Opinion of the Advocate-General

Opinion of the Advocate-General

Table of contents

I –  Introduction

II –  The Community legal framework

A – Primary law

1. The customs union

2. The Communities’ own resources

3. The special derogations from the Treaty of Rome

4. Agreements concluded by Member States before their accession

B – Secondary law

1. The Community Customs Code

2. Council Decision 94/728/EC, Euratom 

3. Regulations No 1552/1989 and No 1150/2000

4. Regulation No 150/2003 

III –  The position of the Commission, the prior administrative procedure and the proceedings before the Court of Justice

IV –  Analysis of the objections of inadmissibility

A – In Case C‑372/05 (Commission v Germany)

1. The unsuitability of Article 226 EC as a legal basis

2. The essential interests of national security and the absence of proof of the infringement

3. The right of Germany not to provide information

B – In Case C-387/05 (Commission v Italy)

C – In Case C-409/05 (Commission v Greece)

V –  Analysis of the infringement

A – The Communities’ own resources

B – Customs duties in particular

C – The objective elements of the infringement

VI –  Other arguments of the Member States

A – Article 296 EC and national security

1. Scope of application

2. The requirements of Article 296 EC and their review by the Court of Justice

3. The burden of proof

4. A provision relied on inappropriately

a) The economic argument

b) Confidentiality and the customs procedure

c) Corollary

5. An enduring provision

B – Article 307 EC

C – Legitimate expectations

VII –  Costs

VIII –  Conclusion

1. In the present actions for failure to fulfil obligations, the Commission asks the Court to declare that the Republic of Finland (C‑284/05), the Kingdom of Sweden (C‑294/05), the Federal Republic of Germany (C‑372/05), the Italian Republic (C‑387/05 and C‑239/06), the Hellenic Republic (C‑409/05) and the Kingdom of Denmark (C‑461/05) have failed to fulfil their obligations under Article 26 EC, Article 20 of the Community Customs Code (2) and Articles 2, 9, 10 and 11 of Regulations No 1552/89 (3) and No 1150/2000, (4) by refusing to pay, as the Communities’ own resources, the principal amounts and interest in respect of customs duties incurred on the import of defence and dual-use equipment. (5)

2. In a Community of citizens and principles, free of monetary obstacles, internal borders and barriers to mutual recognition, it is surprising to hear clandestine muttering to the effect that the customs procedure for the import of armaments weakens the foundations of a Member State’s national security and, under the guise of official secrecy, refusals to provide the relevant information, which risk placing the future of the European Union on an unpredictable course.

3. Uncertainties raised in connection with the operation of the customs union not only call for an analysis of whether the confidentiality of certain transactions is guaranteed and whether there are any asymmetries in the fabric of the Communities’ own resources, they also relate to the concepts of primacy and autonomy of the Community legal order and require the Court to undertake the complex task of demarcating the contours of Article 296 EC, which translates an often misunderstood conception of national sovereignty.

4. Dreams of a world in harmony, (6) where there is no need to procure arms, have vanished throughout history owing to utilitarian reasons, (7) economic interests and a number of other causes.

5. While it is not my intention to prick consciences, I would like this Opinion (8) to lead the Court to reflect on the meaning of the exceptions to the principle of transparency in a European Union characterised by integration, cooperation and peace, which, to use a term implied by one author in the middle of the 18th century, (9) abhors the tyranny of mistrust.

I – The Community legal framework

A – Primary law

1. The customs union

6. The free movement of goods is achieved inter alia through the customs union which, in accordance with Article 23 EC, covers ‘... all trade in goods’ and involves ‘... the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries’. Under Article 26 EC, it is for the Council to fix common customs tariff duties ‘acting by a qualified majority on a proposal from the Commission’.

2. The Communities’ own resources

7. Without prejudice to other revenue, Article 269 EC provides that the budget must be financed wholly from own resources and, in its second paragraph, that it is for the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, to lay down provisions relating to the system of own resources of the Community, ‘which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’.

3. The special derogations from the Treaty of Rome

8. In accordance with Article 296 EC:

‘1. The provisions of this Treaty shall not preclude the application of the following rules:

(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.

2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.’

9. Article 298 EC provides:

‘If measures taken in the circumstances referred to in Articles 296 and 297 have the effect of distorting the conditions of competition in the common market, the Commission shall, together with the State concerned, examine how these measures can be adjusted to the rules laid down in the Treaty.

By way of derogation from the procedure laid down in Articles 226 and 227, the Commission or any Member State may bring the matter directly before the Court of Justice if it considers that another Member State is making improper use of the powers provided for in Articles 296 and 297. The Court of Justice shall give its ruling in camera.’

4. Agreements concluded by Member States before their accession

10. Article 307 EC provides:

‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.

To the extent that such agreements are not compatible with this Treaty, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, where appropriate, adopt a common attitude.

In applying the agreements referred to in the first paragraph, Member States shall take into account the fact that the advantages accorded under this Treaty by each Member State form an integral part of the establishment of the Community and are thereby inseparably linked with the creation of common institutions, the conferring of powers upon them and the granting of the same advantages by all the other Member States.’

B – Secondary law

1. The Community Customs Code

11. After establishing, in paragraph 1, the principle that ‘[d]uties legally owed where a customs debt is incurred shall be based on the Customs Tariff of the European Communities’, Article 20 of Regulation No 2913/92 sets out, in paragraph 3, the different elements of which that tariff is composed, which, in so far as they are relevant, I transcribe below:

‘…

(a) the combined nomenclature of goods;

(b) any other nomenclature which is wholly or partly based on the combined nomenclature or which adds any subdivisions to it, and which is established by Community provisions governing specific fields with a view to the application of tariff measures relating to trade in goods;

(c) the rates and other items of charge normally applicable to goods covered by the combined nomenclature as regards:

– customs duties

…

(d) the preferential tariff measures contained in agreements which the Community has concluded with certain countries or groups of countries and which provide for the granting of preferential tariff treatment;

(e) preferential tariff measures adopted unilaterally by the Community in respect of certain countries, groups of countries or territories;

(f) autonomous suspensive measures providing for a reduction in or relief from import duties chargeable on certain goods;

(g) other tariff measures provided for by other Community legislation.’

12. The entry of the debt in the accounts is governed by Article 217 of the code, which provides that ‘[e]ach and every amount of import duty or export duty resulting from a customs debt ... shall be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities in the accounting records or on any other equivalent medium ...’.

2. Council Decision 94/728/EC, Euratom (10)

13. This decision repeals Decision 88/376/EEC, Euratom, (11) with effect from 1 January 1995, and provides, in Article 2(1)(b), that revenue from ‘Common Customs Tariff duties and other duties established or to be established by the institutions of the Communities in respect of trade with non-member countries and customs duties on products coming under the Treaty establishing the European Coal and Steel Community’ constitute own resources entered in the budget of the Communities.

3. Regulations No 1552/1989 and No 1150/2000

14. The latter regulation repealed the former and replaced it with effect from its publication on 31 May 2000. (12)

15. Article 2 of Regulation No 1150/2000 recognises, ‘[f]or the purpose of applying this Regulation’, the entitlement of the Communities to the own resources referred to in Article 2(1)(a) and (b) of Decision 94/728, which is to be established ‘as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor’.

16. According to Article 9, ‘... each Member State shall credit own resources to the account opened in the name of the Commission with its Treasury or the body it has appointed’.

17. Article 10(1) concerns the timing of the entry of own resources and provides that, at the latest, it must be made ‘... on the first working day following the 19th day of the second month following the month during which the entitlement was established in accordance with Article 2 of this Regulation’.

18. Where there is a delay in entering the amounts, Article 11 provides: ‘Any delay in making the entry in the account referred to in Article 9(1) shall give rise to the payment of interest by the Member State concerned at the interest rate applicable on the Member State’s money market on the due date for short-term public financing operations, increased by two percentage points. This rate shall be increased by 0[.]25 of a percentage point for each month of delay. The increased rate shall be applied to the entire period of delay.’

4. Regulation No 150/2003 (13)

19. In order to protect the military confidentiality of the Member States, this regulation lays down certain specific administrative procedures for the granting of the benefit of the suspension of import duties on certain weapons and military equipment imported by or on behalf of the authorities in charge of the military defence of the Member States from third countries. (14)

20. As an appropriate guarantee of that aim, the regulation provides for ‘[a] declaration by the competent authority of the Member State for whose forces the weapons or military equipment are destined, which could also be used as customs declaration as required by the Customs Code’, but also requires that such declaration should be given ‘in the form of a certificate …’ and that ‘... the use of means of data-processing techniques for the declaration’ must be allowed. (15)

21. Article 2 provides:

‘1. The duties of the Common Customs Tariff applicable to imports of the goods listed in Annex I shall be totally suspended when they are used by, or on behalf of, the military forces of a Member State, individually or in cooperation with other States, for defending the territorial integrity of the Member State or in participating in international peacekeeping or support operations or for other military purposes like the protection of nationals of the European Union from social or military unrest.

2. Such duties shall also be totally suspended for:

(a) parts, components or subassemblies imported for incorporation in or fitting to goods included in the list in Annexes I and II or parts, components or subassemblies thereof, or for the repair, refurbishment or maintenance of such goods;

(b) goods imported for training or testing of goods included in the list at Annexes I and II.

3. The imported goods as defined in Annex I and in paragraph 2 of this Article shall be subject to end-use conditions laid down in Articles 21 and 82 of Regulation (EEC) No 2913/92 and its implementing legislation. Customs supervision of the end-use shall end three years after the date of release for free circulation.

4. The use of the goods listed in Annex I for training purposes or the temporary use of these goods in the customs territory of the Community by the military forces or other forces for civil purposes due to unforeseen or natural disasters shall not constitute a violation of the end-use determined in paragraph 1.’

22. Article 3 provides:

‘1. The request for entry for free circulation of goods for which the benefit of a duty suspension under the provisions of Article 2 is claimed shall be accompanied by a certificate issued by the competent authority of the Member State for whose military forces the goods are destined. The certificate as set out in Annex III shall be submitted to the customs authorities of the importing Member State together with the goods to which it refers. It may replace the customs declaration required by Articles 59 to 76 of Regulation (EEC) No 2913/92.

2. Notwithstanding paragraph 1, for reasons of military confidentiality, the certificate and the imported goods may be submitted to other authorities designated by the importing Member State for this purpose. In such cases the competent authority issuing the certificate shall send before 31 January and 31 July of each year a summary report to the customs authorities of its Member State on such imports. The report shall cover a period of six months immediately preceding the month on which the report has to be submitted. It shall contain the number and issuing date of the certificates, the date of importation and the total value and gross weight of the products imported with the certificates.

3. For the issuing and the presentation of the certificate to the customs authorities or to other authorities in charge of customs clearance data-processing techniques may be used in accordance with Article 292(3) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92.

