Corte di giustizia UE n. 1150/2014

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 3 April 2014 ( * ) (Failure of a [OSCURATO:PERSONA] to fulfil obligations — [OSCURATO:PERSONA] own resources — [OSCURATO:PERSONA] 2000/597/EC, Euratom — [OSCURATO:PERSONA] 8 — [OSCURATO:PERSONA] (EC, Euratom) No 1150/2000 — Articles 2, 6, 9, 10 and 11 — Refusal to make own resources available to the [OSCURATO:PERSONA] — [OSCURATO:PERSONA] documents — Imports of fresh garlic as frozen garlic — Imputability of the error to the national customs authorities — Financial liability of the [OSCURATO:PERSONA]) [OSCURATO:PERSONA] C‑60/13, ACTION for failure to fulfil obligations under [OSCURATO:PERSONA] 258 TFEU, brought on 4 February 2013, [OSCURATO:PERSONA], represented by A. Caeiros and L. Flynn, acting as Agents, with an address for service in Luxembourg, applicant, v [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA], represented by S. Brighouse and J. Beeko, acting as Agents, assisted by K. Beal, QC, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of L. [OSCURATO:PERSONA], [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], M. Safjan, J. Malenovský, A. Prechal and K. Jürimäe (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Wahl, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its application, the [OSCURATO:PERSONA] asks the [OSCURATO:PERSONA] to declare that, by refusing to make available the amount of GBP 20 061 462.11 corresponding to the duties payable on imports of fresh garlic covered by erroneous [OSCURATO:PERSONA] documents (‘BTIs’), the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] has failed to fulfil its obligations under [OSCURATO:PERSONA] 4(3) TEU, [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2000/597/EC, Euratom of 29 September 2000 on the system of the Communities’ own resources (OJ 2000 L 253, p. 42), and Articles 2, 6, 9, 10 and 11 of [OSCURATO:PERSONA] (EC, Euratom) No 1150/2000 of 22 May 2000 implementing [OSCURATO:PERSONA] 2000/597 (OJ 2000 L 130, p. 1), as amended by [OSCURATO:PERSONA] (EC, Euratom) No 2028/2004 of 16 November 2004 (OJ 2004 L 352, p. 1) (‘[OSCURATO:PERSONA] 1150/2000’). Legal context EU law on own resources 2 [OSCURATO:PERSONA] 2(1)(b) of [OSCURATO:PERSONA] 2000/597, revenue from, inter alia, ‘[OSCURATO:PERSONA] duties and other duties established or to be established by the institutions [of the [OSCURATO:PERSONA]] in respect of trade with non-member countries’ constitutes own resources entered in the budget of the [OSCURATO:PERSONA]. 3 [OSCURATO:PERSONA] 8(1) of that decision provides: ‘The [[OSCURATO:PERSONA]] own resources referred to in [OSCURATO:PERSONA] 2(1)(a) and (b) shall be collected by the [OSCURATO:PERSONA] in accordance with the national provisions imposed by law, regulation or administrative action, which shall, where appropriate, be adapted to meet the requirements of [[OSCURATO:PERSONA]] rules. [OSCURATO:PERSONA] shall examine at regular intervals the national provisions communicated to it by the [OSCURATO:PERSONA], transmit to the [OSCURATO:PERSONA] the adjustments it deems necessary in order to ensure that they comply with [[OSCURATO:PERSONA]] rules and report to the budget authority. [OSCURATO:PERSONA] shall make the resources provided for in [OSCURATO:PERSONA] 2(1)(a) to (d) available to the [OSCURATO:PERSONA].’ 4 [OSCURATO:PERSONA] 2(1) of [OSCURATO:PERSONA] 1150/2000 is worded as follows: ‘For the purpose of applying this [OSCURATO:PERSONA], the [[OSCURATO:PERSONA]] entitlement to the own resources referred to in [OSCURATO:PERSONA] 2(1)(a) and (b) of [[OSCURATO:PERSONA] 2000/597] shall be established as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor.’ 5 [OSCURATO:PERSONA] 6(1) and (3)(a) and (b) of [OSCURATO:PERSONA] 1150/2000: ‘1.      Accounts for own resources shall be kept by the Treasury of each [OSCURATO:PERSONA] or by the body appointed by each [OSCURATO:PERSONA] and broken down by type of resources. ... 3.      (a)   Entitlements established in accordance with [OSCURATO:PERSONA] 2 shall, subject to point (b) of this paragraph, be entered in the accounts at the latest on the first working day after the 19th day of the second month following the month during which the entitlement was established. (b)      Established entitlements not entered in the accounts referred to in point (a), because they have not yet been recovered and no security has been provided shall be shown in separate accounts within the period laid down in point (a). [OSCURATO:PERSONA] may adopt this procedure where established entitlements for which security has been provided have been challenged and might, upon settlement of the disputes which have arisen, be subject to change.’ 6 [OSCURATO:PERSONA] 9(1) of that regulation provides: ‘In accordance with the procedure laid down in [OSCURATO:PERSONA] 10, each [OSCURATO:PERSONA] shall credit own resources to the account opened in the name of the [OSCURATO:PERSONA] with its Treasury or the body it has appointed. ...’ 7 [OSCURATO:PERSONA] 10(1) of [OSCURATO:PERSONA] 1150/2000: ‘After deduction of collection costs in accordance with [OSCURATO:PERSONA] 2(3) and [OSCURATO:PERSONA] 10(2)(c) of [OSCURATO:PERSONA] [2000/597] entry of the own resources referred to in [OSCURATO:PERSONA] 2(1)(a) and (b) of that decision shall be made 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 in accordance with [OSCURATO:PERSONA] 2 of this regulation. However, for entitlements shown in separate accounts under [OSCURATO:PERSONA] 6(3)(b) [of this regulation], the entry must be made 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.’ 8 [OSCURATO:PERSONA] 11(1) of [OSCURATO:PERSONA] 1150/2000 provides: ‘Any delay in making the entry in the account referred to in [OSCURATO:PERSONA] 9(1) shall give rise to the payment of interest by the [OSCURATO:PERSONA] concerned.’ 9 [OSCURATO:PERSONA] 17(1) and (2) of that regulation: ‘1.      [OSCURATO:PERSONA] shall take all requisite measures to ensure that the amount corresponding to the entitlements established under [OSCURATO:PERSONA] 2 are made available to the [OSCURATO:PERSONA] as specified in this [OSCURATO:PERSONA]. 2.      [OSCURATO:PERSONA] shall be released from the obligation to place at the disposal of the [OSCURATO:PERSONA] the amounts corresponding to established entitlements which prove irrecoverable either: (a)      for reasons of force majeure ; or (b)      for other reasons which cannot be attributed to them. Amounts of established entitlements shall be declared irrecoverable by a decision of the competent administrative authority finding that they cannot be recovered. Amounts of established entitlements shall be deemed irrecoverable, at the latest, after a period of five years from the date on which the amount has been established in accordance with [OSCURATO:PERSONA] 2 or, in the event of an administrative or judicial appeal, the final decision has been given, notified or published. If part payment or payments have been received, the period of five years at maximum shall start from the date of the last payment made, where this does not clear the debt. Amounts declared or deemed irrecoverable shall be definitively removed from the separate account referred to in [OSCURATO:PERSONA] 6(3)(b). They shall be shown in an annex to the quarterly statement referred to in [OSCURATO:PERSONA] 6(4)(b) and where applicable, in the quarterly statement referred to in [OSCURATO:PERSONA] 6(5).’ [OSCURATO:PERSONA] 10 [OSCURATO:PERSONA] 12 of [OSCURATO:PERSONA] (EEC) No 2913/92 of 12 October 1992 establishing the [OSCURATO:PERSONA] (OJ 1992 L 302, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 2700/2000 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 16 November 2000 (OJ 2000 L 311, p. 17), (‘the [OSCURATO:PERSONA]’) provides: ‘1.      The customs authorities shall issue binding tariff information or binding origin information on written request, acting in accordance with the committee procedure. 2.      [OSCURATO:PERSONA] tariff information or binding origin information shall be binding on the customs authorities as against the holder of the information only in respect of the tariff classification or determination of the origin of goods. [OSCURATO:PERSONA] tariff information or binding origin information shall be binding on the customs authorities only in respect of goods on which customs formalities are completed after the date on which the information was supplied by them. ... 