delivered on 13 July 2004 (1)

Cases C‑460/01 and C‑104/02

Kingdom of the Netherlands (C‑460/01)

Federal Republic of Germany (C‑104/02)

Intervener: Kingdom of Belgium

(Failure to fulfil obligations — Customs Code — Community transit procedures — Offences and irregularities — Recovery of customs debt — Time-limit — Community own resources — Establishment — Default interest)

Table of contents

I – Introduction

II – Legal framework

A – Community transit procedures

B – Recovery of the customs debt

C – Making Community own resources available

III – Pre-litigation procedure and legal proceedings

IV – Infringement of Article 2(1) of Regulation No 1552/89 and the third sentence of Article 379(2) of the implementing regulation

A – Main arguments of the parties

B – Appraisal

a) The Court’s previous case-law

b) Practical problems in complying with the time-limit in the third sentence of Article 379(2) of the implementing regulation

i) Incurrence of the customs debt

ii) Determining the customs debtor in the event of irregularities in the transit procedure

iii) Determining the amount of the duty

iv) Determining the competent authority

V – Infringement of Article 11 of Regulation No 1552/89

A – Main arguments of the parties

B – Appraisal

VI – Conclusion

I – Introduction

II – Legal framework

A – Community transit procedures

Goods entering the customs territory of the Communities and conveyed between one Member State and another can remain free of customs duties and charges during their transportation if it is effected in the external Community transit procedure. In addition, there is also the internal Community transit procedure, which, however, will not be gone into in any further detail since the provisions relevant here are equally applicable to both transit procedures. Reference will therefore be made below only to ‘the’ transit procedure; the provisions cited will be those concerning the external Community transit procedure.

The transit procedure permits the customs authorities to supervise those movements of goods. It consists of a check of the accompanying documents and an inspection of whether the transported goods arrive in the same condition and quantity at their destination.

For every transit procedure a ‘principal’ must be nominated, who is, as a rule, the transport operator. He notifies the transit procedure to the competent office of departure in the Member State onto whose territory the goods have entered from a third country. In so doing a ‘transit declaration T1’ (‘T1’) consisting of a multi-part form is presented to the office of departure which must contain various details (type and quantity of the goods, recipient, transport operator, destination etc). Part 1 of the T1 remains with the office of departure, and the remainder accompanies the goods during their transportation.

The goods must be presented to the office of destination within a time-limit (time-limit for presentation) set by the office of departure and recorded in the T1. In practice that time-limit is a period of several days up to one of a few weeks. The office of destination inspects whether the goods correspond to the details recorded in the T1. Where the transit procedure has been correctly operated the office of destination sends Part 5 of the T1 endorsed to that effect to the office of departure.

Irregularities in the transit procedure

Article 378 of the implementing regulation provides, in extract, as follows:

‘1. Without prejudice to Article 215 (11) of the Code, where the consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed:

– in the Member State to which the office of departure belongs,

Article 379 of the implementing regulation provides:

‘1. Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.

B – Recovery of the customs debt

The first sentence of Article 217(1) of the Customs Code provides:

‘Each and every amount of import duty or export duty resulting from a customs debt, hereinafter called ‘amount of duty’, 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 (entry in the accounts).’

Article 218(3) of the Customs Code provides:

‘Where a customs debt is incurred under conditions other than those referred to in paragraph 1, the relevant amount of duty shall be entered in the accounts within two days of the date on which the customs authorities are in a position to:

(a) calculate the amount of duty in question,

(b) determine the debtor.’

Article 219 of the Customs Code provides:

‘1. The time-limits for entry in the accounts laid down in Article 218 may be extended:

(a) for reasons relating to the administrative organisation of the Member States, and in particular where accounts are centralised,

(b) where special circumstances prevent the customs authorities from complying with the said time-limits.

Such extended time-limit shall not exceed 14 days.

Article 221 provides, in extract:

‘1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

C – Making Community own resources available

The first sentence of Article 217(1) of the Customs Code provides:

‘For the purpose of applying this Regulation, the Community’s entitlement to the own resources referred to in Article 2(1)(a) and (b) of Decision 88/376/EEC, Euratom shall be established as soon as the amount due has been notified by the competent department of the Member State to the debtor. Notification shall be given as soon as the debtor is known and the amount of entitlement can be calculated by the competent administrative authorities, in compliance with all the relevant Community provisions.’

Under Articles 6, 9 and 10 of Regulation No 1552/89 a Member State must through its Treasury keep accounts of the entitlements which have been established and it must credit the corresponding amount to a special account in the Commission’s name operated for those purposes with the Member State’s Treasury. The entitlements must be entered into those accounts at the latest on the first working day following the 19th day of the second month following the month during which the entitlement was established and at the same time they must be credited to the special account. In that process a distinction is drawn between entitlements which have been recovered and entitlements which have not yet been recovered. Entitlements which have been established but not yet recovered and in respect of which no guarantee has been provided are to be shown in separate accounts. In those cases the special account must be credited at the latest on the first working day following the 19th day of the second month following the month in which the entitlements were recovered. Those sums which are credited to the special account are entered by the Commission into its accounts.

Article 11 of Regulation No 1552/89 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.’