4. This Article applies mutatis mutandis to imported goods listed in Annex II.’

23. Although Regulation 150/2003 was applicable as from 1 January 2003, it entered into force on the day following that of its publication in the Official Journal of the European Communities , which took place on 30 January 2003. (16)

II – The position of the Commission, the prior administrative procedure and the proceedings before the Court of Justice

24. The Commission complains that Finland, Sweden, Germany, Italy, Greece and Denmark did not pay customs duties on imports of defence and dual-use equipment in the period immediately preceding Regulation No 150/2003.

25. The dispute which underlies these actions dates back to the 1970s. The Commission acknowledges as much in the case of Italy (17) (C‑239/06). The reasoned opinions of 10 September 1984, with regard to Germany, and 25 July 1985, with regard to Italy (C‑387/05), and the reasoned opinion of 1990 concerning Greece, demonstrate the length of the negotiations. Other details are contained in the first letters of formal notice sent to the defendant Member States on 20 December 2001, (18) although they did not culminate in legal proceedings. As concerns Italy, in Case C‑387/05 the Commission made a formal complaint in a letter sent on 31 January 2002.

26. The Commission again made known to the Member States its concerns about the compatibility with Community law of the refusal to carry out the assessments concerned. (19) The Commission wrote to the Italian Republic on 31 October 2002 (C‑387/05), to the Republic of Finland on 15 October 2003 (C‑284/05) and, lastly, to the Kingdom of Sweden (C‑294/05), the Federal Republic of Germany (C‑372/05), the Kingdom of Denmark (C‑461/05), the Hellenic Republic (C‑409/05) and the Italian Republic for a second time (C‑239/06) on 17 October 2003.

27. Since the Commission did not consider the explanations of those Member States to be satisfactory, it sent reasoned opinions as follows: to Italy on 11 July 2003 (C‑387/05); to Finland on 7 July 2004 (C‑284/05); to Sweden (C‑294/05) and Italy (C‑239/06) on 9 July 2004; and to Germany (C‑372/05), Denmark (C‑461/05) and Greece (C‑409/05) on 18 October 2004.

28. On 15 July 2005, 20 July 2005, 7 October 2005, 24 October 2005, 21 November 2005, 23 December 2005 and 29 May 2006, the Commission brought actions under the second paragraph of Article 226 EC against, respectively, the Republic of Finland (C‑284/05), the Kingdom of Sweden (C‑294/05), the Federal Republic of Germany (C‑372/05), the Italian Republic (C-387/05), the Hellenic Republic (C‑409/05), the Kingdom of Denmark (C‑461/05) and, once again, the Italian Republic (C‑239/06). In those proceedings, the parties have reiterated their positions.

29. Leave to intervene was granted in response to a number of applications in each of the proceedings. (20)

30. Following the general meeting of 7 October 2008, the public hearings were held on 25 November 2008, (21) as from which date all the proceedings were ready for the delivery of Opinions.

III – Analysis of the objections of inadmissibility

31. For the purposes of a clearer understanding of these objections, I will examine them separately, in chronological order, in the three actions in which they have been raised.

A – In Case C‑372/05 (Commission v Germany)

32. In the opinion of the German Government, there are three impediments to the admissibility of this action.

1. The unsuitability of Article 226 EC as a legal basis

33. The Federal Republic of Germany claims that the Commission erred in its choice of action and the resulting proceedings brought before the Court in that, since Germany essentially bases its defence on Article 296(1) EC, the correct procedure is the special procedure referred to in the second paragraph of Article 298 EC. (22)

34. This argument is without foundation. It does not follow from any of the language versions of Article 298 EC that the Commission must use that special procedure. Thus, the Spanish (‘la Comisión o cualquier Estado miembro podrá recurrir directamente’), French (‘la Commission ou tout État membre peut saisir directement la Cour de justice’), English (‘the Commission or any Member State may bring the matter directly before the Court of Justice’) and German (‘verfahren kann die Kommission oder ein Mitgliedstaat den Gerichtshof unmittelbar anrufen’) versions do not connote obligation because the reference to that direct method of challenge is framed merely as a right. (23)

35. Germany disregards the fact that, in line with the restriction on derogating from procedural rules, (24) the subject-matter of any legal proceedings is determined by the applicant and not by the claims of the defendant; if that were not so, an objection of inadmissibility would be capable of distorting the subject-matter of a dispute.

36. Although the conflicting views about Article 296 EC are evident in the letters exchanged during the pre-litigation procedure, it must be remembered that the Commission is seeking only a declaration of failure to fulfil obligations under Article 26 EC and a number of Community regulations (25) and decisions, but not under Article 296 EC, a provision which, instead, has been relied on by Germany as one of the mainstays of its reasoning.

37. In short, the choice of action by the applicant is not made subject to the arguments put forward by the defendant in the defence.

38. Moreover, it is clear from the purpose of Article 298 EC and from a systematic interpretation of its two paragraphs that the objection is inappropriate, since the Commission ‘may bring the matter directly before the Court of Justice’ where it takes the view that there has been improper use of Article 296 EC and ‘the conditions of competition in the common market’ have been distorted.

39. The approach which I suggest (26) supports the restriction of the remedy provided for in the second paragraph of Article 298 EC in order to avoid the collateral effects which Articles 296 EC and 297 EC may have on competition and on the economy. (27)

40. Clearly, the present dispute does not concern the distortion of competition and therefore that procedural route is not available in the present case.

41. Furthermore, the action for failure to fulfil obligations in no way penalises Member States; (28) in fact, it strengthens their rights of defence, beginning in the pre-litigation stage, which is absent from Article 298 EC. In my view, the procedure under that provision is, rather, a summary procedure, since it limits the jurisdiction of the Court simply to determining whether the market and trade are functioning properly, thereby restricting the ability of the Member State concerned to defend itself.

42. Finally, in Commission v Spain , (29) which concerned the exemption from value added tax (VAT) of imports of military equipment, adopted by Spain on the basis of Article 296 EC, no one invoked Article 298 EC with the aim of preventing a ruling on the substance, not even the Court of its own motion. (30)

2. The essential interests of national security and the absence of proof of the infringement

43. The Federal Republic of Germany submits that the Commission is not entitled to control the definition of the essential interests of its security.

44. To my mind, Germany is wise not to conclude its argument by calling into question the jurisdiction of the Court to resolve this difficult issue, although it does insinuate such a defect.

45. The plea, which must be dismissed, improperly diminishes the significance of one of the substantive elements of the dispute and affords it the status of a mere procedural pretext.

46. The use of those essential interests of security to restrict the competence of the Commission and, by osmosis, the effectiveness of Community law lies at the heart of the dispute and has a bearing on a number of matters, such as the burden of proof and the extraordinarily delicate matter of State immunity. (31)

47. However, safeguarding the essential interests of the security of the Member States is not on the menu offered by the Commission, on which the main course is the enforcement of customs duties as a method of financing the Community, even though the Member States may season them with the ingredients of Article 296 EC.

48. In other words, the Commission does not seek to interfere in the national security of the Member States (32) but rather to ensure the harmonised application of Article 296 EC and of the Treaties as a whole, a task which falls within the competence of the Commission and the Court.

49. Germany complains that the Commission did not specify the infringements of the EC Treaty in its pleadings, but the relevant provisions of primary and secondary law, which govern the customs union and the Communities’ own resources, are clear from simply reading the application and the legal framework set out above.

50. In any event, failure to establish such an infringement would result not in the action being ruled inadmissible at the outset but rather in its dismissal after a detailed assessment of all the matters of fact and law adduced.

3. The right of Germany not to provide information

51. The link between this third ground of inadmissibility and the previous one is clear to see since, if the defendant Member State maintains that the Commission is interfering in sensitive areas of its security, the German Government should not defend itself in these proceedings by adducing information in that connection, which Article 296(1) EC aims to prevent.

52. This approach, daring in its conception, must fail because it is clear that, once again, Germany is seeking to have the action declared inadmissible through the use of spurious reasoning.

53. A Member State assumes responsibility for disclosing certain information, so that the success or failure of its position must lead to a ruling on the substance of the action but does not justify the dismissal of the action at the outset.

54. Furthermore, the arguments of the Commission concerning the duty of the Member States to prove that the conditions for the application of Article 296 EC have been met do not mean that the particulars of imports of military equipment must be disclosed to it.

55. No such obligation exists and, despite Germany’s submission, nor is the Commission arrogating to itself a right which it does not have.

B – In Case C-387/05 (Commission v Italy)

56. According to the Italian Republic, the Commission did not call for proof in the reasoned opinion that there was no effect on competition, whereas it did require such proof in the application.

57. The Commission quite consistently asked the Court to rule that Italy has failed to fulfil its obligations under Community financial and customs provisions, by openly reiterating at the litigation stage the position which it first put forward during the pre-litigation phase.

58. Once it has been found that there has been an infringement of the provisions on own resources, the resolution of the proceedings requires consideration of the issue whether there is any justification for that infringement on grounds of protection of national security.

59. So much is clear from the reasoned opinion, as Italy acknowledges in paragraph 18 of its pleadings, with the result that there is no basis for the claim of inconsistency, as non-distortion of the market is merely one of the conditions for that special derogation.

60. Accordingly, the Commission has not raised any fresh issues or extended the subject-matter of the dispute, and there are no grounds whatsoever for declaring the application inadmissible. (33)

C – In Case C-409/05 (Commission v Greece)

61. In its rejoinder, the Hellenic Republic puts forward the same ground of inadmissibility as the one advanced by the German Government in Case C‑372/05 on the basis of Article 298 EC.

62. Greece refers to this ground of inadmissibility in paragraphs 4 and 37 of its defence, although it does not raise a formal plea of inadmissibility until the rejoinder, and therefore, in accordance with Article 42 of the Rules of Procedure of the Court of Justice, (34) the plea must be struck out on the grounds that the applicant has been deprived of the opportunity to rebut it.

63. Apart from the fact that it is time-barred, this objection warrants the same response as the plea in Commission v Germany , to which I refer, and, therefore, it must be dismissed by the Court.

64. At the hearing, the representative of the Greek Government submitted ex novo that the proceedings are vitiated from the outset by the fact that it is unlawful to use an action for failure to fulfil obligations to obtain from the Court a ruling which calls on a Member State to adopt certain measures. (35)

65. This issue has already been addressed in the case-law, which clearly distinguishes between the purpose of an action under Article 226 EC, which is ‘to obtain a declaration that a Member State has failed to fulfil its Community obligations’, and ‘the measures necessary to comply with the judgment’, the initial determination of which, in accordance with Article 228 EC, is the responsibility of the Member State concerned, while the Court may not order the adoption of other measures.

66. That doctrine is set out in paragraphs 40 to 52 of the judgment in Commission v Germany , (36) in which the Court dismissed a plea seeking ‘an order that the Member State pay default interest’.

67. However, the situation in the present case is different, since the Commission is not bringing claims for recovery aimed at obtaining a judgment ordering the Member States to credit to its account the unpaid own resources together with default interest in accordance with Article 11 of Regulations No 1552/89 and No 1150/2000; instead, the Commission is merely seeking a ruling that the infringements complained of have occurred.

