CELEX: 62017CJ0395
Failure of a Member State to fulfil obligations
Own resources
Association of the Overseas Countries and Territories (OCT) with the European Union
Decision 91/482/EEC
Decision 2001/822/EC
Acceptance for import into the European Union free of customs duties of products originating in the OCTs
Movement certificate EUR. 1
Wrongful issue of certificates by the authorities of an OCT
Customs duties not collected by the importing Member States
Article 4(3) TEU
Principle of sincere cooperation
Liability of the Member State having special relations with the OCTs concerned
Obligation to compensate the loss of the European Union’s own resources caused by the wrongful issue of EUR.1 certificates
Imports of milk powder and rice from Curaçao and of groats and meal from Aruba

By its application, the European Commission asks the Court to declare that, by failing to compensate the loss of own resources which should have been established and made available to the EU budget in accordance with Articles 2, 6, 10, 11 and 17 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 (
OJ 1989 L 155, p. 1
) (now Articles 2, 6, 10, 11 and 17 of 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
)), had movement certificates EUR. 1 not been issued in breach, first, of Article 101(1) of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (
OJ 1991 L 263, p. 1
, ‘the 1991 OCT Decision’) and Article 12(6) of Annex II to that decision with regard to the import of milk powder and rice from Curaçao in the period 1997/2000 and, second, of Article 35(1) of Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (‘Overseas Association Decision’) (
OJ 2001 L 314, p. 1
, ‘the 2001 OCT Decision’) and Article 15(4) of Annex III to that decision with regard to the import of groats and meal from Aruba in the period 2002/2003, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 5 of the EC Treaty (subsequently Article 10 EC, now Article 4(3) TEU).
Legal context
International law
The Charter of the United Nations was signed in San Francisco on 26 June 1945. Article 73 of that Charter, in Chapter XI, headed ‘Declaration regarding non-self-governing territories’, provides:
‘Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognise the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end:
…
b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement;
…’
European Union law
The EC Treaty
The facts of the alleged failure to fulfil obligations both predate and postdate the entry into force of the Treaty of Amsterdam which amended the EC Treaty. However, the provisions relevant to the present action for failure to fulfil obligations have remained essentially the same. Article 5 of the EC Treaty (subsequently Article 10 EC) was worded as follows:
‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.’
That provision was, in essence, replaced by Article 4(3) TEU.
Part Four of the EC Treaty, headed ‘Association of the overseas countries and territories’, grouped together Articles 131 to 137 (subsequently, after amendment, Articles 182 EC to 188 EC, now Articles 198 to 204 TFEU). According to Article 131 (subsequently, after amendment, Article 182 EC, now Article 198 TFEU):
‘The Member States agree to associate with the Community the non-European countries and territories which have special relations with Belgium, Denmark, France, Italy, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the “countries and territories”) are listed in Annex IV to this Treaty.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Community as a whole.
In accordance with the principles set out in the Preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.’
Article 133(1) of the EC Treaty (subsequently, after amendment, Article 184(1) EC, now Article 200(1) TFEU) provided:
‘Customs duties on imports into the Member States of goods originating in the countries and territories shall be completely abolished in conformity with the progressive abolition of customs duties between Member States in accordance with the provisions of this Treaty.’
According to Article 136 of the EC Treaty (subsequently, after amendment, Article 187 EC, now Article 203 TFEU):
‘For an initial period of 5 years after the entry into force of this Treaty, the details of and procedure for the association of the countries and territories with the Community shall be determined by an Implementing Convention annexed to this Treaty.
Before the Convention referred to in the preceding paragraph expires, the Council shall, acting unanimously, lay down provisions for a further period, on the basis of the experience acquired and of the principles set out in this Treaty.’
Article 227(1) and (3) of the EC Treaty (subsequently, after amendment, Article 299(1) and (3) EC, now Article 52(1) TEU and Article 355(2) TFEU) provided:
‘1.   This Treaty shall apply to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
…
3.   The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.’
The list in Annex IV to the EC Treaty (subsequently, after amendment, Annex II to the EC Treaty, now Annex II to the FEU Treaty), headed ‘Overseas countries and territories to which the provisions of Part IV of the Treaty apply’, referred, inter alia, to Aruba and the Netherlands Antilles, which included Curaçao.
Regulations No 1552/89 and No 1150/2000
Articles 2, 6, 10, 11 and 17 of Regulation No 1552/89 (now Articles 2, 6, 10, 11 and 17 of Regulation No 1150/2000) successively governed, at the material time, the conditions under which the Member States were required to establish and to make available to the EU budget the European Union’s own resources, which included customs duties.