III – Pre-litigation procedure and legal proceedings

In connection with the procedure for monitoring Member States’ recovery of Community own resources pursuant to Regulation No 1552/89 investigations were carried out in 1994 and 1995 in the Netherlands and in Germany into the application of the Community transit provisions. In its inspection reports the Commission complained that the offices of departure in both Member States had in numerous cases where the transit procedure had not been operated correctly recovered the customs debt late, that is, several months after expiry of the three-month time-limit. The crediting of Community own resources had thus been correspondingly delayed, so that under Article 11 of Regulation No 1552/89 the corresponding default interest had become payable.

The Netherlands and Germany did not dispute the timings of the contested recoveries and credits. They took the view, however, that the recoveries and credits should not be regarded as delayed.

In the case of the Netherlands (C‑460/01) the Commission thereupon calculated the default interest, communicated that calculation to the Netherlands authorities, and demanded that by 23 February 1997 they pay interest in the amount of NLG 5 323 395.06. The Netherlands refused to do so.

By letter of 2 February 2000 the Commission thereupon sent a reasoned opinion to the Netherlands. The Netherlands replied by letter of 28 March 2000, once again denying having infringed Community law and refusing to pay the interest demanded.

Since the Commission takes a different view it decided to bring the present case before the Court. The Commission claims that the Court should:

declare that, between 1 January 1991 and 31 December 1995:

–by failing to proceed with the entry in the accounts and recovery of the customs debt and other relevant duties within three days of the fixed time‑limit, or at a later date pursuant to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time‑limits, when the principal of an external Community transit operation has not, within three months of being notified by the office of departure that the consignment has not been presented on time at the office of destination, provided proof of the regularity of the transit operation in question,

–by failing to make available in due time to the Commission the relevant Community own resources, and

–by refusing to pay the relevant default interest,

the Kingdom of the Netherlands has failed to fulfil its obligations under the second sentence of the second subparagraph of Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, the third sentence of Article 49(2) of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, and the third sentence of Article 379(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, and under Articles 2 and 9 to 11 of 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.

In the case of Germany (C‑104/02) the Commission demanded that the German authorities provide the necessary information for calculation of the default interest. That was refused on the grounds that as a matter of Community law there had not been any delay.

The Commission thereupon, by letter of 19 July 2000, sent Germany a reasoned opinion. Germany replied by letter of 14 September 2000 in which it once again denied that it had infringed Community law.

Since the Commission takes a different view it decided to bring the present action before the Court. The Commission asks the Court to rule that:

By letter of 5 July 2002 the Kingdom of Belgium sought leave to intervene in Case C‑104/02 in support of the defendant, the Federal Republic of Germany. That request was granted by order of 9 September 2002.

IV – Infringement of Article 2(1) of Regulation No 1552/89 and the third sentence of Article 379(2) of the implementing regulation

A – Main arguments of the parties

In the case of the Commission and the Netherlands and German Governments are agreed that the customs debts of principals arising out of irregularities in the transit procedure (‘the customs debts’) in respect of the periods in question (Case C‑460/01: 1 January 1991 to 31 December 1995, Case C‑104/02: according to the Commission’s application ‘in respect of 1993 and 1994’) were not recovered at the latest immediately on expiry of the three-month time-limit in the third sentence of Article 379(2) of the implementing regulation (‘three-month time-limit’), but as a rule only several months later. The parties disagree, however, as to whether that conduct constitutes a failure to fulfil obligations on the part of the Member States concerned.

The German Government argues first of all that, as regards the first complaint, the action brought against it (C‑104/02) is inadmissible. In an action for failure to fulfil obligations under Article 228 EC only such conduct which persists on expiry of the time-limit for responding to the reasoned opinion can be regarded as contrary to the Treaty. At that time the German customs offices had, however, long since recovered the customs debts and had amended the relevant administrative procedures along the lines demanded by the Commission.

The Commission takes the view that there is an infringement of the third sentence of Article 379(2) of the implementing regulation. It argues that the three-month time-limit requires a Member State on whose territory the office of departure is located to recover customs debts without delay. In summary, it bases its argument on the following considerations:

The three-month time-limit does not only impose obligations on the principal in relation to the office of departure. The time-limit is equally applicable to the Member State on whose territory the office of departure is located in relation to the Community, since at stake are entitlements which must be transferred to the Community as own resources.

Under Article 218(3) of the Customs Code, the relevant customs debts must therefore – apart from special cases of the calculation of time-limits under general Community law – be entered into the accounts within two days (which may be extended to a maximum of 14 days). At that time the customs debts have already been incurred, the competence of the Member State has been established, and the customs authorities are in a position to calculate the amount of the duty and to determine the customs debtor.

The Netherlands, German and Belgian Governments deny that non-compliance with the three-month time-limit on a regular basis constitutes a failure to fulfil obligations. In summary, they base their argument on the following considerations:

It does not follow from the third sentence of Article 379(2) of the implementing regulation that Member States are required to recover customs debts immediately on expiry of the three-month time-limit. That time-limit imposes obligations only on a principal, but not on a Member State.

The Member States rely further on the Court’s judgment in SPKR in which it concluded that, in relation to the office of departure, the three-month time-limit for the recovery of the customs debt constitutes merely an indicative time-limit and not a time-bar.