3.      The holder of such information must be able to prove that: –        for tariff purposes: the goods declared correspond in every respect to those described in the information, ...’ 11 [OSCURATO:PERSONA] 217(1) of the [OSCURATO:PERSONA]: ‘Each and every amount of import duty or export duty resulting from a customs debt … 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). The first subparagraph shall not apply: ... (b)       where the amount of duty legally due exceeds that determined on the basis of binding information; ...’ [OSCURATO:PERSONA] 12 [OSCURATO:PERSONA] (‘CN’) for the [OSCURATO:PERSONA] was laid down in Annex I to [OSCURATO:PERSONA] (EEC) No 2658/87 of 23 [OSCURATO:PERSONA] 1987 on the tariff and statistical nomenclature and on the [OSCURATO:PERSONA] (OJ 1987 L 256, p. 1). The annex is amended each year with effect from 1 January. The version which applies to imports during 2005 is the annex as amended by [OSCURATO:PERSONA] (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1), and as regards imports during 2006, it is the annex as amended by [OSCURATO:PERSONA] (EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1). 13 At the material time, CN tariff heading 0703 was worded as follows: ‘Onions, shallots, garlic, leeks and other alliaceous vegetables, fresh or chilled’. CN tariff heading 0710 was worded as follows: ‘Vegetables (uncooked or cooked by steaming or boiling in water), frozen’. 14 CN tariff heading 0703 attracted payment of customs duties at a rate of 9.6% plus a specific sum in the amount of EUR 1 200 per net tonne imported outside the tariff quota, while for CN tariff heading 0710 a rate of 14.4% was applied, with no additional amount being payable. Pre-litigation procedure 15 [OSCURATO:PERSONA] 2006, as part of an investigation into imports of fresh garlic originating in China, the [OSCURATO:PERSONA][OSCURATO:PERSONA] (OLAF) carried out an inspection in the [OSCURATO:PERSONA] and informed the [OSCURATO:PERSONA] that, in 2005, the UK customs authorities had issued four erroneous BTIs, in that garlic preserved at temperatures of ‑3 o C to ‑8 o C had been classified as ‘frozen garlic’ (‘the disputed BTIs’). Three of the disputed BTIs were used for the import of fresh garlic from China. 16 According to OLAF, the UK customs authorities had made obvious administrative errors by issuing the disputed BTIs solely on the basis of the description given by the importers and without requesting samples or documents which might have assisted them in determining the correct classification of the goods. 17 The disputed BTIs were revoked in June 2006. 18 On the basis of that information, and in view of the fact that imports of fresh garlic (CN heading 0703) originating in China outside the applicable tariff quota are subject to customs duties considerably higher than those for frozen garlic (CN heading 0710), the [OSCURATO:PERSONA] found that the customs duties not collected as a result of that erroneous classification amounted in total to GBP 20 061 462.11. By letter of 22 March 2007, the [OSCURATO:PERSONA] sent a request to the [OSCURATO:PERSONA] for information on the imports of garlic originating in China made between 24 January 2005 and 28 December 2006. 19 On 22 March 2010, after an exchange of correspondence with the UK authorities, the [OSCURATO:PERSONA] sent the [OSCURATO:PERSONA] a letter of formal notice in which it stated its view that the [OSCURATO:PERSONA] was financially liable for the loss of own resources and asked the [OSCURATO:PERSONA] to submit its observations in that regard within two months. 20 In its response of 12 May 2010, the [OSCURATO:PERSONA] conceded that it had issued the disputed BTIs indicating the incorrect tariff heading, but argued that this error had not led to a loss of own resources because it had not given rise to any customs debt. 21 Unconvinced by the arguments presented by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] sent it a reasoned opinion on 25 November 2011, reiterating its position and asking the [OSCURATO:PERSONA] to make available to the [OSCURATO:PERSONA] the sum of GBP 20 061 462.11 as soon as possible, together with late payment interest calculated on the basis of the date of the import declarations and the date of payment. 