68. Clearly, if the Court gives judgment in favour of the Commission, when the Member States comply with the judgment they will have to determine whether putting a stop to those infringements requires the calculation and crediting to the Commission’s account of own resources together with default interest.

69. Finally, although failure to pay customs duties on imports of defence equipment no longer constitutes an infringement of customs provisions, since Regulation No 150/2003 suspends customs duties on certain weapons and military equipment, the consequences of infringements which may have occurred prior to the entry into force of the regulation, and which were perhaps ongoing at the end of the period laid down in the reasoned opinions, must be taken into account, which is why a declaration of the failure to make payment is sought.

IV – Analysis of the infringement

A – The Communities’ own resources

70. Article 201 of the EEC Treaty provided that, ‘[w]ithout prejudice to other revenue, the budget shall be financed wholly from own resources’, but the technical and political difficulties of implementing such a system of financing, characterised by autonomy vis-à-vis the Member States, lasted for over 12 years, (37) and in the transitional period the funding of the European Economic Community was raised by contributions from the Member States.

71. Council Decision 70/243/ECSC, EEC, Euratom of 21 April 1970 on the replacement of financial contributions from Member States by the Communities’ own resources (38) (‘First Decision on own resources’) put an end to de facto control by the national governments, launching a new era of economic emancipation, the effects of which continue to be felt today.

72. The mainstays of the transition to that situation were agricultural levies, customs duties (39) and VAT.

73. In the mid-1970s, the United Kingdom began to complain about its financial contribution, giving rise to serious budgetary disputes which were resolved in 1984 at the Fontainebleau European Council, (40) the conclusions of which resulted in Council Decision 85/257/EEC, Euratom of 7 May 1985 on the Communities’ system of own resources (41) (‘Second Decision on own resources’).

74. In addition to other measures, the decision provided for a mechanism for correcting budgetary imbalances which, to date, has been applied only to the United Kingdom (‘the United Kingdom cheque’) (42) and involves the refund of certain amounts calculated by reference to the difference between the percentage share of that Member State of VAT payments and its share of total allocated Community expenditure. (43) That correction is financed jointly by the rest of the Member States in proportion to their respective VAT payments, subject to special rules for Germany, the Netherlands, Austria and Sweden. (44)

75. Under Decision 88/376 (‘Third Decision on own resources’), a fourth type of own resources was added to the three referred to above, which was based on the gross national product (‘GNP’) of the Member States (45) and designed to adjust contributions in line with the ability to pay. (46)

76. In view of the fact that financing of the Community generated a cost for the economies of the Member States, Decision 94/728 (‘Fourth Decision on own resources’) introduced a reduction for collection costs, allowing Member States to retain a certain percentage of the traditional resources collected, originally set at 10% (Article 2(3) of Decision 94/728) and currently 25%. (47)

77. Following a proposal by the Berlin European Council, and in accordance with the criteria for attaining a system which is ‘equitable, transparent, cost-effective, simple and based on criteria which best express each Member State’s ability to contribute’, Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (48) (‘Fifth Decision on own resources’) was adopted. That decision has since been replaced by Decision 2007/436 (‘Sixth Decision on own resources’).

B – Customs duties in particular

78. While, at the outset, the levy of customs duties pursued a purely fiscal objective, it later became clear that such duties constituted a protectionist tool of the first magnitude which soon aroused the suspicions of supporters of free trade.

79. After the Second World War, certain liberal-inspired principles encouraged the gradual reduction of customs duties and even their abolition. (49) However, that view did not take root in the face of pressure from other advantages, such as the ability of customs duties to serve as a means of controlling the flow of goods, as commercial policy indicators, or as sentries of trade.

80. At Community level, the customs union was created on 1 July 1968 in order to eliminate those duties and restrictions and also to provide for a common customs duty, (50) applicable throughout the Community vis-à-vis non-member countries, the revenue from which would be credited to Community coffers in the form of own resources.

C – The objective elements of the infringement

81. The Commission claims that the infringement took place between 1 January 1998 and 31 December 2002, although at the hearing it pointed out, in accordance with Article 7(2) (51) of Regulation No 1150/2000, that, in the case of one Member State, the complaint was not put forward in 2001 but rather the following year (52) and therefore, in that case, the starting date must be 1 January 1999.

82. The alleged infringement committed as a result of failure to make payment is restricted to those periods, notwithstanding the fact that, in 2003, in accordance with Regulation No 150/2003, there was no customs debt in respect of those transactions, (53) because the suspension implemented does not entail the cancellation of a debt already incurred, nor does it extinguish any infringement, which continues to exist.

83. Owing to their close connection, it is necessary to examine with caution the indistinct boundaries between the legislation on own resources and the legislation on the incurrence, calculation and recovery of customs duties. (54)

84. Furthermore, it may be inferred from the judgment of the Court in Commission v France (55) that failure to comply with the customs legislation may undermine the financing system. There is therefore a certain ‘overlapping’ (56) of those areas and, by extension, a dual judicial test which involves, first of all, ascertaining whether a customs declaration must be made in respect of the acquisitions in question and, second, if that is the case, establishing whether there was a failure to make the appropriate entry in the account of the Communities.

85. That methodology leads me to conclude categorically that the objective elements of the infringements (57) are present in the conduct of the defendant Member States.

86. In the context of the customs acquis , Articles 23 EC and 26 EC and Article 20(1) of the Community Customs Code are sufficient to confirm the unlawfulness of a failure to establish customs duties on military and dual-use equipment.

87. It is also clear from the different categories set out in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (58) that such equipment is subject to assessment and it is not appropriate to argue, as Germany and Finland do in their pleadings, that to require an assessment is contrary to the founding principles of the Community.

88. Whilst I recognise the gradual loss of importance of traditional own resources, (59) the aims of a completely unfettered commercial policy and the desire for change, (60) the fact remains that Community law requires strict compliance with the principle of the equality of Member States’ economic interests, which precludes the transformation of the general rule on liability into an exemption or a suspension.

89. All the Member States admit that they have not paid customs duties, although they have made a number of one-off transfers of different amounts (61) which must not be construed as full and final settlements, (62) since they were made conditional on the appropriateness of the debt and the Member States did not calculate them by reference to the imports and the periods concerned.

90. Those imports were not exempt from the Common Customs Tariff; nor were any special rules in place to reduce that tariff, such as a possible ‘zero rate’.

91. Furthermore, far from providing a criterion for the interpretation of the above situation, which would be capable of tipping the balance in favour of the positions of the Member States, the adoption of Regulation No 150/2003 bolsters my belief that the establishment of customs duties is compulsory.

92. It follows from the observance of a basic principle of legality, which applies in the financial sphere and in other more limited spheres, such as taxation and customs, and from the fact that Regulation No 150/2003 does not have retroactive effect that there was no suspension of customs duties between 1 January 1999 and 31 December 2002.

93. Member States are required to establish the Communities’ own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties and determine the debtor. (63) Failure by a Member State to do so is sufficient to disrupt the financial equilibrium of the Communities. (64)

94. The fragile stability of the Community financing system calls for a precise definition of the establishment, collection and making available of own resources and for the compliance of the Member States, since failure by any Member State to abide by those rules is rectified by simply sharing out the consequences among all the Member States via the so-called GNP resources, (65) an eventuality which is incompatible with the duty of good faith. (66)

95. To my mind, it is sophistry to rely on an a contrario interpretation of those sound arguments, as Finland seeks to do, (67) in support of the contention that the principle of equality in the financing of the Community budget would be infringed if Member States which import arms from non-member countries were required to pay customs duties ‘in addition to’ the cost of the equipment, unlike Member States which choose to make such purchases within the Community.

96. That line of argument fails to take into account the fact that the place of acquisition relates to interests of commercial policy and strategic interests which may not be used to claim an exemption.

97. The representative of the Danish Government asserted at the hearing that the purpose of customs duties is not to finance the Community but rather to deter potential buyers from dealing with non-member countries and to promote trade between the Member States.

98. That argument is not an accurate reflection of the situation, since the full attainment of that protectionist objective requires that the interests of the Community must be unharmed where, as has occurred in the present case, purchases are made from non-member countries; that aim is achieved specifically by strengthening the financial capacity of the Community through the tariff, thereby mitigating the economic losses arising from the failure to make purchases within the Community.

99. For its part, Germany maintained at the hearing that Member States which contribute more to the defence of the Union are penalised because they pay more by way of customs duties.

100. That view juxtaposes different concepts, such as the internal market and the defence of the Member States, the respective objectives of which must not be confused; moreover, the unilateral derogation from certain customs provisions is not an appropriate means of providing for any mechanisms for offsetting the financial burdens arising from military commitments. (68)

101. The principles of the balancing of revenue and expenditure (Article 268 EC), solidarity in the financing of the Community (Article 2 EC) and sound financial management (Article 274 EC) preclude absolutely those economic approaches which serve only the interests of the Member States.

102. The argument (69) that, in order to reduce similar injustices, the Commission must refund customs duties to the Member States which paid them is also doomed to failure, since it entails extending the infringement to rectify the unlawful conduct of those who refused to pay.

V – Other arguments of the Member States

103. All the defendants justify the lack of payment under Article 296 EC on the grounds that the levy of customs duties on the import of such goods from non-member countries entails a serious risk to the essential interests of their security.

104. They argue that the payment of those own resources would cause them financial damage which would weaken defence procurement and, by extension, their military capacity. They also maintain that the porousness of the customs procedure does not guarantee the confidentiality of the information they must provide in order to calculate the respective total amounts. In addition, the defendants invoke Article 307 EC and the commitments entered into with exporting countries, together with the principle of legitimate expectations as a result of the delayed reaction of the Commission.

A – Article 296 EC and national security

105. This area, which is full of conflicting arguments, requires a careful analysis in order to provide a clear definition of the cases provided for in Article 296(1)(a) and (b) EC.

1. Scope of application

106. Point (a), which provides that ‘no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security’, covers dual-use equipment in addition to equipment which is exclusively for military purposes, since it is the act of disclosure which is detrimental, regardless of the subject-matter of the transaction.

107. Point (b) does not stand up to the same interpretation since, by authorising any Member State to ‘take such measures as it considers necessary for the protection of the essential interests of its security’, it restricts the derogation to ‘the production of or trade in arms, munitions and war material’.

108. The list which the Council drew up on 15 April 1958 (70) supports that interpretation, because it refers only to ‘the products to which the provisions of paragraph 1(b) apply’ (Article 296(2) EC).

109. The nature of the items included in the 1958 list and the reference in Article 296(1)(b) EC to the market in military equipment preclude, by the simple invocation of point (b), a derogation from the Community system of financing, in particular the customs procedures, in the case of acquisitions of materials whose design, production and development do not satisfy strictly military purposes.