Furthermore, they rely on the wording of the third sentence of Article 379(2) of the implementing regulation and of Article 221 of the Customs Code from which it follows that on expiry of the time-limit the office of departure must merely initiate the procedure for recovering the customs debts.

In addition, the Member States raise considerations of a practical nature. On expiry of the three-month time-limit the office of departure is hardly in a position to make immediate recovery of customs debts, since at that time it does not yet possess all the ‘necessary particulars’ within the meaning of the first sentence of Article 217(1) of the Customs Code. To recover the customs debt it is necessary to make a general assessment of the evidence furnished by the principal prior to the expiry of the three-month time-limit. Only after that can it be known whether the customs debt has been incurred, who is the customs debtor and whether the office of departure is the competent office. Since a retrospective recovery procedure is concerned, it is only then that the amount of the customs debt is determined. Finally, the customs debtor must be presented with a demand for payment and the customs debt must also actually be paid, if necessary by realising the guarantee provided. Only then can the customs debt be entered into the accounts.

Finally, they argue that to insist upon immediate recovery of the customs debt on expiry of the three-month time-limit would place an unnecessary burden on the principal, since it often subsequently emerges that the transit procedure was, albeit after expiry of the time-limit, nevertheless as a whole completed correctly.

B – Appraisal

With respect to the German Government’s argument concerning the inadmissibility of the action, it must be noted as a matter of principle that a legitimate interest in determining a failure to fulfil obligations exists, if at the time of the final hearing the default still persists or has not been eliminated in full.

In the present case, even before the time-limit set out in the reasoned opinion had expired, Germany instructed its customs offices in all cases to transfer Community own resources at an earlier stage, as demanded by the Commission. It can be asked whether the Treaty infringement can be regarded as having been thus eliminated and in that case the matter as having been resolved.

The fact that Germany is said not to have fulfilled its obligations in full, in that it still refuses to pay to the Community the default interest demanded by the Commission, tends to indicate that the matter has not been resolved. If the Community’s right to interest is established, then the non-payment is a default which already subsisted on expiry of the time-limit set out in the reasoned opinion.

In a similar case the Court concluded accordingly that ‘there is an inseparable link ... between the obligation to determine the amounts in question ... and to pay interest in the event of delay [and that i]n any event, ... it is indispensable, when considering the submission regarding the failure to pay interest in respect of the delays, to give a ruling on the submissions that the Federal Republic of Germany acted belatedly both in determining the amounts in question and in crediting them to the Commission’s account.’

25.It must be concluded therefore that the actions concerning an infringement of the third sentence of Article 379(2) of the implementing regulation and of Article 2(1) of Regulation No 1552/89 are admissible.

26.The Commission views the contested delays in both cases as constituting an infringement of the third sentence of Article 379(2) of the implementing regulation and of Article 2(1) of Regulation No 1552/89. The Commission’s claims concern in both cases the belated paying over of own resources (first complaint in Case C‑104/02 and second complaint in Case C‑460/01) and, in addition, in one case the belated entering in the accounts and recovery of customs debts (first complaint in Case C‑460/01). The Commission and the Member States evidently differ then in their views as to the specific steps which the Member States should have taken within a period of two to a maximum of 14 days following the expiry of the three-month time-limit (Article 218(3) of the Customs Code).

27.The Commission takes the view that to comply with the time-limit it is sufficient to initiate recovery of the customs debts, that is to serve the principal with a demand for payment. The Member States assume, however, that on expiry of the three-month time‑limit customs offices must actually obtain payment from the principal or realise the guarantee. From that the Member States then conclude that the third sentence of Article 379(2) of the implementing regulation cannot constitute a binding time-limit, but that it is merely indicative, since it is practically impossible to complete in full the procedure for recovering customs debts within a period of, in principle, two days from expiry of the three‑month time‑limit.

28.It appears to me to be appropriate therefore to consider first of all which steps in the customs debts recovery procedure are involved in the present cases.

29.First, it must be observed that the answer cannot be deduced simply from the wording of the third sentence of Article 379(2) of the implementing regulation. The provision varies in the different language versions – the office of departure ‘recovers’ the customs debts or it ‘begins to recover the customs debts’. Moreover, the provision refers neither to ‘entry into the accounts’ which the Commission objects to as being delayed nor to ‘paying over of own resources’. The actual subject-matter of the actions for failure to fulfil obligations can be determined therefore only by taking an overview of the system for recovering own resources in the form of customs debts incurred by principals in the event of irregularities in the transit procedure.

30.The relevant step for the timely paying over of own resources is not, in fact, completion of the recovery procedure, but only a part of that procedure, namely the ‘notification of the amount of duty’ to the customs debtor. That is because that communication is at the same time the ‘establishment’ of the Community’s entitlement to the duties (Article 2(1) of Regulation No 1552/89), which in turn leads to entry in the special accounts (Article 6 of Regulation No 1552/89) and starts time running for that which is the Commission’s ultimate objective, the credit of the own resources to the special account in its name (Article 9(1) of Regulation No 1552/89).

31.It can be seen therefore that the administrative act which is decisive for the delay in the paying over of own resources, as ultimately contested by the Commission, is the notification to the principal of the customs debt incurred as a result of irregularities in the transit procedure. The problem to be resolved here can be reduced therefore to the question of whether the third sentence of Article 379(2) of the implementing regulation requires Member States immediately on expiry of the time-limit to issue the principal with a demand for payment of the customs debts.