22 [OSCURATO:PERSONA] responded by letter of 25 January 2012, denying liability for the sum claimed by the [OSCURATO:PERSONA]. As it was not satisfied with that reply, the [OSCURATO:PERSONA] decided to bring the present action. The action Arguments of the parties 23 [OSCURATO:PERSONA] submits that, by issuing the disputed BTIs, the [OSCURATO:PERSONA] caused the loss of traditional [OSCURATO:PERSONA] own resources in so far as imports of fresh garlic originating in China had been allowed outside the authorised quota, in breach of [OSCURATO:PERSONA] 4(3) TEU, [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2000/597 and Articles 2, 6, 9, 10 and 11 of [OSCURATO:PERSONA] 1150/2000. 24 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] infringed the requirements of EU law on the classification of goods, in that the UK customs authorities had regarded the garlic as frozen solely on the basis of a criterion linked to temperature, without taking into account the objective characteristics and properties of the garlic imported under the disputed BTIs. It is clear, however, from the wording of CN heading 0710 and from the explanatory notes on the harmonised system drawn up by the [OSCURATO:PERSONA] (WCO) that the term ‘frozen’ means that the vegetable — in this case, garlic — must be ‘deep-frozen’, a term that is not defined by reference to temperature. 25 [OSCURATO:PERSONA] also submits that, given a number of factors indicating that garlic is a sensitive product which requires particular attention, the UK customs authorities should have exercised particular vigilance in relation to imports of garlic in general and kept a special watch on the movements of those goods. 26 Among those factors, the [OSCURATO:PERSONA] mentions: (i) the introduction on 1 June 2001 of an additional specific duty of EUR 1 200 per net tonne for imports of fresh garlic originating in China outside the authorised tariff quota; (ii) the fact that several mutual assistance communications had drawn the attention of the national customs authorities to deliberate misdescriptions of the origin of fresh garlic and deliberate misdescriptions of the product itself; and (iii) the import statistics sent by the [OSCURATO:PERSONA] showing that its imports of frozen garlic originating in China exceeded the annual quota for fresh garlic for the entire [OSCURATO:PERSONA]. [OSCURATO:PERSONA] maintains that, if the UK customs authorities had carried out an appropriate risk analysis, they should have had full knowledge of the risks associated with the handling of that product. 27 [OSCURATO:PERSONA] also submits that the disputed BTIs had not been established with due diligence, despite the fact that the applications giving rise to the issuing of those BTIs contained sufficient clues to raise doubts. 28 As regards the justifications put forward by the [OSCURATO:PERSONA] in the pre-litigation procedure, the [OSCURATO:PERSONA] argues that the initial scientific opinion of the Campden and [OSCURATO:PERSONA] (CCFRA), relied on by the [OSCURATO:PERSONA] when it issued the disputed BTIs, and according to which the garlic was frozen at ‑1ºC, was very brief and was not based on an in-depth analysis. 