110. Accordingly, dual-use products are not exempt from customs duties under Article 296(1)(b) EC, unless it can be shown that they are to be used for exclusively military purposes, a claim which has not been made by either Italy or Sweden or substantiated by any evidence.

111. Consequently, the action brought against Sweden (C‑294/05) (71) and the action brought against Italy (C‑387/05) must be ruled well founded in the absence of a legitimate defence, (72) since those defendants may rely only on Article 296(1)(a) EC to support a derogation in abstracto (73) from the Treaty. (74)

2. The requirements of Article 296 EC and their review by the Court of Justice

112. It is necessary to analyse the reliance on Article 296 EC to derogate from a number of provisions (75) which are the key to the Community financing system and directly affect the customs union, which is the very essence of the internal market. (76)

113. At this point, I am unable to conceal my surprise at the manner in which the Member States have, (77) throughout the proceedings, called for the ‘autonomous application’ of Article 296 EC.

114. The position of the defendants with regard to that concept, which is essential to the resolution of the dispute, is, in my opinion, extremely confused.

115. The fact that the Member States have ‘autonomy’ to decide whether it is appropriate to rely on Article 296 EC does not mean that the criteria which must lead to its correct interpretation are not uniform throughout Community territory.

116. Each Member State must define the essential interests of its security, identify and classify threats damaging to its security and, ultimately, assess whether it is appropriate to implement any of the restrictions referred to in Article 296 EC, by balancing rights which, because they concern the very essence of a State’s sovereignty, do not fall within the scope of Community law.

117. The classification of an autonomous concept such as ‘essential interests of its security’ come within the Community sphere. As Community law currently stands, that concept is, by definition, exclusively a matter for the Member States.

118. Accordingly, the discussions which take place in the Member States concerning which authorities have the power to review the non-disclosure of information is such that they involve a delicate balancing exercise (78) which does not find expression in Community law, and therefore the Court must not conduct a review which concerns a purely national matter.

119. The principle of the division of powers (79) must of necessity lead to the acceptance of a series of restrictions on the power of judicial review and, in the light of acts woven with the threads of the discretion of governments to draw up their defence policy, the mechanisms for ensuring that those acts are adopted correctly must be designed in such a way that they prevent the risk of an act of the executive being replaced through the application of opportunistic criteria.

120. That situation means that a substantive review of a decision to classify a document as confidential would entail the automatic lifting of that decision. Therefore, when a court carries out its assessment, it may deal with the confidentiality by skirting around it, and may analyse the rules applicable to the decision but not the information to which it relates. (80)

121. In addition to the appraisal carried out in each Member State, (81) Community law, in particular the Court, must lay down the rules of interpretation permitting the adoption of exceptional measures under Article 296 EC, which do not conflict with the uniform application of the article or, obviously, in line with all the safeguards which I am describing, with the discretionary powers of the Member States.

122. That dividing line between the national sphere and the Community sphere must be drawn with extreme care but it must be conclusive in order to ensure that harmony prevails within the Union.

123. The task at hand is to assess the difficult balance between the interests of the Member States in the matter of their security and the fundamental objectives of the Community, without crossing the threshold of what is reasonable.

124. Derogations from Community provisions must comply with the principle of proportionality (82) and must be appropriate and necessary for achieving the aim pursued.

125. No matter how much it may be claimed that Article 296 EC provides for a general derogation from the Treaty, the primacy of Community law and the principle of effectiveness thereof make it necessary to restrict national acts which rely on the article.

126. The Treaty provides for exceptions to its uniform application (83) where there is a serious risk to public security, but there is no general power to exclude its authority vis-à-vis any measure, irrespective of the gravity of the threat. (84)

127. However, Member States are freed from the ties of primary law where the interests at risk are considered to be ‘essential’, meaning that the national security exception may be invoked only in the face of real and sufficiently serious threats which are aimed at harming those interests.

128. The dismantlement of any of the foundations of the Community architecture is lawful only where Member States have no other option in order to protect their most vital interests.

129. In addition, the notion of discretion having been granted to governments under Article 296 EC is incompatible with the Community requirement of integration in good faith.

130. The Member States do not have an automatic right to rely on Article 296 EC, since, in connection with the 1958 list, the Court has ruled (85) that, although Article 296 EC acts as the legal basis for an exemption, the items on the list must still satisfy the rest of the conditions for the application of the article.

131. To my mind, Article 296 EC connects the indeterminate legal concepts of ‘the essential interests of their security’ and ‘considering’ the measure to be necessary with the inescapable obligation to provide reasons.

132. The use of those concepts requires extreme care, which is incompatible with a general and hypothetical definition of national interests, including those of a military nature. (86)

133. Such laxity would lead to the sort of political acts (87) which would plough furrows of immunity that would be extremely harmful to the Community and, in my opinion, to the position of the Member States within it.

134. While the dispute in these seven cases undoubtedly concerns the determination of the boundaries between Community competence and national political power, it goes further than that and also concerns the exploitation of the Treaty through the elevation of Article 296 EC in a manner which is tinged with overtones of existentialist angst. (88)

3. The burden of proof

135. The defendants avoid the burden of proof with regard to the requirements of Article 296 EC, maintain that the disputed customs duties infringe their interests under Regulation No 150/2003 and contend that recital 5 in the preamble to that regulation is a statement of intentions of the Community legislature. (89)

136. Once again, the correct interpretation of the regulation has been obscured, since recital 5 in its preamble states that ‘[i]n order to take account of the protection of the military confidentiality of the Member States it is necessary to lay down specific administrative procedures for the granting of the benefit of the suspension of duties’. (90)

137. Consequently, the reference to those principles of confidentiality does not mean that secrecy is not guaranteed at an earlier stage or that, even where it is absent, the essential interests of the security of Member States are seriously damaged, since not all leaks of information are seriously detrimental to defence interests.

138. I am not persuaded by the line of argument put forward by the Member States, since it is not in line with the case-law of the Court, which steers away from a broad interpretation and requires anyone seeking to rely on such derogations to provide proof that the derogations do not go beyond the limits laid down for the scenarios in question. (91)

139. The singular context of those measures must bolster the view that the burden of proof always rests with the party relying on the special derogation from the Treaty, in order to maintain consistency and respect for its provisions.

140. Specifically, in the judgment in Case C‑414/97 Commission v Spain , (92) the Court found that there had been a failure to fulfil obligations because the Spanish Government did not demonstrate that ‘the abolition of the exemption from VAT on imports and acquisitions of armaments, munitions and equipment exclusively for military use, provided for by the Spanish Law, constituted a measure which would undermine the protection of the essential interests of the security of the Kingdom of Spain and that those exemptions were therefore justified under Article 223(1)(b) of the Treaty’.

4. A provision relied on inappropriately

141. I have already pointed out that the Court may not examine directly the discretionary powers relating to State secrecy, (93) although, where Community law is at issue, the Court has jurisdiction to review their limits in accordance with the principle of proportionality and the general principles of Community law.

142. Where, as occurs in the present case, derogations from the fundamental principles of freedom of movement (94) are adopted or the proper functioning of the Community system of financing is impaired, the national authorities must provide at least minimum reasons for such irregularities, stating the objective pursued and the logical connection on which they are founded.

143. Otherwise, the reasons are doomed to obscurity and legal darkness is a breeding ground for the ghosts of the misuse of power.

a) The economic argument

144. The defendant Member States claim that the serious economic damage which payment of the customs duties causes would weaken their military strategy. However, that argument misconstrues the purpose of Article 296 EC so as to serve purely industrial or economic ends, (95) which under no circumstances justify a derogation from the Treaty. (96)

145. Although Greece is correct to counter the complaints of the Commission by drawing attention to the difference between ‘professional secrecy’ and ‘military secrecy’, (97) taken to the furthest extremes those economic arguments would legitimise tax evasion in the interests of financial soundness and the dictatorship of profit.

146. Moreover, it is incorrect to compare the financial effects of VAT on State coffers with the payment of customs duties, as Denmark (98) and Italy (99) do when they claim that, in contrast to customs duties, VAT benefits the Member States.

147. Guidance is provided in Case C‑414/97 Commission v Spain , which concerned imports of armaments and in which the Court held that ‘the VAT exemptions are not necessary in order to achieve the objective of protecting the essential interests of the security of the Kingdom of Spain’, (100) while any risk is removed by the fact that ‘the income from payments of VAT on the transactions in question would flow into the State’s coffers apart from a small percentage which would be diverted to the Community as own resources’. (101)

148. To conclude by an a contrario interpretation that, in contrast to VAT, customs duties do affect national security amounts to drawing erroneous, ill-considered conclusions from that line of interpretation.

149. Moreover, it tends to emphasise individual aspects of the financial system, such as the amount of direct revenue arising from own resources, but fails to consider the system as a whole and the advantages for Member States of solidarity with regard to their contributions and the equal distribution of the financial burden.

b) Confidentiality and the customs procedure

150. I am no longer surprised by the tale of the customs procedure which contains a prologue to the effect that a lack of secrecy disturbs the tranquillity of Member States.

151. The defendants claim that there is greater anonymity in the field of VAT than in the field of customs duties, (102) adding that the higher level of confidentiality found in some national legal systems (103) is not mirrored in the Community.

152. The mere suspicion of leaks may not be used as justification for the breach complained of by the Commission, because the integrity and security of information is protected by Article 287 EC, which requires the members of the institutions of the Community, the members of committees, and, in general, the officials and other servants of the Community, even after their duties have ceased, ‘not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components’, a requirement which is reproduced in Article 15 of the Community Customs Code. (104)

153. The Member States should have expressed their dissatisfaction with those protective rules in their defences. It must also be remembered that it is possible to claim the appropriate compensation for infringement of Community law where certain leaks occur during the process of transmitting information.

154. However, a unilateral derogation from the system does not accord with the criterion of proportionality, (105) to which any measure restricting the provisions of the Treaty must be made subject ‘in such a way that its effects are limited to that which is necessary in order to protect the interests which it seeks to safeguard’. (106)

155. The exclusion of a substantial section of the Community financial legislation is not compatible with the binding nature of that legislation or in proportion to the aims pursued.

156. Even though they play a starring role, the script written by the defendants does not foresee the entrance of the rules on the burden of proof, since the defendants should have provided proof that, between 1 January 1999 and 31 December 2002, confidentiality was not guaranteed. (107)

157. Although Regulation No 150/2003 alters the financial future of the Community by suspending customs duties, Article 7 (108) thereof also entails the transmission of certain information relating to acquisitions, and therefore the difficulties which the Member States complain of in connection with the safekeeping of that information remain the same.

158. Germany is at pains to point out in its rejoinder (C‑372/05) that the information disclosed in accordance with Article 7 is not used to calculate the customs duties, which I do not contest, because, aside from the purpose of the provision in fixing the amount of duties which are no longer applicable, the important point is whether the certificates to which it refers (109) are capable of compromising the interests which the Member States seek to keep confidential. (110)

159. It is not for the Commission, as Greece incorrectly suggests in its statement in intervention in the action against Finland (Case C‑284/05), to propose alternative procedures to prevent the disclosure of information. (111)

160. That argument reverses the burden of proof and changes the matter to be proved, because the Member States must demonstrate that the procedures are inadequate for maintaining secrecy.