32.For the purposes of the present cases it may thus be concluded, first, that the claims lodged by the Commission are, admittedly, needlessly formulated in different terms and are certainly not a model of clarity. It is evident, however, that the claims seek a declaration that the failure to fulfil obligations consists in the delayed paying over of own resources (Article 2(1) of Regulation No 1552/89) arising out of the delay in issuing demands for payment to principals (third sentence of Article 379(2) of the implementing regulation).

33.It appears, moreover, thus to be established that Member States are certainly not required actually to collect the customs debts within a period of, in principle, two days (Article 218(3) of the Customs Code) following the expiry of the three-month time-limit. This conclusion is of significance as regards the practical problems advanced by the Member States involved in the case, since it becomes evident thereby that the Member States can hardly rely on the fact that in practical terms it is almost impossible within two days of the three-month time-limit expiring to obtain payment from the principal or to realise the guarantee in support of their argument that the three-month time-limit is merely indicative.

34.In the present actions for failure to fulfil obligations, the issue is therefore whether the Netherlands and Germany were required under the third sentence of Article 379(2) of the implementing regulation to issue the principal with a demand for payment within, in principle, two days of the expiry of the three-month time-limit.

35.The Member States and the Commission disagree over the question of whether the third sentence of Article 379(2) of the implementing regulation is merely an indicative time-limit, non‑compliance with which cannot be construed as a failure to fulfil obligations, or whether the provision binds the Member States to issue an immediate demand for payment.

36.In my opinion, the time-limit is one which is binding on the Member States, non-compliance with which constitutes a failure to fulfil obligations. Neither the Court’s previous case-law nor practical considerations preclude this conclusion, nor does it impose any unnecessary burden on the principal.

a) The Court’s previous case-law

37.The Member States rely, wrongly in my opinion, on the Court’s judgment in SPKR. In that case the Court was concerned with a different question from the one at issue here.

38.First, in that judgment the Court was not concerned with the three-month time-limit but with the time-limit for notifying the principal under Article 379(1) of the implementing regulation (11-month time‑limit). Second, even if – as the Member States have argued here – the two time-limits were to be taken together as a whole (‘14-month time-limit’), the grounds of that judgment could not be applied to the time-limit under Article 379(2) of the implementing regulation (three-month time-limit).

39.In that case the Court admittedly concluded that the time-limit concerned there was not a binding time-limit but an indicative one. However, the case concerned the legal consequences in relation to the principal of non-compliance with that time-limit, more specifically the question of whether even after expiry of that time-limit the office of departure is permitted to recover the customs debts, to which the Court responded in the affirmative.

40.In support of its conclusion that the time-limit is indicative the Court relied additionally upon the fact that non-compliance with that time-limit may not impose a burden on the Community budget since that conflicts with the Community’s interest in recovery of customs debts, which are, of course, paid over to the Community as own resources.

41.The present cases are concerned, however, with the relationship between the Member States and the Community, more specifically the question of whether the Member States have an obligation to the Community to observe (here) the three-month time-limit in the third sentence of Article 379(2) of the implementing regulation. Since, however, in the abovementioned case the Court emphasises precisely the Community’s interest in the recovery of customs debts as Community own resources, that would rather suggest that in relation to the Member States the three-month time-limit should be regarded not as an indicative time-limit, but as a time-limit which is binding on them.

b) Practical problems in complying with the time-limit in the third sentence of Article 379(2) of the implementing regulation

42.In support of their argument that the time-limit in the third sentence of Article 379(2) of the implementing regulation is indicative, the Member States rely above all on practical problems. On expiry of the three-month time-limit the office of departure in many cases does not possess the necessary information to issue a demand for payment or must first check the information provided by the principal. The principal can, for example, up until the last day of the three-month period furnish evidence that the goods, were indeed correctly presented. In the event of a failure to present the goods, the same is true for evidence concerning both responsibility for that failure and the location in which the irregularities were committed. Only when it has been determined that the customs debt has in fact been incurred and that the principal is the customs debtor, is the tariff classification carried out and the amount of the customs debt calculated.

43.According to the Court’s consistent case-law, the problems of a practical nature advanced by the parties cannot as a matter of principle constitute justification for a failure to fulfil obligations. They could at the most be relevant in the case of problems of an objective nature, that is, inherent to the transit procedure itself, which rendered it objectively impossible for Member States to comply with their obligations. That is evidently what the Member States involved are seeking to demonstrate.

44.I do not consider their arguments to be convincing. Only if any further evidence presented by the principal constituted a necessary precondition for the issue of a demand for payment would the practical problems be inherent in the system. In my view, that is surely not the case, as the following deliberations demonstrate.

45.Under Article 218(3) of the Customs Code, the two-day period within which customs debts of the sort at issue here are to be entered into the accounts of the Member State (and hence within which the demand for payment must be issued) generally begins to run from the day on which the customs authorities ‘are in a position’ to calculate the amount of duty and to determine the customs debtor. Whilst the provision does not refer to the determination of the competent issuing authority, as a general rule of administrative procedure that precondition must nevertheless be determined and it can be regarded therefore as an unwritten requirement imposed by Article 218(3) of the Customs Code.