29 As regards the argument that, when such a written application is made to the customs authorities, they are required to issue BTIs within a reasonable period of time, the [OSCURATO:PERSONA] replies that the authorities are not entitled to issue that information unless they have sufficient information and have reached an informed view enabling them to determine the classification of the goods in question. In this case, the UK customs authorities did not take any steps to verify that the goods imported actually corresponded to the description set out in the disputed BTIs. 30 Lastly, the [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] is financially liable for the loss of traditional own resources because the fact that it did not establish the customs debt arising from the imports and did not give the debtor notice of that debt is an error attributable to its customs authorities. If the [OSCURATO:PERSONA] were not obliged to bear the financial consequences of its errors, the budgetary cost of its failure to meet its obligations would be passed on to the other [OSCURATO:PERSONA]. That outcome would be contrary to the principle of sincere cooperation under [OSCURATO:PERSONA] 4(3) TEU. 31 [OSCURATO:PERSONA] contends that the action should be dismissed. 32 Primarily, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] did not establish the [OSCURATO:PERSONA] entitlement to the own resources. According to the [OSCURATO:PERSONA], the obligation to contribute to traditional own resources presupposes the existence of a customs debt, whether or not that debt is recovered from the debtor. In the present case, the holders of the disputed BTIs had been authorised to import goods under CN heading 0710, and they could rely on that authorisation for a period of six months after the revocation of the BTIs. No customs debt arose in relation to those holders, since [OSCURATO:PERSONA] 217(1)(b) of the [OSCURATO:PERSONA] expressly precludes the entry in the accounts of amounts that are legally due if they are higher than the amounts determined on the basis of BTIs. 33 If, contrary to the [OSCURATO:PERSONA] main plea, it were to be decided that the issue of the disputed BTIs by the [OSCURATO:PERSONA] could result in its liability for the loss of [OSCURATO:PERSONA] own resources, the [OSCURATO:PERSONA] argues, in the alternative, that such liability must be made conditional on the [OSCURATO:PERSONA] showing that the customs authorities of that [OSCURATO:PERSONA] were at fault or negligent in issuing the disputed BTIs. In that regard, the [OSCURATO:PERSONA] contends — relying on [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000 — that the loss of the own resources is ‘for other reasons which cannot be attributed to [it]’ for the purposes of that provision. 34 As for the [OSCURATO:PERSONA]’s argument relating to errors made in the classification of the goods, the [OSCURATO:PERSONA] denies classifying the product by reference to temperature. [OSCURATO:PERSONA] asserts that, on the contrary, it relied on the opinion of a scientific expert to conclude that the ‘deep-frozen’ criterion was fulfilled in the circumstances. The fact that the inaccuracy of that opinion did not become evident until after a physical examination of a consignment and in-depth analyses of the product in question had been carried out showed that the classification error was at the very least excusable. 35 As regards the risk that the garlic imports might have been linked to fraud, the [OSCURATO:PERSONA] explains that it had no knowledge of the fact that the declaration of fresh garlic as frozen garlic was a particular problem. That risk was not identified until early February 2006, when the UK customs authorities pointed it out. Furthermore, the mutual assistance communications that had been sent to the [OSCURATO:PERSONA] earlier concerned two specific types of quota circumvention through false declarations, some relating to the country of origin of the fresh garlic and others stating that the product in question was dried garlic instead of fresh garlic. As regards the import statistics, the [OSCURATO:PERSONA] contends that these were not available until after a period of three months and they reflected an increase in the import of frozen vegetables generally. 36 [OSCURATO:PERSONA] also disputes the [OSCURATO:PERSONA]’s argument that the UK customs authorities failed to give due care and attention to the issue of the disputed BTIs. [OSCURATO:PERSONA] contends that there is no requirement to submit every BTI application to sampling. The UK customs authorities had no reasonable grounds for doubting the accuracy of the applications and for refusing to issue the disputed BTIs. Findings of the [OSCURATO:PERSONA] 37 It must be stated at the outset that the [OSCURATO:PERSONA] does not deny that the disputed BTIs issued by its customs authorities contain erroneous information and that the sum claimed by the [OSCURATO:PERSONA] represents the total value of the customs duties that would have been due if the imported garlic had been declared as fresh garlic and not as frozen garlic. 