(Failure of a Member State to fulfil obligations – Duty‑free imports of military equipment)

Summary of the Judgment

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

(Council Regulations No 1552/89, as amended by Regulation No 1355/96, Arts 2 and 9 to 11, and No 1150/2000, Arts 2 and 9 to 11)

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 68-70, 72)

2.A Member State which has refused to calculate, declare and make available to the Commission of the European Communities the own resources relating to imports of military material during the period from 1 January 1998 to 31 December 2002 and has refused to pay default interest payable due to the failure to make those own resources available to the Commission has failed to fulfil its obligations under Article 2 and Articles 9 to 11 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.

(see paras 73, 80, operative part)

15 December 2009 (*)

(Failure of a Member State to fulfil obligations – Duty‑free imports of military equipment)

In Case C‑372/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 7 October 2005,

European Commission, represented by C. Cattabriga, G. Wilms, D. Triantafyllou and H. Støvlbæk, acting as Agents, with an address for service in Luxembourg,

applicant,

Federal Republic of Germany, represented by M. Lumma, acting as Agent and C. von Donat, Rechtsanwalt,

defendant,

supported by:

Kingdom of Denmark, represented by J. Bering Liisberg, acting as Agent,

Hellenic Republic, represented by E.-M. Mamouna, A. Samoni-Rantou and K. Boskovits, acting as Agents, with an address for service in Luxembourg,

Republic of Finland, represented by E. Bygglin and A. Guimaraes-Purokoski, acting as Agents, with an address for service in Luxembourg,

interveners,

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, E. Levits and C. Toader, Presidents of Chambers, C.W.A. Timmermans, A. Borg Barthet (Rapporteur), M. Ilešič, J. Malenovský and U. Lõhmus, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 November 2008,

after hearing the Opinion of the Advocate General at the sitting on 10 February 2009,

gives the following

1.1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2.2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

3 Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

ECLI:EU:C:2025:140

(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

4 Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

4. The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

References to the said Regulation shall be construed as references to this Regulation and should be read in accordance with the correlation table set out in Part A of the Annex.’

11Thus, apart from the fact that Regulations Nos 1552/89 and 1150/2000 contain references to Decision 88/376 and Decision 94/728 respectively, Article 2 and Articles 9 to 11 of those two regulations are, in essence, identical.

12The rate of 10% specified in Article 10(1) of Regulation No 1150/2000 was raised to 25% by Council Decision 2000/597/EC, Euratom, of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42).

13Recital (1) in the preamble of that decision states:

‘The European Council meeting in Berlin on 24 and 25 March 1999 concluded, inter alia, that the system of the Communities’ own resources should be equitable, transparent, cost-effective, simple and based on criteria which best express each Member State’s ability to contribute.’

14Council Regulation No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment (OJ 2003 L 25, p. 1), adopted on the basis of Article 26 EC, states in recital (5) of the preamble:

‘In 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. 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 a customs declaration as required by the Customs Code, would constitute an appropriate guarantee that these conditions are fulfilled. The declaration should be given in the form of a certificate. It is appropriate to specify the form which such certificates must take and to allow also the use of means of data processing techniques for the declaration.’

15Article 1 of that regulation provides:

‘This Regulation lays down the conditions for the autonomous 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.’

16Article 3(2) of that regulation states:

‘Notwithstanding paragraph 1, for reasons of military confidentiality, the certificate and the imported products 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 imports and the total value and gross weight of the products imported with the certificates.’

17Article 8 of Regulation No 150/2003 states that that regulation is to apply as from 1 January 2003.

Pre-litigation procedure

18By letter of 20 December 2001 the Commission advised the Federal Republic of Germany that the fact that imports of military equipment had, since 1998, been exempted from customs duties had caused the Community to suffer a loss of own resources. The Commission called upon the Member State to calculate the amounts which had not been collected in respect of the budgetary years subsequent to the 1998 tax year and to make those amounts available to it by 31 March 2002. The Commission also advised the German authorities that default interest was payable from the latter date, pursuant to Article 11 of Regulation No 1150/2000.

19In its replies of 13 March and 6 May 2002 the Federal Republic of Germany expressed the view that Article 296(1)(b) EC permits it to derogate from the application of the Common Customs Code, where the imports are of equipment exclusively intended for military purposes, and where the objective is the protection of the essential interests of its security.

20By letter of 24 March 2003 the Commission renewed its original request relating to imports prior to 1 January 2003, the period subsequent to that date being covered by Regulation No 150/2003.

