minimum of 10 % required by Article 290a, becomes an obligation to do so when it is shown, during the controls carried out, that there is a danger that incorrect declarations will be accepted, having regard to the object of effective protection of Community own resources.

When they establish that the weight declared does not correspond to the true weight and that there is a danger that incorrect declarations will be accepted, those authorities must not authorise the release of the bananas into free circulation without checking the weight, even though the minimum control percentage of 10 has already been reached in the customs office during the reference year.

The declaration of the commercial ‘standard’ weight is of itself enough to call in question the genuineness of the weight declared, so warranting a check by the customs authorities for the purpose of establishing the true weight.

By virtue of Article 8 of Decision 94/728/EC, Euratom (5) and of their responsibility for collecting Community own resources, it was for the Member States to ensure the creation of an adequate infrastructure with a view to carrying out the checks necessary for bananas released into free circulation to be cleared through customs correctly, that is to say, on the basis of their true weight.

The Portuguese authorities practice of systematically accepting customs declarations, when they were, or reasonably ought to have been, aware that the weight stated in the customs declaration was not the true weight of the bananas imported, without carrying out any checks at all, and also their refusal to assume any responsibility relating to the financial consequences for the Community budget, are contrary to the principle of effective protection of own resources and the case-law of the Court of Justice.

(1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

(2)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

(3)  Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities own resources (OJ 1989 L 155, p. 1).

(4)  Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1).

(5)  Council Decision 94/728/EC, Euratom of 31 October 1994 on the system of the European Communities’ own resources (OJ 1994 L 293, p. 9).