38 On the other hand, the [OSCURATO:PERSONA] contests the existence of a customs debt, which, in its opinion, constitutes a prerequisite for the [OSCURATO:PERSONA] entitlement to own resources; in the alternative, the [OSCURATO:PERSONA] contests the imputability to the UK customs authorities of the error committed in issuing the disputed BTIs, in the light of [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000. 39 In those circumstances, it is necessary to determine whether the [OSCURATO:PERSONA] was required to establish the existence of the [OSCURATO:PERSONA] entitlement to the own resources and, if that is indeed the case, to examine whether the [OSCURATO:PERSONA], in accordance with the conditions laid down in [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000, was released from the obligation to make those resources available to the [OSCURATO:PERSONA]. 40 First, as regards the obligation to establish the existence of the [OSCURATO:PERSONA] entitlement to the own resources, it is clear from [OSCURATO:PERSONA] 2(1)(b) of [OSCURATO:PERSONA] 2000/597, read in conjunction with [OSCURATO:PERSONA] 8(1) thereof, that the revenue from [OSCURATO:PERSONA] duties are own resources of the [OSCURATO:PERSONA] which are collected by the [OSCURATO:PERSONA], and that the latter are obliged to make those resources available to the [OSCURATO:PERSONA]. 41 [OSCURATO:PERSONA] 2(1) of [OSCURATO:PERSONA] 1150/2000 provides that [OSCURATO:PERSONA] must establish the [OSCURATO:PERSONA] entitlement to own resources ‘as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor’. 42 [OSCURATO:PERSONA] contends, however, that [OSCURATO:PERSONA] 217(1)(b) of the [OSCURATO:PERSONA] precluded it from entering in the accounts the amounts that the [OSCURATO:PERSONA] considers to be due, since the amount corresponding to the import duties applicable to fresh garlic originating in China is higher than the amount determined on the basis of the disputed BTIs issued in relation to the import of frozen garlic. 43 That line of argument cannot be accepted. [OSCURATO:PERSONA] has held that the obligation of [OSCURATO:PERSONA] to establish the [OSCURATO:PERSONA] entitlement to own resources arises as soon as the conditions provided for by the customs regulations have been met and that, accordingly, it is not necessary for the entry in the accounts to have actually been made (see [OSCURATO:PERSONA] C‑392/02 [OSCURATO:PERSONA] v Denmark [2005] ECR I‑9811, paragraph 58). 44 As regards the exemption under [OSCURATO:PERSONA] 217(1)(b) of the [OSCURATO:PERSONA], it must be noted that the purpose of that exemption is to protect the debtor’s legitimate expectation which is based on the valid BTI held by that debtor. Accordingly, that provision covers situations in which the [OSCURATO:PERSONA]’ customs authorities cannot make a subsequent entry in the accounts of the duties in question, but it does not release [OSCURATO:PERSONA] from their obligation to establish the [OSCURATO:PERSONA] entitlement to own resources (see, by analogy, [OSCURATO:PERSONA] C‑392/02 [OSCURATO:PERSONA] v Denmark , paragraph 62). 45 Indeed, according to well established case-law of the [OSCURATO:PERSONA], if an error committed by the customs authorities of a [OSCURATO:PERSONA] results in the debtor not having to pay the duties in question, it does not affect that [OSCURATO:PERSONA] obligation to pay duties that should have been established in the context of making available own resources, together with default interest (see, to that effect, C‑392/02 [OSCURATO:PERSONA] v Denmark , paragraph 63; [OSCURATO:PERSONA] C‑275/07 [OSCURATO:PERSONA] v Italy [2009] ECR I‑2005, paragraph 100; and [OSCURATO:PERSONA] C‑334/08 [OSCURATO:PERSONA] v Italy [2010] ECR I‑6869, paragraph 50). 