46.The question arises therefore as to when the office of departure in general can assume the incurrence of the customs debt and is in a position to determine the customs debtor, to calculate the amount of the duty and to determine its own competence in the matter.

i) Incurrence of the customs debt

47.The transit procedure is a ‘suspensive arrangement’. As a result, on importation of the goods concerned there is initially no customs debt. A customs debt is incurred, however, if the principal does not fulfil his obligations, as a rule, therefore, – as the Commission correctly points out – on expiry of the time-limit for presenting the goods. In practice the time-limit for presenting the goods expires only a few weeks after the transit procedure has been commenced. Thus already at this very early stage a statutory presumption exists that the principal is the debtor of the customs debts.

48.The customs debt can only be imposed, however, once official investigations have taken place, and where these have been unsuccessful the principal must be informed and be required to produce evidence of the correct operation of the procedure. Under Article 379(1) of the implementing regulation that notification must take place ‘as soon as possible and in any case’ within 11 months of the commencement of the transit procedure, and can quite possibly therefore occur earlier.

49.Viewed from this perspective, the three-month period following on from the notification of the principal operates merely as the last of a series of possibilities belatedly to prove the correct completion of the transit procedure and definitively to rebut the statutory presumption of an irregularity committed by the principal giving rise to the customs debt.

50.In principle, correct completion can only be proven on production of Part 5 of the T1. As an alternative, Article 380 of the implementing regulation mentions further the production of other customs documents as proof of the correct presentation of the goods. If the principal or the office of departure itself succeeds in producing one of those documents within the three-month period, then, since they are official customs documents, their examination is unlikely to pose a problem so great as to be capable of justifying a delay to the demand for payment beyond the time-limits provided for in Article 217 et seq. of the Customs Code.

51.The office of departure can therefore, in my opinion, at the latest on expiry of the three-month time-limit in the third sentence of Article 379(2) of the implementing regulation assume therefore that the customs debt of the principal has been incurred because of irregularities in the transit procedure.

52.As a consequence, the Member States’ argument concerning practical problems relating to the incurrence of the customs debt is barely convincing.

ii) Determining the customs debtor in the event of irregularities in the transit procedure

53.As already set out above, a statutory presumption arises from Article 378(1) and (2) of the implementing regulation concerning the incurrence of the customs debt and thus also concerning the principal’s identity as debtor. It is already at a very early stage therefore that the statutory presumption of the principal’s identity as customs debtor arises. For the office of departure, expiry of the three-month time-limit without proof having been furnished as to the regularity of the operation results merely in the definitive determination of the debtor’s identity.

54.In so far as the Member States when referring to practical problems are essentially concerned with the case where the principal produces evidence to show that he is not responsible and this then has to be evaluated, it must be noted in that regard that, according to the wording of the third sentence of Article 379(2) of the implementing regulation, a statutory presumption of the incurrence of a customs debt by the principal arises, based purely on the absence of proof of the regularity of the transit operation and thus independent of fault. Consequently it is not enough for the principal to show that the transit operation was not regular but another person was responsible for the irregularities. Moreover, the Member States have not shown that such proof, which probably requires detective investigations, is produced by principals frequently or on a regular basis or that it has even been attempted to do so.

55.The office of departure is therefore, in my opinion, in a position long before the three-month time-limit in the third sentence of Article 379(2) of the implementing regulation expires to determine that the principal is the probable debtor of the customs debt. Expiry of the three-month time-limit results merely in the definitive determination of this.

56.As a consequence, the Member States’ argument concerning practical problems relating to the determination of the identity of the customs debtor is also barely convincing.

iii) Determining the amount of the duty

57.In the event of irregularities in the transit procedure, the amount of the customs debt depends on the customs debt on importation which would be payable if the goods had not been conveyed through the Community customs territory under the transit procedure but had been released into free circulation. It is thus a question of the amount of the customs debt on importation (provisionally not levied). That debt is calculated according to the customs value of the goods, for which a tariff classification in application of the Customs Tariff of the European Community is the basis of calculation. The information necessary for the tariff classification and determination of customs value (for example, quantity and type of goods) must already be provided in the transit declaration on entry into the Community customs territory. Thus as a matter of principle at the outset of the transit procedure the office of departure can already calculate the likely amount of duty.

58.The possibility of calculating the amount of the customs debt on expiry of the three-month time-limit is not precluded by the argument advanced by the German Government that as a general rule the transit declaration T1 is in practice often not fully completed. Member States are obliged to verify the completeness of the transit declaration, so that they cannot rely in their defence on non-compliance with that obligation. Nor is that conclusion precluded by the fact that, as noted by the German Government, there is no obligation in the transit procedure to declare the value of the goods. That merely indicates that, if it should be necessary to do so in respect of duties becoming payable at a later stage, the customs offices of departure must establish the relevant value of the goods by other means. It is not evident, however, why it should be possible to carry out that procedure (which may indeed be quite complex) only once the three-month time-limit has expired.

59.The Member States have further argued – not contested by the Commission – that on notification of the consignment, sensibly, the amount of the duty is calculated only if and to the extent that it is necessary for the calculation of the guarantees. Often, however, guarantees are fixed on a flat-rate or on an individual basis without a more detailed calculation of the potential customs debt on importation.