21In its reply of 12 May 2003 the Federal Republic of Germany maintained its position on making available the amounts of own resources in question.

22By letter of 17 October 2003 the Commission gave formal notice to the Federal Republic of Germany.

23In its reply of 19 January 2004 the Federal Republic of Germany maintained its position.

24On 18 October 2004, after consideration of the Federal Republic of Germany’s reply, the Commission issued a reasoned opinion calling upon that Member State to take the measures necessary to achieve compliance within a period of two months from the date of receipt. The Member State replied on 16 December 2004 that it was maintaining its position.

25Since the Federal Republic of Germany moreover made a without prejudice payment of EUR 10 803 000 but did not break down that sum according to imports and different periods and the Commission did not have sufficient information to do so, on 16 December 2004 the Commission by letter called upon that Member State itself to provide that breakdown in order that default interest could be calculated. In its reply of 22 February 2005 the Federal Republic of Germany refused to send that information, and commented that such information was confidential.

26Taking into account what the Federal Republic of Germany had said, the Commission took the view that the Federal Republic of Germany had not complied with the reasoned opinion and brought this action.

27By orders dated 23 February 2006 and 4 May 2006, the President of the Court allowed the applications for leave to intervene of the Kingdom of Denmark, the Hellenic Republic and the Republic of Finland in support of the forms of order sought by the Federal Republic of Germany.

The action

Admissibility

28Firstly, the Federal Republic of Germany raises an objection of inadmissibility on the ground that the action is procedurally flawed, because the wrong legal remedy has been chosen. The Member State states that, given that it has relied on Article 296 EC in order to justify not paying the customs duties relating to the relevant imports of military material, the Commission was not entitled to bring this action on the basis of Article 226 EC, but was obliged to use the special procedure provided for in the second paragraph of Article 298 EC.

29In that regard, it must be observed that the Commission’s objective in this action is to obtain a declaration of a failure to fulfil obligations under Article 2 and Articles 9 to 11 of Regulations Nos 1552/89 and 1150/2000. Article 298 EC is applicable only if the Commission alleges improper use of the powers provided for in Articles 296 EC and 297 EC.

30Consequently, the first objection of inadmissibility must be rejected.

31Secondly, the Federal Republic of Germany claims that this action is inadmissible because the Commission is not capable, due to the very nature of this action, of proving an infringement of the EC Treaty. Given that the Member State was not obliged to provide the information requested by the Commission, the Commission does not have sufficient evidence relating to the imports at issue to enable it to prove any failure to fulfil Treaty obligations.

32Thirdly, the Federal Republic of Germany claims that it was entitled not to send the information requested by the Commission and that because the action is based, inter alia, on that failure the action is therefore also inadmissible in that respect.

33With regard to the second and third objections of inadmissibility raised by the Federal Republic of Germany, it is clear that they relate, on the one hand, to the burden of proof incumbent on the Commission and, on the other hand, to the applicability and scope of Article 296 EC. They are related therefore more to the substance of the Commission’s action than to its form or validity.

34Consequently, the second and third objections of inadmissibility must be rejected.

35In those circumstances, the Commission’s action must be declared admissible.

Substance

Arguments of the parties

36The Commission claims that the Federal Republic of Germany is wrong to rely on Article 296 EC to justify the refusal to pay customs duties, since the collection of such duties does not threaten the essential security interests of that Member State.

37The Commission considers to be misguided the Member State’s argument to the effect that information relating to imports of military equipment, and therefore to the security of the Federal Republic of Germany, could not be sent to the Commission, and that, consequently, the customs duties at issue did not have to be paid by the Federal Republic of Germany to the Commission.

38The Commission considers that measures which establish derogations or exceptions, such as in particular Article 296 EC, must be interpreted strictly. Accordingly, the Member State concerned which claims that Article 296 EC applies and which proposes to derogate from Article 20 of the Community Customs Code, where the general principle of the levying of duties as fixed under Article 26 EC is stated, should demonstrate that it can satisfy all the conditions laid down in Article 296 EC.

39The Commission also considers that the mere fact that products appear on the list established by Council Decision 255/58 of 15 April 1958, a list which defines the products to which Article 296(1)(b) EC may be applied, does not itself mean that that provision is applicable, since a prerequisite of its application is that all the conditions specified therein are satisfied.

40The Commission claims, consequently, that it is for the Federal Republic of Germany to provide specific and detailed evidence that the collection of customs duties on the imports at issue in this case threatens essential interests of the security of the Federal Republic of Germany.