161. Accordingly, it is not the case that the communications which the Member States must send monthly (112) or annually to the Commission must contain a level of detail such that they are harmful to national defence strategies, since, using the appropriate forms, (113) they are required to notify the total amounts arising from all imports in the relevant period.

162. The action against Denmark illustrates the uncertainties surrounding the specific nature of the information to be declared, since the position of the Danish Government, which takes the view that, in addition to stating the items imported, there is an obligation to provide information about their quantity, value and country of origin, is at odds with that of the Commission, which merely requires to be notified of the total amount of the transactions.

163. Although, in the worst case scenario, (114) the details referred to by Denmark would be revealed, I am unable to understand what negative effect that would have on its national security, especially since those details do not include the technical specifications of the different components or their intended use. (115)

164. The Commission does not indicate any objection (116) to the use of simplified customs procedures before 2003 because the organisation of the procedure is the responsibility of Member States, which, as the Commission points out, (117) would be entitled, under Article 60 of the Customs Code, (118) to appoint an ad hoc administrator. (119)

165. National agents and bodies are involved in that initial phase and, therefore, it is bordering on hysteria to attempt to claim that the risk to national security lies in distrust of a Member State’s customs authorities.

166. The next stage of the customs procedure involves the checking of the assessment made, which is subject to inspection by the Commission, and at that stage additional information may be required, the secrecy of which is also guaranteed under Article 5 of Regulation No 1026/1999. (120)

167. This is where one of the keys to the disputes lies, because it was clear at the hearing that sensitive information is never handled in the initial stage since that stage is concerned only with total amounts and not with information liable to compromise national security, from which it follows that there is no reason to invoke Article 296 EC before the Commission has made a formal request to verify an assessment made by a Member State.

168. Since, under Article 10 EC, the Member States must assist the Commission with its task of ensuring compliance with the Treaty, (121) they must also provide it with the means of checking that the own resources credited are correct, (122) but, in my opinion, that does not preclude Member States from deciding, on a case-by-case basis and by way of exception, that it is appropriate to restrict the information to certain parts of a particular document or, in accordance with Article 296(1)(a) EC, to refuse to disclose that information at all; those options are more in keeping with the requirements of proportionality than the adoption of a special derogation from the system.

169. It is also excessive for a Member State to invoke Article 296(1)(b) EC prior to any inspection by the Commission, a stage which does not always take place since, in connection with the trade in arms, a Member State is permitted only to adopt measures ‘for the protection of the essential interests of its security’, which, by definition, the customs procedure does not undermine during the first stage described, and even less before an assessment is made.

170. The Member States have used a hypothetical abstraction to rely on Article 296 EC since, for the article to apply, their interests must be at risk, which, I reiterate, may occur only if the Commission requires very specific information, which it has not done. Despite the submission of the representative of the Greek Government at the hearing, the reason why the provisional payments made by the Member States were not accepted was not because the particulars were insufficient but because none were provided, which prevents the performance of any remotely reasonable inspection.

171. Although the Community legislation seeks to ensure the protection of information, the defendant governments (123) trust the undertakings involved (124) in the arms trade more than the customs authorities, which entails an unacceptable comparative injustice. (125)

c) Corollary

172. In the light of the foregoing, it is clear that the arguments concerning the geographical situation of the country, the distribution of the population, the protection of borders from possible invasions, and, at an economic level, the cost of military programmes, cannot be accepted since, in the case of aircraft, for example, reconnaissance flights in a number of States have increased. (126)

173. The means are not proportionate to the aims pursued because such changes could have been foreseen by the Member States which, before the entry into force of Regulation No 150/2003, established customs duties and credited them to the Community without causing a collapse in their defence systems.

174. It is my view, therefore, that the defendant Member States have relied on reasons which are inadequate for the purposes of Community law and the principles I have set out, and they have moved into the realms of an uncertainty which is damaging to the Union.

175. The case of Finland is particularly illuminating, since that defendant argued in the defence that a mere conditional payment without an agreement with the Commission would prejudice its security but later acknowledged at the hearing that it made a unilateral payment of EUR 10 000 000, which has not resulted in any damage to its interests.

5. An enduring provision

176. Article 296 EC (formerly Article 223 of the EC Treaty) is in no way obsolete; it has withstood the test of time since 1957 and was retained in the Treaty of Lisbon. (127) However, it does raise a number of uncertainties which must be resolved with care through a historical interpretation.

177. There is a clear tension between the two interpretations of Article 296 EC: the first is advanced by the Member States and concerns the notion of omnipresent sovereignty in matters relating to defence, while, in contrast, the other is more communautariste and restricts the scope of the article to a more narrowly defined sphere. (128)

178. The initial mistrust of Member States, fuelled by the cold war, breathed air into that safety valve, but that mistrust no longer warrants a State-minded approach because the concept of threat has shed its cloak of individuality. (129)

179. Moreover, occasionally, failure to disclose something entails a denial of the truth, and, perhaps, the absolute freedom to choose what to say is sometimes out of tune in the framework of European Union integration.

180. A search of the websites (130) to which the Commission refers in its pleadings makes available to everyone the details of certain armaments purchased by armed forces.

181. That fact, which is a feature of modern societies, diminishes the status of confidentiality (131) and, in my opinion, increases exponentially the efforts of Member States to avoid the application of Community law by recourse to Article 296 EC.

182. Any modification of the article which takes the middle route between repealing it (132) and amending the 1958 list (133) must take account of a certain approximation of laws in the field of security (134) and the establishment of the European Defence Agency. (135)

183. There is clearly a certain anachronism when those measures are compared with the competence of the Union to frame progressively a common defence policy (136) and with the solidarity clause, which provides for the mobilisation of military forces if one of the Member States is the object of a terrorist attack or the victim of a natural or man-made disaster. (137)

184. Provisions to regulate the export of arms (138) and campaigns to raise public awareness of the issue (139) have sprung up everywhere, meaning that, except for the differences, it makes no sense to insist on separating the field of imports from the already indirect and limited protection which Community law offers through the customs union. (140)

185. The assignment of sovereignty which membership of the European club entails does not permit contrived or partisan interpretations of the mechanisms laid down in the Treaty of Rome for the attainment of the objectives of the Community.

186. Article 296 EC is capable of giving rise to false expectations in both Member States and new accession States; therefore, while the provision remains in good health, the Court must not shirk its responsibility and must restrict its scope, because the uniformity of Community law is at stake.

187. To adopt the measures which the article provides for on the basis of discretionary, isolated decisions which are not subject to review under Community law, leads to a Community which, as far as the effectiveness of its laws is concerned is advancing at different speeds and to the à la carte application of its principles.

188. There is no scope under Article 296 EC for the fears of Member States concerning the disclosure of their actual armaments expenditure or for rectifying the silences of the accession treaties; nor is there any scope for circumventing, for obscure reasons, the Community principles of trust or for relying on the provision in cases where there are no serious risks to national security.

B – Article 307 EC

189. According to some of the observations of the defendant Member States, the inclusion of confidentiality clauses in contracts concluded with arms suppliers and in treaties entered into with non-member countries precludes the payment of customs duties.

190. Although such clauses act as a measure of the effectiveness or validity of a purchase agreement, they are the result of the free will of the parties and, therefore, if a Member State agrees to keep certain information secret, thereby impeding the fulfilment of its Community obligations, it puts those ‘agreements’ before its Community commitments.

191. Were such an agreement to precede a State’s accession to the European Union, the reception of Community law would leave it in a delicate position of unlawfulness.

192. As concerns international treaties, under Article 307 EC it is necessary, first of all, to identify the disputed contract and then to ascertain the date on which it was concluded, its subject-matter and whether its provisions are compatible with Community law.

193. No agreement may be so confidential that it impedes the fulfilment of customs obligations and renders ineffective Article 307 EC. (141)

194. In addition, although the Court has accepted the primacy of a bilateral agreement on a temporary basis, (142) it pointed out at an early stage (3) that the provision confers ‘rights’ on non-member countries while imposing ‘obligations’ on Member States, so that a Member State gives up the exercise of the rights held under a prior treaty where the new one so requires.

195. The adage pacta sunt servanda , which infuses the article, may not be invoked by dilatory Member States, since they are required to take ‘... all appropriate steps to eliminate the incompatibilities established ...’. There is no indication in the observations submitted by the defendants in these cases that they have made any efforts to remove conflicts, which supports the view that this plea should be dismissed.

196. The Kingdom of Sweden was particularly vocal at the hearing, arguing tenaciously that certain bilateral cooperation agreements (144) include an obligation on the purchaser not to provide any information regarding the purchase without the consent of the seller or supplier. In my opinion, that view leaves compliance with Community law in the hands of third parties, be they States, private entities or undertakings.

C – Legitimate expectations

197. With the exception of Finland and Sweden, all the defendant Member States have submitted in their pleadings that the position of the Commission in the present actions infringes the principle of legitimate expectations.

198. As I explained in connection with the pre-litigation stage of the proceedings, the negotiations between the Commission and Germany, Italy and Greece took place some time ago; the governments of those Member States point to that fact now in support of the contention that it gave rise to certainty on their part, leading them to believe that there was no infringement because the Commission had taken no action since that time.

199. Similarly, Denmark refers to the contacts and the procedures for infringement which took place between 1984 and 1985, adding that, since no proceedings were brought before the Court, a presumption was created in the Member States that the Commission had tacitly admitted that imports of military equipment were exempt from customs duties.

200. The principle of legitimate expectations restricts the revocation of administrative acts in order to protect individuals (145) vis-à-vis the public authorities.

201. It promotes the atmosphere of legal certainty which is required for stability of the law, so that informed decisions may be made in the full knowledge of the consequences of such conduct, thereby creating a climate of certainty (146) which finds fertile ground for its requirements in the field of financial relationships. (147)

202. In its case-law, (148) the Court has described it as a ‘fundamental principle of the Community’, (149) has confirmed its effectiveness vis-à-vis provisions with retroactive or immediate effect (150) and has held that, where there is a change, the person to whom a measure is addressed retains his original position, since, as a result of the conduct of the authority, that person believed that the status quo would not be altered. (151)

203. For the principle of legitimate expectations to spread its protective mantle, the individual (152) must rely on external indications rather than mere subjective assumptions or beliefs; (153) further, having weighed up the interests in issue, the position of an individual who has legitimately relied on the administrative act must warrant that protection. (154)

204. It is not difficult to conclude that reliance on the principle in these actions cannot be allowed.

205. The Court has repeatedly held that the decision whether it is appropriate to bring an action against a Member State, including the choice of when to commence proceedings, is at the complete discretion of the Commission, (155) which is not subject to any time-limit in that regard.