46 In the present case, the fact that the UK customs authorities applied an erroneous tariff to the imports of fresh garlic originating from China and established customs duties in an amount lower than that applicable to those goods has no effect on the obligation to establish the [OSCURATO:PERSONA] entitlement to own resources arising out of those imports. 47 Secondly, it is necessary to examine the [OSCURATO:PERSONA] alternative argument that its liability for the loss of own resources is precluded on the basis of [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000, since the administrative errors are not attributable to it. 48 [OSCURATO:PERSONA] the terms of [OSCURATO:PERSONA] 17(1) of [OSCURATO:PERSONA] 1150/2000, [OSCURATO:PERSONA] are obliged to take all necessary measures to ensure that the amounts corresponding to the entitlements established pursuant to [OSCURATO:PERSONA] 2 of that regulation are made available to the [OSCURATO:PERSONA] in accordance with the conditions laid down in that regulation. [OSCURATO:PERSONA] 17(2) of the regulation provides that [OSCURATO:PERSONA] are to be exempted from that obligation if recovery did not take place for reasons of force majeure or for other reasons not attributable to them. 49 It is clear from the case-law of the [OSCURATO:PERSONA] that there is no need to distinguish between a situation in which a [OSCURATO:PERSONA] has established the duties on the own resources without paying them and one in which it has wrongfully omitted to establish them (see, inter alia, [OSCURATO:PERSONA] C‑96/89 [OSCURATO:PERSONA] v Netherlands [1991] ECR I‑2461, paragraph 38, and [OSCURATO:PERSONA] C‑392/02 [OSCURATO:PERSONA] v Denmark , paragraph 67). 50 In particular, the [OSCURATO:PERSONA] has held that a [OSCURATO:PERSONA] which fails to establish the [OSCURATO:PERSONA] own resources and to make the corresponding amount available to the [OSCURATO:PERSONA], without one of the conditions laid down in [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000 being met, falls short of its obligations under EU law and, in particular, under Articles 2 and 8 of [OSCURATO:PERSONA] 2000/597 (see, to that effect, [OSCURATO:PERSONA] C‑392/02 [OSCURATO:PERSONA] v Denmark , paragraph 68, and [OSCURATO:PERSONA] C‑19/05 [OSCURATO:PERSONA] v Denmark [2007] ECR I‑8597, paragraph 32). 51 In paragraph 61 of the judgment in [OSCURATO:PERSONA] C‑334/08 [OSCURATO:PERSONA] v Italy , the [OSCURATO:PERSONA] stated that [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000, in the version applicable to the present case, establishes a procedure enabling a [OSCURATO:PERSONA] administrative authorities either to declare certain amounts of established entitlements irrecoverable or to consider the amounts of established entitlements to be deemed irrecoverable at the latest after a period of five years from the date on which the amount has been established. 52 In that context, the [OSCURATO:PERSONA] stated inter alia in paragraph 65 of that judgment that, in order for a [OSCURATO:PERSONA] to be released from its obligation to make available to the [OSCURATO:PERSONA] the amounts corresponding to the established entitlements, not only must the conditions laid down in [OSCURATO:PERSONA] 17(2) of [OSCURATO:PERSONA] 1150/2000 be met; the condition that those entitlements must have been properly entered in the account provided for in [OSCURATO:PERSONA] 6(3)(b) of that regulation — that is to say, in the B account — must also have been satisfied. 53 It follows that, in order to rely on the exemption provided for in [OSCURATO:PERSONA] 17(2)(b) of that regulation, the [OSCURATO:PERSONA] must also have entered the entitlements in question in the B account. As it is, both in its defence and in its rejoinder, the [OSCURATO:PERSONA] states that it decided not to seek post-clearance recovery from the holders of the disputed BTIs. 54 In those circumstances, the [OSCURATO:PERSONA] cannot rely on an exemption under [OSCURATO:PERSONA] 17(2)(b) of [OSCURATO:PERSONA] 1150/2000. 55 In any event, the reason why it is impossible to effect a recovery is attributable to the UK customs authorities. 