41In that regard, the Federal Republic of Germany’s general statements that its defence capacity is an essential part of its security policy and that the international cooperation which is fundamental to its defence policy would be significantly hindered by the obligation to pay customs duties on the material in question do not constitute such evidence. The same is true of the argument that confidentiality clauses in international treaties and military confidentiality preclude the application of the Community customs legislation. Lastly, the fact that other Member States collect and pay customs duties on imports of military material confirms that this is perfectly possible on that type of material.

42The Commission considers that the way in which the Community customs system operates safeguards the confidentiality of processed information. Furthermore, since that system is implemented by national officials, the Federal Republic of Germany is in a position to safeguard its essential security interests.

43The Commission considers that, as regards the Federal Republic of Germany’s argument that an increase in the costs of imports of armaments is likely to damage its defence capacity, no specific evidence of such damage has been provided by the Federal Republic of Germany. On the contrary, the single payment, made in 2004, of customs duties payable for five years does not appear to have diminished the outlays of the Federal Republic of Germany on defence.

44The Commission emphasises that it is not acceptable for a Member State to exempt imports of military equipment from customs duties in order to reduce the costs of war material, because that is evidence of a failure by that Member State to fulfil its obligations in respect of the joint co‑financing of the Community budget.

45The Commission states, in that regard, that the failure of the Federal Republic of Germany to collect the customs duties in question creates a disparity among the Member States in relation to their respective contributions to the Community budget. The effect of that failure to collect is a reduction of Community traditional own resources which can be offset only by an increase in the GNP resource, which is distributed between the Member States.

46The Commission states that the Federal Republic of Germany’s argument relating to the fear of disclosure of information supplied in the customs declaration and to the fear that monitoring procedures might lead the Community institutions to jeopardise military confidentiality has no bearing on the issue.

47Regulation No 150/2003 provides that Member States are to inform the Commission of the quantity of military equipment ordered. It is, consequently, astonishing that, in relation to the Communities’ own resources, the Federal Republic of Germany relies on overriding security interests which preclude the communication of the information needed for the collection of those resources.

48Furthermore, such a position can scarcely be reconciled, according to the Commission, with the fact that any individual can obtain access, on the internet, to information relating, for example, to the quantities purchased in that area. That freely accessible information is significantly more detailed than that needed for classification in the Common Customs Code and for payment of own resources.

The Commission rejects as unfounded the Federal Republic of Germany’s argument that the negotiations which led to the adoption of Regulation No 150/2003 and the suspension, in 1984, of the infringement proceedings brought against the Federal Republic of Germany gave rise to a legitimate expectation, namely that that Member State could reasonably expect that, during the years when that regulation was under preparation, it was permitted to import certain military equipment free of duties.

50The Commission adds that Regulation No 150/2003 is applicable from 1 January 2003 and that, during discussions on its adoption, the Commission declared that it was obliged to collect the customs duties at issue in respect of preceding years, so that no protection of legitimate expectations can be inferred from the adoption of that regulation. Moreover, that regulation is based on Article 26 EC, and not on Article 296 EC.

51Similarly no protection of any legitimate expectation can be inferred from the suspension of particular infringement proceedings in 1984, since the Commission has, in the context of Article 226 EC, a wide discretion which allows it to decide, inter alia, whether it is appropriate to initiate or continue infringement proceedings.

52The Federal Republic of Germany states that, in the present case, the conditions for the application of Article 296(1)(b) EC are satisfied. It considers that it is clear from the very wording of that provision that the Treaty intended to confer on Member States a significant discretion in relation to measures which they may take for the protection of the essential interests of their security and which are connected with the products to which the provisions of Article 296(1)(b) EC apply. Accordingly, that article allows Member States to derogate from Article 26 EC and from the Community Customs Code in the case of imports of equipment exclusively intended for military purposes where the objective of those imports is the protection of the essential interests of the security of the Member State or Member States concerned.

53The Federal Republic of Germany adds that it is not obliged to levy customs duties on imports of all military material and, consequently, there cannot be any infringement of Article 2 and Articles 9 to 11 of Regulations Nos 1552/89 or 1150/2000. There is no obligation of that kind, because, on the one hand, Community law does not provide for any unrestricted obligation to levy customs duties on military equipment and, on the other, the essential security interests of the Federal Republic of Germany preclude the levying of customs duties on imports of such equipment.