206. Moreover, the principle of legitimate expectations precludes the exceptional possibility of a Community measure taking effect from a point in time before its publication, (156) but the defendants invert that argument in order to circumvent the effects of the legislation which preceded Regulation No 150/2003.

207. Accordingly, it would perhaps be more appropriate to speak of being bound by one’s own acts (157) to support the view that the Commission withdrew its complaints.

208. However, that approach cannot succeed either, since, in the statement it issued during the negotiations for Regulation No 150/2003, (158) the Commission indicated its firm wish not to refrain from collecting customs duties which should have been levied, and reserved the right to take the appropriate action in that regard.

209. Nor was it possible to infer beforehand that the Commission made any concession in that regard, since in 1988 it drew up a proposal for the suspension of customs duties which failed, in part, because the Member States were unable to reach an agreement.

210. In any event, Regulation No 150/2003 does not contain retroactive provisions, an omission to which the Member States assented because they did not object to it.

211. A number of Member States claim, that, in accordance with the principle of legitimate expectations, the effects of the judgment must be restricted in time; (159) however, as I have explained, the Court is not required to rule on the economic consequences of any finding of failure to fulfil obligations.

212. Such a restriction is inappropriate since it is extraordinary in nature; (160) should the Court make a declaration that there has been a failure to fulfil obligations, it would not result in serious financial consequences for the Member States and, furthermore, it must be borne in mind that, in the cases before the Court, there is an additional special feature, since Article 7(2) of Regulation No 1150/2000 sets a time-limit by prohibiting further corrections three years after the complaint.

213. Since the pleas and substantive arguments of the Member States must be dismissed and since the objective elements of the infringements have been established, it is appropriate to allow the seven applications.

VI – Costs

214. In accordance with Article 69(2) of the Rules of Procedure of the Court of Justice, the unsuccessful party must be ordered to pay the costs if, as is the case in all the proceedings, they have been applied for in the successful party’s pleadings. Therefore, since the actions brought by the Commission have been successful, the defendant in each of the proceedings must be ordered to pay the costs.

215. According to Article 69(4) of the Rules of Procedure, the Member States which have intervened in each of the proceedings must bear their own costs.

VII – Conclusion

216. In the light of the foregoing considerations, I propose that the Court of Justice should:

(1) declare that, by failing to establish and credit own resources in connection with the import of defence equipment and by failing to pay default interest owing due to the delay in making the relevant amounts available to the Commission, the Republic of Finland (C‑284/05), the Kingdom of Sweden (C‑294/05), the Federal Republic of Germany (C‑372/05), the Italian Republic (C‑239/06), the Hellenic Republic (C‑409/05) and the Kingdom of Denmark (C‑461/05) have failed to fulfil their obligations under Article 26 EC, Article 20 of the Community Customs Code, and Articles 2, 9, 10 and 11 of Regulations No 1552/89 and No 1150/2000;

(2) declare that, by failing to establish and credit own resources in connection with the import of dual-use equipment and by failing to pay default interest owing due to the delay in making the relevant amounts available to the Commission, the Kingdom of Sweden (C‑294/05) and the Italian Republic (C‑387/05) have failed to fulfil their obligations under Article 26 EC, Article 20 of the Community Customs Code, and Articles 2, 9, 10 and 11 of Regulations No 1552/89 and No 1150/2000;

(3) order the Republic of Finland in Case C‑284/05, the Kingdom of Sweden in Case C‑294/05, the Federal Republic of Germany in Case C‑372/05, the Italian Republic in Cases C‑387/05 and C‑239/06, the Hellenic Republic in Case C‑409/05 and the Kingdom of Denmark in Case C‑461/05 to pay the costs;

(4) order the Member States which have intervened in each of the proceedings to bear their own costs.

(1) .

(2)  – Although it was recently replaced by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1), Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) is applicable ratione tempore to the present case.

(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)  – All the actions for failure to fulfil obligations concern the import of defence equipment, with the exception of one of the two actions brought against Italy (C‑387/05), in which the equipment purchased may be used for civil and military purposes, and the action brought against Sweden (C‑294/05), in which the complaint of the Commission refers to the import of both defence equipment and dual-use equipment.

(6)  – Two examples of that pipe dream, ‘An die Freude’ (‘Ode to Joy’) by Friedrich Schiller, set to music by Beethoven in his Ninth Symphony in D major, opus 125, and the legendary song ‘Imagine’ by John Lennon, envisage the human race clinging in brotherhood to those aspirations.

(7)  – I disagree with the maxim si vis pacem para bellum , despite the attempt by Cervantes, for whom I have great admiration, to redeem it in the form of a burlesque slip of the tongue from the mouth of Don Quixote: ‘Away with those who say that Letters [laws] have the advantage over Arms. For I will tell them that they do not know what they are saying, whoever they are ... [the] aim and object [of Arms] is peace, the greatest good which men can desire in this life.’ Don Quixote , translated by J.M. Cohen, Penguin, London, 1986, Part I, Chapter XXXVII, p. 340.

(8)  – I include in a single document these seven Opinions which, had the hearings in the seven actions for failure to fulfil obligations brought by the Commission not been held on the same day, would have been drafted at different times.

(9)  – According to Beccaria, C., On Crimes and Punishments and Other Writings , translated by Richard Davies, Cambridge University Press, New York, 1995, Chapter 15, p. 37, secrecy is tyranny’s strongest shield.

(10)  – Decision of 31 October 1994 on the system of the European Communities’ own resources (OJ 1994 L 293, p. 9).

(11)  – Council decision of 24 June 1988 on the system of the Communities’ own resources (OJ 1988 L 185, p. 24).

(12)  – The provisions under this heading refer only to Regulation No 1150/2000, in accordance with Article 22 thereof.

(13)  – Council Regulation (EC) No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment (OJ 2003 L 25, p. 1).

(14)  – Recital 5 in the preamble to and Article 1 of Regulation No 150/2003.

(15)  – Recital 5 in the preamble to Regulation No 150/2003.

(16)  – Article 8.

(17)  – In paragraph 14 of its application.

(18)  – In the case of Finland, it also gave rise to infringement procedure No 2001/2219, which was subsequently closed.

(19)  – In view of the delays incurred, the Commission has added default interest to the principal amount.

(20)  – Thus, Sweden, Germany, Italy, Greece, Denmark and Portugal intervened in the action against the Republic of Finland (C‑284/05); Germany, Finland and Denmark intervened in the action against the Kingdom of Sweden (C‑294/05); Greece, Finland and Denmark intervened in the action against the Federal Republic of Germany (C‑372/05); Greece Denmark, Finland and Portugal intervened in the action against the Italian Republic (C‑387/05); Italy, Finland, Denmark and Portugal intervened in the action against the Hellenic Republic (C‑409/05); Greece, Portugal and Finland intervened in support of the Kingdom of Denmark (C‑461/05); and, lastly, Greece and Finland intervened in support of the defendant Italian Republic (C‑239/06).

(21)  – A joint hearing for Cases C‑372/05, C‑387/05, C‑409/05, C‑461/05 and C‑239/06, and two other hearings, subject to reporting restrictions (held in camera), for Cases C‑284/05 and C‑294/05.

(22)  – The extensive arguments put forward by the German Government in support of this objection in the defence contrast with the silence of its representative at the hearing, an indication of a lack of conviction as to its merits.

(23)  – Lenaerts, K., Arts, D. and Maselis, I., Procedural Law of the European Union , edited by Robert Bray, Sweet & Maxwell, London, 2006, pp. 141 and 142, share that view with regard to the special procedure in Article 95(9) EC, and, in my view, there is no reason why it should not be applied to the special procedure referred to in the second paragraph of Article 298 EC, to which the authors certainly allude under the heading ‘Relationship between Arts 226 and 227 of the EC Treaty. And special procedures relating to the improper use of derogating provisions’. According to the authors, ‘the opportunity afforded to the Commission by Art. 95 of the EC Treaty in order to bring a matter directly before the Court of Justice without incurring the delay of a pre-litigation procedure is intended to serve the Community interest of protecting in full the establishment of the internal market. However, this does not preclude the Commission from opting to bring proceedings under Art. 226 of the EC Treaty in the interest of the defendant Member State’.

(24)  – Public policy precludes any discretion.

(25)  – For example, the Community Customs Code.

(26)  – That approach is evident in points 63 to 67 of the Opinion of Advocate General Jacobs in Case C‑120/94 Commission v Greece [1996] ECR I‑1513, removed from the register by order of the President of the Court of Justice of 19 March 1996. The facts of the case concerned the unilateral measures adopted by the Hellenic Republic, which, according to the Commission, were intended to prohibit trade, via the port of Thessaloniki, in products originating in, coming from or destined for the former Yugoslav Republic of Macedonia and imports into Greece of products originating in or coming from that Republic, and, until now, it has been the only action brought using the special procedure under Article 298 EC (formerly Article 225 of the EC Treaty).

(27)  – Díez-Hochleitner, J. and Martínez Capdevila, C., Derecho de la Unión Europea , McGraw-Hill, Madrid, 2001, p. 419.

(28)  – In that regard, I agree with the arguments in the Commission’s reply.

(29)  – Case C‑414/97 [1999] ECR I‑5585.

(30)  – I do not seek to overextend the principle of stare decisis et non quieta movere by citing that case, which is clearly of secondary importance, but rather to draw the attention of the Court to this fact.

(31)  – García de Enterría, E., ‘La lucha contra las inmunidades del poder en el derecho administrativo (poderes discrecionales, poderes de gobierno, poderes normativos)’, Revista de Administración Pública , No 38, 1962, pp. 159 to 208.

(32)  – The House of Lords ruled decisively in The Zamora [1916] 2 AC 77: ‘Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public.’

(33)  – Judgments of the Court in Case 124/81 Commission v United Kingdom [1983] ECR 203; Case 50/87 Commission v France [1988] ECR 4797; and Case C‑61/94 Commission v Germany [1996] ECR I-3989.

(34)  – OJ 1991 L 176, p. 7 (corrigendum at OJ 1992 L 383, p. 117), consolidated version containing the amendments of 21 February 1995 (OJ 1995 L 44, p. 61), in force on the date the application was lodged.

(35)  – I refer in that regard to the judgment of 2 October 2008 in Case C‑36/08 Commission v Greece .

(36)  – Case C‑104/02 [2005] ECR I‑2689.

(37)  – From 1958 to 1970.

(38)  – OJ 1970 L 94, p. 19.

(39)  – Grouped under the illustrative name ‘traditional’ or ‘natural’ own resources, since they are levied exclusively as a result of Community policies and not the wishes of the Member States.

(40)  – Held on 25 and 26 June 1984.

(41)  – OJ 1985 L 128, p. 15.

(42)  – Despite the general approach of the Fontainebleau European Council, which decided that that measure could be applied to any Member State bearing an excessive budgetary burden.

(43)  – That rebate is still provided for in Article 4 of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the Communities’ own resources (OJ 2007 L 163, p. 17).