60.In my opinion, contrary to the view of the Member States, it cannot be decisive whether or not in the particular case the amount of duty has already been determined in connection with the calculation of a guarantee. On the other hand, it also cannot be required that in respect of every transit procedure initiated the offices of departure calculate, as a precautionary measure as it were, the amount of duty corresponding to the import customs debt: correct operation of the transit procedure should in fact be the norm, and therefore the result would in general be an unnecessary administrative burden.

61.When considering the time at which it is possible to calculate the amount of duty, the consideration that, as already set out above, the statutory presumption in favour of a customs debt imposed upon the principal already arises at a very early stage, that is, where the time-limit for presenting the goods has expired without those goods being presented, should, in my opinion, also be decisive here. The three-month time-limit constitutes merely the last of a series of opportunities for proving ultimately that the transit procedure has been correctly completed after all.

62.Correspondingly, as a precautionary measure, the office of departure should be required at the latest on completion of the official investigations (11-month time-limit), that is, already at the outset of the three-month period, to calculate the amount of duty, a task which, as the Commission rightly observes, it should be in a position to perform on the basis of the information provided for that purpose in the transit notification T1.

63.Thus the Member States’ argument concerning practical problems relating to the calculation of the amount of duty is similarly, in my opinion, barely convincing.

iv) Determining the competent authority

64.By carrying out its own investigations during the period between the expiry of the time-limit for presentation of the goods and the expiry of the 11th month following the commencement of the transit procedure the office of departure can determine the competence of its own or of another Member State. If its investigations are unsuccessful then – as the Court determined in respect of a predecessor provision – Article 378(1) and (2) of the implementing regulation likewise contains a statutory presumption of competence, that is, that of the Member State on whose territory the office of departure is situated.

65.That presumption is rebutted only if it is proven that another Member State is competent because the irregularity was committed somewhere else. Although the principal can furnish proof of this within the three-month time-limit, it appears however more than questionable whether such evidence can be regarded as being furnished so frequently that this can be regarded as an inherent obstacle to the immediate issuing of a demand for payment. Presenting evidence ‘at the last minute’ is not a problem specifically associated with the Community transit procedure. Rather the problem arises in connection with every time-limit for the presentation of evidence in rebuttal of a statutory presumption.

66.The Member States concerned have merely observed in this respect that for the period in question they cannot provide information on how frequently principals have attempted within the three-month period still to present evidence disputing the competence of the office of departure. They have argued that in individual cases an extensive examination could be necessary for those purposes. Above all in the most important situation in practical terms of an alleged alternative competence, namely where the goods have been removed from customs supervision in another Member State, it will often (although not exclusively) be the case that proof can be furnished only by means of official documents, for example by police reports. In that regard, as the Commission correctly observes, however, examination of such documents ought not, as a rule, to pose any great problem. Moreover, should in any individual case evidence of whatsoever nature be delivered at the last minute, Article 219 of the Customs Code provides for the time-limit for issuing the demand for payment to be extended up to a maximum of 14 days.

67.In the present case it probably cannot be concluded therefore, simply from the possibility that evidence in rebuttal of the statutory presumption of competence may be presented at the last minute, that as between the Member States and the Community the time-limit for issuing the demand for payment is merely an indicative one.

68.The office of departure is therefore, in my opinion, also in a position, at the latest on expiry of the three-month time-limit in the third sentence of Article 379(2) of the implementing regulation, to determine which authority is competent.

69.As a result, the Member States’ argument concerning the practical problems relating to the competent authority is also barely convincing.

c) Placing an unnecessary burden on the principal in the event of subsequent correct completion of the transit procedure

70.The Netherlands Government has argued that to require that the principal be issued with a demand for payment of the customs debts immediately on expiry of the three-month time-limit would place an excessive burden upon him if it should then transpire, for example, on subsequent transmission of Part 5 of the T1 that the transit procedure as a whole was completed late, but otherwise correctly. Besides, in most cases the principal is not responsible for irregularities in the transit procedure.

71.I do not share that view, since in the situations advanced, as the Commission has stated without being challenged by the Member States, the system for repayment of customs debts wrongly levied comes into operation:

If, after payment of the customs debt it is proven that the transit procedure was operated correctly within the time-limits, or that after the expiry of all time-limits the procedure was belatedly but otherwise correctly operated, then the possibility of repaying the customs debts arises, since the statutory presumption concerning the incurrence of the customs debt by the principal is thereby definitively rebutted.

In that case it is presumed under Article 204(1) of the Customs Code read together with Article 859 of the implementing regulation that the failure has had ‘no significant effect on the correct operation of the ... customs procedure in question.’ It is thus concluded after the event that the non-compliance with a customs requirement (non-compliance with the time-limit for presentation of the goods) did not cause the customs debt to be incurred. In that case repayment of the principal’s customs debt is possible on the basis of Article 236(1) of the Customs Code.

72.Consequently, the principal is not burdened excessively if immediately on expiry of the three-month time-limit the demand for payment is issued, since even thereafter he has the possibility of furnishing proof that the goods were correctly presented to the customs office of destination and thus, if applicable, obtaining repayment of the customs debts already paid.