54Moreover, the Federal Republic of Germany considers that the Commission has lost the right to seek a declaration of failure to fulfil obligations in relation to the exemption of imports of military equipment from customs duties because the Commission appeared, in 1984, to have brought to an end the infringement proceedings initiated for that purpose, but thereafter, although the situation was unaltered and taking into account the preparatory work for Regulation No 150/2003, resumed proceedings subsequently in order to penalise conduct which until then had been accepted or tolerated. Community Law does not recognise any mechanism for the ‘provisional’ suspension of infringement proceedings. The Commission was obliged, according to the Federal Republic of Germany, either to continue or terminate the infringement proceedings against it, and not interrupt the proceedings for 17 years.

55The Federal Republic of Germany states that, before the entry into force of Regulation No 150/2003, no specific procedural provision provided for the levying of customs duties on imports of armaments and the monitoring of that levy, which was proof that there was no obligation under Community law to levy the customs duties at issue.

56According to the Federal Republic of Germany, whether or not customs duties are levied on imports of armaments has effects on the trade in arms, munitions and war material. Whilst levying those customs duties restricts that trade, consequently reduces the operational capacity of the armed forces and impinges on that Member State’s freedom of action in the area of acquisition of defence material, waiver of those duties makes it possible to extend trade and strengthen cooperation in relation to armaments for the purposes of Article 17 EU.

57The Federal Republic of Germany also contends that the test of what is ‘necessary’ within Article 296 EC as interpreted by the Commission is unreasonably high. It does not involve having to demonstrate that grave damage to essential security interests would occur if the protective measure were not taken. It is enough if that measure improves the security situation and is merely necessary in the interests of national defence.

58Similarly, the obligation of confidentiality prevents the Federal Republic of Germany communicating information to the Commission and a refusal to respect that obligation is likely to undermine the interests of that Member State in relation to the security of information. Moreover, the obligation of good faith provided for in Article 10 EC does not involve the introduction of measures which are disproportionate, such as the establishment of a specific customs procedure.

59The open processing of information contained in a customs declaration may cause serious damage to the essential security interests of Member States. The confidentiality measures provided for by the Community Customs Code are not adequate to satisfy the requirements of security and confidentiality which a Member State is entitled to demand when the information concerned affects its security.

60The Federal Republic of Germany maintains that the fact that a Member State has exempted imports of military materials from customs duties on the basis of Article 296 EC does not necessarily infringe the principle of Community solidarity. It would be inconsistent with that principle for Member States which bear the costs of higher defence spending to be called upon to make a greater contribution to the financing of the Community budget.

61The Federal Republic of Germany is of the opinion that the adoption of Regulation No 150/2003 upholds the need to respect the security interests of the Member States and their right to rely on confidentiality where that is necessary.

62The Federal Republic of Germany observes that, on the basis of Regulation No 150/2003, the levying of customs duties on imports of certain armaments and military equipment from third countries was also excluded after 1 January 2003, the date on which that Regulation was declared to be applicable. Accordingly, as from that date, the interests of the Federal Republic of Germany in relation to imports of armaments have been protected by the provisions of that regulation. The waiver of customs duties on those imports was just as necessary before as after that date, in order to ensure the protection of the essential security interests of Member States. Moreover, the fact that, as early as 1988, the Commission submitted a proposal for a Council Regulation (EEC) temporarily suspending import duties on certain weapons and military equipment (OJ 1988 C 265, p. 9) ultimately proves that the Commission was aware of the fact that the waiver of customs duties on those imports was necessary in order to protect those interests.

63That Member State concludes that, from the date of that proposal, and even though the outcome of that proposal in the form of Regulation No 150/2003 was seen only in 2003, Member States could justifiably take the view that it was not necessary to collect customs duties on imports of ‘products exclusively for military use’ appearing in the list established by Decision 255/58.

C06Titre3Findings of the Court

64The Community Customs Code provides for the charging of customs duties on imports of products for military use, such as those at issue, from third countries. There is no provision of the Community customs legislation which, in respect of the period of imports at issue, namely from 1 January 1998 to 31 December 2002, provided for any specific exemption from customs duties on imports of products of that type. Consequently, in respect of that period, nor was there any express exemption from the obligation to make payment to the competent authorities of the duties which were payable, accompanied, as appropriate, by payment of default interest.

65It can moreover be inferred from the adoption of Regulation No 150/2003 which provided for the suspension of customs duties on certain weapons and military equipment from 1 January 2003 that the Community legislature started from the assumption that an obligation to pay those customs duties existed prior to that date.