56 Indeed, it is because those authorities issued the disputed BTIs that the amounts corresponding to the entitlements in question in the present case prove irrecoverable. 57 It follows from the above considerations that, under [OSCURATO:PERSONA] 2(1) of [OSCURATO:PERSONA] 1150/2000, the [OSCURATO:PERSONA] was required to establish the existence of the [OSCURATO:PERSONA] own resources and, pursuant to Articles 6, 9 and 10 of that regulation, to make them available to the [OSCURATO:PERSONA]. By failing to do so, the [OSCURATO:PERSONA] also made itself liable for late payment interest, in accordance with [OSCURATO:PERSONA] 11 of that regulation. 58 In that regard, it must be recalled that, according to settled case-law, there is an inseparable link between the obligation to establish the [OSCURATO:PERSONA] own resources, the obligation to credit them to the [OSCURATO:PERSONA]’s account within the prescribed time-limits and the obligation to pay default interest, that interest being payable regardless of the reason for the delay in making the entry in the [OSCURATO:PERSONA]’s account (see, in particular, [OSCURATO:PERSONA] C‑423/08 [OSCURATO:PERSONA] v Italy [2010] ECR I‑5449, paragraph 49 and the case-law cited, and [OSCURATO:PERSONA] C‑442/08 [OSCURATO:PERSONA] v Germany [2010] ECR I‑6457, paragraph 93). 59 [OSCURATO:PERSONA] 11 of [OSCURATO:PERSONA] 1150/2000, any delay in making the entry in the account referred to in [OSCURATO:PERSONA] 9(1) of that regulation gives rise to the payment of default interest by the [OSCURATO:PERSONA] concerned at the interest rate applicable to the entire period of delay (see [OSCURATO:PERSONA] C‑460/01 [OSCURATO:PERSONA] v Netherlands [2005] ECR I‑2613, paragraph 91, and [OSCURATO:PERSONA] C‑275/07 [OSCURATO:PERSONA] v Italy , paragraph 66). 60 Therefore, the [OSCURATO:PERSONA] failed to fulfil its obligations under [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2000/597 and Articles 2, 6, 9, 10 and 11 of [OSCURATO:PERSONA] 1150/2000. 61 Lastly, as regards the infringement of [OSCURATO:PERSONA] 4(3) TEU, also relied on by the [OSCURATO:PERSONA], there are no grounds for holding that the [OSCURATO:PERSONA] has failed to fulfil the general obligations under that provision, which is separate from the established failure to fulfil the more specific obligations incumbent upon that [OSCURATO:PERSONA] under the provisions referred to in the preceding paragraph (see, by analogy, [OSCURATO:PERSONA] C‑392/02 [OSCURATO:PERSONA] v Denmark , paragraph 69; [OSCURATO:PERSONA] C‑19/05 [OSCURATO:PERSONA] v Denmark , paragraph 36; and [OSCURATO:PERSONA] C‑334/08 [OSCURATO:PERSONA] v Italy , paragraph 75). 62 In the light of all the foregoing considerations, it must be held that, by refusing to make available the amount of GBP 20 061 462.11 corresponding to the duties payable on imports of fresh garlic covered by erroneous binding tariff information, the [OSCURATO:PERSONA] failed to fulfil its obligations under [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2000/597 and Articles 2, 6, 9, 10 and 11 of [OSCURATO:PERSONA] 1150/2000. Costs 63 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] has applied for costs and the [OSCURATO:PERSONA] has been unsuccessful, the latter must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Declares that, by refusing to make available the amount of GBP 20 061 462.11 corresponding to the duties payable on imports of fresh garlic covered by erroneous binding tariff information, the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] failed to fulfil its obligations under [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 2000/597/EC, Euratom of 29 September 2000 on the system of the Communities’ own resources and Articles 2, 6, 9, 10 and 11 of [OSCURATO:PERSONA] (EC, Euratom) No 1150/2000 of 22 May 2000 implementing [OSCURATO:PERSONA] 2000/597, as amended by [OSCURATO:PERSONA] (EC, Euratom) No 2028/2004 of 16 November 2004; 2. Orders the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and [OSCURATO:PERSONA] to pay the costs. [Signatures] * Language of the case: English.