73.As a result, the Member States’ argument concerning also the excessive burdening of the principal is also barely convincing.

V – Infringement of Article 11 of Regulation No 1552/89

A – Main arguments of the parties

74.The German Government takes the view that the second head of claim in the action brought against it (C‑104/02) is inadmissible because in an action for failure to fulfil obligations under Article 228 EC a Member State cannot be compelled to act in a particular way.

75.The Commission argues that the belated recovery of the customs debts at issue in the case automatically also led to a delay in making Community own resources available, since the corresponding entitlements were not determined and credited on time, which constituted an infringement of Articles 2 and 9 et seq. of Regulation No 1552/89. According to Article 11 of Regulation No 1552/89, in the event of delay default interest shall be paid. The refusal to pay such interest is therefore an infringement of that provision.

76.The Netherlands, the German and the Belgian Governments take the view that no infringement of Article 2 and Articles 9 to 11 of Regulation No 1552/89 has occurred, since in the absence of delays in the recovery of customs debts there were no delays in crediting the corresponding own resources.

77.The German Government argued in its defence that Article 11 of Regulation No 1552/89 is invalid, and in support of that contention it merely referred to arguments to be made at a later stage in another action against Germany pending before the Court.

B – Appraisal

78.An action for failure to fulfil obligations under Articles 226 EC and 228 EC is an application for a declaration (‘Feststellungsklage’). This notion follows from the wording of Article 228 EC, according to which the Court may find (‘feststellen’) that there has been a failure to fulfil obligations, and if it makes such a finding the Member State is required to act. The latter provision would not be necessary if the Court of Justice could of its own authority require a Member State to remedy an unlawful state of affairs.

79.A right to the payment of default interest arising out of the delay in paying over of own resources therefore cannot as such be enforced by means of an action for failure to fulfil obligations. In the scope of such an action it is merely possible to apply for a declaration that as a result of the refusal to pay default interest under Article 11 of Regulation No 1552/89 there has been a failure to fulfil obligations.

80.From that it follows that the second head of claim of the Commission in Case C‑104/02, requiring Germany to pay to the Community budget the interest due as a result of the delay in crediting own resources, must be rejected as inadmissible.

81.The argument concerning the invalidity of Article 11 of Regulation No 1552/89 does not therefore have to be examined further.

82.The belated notification of the amount of duty (issuing of the payment demand) contrary to Article 218(3) of the Customs Code simultaneously constitutes belated determination of the entitlement under Article 2 of Regulation No 1552/89. As a result the own resources were automatically credited only with delay to the accounts operated in the Commission’s name by the Member States, which constitutes an infringement of Article 9 et seq. of Regulation No 1552/89.

As a result of those delays a right to default interest arose under Article 11 of Regulation No 1552/89 which the Netherlands has contested neither in its extent nor in its amount. The refusal of the Netherlands to make payment is therefore an infringement of that provision.

VI – Conclusion

In the light of the foregoing I propose that the Court should:

–in Case C‑460/01

–by failing to determine the customs debt concerned and enter other duties in the accounts within three days of the fixed time‑limit, or at a later date pursuant to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time‑limits, when the principal of an external Community transit operation has not, within three months of being notified by the office of departure that the consignment has not been presented on time at the office of destination, provided proof of the regularity of the transit operation in question, and thereby failing to make Community own resources available in due time, and

the Kingdom of the Netherlands has failed to fulfil its obligations under the second sentence of the second subparagraph of Article 11a(2) of Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, the third sentence of Article 49(2) of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, and the third sentence of Article 379(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, and under Articles 2(1) and 9 to 11 of 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;

–in Case C‑104/02

–by failing to determine the customs debt concerned and enter other duties in the accounts within three days of the fixed time‑limit, or at a later date pursuant to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time‑limits, when the principal of an external Community transit operation has not, within three months of being notified by the office of departure that the consignment has not been presented on time at the office of destination, provided proof of the regularity of the transit operation in question, and thereby failing to make Community own resources available in due time,

the Federal Republic of Germany has failed to fulfil its obligations under the third sentence of Article 49(2) of Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, or the third sentence of Article 379(2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, read together with Article 2(1) of 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;

1 – Original language: German.

2 – Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit, OJ 1977 L 38, p. 1, as amended by Council Regulation (EEC) No 474/90 of 22 February 1990 amending, with a view to abolishing lodgement of the transit advice note on crossing an internal frontier of the Community, Regulation (EEC) No 222/77 on Community transit, OJ 1990 L 51, p. 1.

3 – Commission Regulation (EEC) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, OJ 1987 L 107, p. 1, as amended by Commission Regulation (EEC) No 1429/90 of 29 May 1990 amending Regulation (EEC) No 1062/87 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, OJ 1990 L 137, p. 1.

4 – Council Regulation (EEC) No 2726/90 of 17 September 1990 on Community transit, OJ 1990 L 262, p. 1.

5 – Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, OJ 1992 L 132, p. 1.

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

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

8 – Cited in footnote 3.

9 – Cited in footnote 5.

10 – Cited in footnote 7.

11 – Footnote not in the original: Article 215(1) of the Customs Code provides: ‘A customs debt shall be incurred at the place where the events from which it arises occur.’

12 – Council Regulation (EEC) No 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting from a customs debt, OJ 1989 L 186, p. 1.