66Furthermore, the Federal Republic of Germany has not at any time denied the existence of the imports at issue during the period under consideration. During the pre-litigation procedure, the Federal Republic of Germany moreover made a payment, under the heading of own resources, of EUR 10 803 000 related to the imports at issue, but did not break down that sum according to imports and different periods.

67The Federal Republic of Germany has confined itself to challenging the Community’s entitlement to the own resources at issue while arguing that, pursuant to Article 296 EC, the obligation to pay customs duties on armaments imported from third countries would cause serious damage to its essential security interests.

68According to the Court’s settled case-law, 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 (see Case C‑273/97 Sirdar [1999] ECR I‑7403, paragraph 15, and Case C‑285/98 Kreil [2000] ECR I‑69, paragraph 15). As the Court has already held, 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 (see Case C‑186/01 Dory [2003] ECR I‑2479, paragraph 31, and case-law there cited).

69Furthermore, the derogations provided for in Articles 296 EC and 297 EC must, in accordance with settled case-law in respect of derogations from fundamental freedoms (see, inter alia, Case C‑503/03 Commission v Spain [2006] ECR I‑1097, paragraph 45; Case C‑490/04 Commission v Germany [2007] ECR I‑6095, paragraph 86; and Case C‑141/07 Commission v Germany [2008] ECR I‑6935, paragraph 50) be interpreted strictly.

70As regards, more particularly, Article 296 EC, it must be observed that, although that Article 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.

71Furthermore, in the area of value added tax, the Court declared in Case C‑414/97 Commission v Spain [1999] ECR I‑5585 that there had been a failure to fulfil obligations on the ground that the Kingdom of Spain had not shown that the exemption from that tax on imports and acquisitions of arms, ammunition and equipment exclusively for military use, an exemption provided for by Spanish legislation, was justified, under Article 296(1)(b) EC, by the need to protect the essential interests of the security of that Member State.

72Consequently 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.

73In the light of those considerations, 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.

74As regards the argument that the Community customs procedures are not capable of safeguarding the security of the Federal Republic of Germany, in the light of the confidentiality requirements contained in agreements entered into with exporting States, it must be stated, as correctly observed by the Commission, that the application of the Community customs system requires the active involvement of Community and national officials who are bound when necessary by an obligation of confidentiality, when dealing with sensitive data, which is capable of protecting the essential security interests of Member States.

75Furthermore, the level of specificity to be attained in the declarations which Member States must periodically complete and send to the Commission is not such as to lead to damage to the interests of those States in respect of either security or confidentiality.

76In those circumstances, and in accordance with Article 10 EC which obliges Member States to facilitate the achievement of the Commission’s task of ensuring compliance with the Treaty, Member States are obliged to make available to the Commission the documents necessary to permit inspection to ensure that the transfer of the Community’s own resources is correct. However, as the Advocate General stated in point 168 of his Opinion, such an obligation does not mean that Member States may not, on a case-by-case basis and by way of exception, on the basis of Article 296 EC, either restrict the information sent to certain parts of a document or withhold it completely.

77In the light of the foregoing, the Federal Republic of Germany has not shown that the conditions necessary for the application of Article 296 EC are satisfied.

78Lastly, as regards the Federal Republic of Germany’s arguments intended to show that, because of the Commission’s prolonged lack of action and the adoption of Regulation No 150/2003, the Federal Republic of Germany could legitimately consider that the Commission would not bring this action on the ground that the Commission had tacitly accepted the existence of an appropriate derogation, it must be observed that the Commission did not at any stage of the proceedings abandon its position in principle.

79In the declaration which the Commission made during the negotiations relating to Regulation No 150/2003, it expressed its firm intention to maintain its claim to the collection of customs duties which should have been paid for periods prior to the entry into force of that regulation and reserved the right to take the appropriate action in that regard.

80It follows from the foregoing that, by refusing to calculate, declare and to make available to the Commission the own resources relating to imports of military material during the period from 1 January 1998 to 31 December 2002 and by refusing to pay default interest payable due to the failure to make those own resources available to the Commission, the Federal Republic of Germany has failed to fulfil its obligations under Article 2 and Articles 9 to 11 of Regulation No 1552/89 and the same articles of Regulation No 1150/2000.

Costs

81Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the Federal Republic of Germany and the latter has been unsuccessful, the Federal Republic of Germany must be ordered to pay the costs.

82Under Article 69(4) of the Rules of Procedure, the Kingdom of Denmark, the Hellenic Republic and the Republic of Finland, which have intervened in the proceedings, are to bear their own costs.

On those grounds, the Court (Grand Chamber) hereby:

[Signatures]

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Language of the case: German.