Action brought on 24 January 2006 by the Commission of the European Communities against the Portuguese Republic

(Case C-38/06)

(2006/C 74/14)

Language of the case: Portuguese

An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 24 January 2006 by the Commission of the European Communities, represented by Günter Wilms and Margarida Afonso, acting as Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

Pleas in law and main arguments

The Commission believes that Article 296 EC does not allow a Member State to exempt from customs duties imports of military matériel, in that the levying of those duties cannot be considered to threaten that Member State's essential security interests.

In the absence of concrete argument that might furnish specific justification of the need to derogate from the customs rules in order to protect the essential interests of the security of the Portuguese Republic, the Commission takes the view that the Portuguese authorities have failed to fulfil their obligations under Article 26 EC, Article 20 of the Community Customs Code (3) and, in consequence, the Common Customs Tariff.

It is unacceptable that a Member State should avoid its obligations with regard to the joint and several co-financing of the Community's budget by pleading the need to fund its military expenditure at lower cost.

Where the rules laid down are not complied with, all the Member States must bear the respective financial consequences, for such a case gives rise to the application of the mechanism which, by means of ‘GNP’ resources, offsets the shortfall in traditional own resources and VAT. Observance of the principle of good financial management, and also of the fundamental concepts of fairness and responsibility, demands that the Member States that caused the own resources made available to fall short of the amount due should alone bear the consequences for the Community budget resulting therefrom and, therefore, pay the sums not collected by reason of their respective failures to fulfil obligations.

The failure at issue continued until 31 December 2002, seeing that Regulation No 150/2003 (4) has been applicable since 1 January 2003. It is only from that date that that regulation has made it possible to suspend, on certain conditions, customs duties on the import of certain weapons and military equipment.

The Portuguese authorities ought to have credited the customs duties in the accounting ledgers in accordance with the rules fixed by the Community Customs Code for the imports at issue, and also to have established and made available to the Commission the own resources so resulting pursuant to Articles 2, 9, 10 and 11 of Regulation No 1552/89 and the corresponding provisions of Regulation No 1150/2000. An infringement of the customs legislation having been committed, the Community must be credited with a sum equivalent to the own resources lacking. To that sum must be added the default interest provided for by Article 11 of Regulation No 1150/2000.

(1)  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).

(2)  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).

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

(4)  Council Regulation (EC) No 150/2003 of 21 January 2003 suspending import duties on certain weapons and military equipment (OJ 2003 L 25, p. 1).