Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations – Subject-matter of the dispute – Determination during the procedure prior to the action

(Art. 226 EC)

2. Free movement of goods – Community transit – Transport of goods under cover of a TIR carnet

(Commission Regulation No 2454/93, Arts 454(2) and 455(2))

3. Own resources of the European Communities – Establishment and making available by the Member States

(Council Regulation No 1150/2000, Art 6)

4. Own resources of the European Communities – Establishment and making available by the Member States

(Council Regulation No 1150/2000, Arts 6(3)(b) and 17)

Summary

1. In the context of an action for failure to fulfil obligations, although the claims as stated in the application cannot in principle be extended beyond the failures to fulfil obligations alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less the case that the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community act, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the act in question, as otherwise it would constitute a breach of the essential formal requirements of the infringement procedure.

(see para. 34)

2. It is apparent from a combined reading of Articles 454(2) and 455(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code and Article 11 of the Customs Convention on the International Transport of Goods under Cover of TIR Carnets that, in the event of non-discharge, the claim for payment of the customs debt must, in principle, be lodged no later than three years after the date of acceptance of the TIR carnet, that period being extended to four years in the event of a discharge obtained in a fraudulent manner. However, since the objective of Article 455(1) of the implementing regulation is to ensure diligent uniform application of the provisions relating to the recovery of customs debts in order to secure rapid availability of the Communities’ own resources, the notification of the offence or the irregularity must, in any event, be lodged as quickly as possible, namely as soon as the customs authorities are aware of that offence or irregularity, which may be well before expiry of the maximum periods of one year and, in the case of fraud, two years, as referred to in Article 11(1) of the TIR Convention. For the same reasons, the claim for payment for the purposes of Article 11(2) of the TIR Convention must be sent as soon as the customs authorities are able to send it, which may be before the expiry of the period of two years from the notification of the offence or irregularity to the parties concerned.

(see paras 68-70)

3. The Member States are required to establish the Communities’ entitlement to own resources as soon as their customs authorities are in a position to calculate the amount of duties arising from a customs debt and determine the debtor and, therefore, to enter those entitlements in the accounts in accordance with Article 6 of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources.

Member States may not dispense with determining claims, even where these are disputed; otherwise, it would have to be accepted that the financial equilibrium of the Communities may be disrupted by the conduct of a Member State.

In those circumstances, a Member State which does not make accounting entries for the customs debt as from the time at which the claims for payment were sent pursuant to Article 11(2) of the TIR Convention, which assumes that the customs authorities are in a position to calculate the amount of duties arising from that debt and determine the debtor, fails to fulfil its obligations under Article 6 of Regulation No 1150/2000.

(see paras 75-77)

4. A Member State which, without referring the problems encountered in applying Community law to the Commission, and despite the latter’s objections, unilaterally decides to enter established entitlements relating to TIR operations in the B accounts rather than in the A accounts, up to the ceiling agreed upon for the TIR system, without the entitlements in question having been challenged by the guaranteeing association within the prescribed periods and being liable to change upon settlement of the disputes which have arisen, infringes the obligation upon it under Article 17(1) of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources to take all requisite measures to ensure that the own resources established in accordance with the conditions laid down in that regulation are made available to the Commission.

(see paras 82, 89, 92-93, 95, 105 and operative part)