(44)  – Those rules are set out in Article 5 of Decision 2007/436.

(45)  – Since 2002, it has been known as gross national income (‘GNI’).

(46)  – The GNI own resource, which is obtained by applying a rate fixed each year to an assessment base consisting of the sum of the gross national products at market prices, is extremely important because it determines the cap on the VAT base, how the UK rebate is shared out, and the ceiling on total resources established in the financial forecasts. Decision 2007/436, which is currently in force, maintains the ceiling on own resources at 1.24% of the total GNI of the Member States at market prices and the ceiling on appropriations for commitments at 1.31% of the total GNI of the Member States.

(47)  – Article 2(3) of Decision 2007/436.

(48)  – OJ 2000 L 253 p. 42.

(49)  – It therefore makes sense to recognise customs duties as a legitimate protectionist tool at odds with the deeply liberal international inspiration claimed, as pointed out by Berr, J. and Trémeau, H., Le Droit douanier: Communautaire et national , 7th edition, Economica, 2006, p. 3.

(50)  – In my Opinion in Case C‑376/03 D. [2005] ECR I‑5821, I point out that, in order to achieve customs union in the Community, it was necessary to introduce a common external customs duty, and that the unhindered movement of goods required the harmonisation of indirect taxes. I also argue in favour of an approximation of direct taxation, in order to promote freedom of movement for persons and capital.

(51)  – According to Article 7(2): ‘After 31 December of the third year following a given year, no further corrections shall be made to the annual summary account referred to in paragraph 1, except on points notified before this date either by the Commission or by the Member State concerned.’

(52)  – That occurred with regard to Italy in Case C‑387/05.

(53)  – The arguments of the Greek Government (paragraphs 10 and 11 of its defence) are interesting, despite the fact that it is inappropriate to use the terms ‘customs offence’ and ‘financial offence’, since the Court has not been asked to rule on any penalties but merely to establish a failure to fulfil obligations.

(54)  – That caution is apparent in the Opinion of Advocate General Stix-Hackl in Case C‑377/03 Commission v Belgium [2006] ECR I‑9733, where, on the basis of that distinction, she explains that, ‘according to the application, the Commission’s complaints are limited to infringements of the regulation on own resources and consequently the Court does not have specifically to establish infringements of the rules of customs law in this case’.

(55)  – Case C‑276/97 [2000] ECR I‑6251.

(56)  – To use the expression of Advocate General Stix-Hackl in the Opinion cited above.

(57)  – I will consider below the justifications advanced by the defendant Member States, in the context of Article 296 EC.

(58)  – OJ 1987 L 256, p. 1.

(59)  – Their marked downward trend is illustrated in the paper for the Committee on Budgets by Lamassoure, A.: ‘European Parliament Working Document No 1 on the European Communities’ own resources: History of the Communities’ revenue’, 2005, p. 6.

(60)  – De lege ferenda , Jordán, J.M., ‘Por una reforma del sistema de financiación de la Unión europea’, Quaderns de Política Econòmica, Revista electrónica, 2ª época , Vol. 2, January-March, 2003, p. 13, calls for the GNI resource to be replaced by a share of national taxes, principally income tax, which would clear the way for a more direct relationship between the European Union and its citizens, invigorated by an element of fiscal federalism whereby each European Union citizen would contribute on the basis of his or her own income rather than that of their Member State.

(61)  – In the case of Germany, a payment of EUR 10 803 000 was declared during the written procedure; other Member States, such as Finland and Sweden, declared payments at the hearing.

(62)  – In so far as the principal amount of the debt is concerned, without prejudice to any relevance it may have with regard to default interest.

(63) – Judgment in Case C‑19/05 Commission v Denmark [2007] ECR I‑8597.

(64)  – Case C‑96/89 Commission v Netherlands [1991] ECR I‑2461, paragraph 37; Case C‑348/97 Commission v Germany [2000] ECR I‑4429, paragraph 64; Case C‑392/02 Commission v Denmark [2005] ECR I‑9811, paragraph 60; and the judgment of 23 February 2006 in Case C‑546/03 Commission v Spain , paragraph 28.

(65)  – That argument is clearly expressed in the Opinion of Advocate General Geelhoed in Case C‑392/02 Commission v Denmark .

(66)  – Although the Court allowed the action for failure to fulfil obligations in Case C‑392/02 Commission v Denmark , it did not agree with the view of Advocate General Geelhoed to the effect that there was an infringement of Article 10 EC.

(67)  – That reasoning is clear in its rejoinder.

(68)  – Which do not involve all the defendant Member States, as the Danish agent pointed out at the hearing when stating that Denmark is not involved.

(69)  – Put forward at the pre-litigation stage by the Danish Government and advanced at the hearing by the representative of the Portuguese Government in support of a claim of unjust enrichment of the European Communities.

(70)  – The list, which was set out in Council Decision 255/58, has not been amended or published, although it was disclosed by the Commission in response to a written question (E‑1323/2001) lodged on 3 May 2001 by Mr Staes, a Member of the European Parliament (Verts/ALE) (OJ 2001 C 364 E, p. 85).

(71)  – Only in so far as it concerns dual-use equipment but not with respect to armaments.

(72)  – The arguments put forward by Sweden focus on armaments, a fact which the Commission complains about in the reply. The Swedish representative appears to concede that point because, far from offering a rebuttal, it is not mentioned in the rejoinder, which refers exclusively to war materials. In Case C‑387/05, although Italy cites Article 296(1)(a) EC, it does not base its arguments on that provision either.

(73)  – Specific application of the provision depends on satisfaction of all the requirements which I will analyse below.

(74)  – That approach is clear in paragraphs 58 to 61 of the Opinion of Advocate General Mazák and paragraphs 47 to 49 of the judgment in Case C‑337/05 Commission v Italy [2008] ECR I‑2173, which state that it is not possible to rely on Article 296(1)(b) EC to award directly certain contracts for the purchase of helicopters instead of issuing a public call for tenders. See also the recent judgment in Case C‑157/06 Commission v Italy [2008] ECR I‑0000, paragraphs 24 to 28.

(75)  – The ones which govern own resources.

(76)  – While not wishing to engage in demagoguery, I wonder whether, if the pleas put forward by the Member States were upheld, the fundamental Community freedoms and even the fundamental rights would be excluded as readily.

(77)  – Almost unanimously.

(78)  – I agree with the assertion of Garrido Cuenca, N., ‘El episodio judicial de la desclasificación de los papeles del CESID. Las sentencias del Tribunal Supremo de 4 de abril de 1997. Paradojas y paralogismos de un conflicto entre la función de gobierno y el derecho a la tutela judicial efectiva’, Revista de Administración Pública , No 143, May-August 1997, to the effect that ‘... it is not appropriate to say simply that the fact that a government classifies certain information as “secret” means that it is completely shielded from any review. Rather, on the contrary, the legislature has clearly taken the view that another public authority, which is expressly granted that power under the Constitution, must be able to access the information ...’. The authorities concerned may be the parliament and the courts, depending on each system, although, on some occasions, no provision is made for the grant of those powers.

(79)  – I reiterate that this is from a purely national perspective of the legal position, since, at Community level, it is necessary to oversee compliance with the principles of competence and subsidiarity.

(80)  – De Lucas, J., ‘Secretos de Estado’, Derechos y libertades, Revista del Instituto Bartolomé de las Casas , p. 57.

(81)  – It may be inferred from the applications that, while, for some Member States, the calculation of customs duties constitutes a burden which stifles their most sensitive interests, for others it is a harmless process.

(82)  – Case 222/84 Johnston [1986] ECR 1651.

(83)  – In Articles 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC.

(84)  – Case C‑186/01 Dory [2003] ECR I‑2479, paragraph 31; Johnston , paragraph 26; Case C‑273/97 Sirdar [1999] ECR I‑7403, paragraph 16; and Case C‑285/98 Kreil [2000] ECR I‑69, paragraph 16. 

(85)  – In Sirdar , Kreil and Dory , and referred to in the interpretative communication on the application of Article 296 of the Treaty in the field of defence procurement (SEC(2006) 1554) (SEC(2006) 1555).

(86)  – In his Opinion in Case C‑423/98 Albore [2000] ECR I‑5965, Advocate General Cosmas warned of the risk that routine reliance on this provision would upset the balance of the provisions of the Treaty and impair the proper functioning of the mechanism for reviewing the compatibility with Community law of national measures adopted on the basis of Article 296 EC.

(87)  – The acte de gouvernement theory underwent an important transformation when, in the judgment of 19 February 1875, Prince Napoléon (Rec. 155), the French Conseil d’État (Council of State) abandoned the doctrine of political motive on which it had relied in previous judgments (CE, 1 May 1822, Laffitte, and CE, 9 May 1867, Duc d’Aumale) as the basis for a finding that it lacked jurisdiction to review certain acts of the administration.

(88)  – In Niebla , by Miguel de Unamuno, the protagonist, Agustín, challenges his own fate and even rebels against the author, with whom he has a famous meeting in the novel to ask him not to kill his character. Clearly, the Member States do not run that risk, even if the resolution of these proceedings is not to their satisfaction, since the chronicle of the Community has, for over 50 years, been written by those same Member States which now resist the aim of legal harmonisation, displaying a certain aura of self-sacrifice.

(89)  – Italy, for example, adopts that extreme approach in Case C-239/06 and argues that it cannot be required to provide any evidence.

(90)  – In the English version.

(91)  – Case 199/85 Commission v Italy [1987] ECR 1039; Case C‑367/89 Richardt and Les Accessoires Scientifiques [1991] ECR I‑4621; Case C‑414/97 Commission v Spain ; and Case C‑394/02 Commission v Greece [2005] ECR I‑4713.

(92)  – Cited above in footnote 29.

(93)  – The Court does not have jurisdiction and nor is the issue at the heart of the dispute; however, there is important legal literature on this point: Wiggings, J.R., Freedom of Secrecy , New York, Oxford University Press, 1964; Revenga Sanchez, M., ‘Razonamiento Judicial, Seguridad Nacional y Secreto de Estado’, Revista española de Derecho Constitucional , Year 18, No 53, May-August 1998; De Lucas, J., op. cit., pp. 35 to 62.

(94)  – Of which the internal market and the customs system are two of its most genuine expressions.

(95)  – Case C‑54/99 Eglise de scientologie [2000] ECR I‑1335, paragraph 17.

(96)  – In Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑14887, the Court categorically denied that aims of a purely economic nature can justify restricting the fundamental principle of the free movement of goods (paragraph 122).

(97)  – Paragraph 31 of its defence (C-409/05).

(98)  – Case C‑461/05.

(99)  – Case C‑239/06.

(100)  – Paragraph 22 in fine .

(101)  – Paragraph 23.

(102)  – For example, Denmark in Case C‑461/05 and Finland in its statement in intervention in the action against Italy (C‑239/06).

(103)  – For example, the panegyric of Germany in the action against it (C‑372/05).