13 – Cited in footnote 6.

14 – Regulation No 1854/89 did not contain any corresponding provision.

15 – Council Decision 88/376/EEC, Euratom of 24 June 1988 on the system of the Communities’ own resources, OJ 1988 L 185, p. 24.

16 – 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. 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, has been applicable from 31 May 2000.

17 – OJ, English Special Edition 1971(II), p. 354.

18 – Its detailed argument will be considered — in so far as this appears appropriate – in the scope of my appraisal.

19 – Regulation No 1182/71 (cited in footnote 17).

20 – Their detailed argument will be considered – in so far as this appears appropriate – in the scope of my appraisal.

21 – Case C‑112/01 SPKR [2002] ECR I‑10655.

22 – Case 39/72 Commission v Italy [1973] ECR 101 and Case 69/77 Commission v Italy [1978] ECR 1749.

23 – Case 39/72 (cited in footnote 22) concerning a situation where the matter was resolved after expiry of the time-limit.

24 – Case 303/84 Commission v Germany [1986] ECR 1171, paragraph 11, and Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 17.

25 – Or, where appropriate, the corresponding predecessor provisions.

26 – Language of the case in Case C‑104/02: German.

27 – ‘Gaat de bevoegde Lid-Staat over tot de inning’ (language of the case in Case C‑460/01: Dutch); ‘the competent Member State shall take steps to recover’ (English); ‘el Estado miembro competente procederá a la recaudación’ (Spanish); ‘lo Stato membro competente procede alla riscossione’ (Italian); ‘skall den behöriga medlemsstaten vidta åtgärder för att driva in’ (Swedish); and ‘l’État membre compétent procède au recouvrement’ (French).

28 – The recovery procedure consists of the following chronological steps: ‘entry in the accounts’ in the Member State, ‘communication to the customs debtor’, payment of the customs debts or realisation of the guarantees, and finally, where appropriate, execution of the customs debts (Article 217 et seq. of the Customs Code). Since, however, communication of the amount of duty to the customs debtor must take place under Article 221 of the Customs Code ‘as soon as’ the amount has been entered in the accounts according to Article 217 et seq. of the Customs Code, it may however be assumed that these two actions are contemporaneous.

29 – Cited in footnote 21.

30 – See, for example, Case 52/84 Commission v Belgium [1986] ECR 89; Case C‑404/00 Commission v Spain [2003] ECR I‑6695.

31 – Article 221(1) of the Customs Code.

32 – Article 84(1) of the Customs Code.

33 – Article 204(1)(a) and (3) and Article 96(1) of the Customs Code.

34 – Article 356 of the implementing regulation.

35 – Article 378(1) and (2) and the third sentence of Article 379(2) of the implementing regulation. In respect of the exceptional case where after payment of the customs debts it is proven that the goods were presented, see below, point 71 et seq.

– Whilst Article 380 of the implementing regulation does not list exhaustively the possible forms of proof (‘inter alia’), it can nevertheless be deduced from the nature of the forms of proof listed that not every form of proof could be capable of rebutting the statutory presumption of Article 378 of the implementing regulation.

37– See above, points 49 and 53.

– If the goods are not presented at the office of destination, for example, because of their ‘unlawful removal from customs supervision’ during the transit procedure then the person removing them (for example, a thief) also becomes the customs debtor (Article 203(1) and (3) of the Customs Code). The Customs Code does not, however, state that in such a case the principal is relieved of his customs debt or that he is only liable in a subsidiary function.

39– The third sentence of Article 379(2) of the implementing regulation makes reference to ‘takes steps to recover the duties’.

– Commission regulations updating Annex I of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff which are adopted on a regular basis.

41– Article 28 et seq. of the Customs Code.

42– Annex 37 Title 1 B No 2(c) of the implementing regulation.

43– Especially since at that time it is in certain cases no longer possible to determine the amount of the duty on the basis of the value of the goods, for example where they have been unlawfully removed from customs supervision.

44– Article 94 of the Customs Code and Article 359 et seq. of the implementing regulation.

45– Article 367 et seq. and Article 373 of the implementing regulation.

46– See above, points 49 and 53.

47– Article 379(1) of the implementing regulation.

48– Article 379(1) of the implementing regulation.

49– Case C‑233/98 Lensing & Brockhausen [1999] ECR I‑7349, paragraph 33.

50– Competence also follows from Article 215(3) of the Customs Code.

51– The German Government considers that it could apply to between 20% and 30% of all cases, the Netherlands Government to 1% of all cases.

52– See above, point 49.

53– It is true that Article 859 of the implementing regulation has only been applicable since 1 January 1994. In respect of the period at issue in the case, however, according to the account put forward by the Commission at the hearing, not disputed by the Member States, the entitlement to recovery already existed pursuant to the predecessor provisions to Article 204(1) of the Customs Code.

54– Case C‑105/02 Commission v Germany.

55– This defence argument would, moreover, very likely have to be rejected as out of time pursuant to the first sentence of Article 42(2) of the Rules of Procedure, since the German Government has not put forward any contentions in support, but has limited itself to a reference to a pleading in another case which, furthermore, only reached the Court’s Registry after the time-limit for submitting a defence in the present case had expired.