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Document 62005CJ0387

Summary of the Judgment

Judgment of the Court (Grand Chamber) of 15 December 2009.
European Commission v Italian Republic.
Failure of a Member State to fulfil obligations - Duty-free imports of dual-use material for civil and military use.
Case C-387/05.



1. Community law – Scope – No general exception excluding measures taken for reasons of public security

(Arts 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC)

2. Own resources of the European Communities – Establishment and making available by the Member States – Duty-free imports by a Member State of dual-use material for civil and military use

(Art. 26 EC; Council Regulations No 1552/89, as amended by Regulation No 1355/96, Arts 2, 9, 10 and 17, No 2913/92, Art. 20, and No 1150/2000, Arts 2, 9, 10 and 17)


1. Although it is for Member States to take the appropriate measures to ensure their internal and external security, it does not follow that such measures are entirely outside the scope of Community law. The only articles in which the Treaty expressly provides for derogations applicable in situations which may affect public safety are Articles 30 EC, 39 EC, 46 EC, 58 EC, 64 EC, 296 EC and 297 EC, which deal with exceptional and clearly defined cases. It cannot be inferred that the Treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of Community law. The recognition of the existence of such an exception, regardless of the specific requirements laid down by the Treaty, would be liable to impair the binding nature of Community law and its uniform application.

Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in the same way as derogations from fundamental freedoms, be interpreted strictly. As regards, more particularly, Article 296 EC, although it refers to measures which a Member State may consider necessary for the protection of the essential interests of its security or of information the disclosure of which it considers contrary to those interests, that article cannot however be read in such a way as to confer on Member States a power to depart from the provisions of the Treaty based on no more than reliance on those interests. Consequently it is for the Member State which seeks to take advantage of Article 296 EC to prove that it is necessary to have recourse to that derogation in order to protect its essential security interests.

(see paras 45-47, 49)

2. A Member State which has exempted imports of material capable of use both for civil and military purposes from customs duties during the period from 1 January 1999 until 31 December 2002 and has refused to calculate, declare and make available to the Commission of the European Communities the own resources which were not collected because of that exemption and the default interest payable because of the failure to make those own resources available to the Commission in good time has failed to fulfil its obligations under, on the one hand, Article 26 EC, Article 20 of Regulation No 2913/92 establishing the Community Customs Code and, consequently, the Common Customs Tariff and, on the other hand, Articles 2, 9, 10 and 17(1) of Regulation No 1552/89 implementing Decision 88/376 on the system of the Communities’ own resources, as amended by Regulation No 1355/96, and the same articles of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources.

A Member State cannot be allowed to plead the increased cost of military material because of the application of customs duties on imports of such material from third countries in order to avoid, at the expense of other Member States who collect and pay the customs duties on such imports, the obligations which the principle of joint financing of the Community budget imposes on it. That conclusion holds good a fortiori in respect of imports of dual‑use material for both civil and military use, whether or not such material was imported exclusively for military purposes.

(see paras 50, 55, 61, operative part)