(104)  – In the version of Article 1(4) of Regulation (EC) No 648/2005 o f the European Parliament and of the Council of 13 April 2005 amending Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2005 L 117, p. 13).

(105)  – In the bellicose language which pervades these cases, the defendant Member States seek ‘to use a cannon to kill a fly’.

(106)  – Case 352/85 Bond van Adverteerders and Others [1988] ECR 2085, referred to by Advocate General Cosmas in his Opinion in Albore .

(107)  – In that connection, the Opinion (point 62) and the judgment (paragraph 53) in Case C‑337/05 Commission v Italy , referred to above, both state that the decision of Italy to award certain contracts directly in contravention of the rules on competitive tendering, to prevent the disclosure of confidential information, was disproportionate.

(108)  – Article 7(1), ‘[e]ach Member State shall inform the Commission about the administrative implementation of this Regulation within six months after its entry into force’. [Article 7(2) provides:] ‘They shall also transmit to the Commission no later than three months after the end of each calendar year information on the total number of certificates issued together with the total value and gross weight of goods imported under the provisions of this Regulation’.

(109)  – I discuss those certificates when I set out the legal framework.

(110)  – The Member States remain silent in this regard, even though some concern is visible in the regulation, since recital 6 in its preamble refers to the need ‘to lay down rules for the Member States in order to provide information on the quantity, the value and the number of certificates issued and the procedures for the implementation of this Regulation’.

(111)  – Information which, moreover, in my view, is not at risk.

(112)  – Article 6(4)(a) of Regulation No 1150/2000.

(113)  – Commission Decision 97/245/EC, Euratom of 20 March 1997 laying down the arrangements for the transmission of information to the Commission by the Member States under the Communities’ own resources system (OJ 1997 L 97, p. 12).

(114)  – For example, where the Commission carries out a subsequent inspection.

(115)  – Finland argues in Case C‑284/05 that sometimes it imports parts which must be assembled later.

(116)  – Paragraph 58 of its reply in Commission v Germany (C‑372/05).

(117)  – In paragraph 26 of the reply in the action against Finland (C‑284/05).

(118)  – The article confers a wide discretion on the national authorities: ‘In so far as Community customs legislation lays down no rules on the matter, Member States shall determine the competence of the various customs offices situated in their territory, account being taken, where applicable, of the nature of the goods and the customs procedure under which they are to be placed.’

(119)  – Who would obviously be someone in whom a Member State had complete confidence, such as a military auditor.

(120)  – Council Regulation (EC, Euratom) No 1026/1999 of 10 May 1999 determining the powers and obligations of agents authorised by the Commission to carry out controls and inspections of the Communities’ own resources (OJ 1999 L 126 p. 9).

(121)  – Judgment in Case C‑408/97 Commission v Netherlands [2000] ECR I‑6417.

(122)  – That may be inferred, inter alia, from the judgment in Case C‑10/00 Commission v Italy [2002] ECR I‑2357.

(123)  – Inter alia, the Finnish Government.

(124)  – In other words, the sellers, the purchasers and the intermediaries.

(125)  – According to paragraphs 30 to 32 of Finland’s rejoinder in Case C‑284/05, the duty of confidentiality imposed on undertakings is scrupulously enforced, particularly with regard to their premises and the trustworthiness of their staff.

(126)  – I did not receive a satisfactory explanation from Greece at the hearing about the manner in which the payment of customs duties is liable to lead to the scaling-down of a programme which is simply for the maintenance of aircraft, in view of the fact that overhauls (I am not referring to spare parts) are not subject to those duties because they are merely a service.

(127)  – In the Consolidated Version of the Treaty on the Functioning of the European Union (OJ 2008 C 115, p. 1), according to the Treaty signed on 13 December 2007 in Lisbon, it reappears in Article 346 EC.

(128)  – Trombetta, S., ‘La protection des intérêts nationaux de la défense quand la défense devient européenne’, Revue du Marché commun et de l’Union européenne , No 490, July-August 2005, pp. 442 and 443. Other detailed studies of Article 296 EC are found in Bratanova, E., Legal Limits of National Defense Privilege in the European Union, Overview of the recent European Court of Justice judgement on Art. 296 European Community Treaty and the new role of the Commission in armaments: A step towards a single market in armaments? , Bonn International Center for Conversion, BICC Paper 34, 2004; Eikenberg, K., ‘Article 296 (ex-223) E.C. and external trade in strategic goods’, European Law Review , Vol. 25, No 2, April 2005; and Barbe, I., ‘L’article 223 du traité de Rome: un article controversé’, Droit et défense, Revue générale du droit de la sécurité et de la défénse, No 98/1.

(129)  – Moreiro González, C.J., Las cláusulas de seguridad nacional , Iustel, Madrid, 2007, pp. 39 to 48, offers some interesting views when describing what he calls ‘the polysemic nature of national security in contemporary international law’, and states that, in the face of more widespread threats, the concept of national security as an inherent birthright of States has taken a secondary position, marking a transition which allows the concept to be viewed also in other contexts where there is a marked globalisation, while retaining its original definition.

(130)  – Providing information, inter alia other matters, on the United Nations Register of Conventional Arms (http://disarmament.un.org/UN_REGISTER.NSF), which even describes States’ arsenals, and on the arms industry (http://www.defenseindustrydaily.com).

(131)  – Garrido Cuenca, N., op. cit., p. 231, warns that an official secret does not cease to be such because someone, in contravention of legislation to protect confidentiality, makes it public; I am inclined to believe that the defendant Member States consent to publicity on the internet since they have not provided evidence to the contrary. In contrast, Moreiro González, C.J, op. cit., pp. 202 and 203, refers to the judgment of the European Court of Human Rights of 9 February 1995 in the case of Vereniging Weekblad Bluf!, where it was held that a confidential report ceases to be confidential if it is subsequently disclosed, and that therefore ‘… the protection of the information as a State secret was no longer justified and the withdrawal ... no longer appeared necessary to achieve the legitimate aim pursued ...’ (paragraph 45).

(132)  – Trombetta, S, op. cit., pp. 447 to 450.

(133)  – That option, which is less radical than the repeal of Article 296 EC, also carries pitfalls because, although it is for the Commission to make such a proposal, the final decision rests with the Council, and the Member States may have a right of veto.

(134)  – Specifically the European security and defence policy (ESDP).

(135)  – Established by Council Joint Action 2004/551/CFSP of 12 July 2004 (OJ 2004 L 245, p. 17), it involves the participation of all the Member States with the exception of Denmark, and its tasks include, in particular, promotion and enhancement of European armaments cooperation, providing assistance to the Council and the Member States in order to improve the defence capabilities of the Union in the field of crisis management, and supporting the European security and defence policy.

(136)  – Article 2(4) of the Consolidated Version of the Treaty on the Functioning of the European Union.

(137)  – Article 222 of the Consolidated Version of the Treaty on the Functioning of the European Union.

(138)  – Within the European Union, Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology (OJ 2000 L 159, p. 1); Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering (OJ 2003 L 156 p. 79); Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (OJ 2005 L 200, p. 1); and, in the sphere of soft law, the European Union Code of Conduct on arms exports, adopted in 1998.

(139)  – The campaign undertaken in Spain in the mid-1990s by organisations such as Amnesty International, Intermón Oxfam and Greenpeace used the slogan ‘Hay secretos que matan’ (‘There are secrets which kill’).

(140)  – Ensuring that the system of own resources operates correctly.

(141)  – For a detailed discussion of its effects, see Stoffel Vallotton, N., ‘Las relaciones entre el derecho internacional y el derecho comunitario en el marco del artículo 307 CE: convenios de Estados miembros con terceros Estados anteriores a su adhesión a la UE: nuevas consideraciones sobre su limitada primacía’, Revista de Derecho Comunitario Europeo , No 22, Madrid, September-December 2005, pp. 843 to 890.

(142)  – Case C‑216/01 Budĕjovický Budvar [2003] ECR I‑13617.

14 (3)  – Case 10/61 Commission v Italy [1962] ECR 1.

(144)  – Agreements the dates of which are unknown, thereby precluding recourse to Article 307 EC, which applies only to agreements concluded before the accession of the State to the Community.

(145)  – Judgment in Case 74/74 CNTA v Commission [1975] ECR 533.

(146)  – Zielinski, A., ‘La stabilité du droit, élément essentiel de l’État de droit’, L’État de droit et la securité juridique , Institut de sciences juridiques, CNRS, Paris-Warsaw, 1996, p. 83 et seq.

(147)  – Sharpston, E., ‘Legitimate Expectations and Economic Reality’, European Law Review , 1990, p. 103.

(148)  – For a systematic analysis of that case-law, see Papadopoulou, R.E., Principes généraux du droit et droit communautaire (origines et concrétisation) , Brussels, 1996.

(149)  – Case 84/78 Tomadini [1979] ECR 1801 and Case 112/80 Dürbeck [1981] ECR 1095.

(150)  – Puissochet, J.P., ‘Vous avez dit confiance legitime?’, L’État de Droit ( Mélanges en l’honneur de Guy Braibant) , Dalloz, Paris, 1996, p. 585.

(151)  – That case-law was first developed in Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 677 and Case 81/72 Commission v Council [1973] ECR 575.

(152)  – García de Enterría, E., ‘El principio de protección de la confianza legítima como supuesto título justificativo’, Revista de Administración Pública , No 159, September-December 2002, p. 178, comments on the Spanish constitutional case-law on that principle, which supports the reasonably founded expectation of an individual that the State will apply the law in a particular manner.

(153)  – Joined Cases C‑13/92 to C‑16/92 Driessen and Others [1993] ECR 4751.

(154)  – The prevalence of other interests may be invalidated, as is clear from the judgment in Case C‑183/95 Affish [1997] ECR I‑4315.

(155)  – Case C‑317/92 Commission v Germany [1994] ECR I‑2039; Case C‑35/96 Commission v Italy [1998] ECR I‑3851; and Case C‑333/99 Commission v France [2001] ECR I‑1025.

(156)  – Case C‑368/89 Crispoltoni [1991] ECR I‑3695 and Joined Cases C‑487/01 and C‑7/02 Gemeente Leusden and Holin Groep [2004] ECR I‑5337.

(157)  – As Germany does in paragraph 83 of its defence, where it alleges the infringement of the principle of venire contra factum propium.

(158)  – Document No SI 2002, 1548 of the Secretary-General of the Commission of 21 December 2002 on the meeting of the permanent representatives of 20 December 2002, paragraph X.

(159)  – Italy contends that the effects should be restricted to the period after it received the Commission’s letters or, in the alternative, the judgment in Case C‑414/97 Commission v Spain ; at the hearing, Sweden requested that the effects of any judgment resolving the action for failure to fulfil obligations should be ex nunc with regard to default interest, a request also made by Finland in its defence.

(160)  – Case C‑204/03 Commission v Spain [2005] ECR I‑8389, paragraph 29.