Case C-392/02

Commission of the European Communities

v

Kingdom of Denmark

(Failure of a Member State to fulfil obligations – Communities’ own resources – Customs duties legally owing not subsequently recovered following an error by the national customs authorities – Financial liability of Member States)

Summary of the Judgment

European Communities, own resources – Establishment and making available by the Member States – Obligation independent of the possibility of an entry in the accounts or post-clearance recovery of customs duties – No establishment and making available, without there being any reason of force majeure or impossibility of recovery in the long term for reasons which cannot be attributed to the Member State concerned – Failure to fulfil obligations

(Council Regulations No 1552/89, Art. 17(2), and No 2913/92, Art. 220(2)(b); Council Decision 94/728, Arts 2 and 8)

Member States are required to establish the Communities’ own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and determine the debtor, regardless of the issue of whether the criteria for the application of Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code are met and therefore whether or not it is possible to proceed with a subsequent entry in the accounts or post-clearance recovery of the customs duties in question.

In those circumstances, a Member State which fails to establish the Communities’ own resources and to make the corresponding amount available to the Commission, without one of the conditions laid down in Article 17(2) of Regulation No 1552/89 implementing Decision 88/376 on the system of the Communities’ own resources being met, namely that for reasons of force majeure those amounts could not be collected or that recovery is impossible in the long term for reasons which cannot be attributed to them, fails to fulfil its obligations under Community law, in particular under Articles 2 and 8 of Decision 94/728 on the system of the European Communities’ own resources.

(see paras 66, 68, 70, operative part)