The 1991 and 2001 OCT Decisions
The first recital of the 1991 OCT Decision stated:
‘Whereas the provisions applicable to the association of the overseas countries and territories (hereinafter referred to as “the OCT”) with the European Economic Community must be laid down for a further period; whereas these provisions apply to the territories for which the French Republic has responsibility, the countries and territories for which the United Kingdom has responsibility, the countries for which the Kingdom of the Netherlands has responsibility and, in part, to Greenland.’
In accordance with Article 1 of that decision, the aim of the decision was to promote and accelerate the economic, cultural and social development and to strengthen the economic structures of the OCT listed in Annex I to the decision. Point 4 of that annex referred to the Netherlands Antilles, which included Curaçao, and Aruba, as OCTs of the Kingdom of the Netherlands.
The first paragraph of Article 6 of the 1991 OCT Decision provided:
‘Within the scope of their respective responsibilities, the authorities participating in the partnership framework referred to in Article 10 shall examine periodically the results of the implementation thereof and provide any necessary impetus and opinions for the attainment of the objectives of this Decision.’
According to Article 10 of that decision:
‘With the aim of enabling the competent local authorities of the OCT to take greater part, in the framework of the respective constitutions of the Member States having responsibility for them, in giving effect to the principles of the EEC-OCT association, while respecting the powers of the respective central authorities of the Member States concerned, a consultation procedure based on the principle of partnership between the Commission, the Member State and the OCT is hereby set up.
This partnership, the detailed provisions for which are set out in Articles 234 to 236 of this Decision, shall provide the opportunity for examining what has been achieved in the association and discussing any problems arising in relations between the OCT and the Community.’
Article 101(1) of the 1991 OCT Decision was worded as follows:
‘Products originating in the OCT shall be imported into the Community free of customs duties and charges having equivalent effect.’
In accordance with the first indent of Article 108(1) of the 1991 OCT Decision, the concept of originating products and the methods of administrative cooperation relating thereto were laid down in Annex II to that decision.
According to Article 234 of that decision:
‘Community action shall be based as far as possible on close consultation between the Commission, the Member State responsible for a country or territory and the relevant local authorities of such countries or territories.
This consultation shall hereinafter be referred to as “partnership”.’
Article 235(1) and (2) of the 1991 OCT Decision provided:
‘1.   Partnership shall cover the programming, preparation, financing, monitoring and evaluation of operations carried out by the Community under this Decision, and any problem arising in relations between the OCT and the Community.
2.   To this end, working parties in association with the OCT, of an advisory nature and made up of the three partners referred to in Article 234, may be set up either on the basis of geographical area or by group of OCT under the responsibility of a single Member State, notably at the request of the OCT concerned. These working parties shall be set up:
–
on an ad hoc basis to deal with specific problems, or
–
on a permanent basis for the period remaining of the life of this Decision; in this case they shall meet at least once a year to examine progress in implementing this Decision or deal with other matters arising under paragraph 1.’
According to Article 237 of the 1991 OCT Decision:
‘Subject to the special provisions regarding relations between the OCT and the French overseas departments provided for herein, this Decision shall apply, on the one hand, to the territories in which the Treaty establishing the European Economic Community is applied and under the conditions laid down in that Treaty and, on the other, to the territories of the OCT.’
Article 1 of Annex II to the 1991 OCT Decision, concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation, provided:
‘For the purpose of implementing the trade cooperation provisions of the Decision, a product shall be considered to be originating in the OCT, the Community or the ACP States if it has been either wholly obtained or sufficiently worked or processed there.’
Article 12(1) and (6) of that annex provided:
‘1.   Evidence of originating status of products, within the meaning of this Annex, shall be given by a movement certificate EUR. 1, a specimen of which appears in Annex 4 to this Annex.
…
6.   The movement certificate EUR. 1 shall be issued by the customs authorities of the exporting country or territory, if the goods can be considered “originating products” within the meaning of this Annex.’
Article 26 of that annex, headed ‘Verification of movement certificates EUR. 1 and of forms EUR. 2’, stated:
‘1.   Subsequent verification of movement certificates EUR. 1 and of forms EUR. 2 shall be carried out at random or whenever the customs authorities of the importing State have reasonable doubts as to the authenticity of the document or the accuracy of the information regarding the true origin of the products in question.
…
6.   Where the verification procedure or any other available information appears to indicate that the provisions of this Annex are being contravened, the country or territory on its own initiative or at the request of the Community shall carry out appropriate enquiries or arrange for such enquiries to be carried out with due urgency to identify and prevent such contraventions. The Commission may participate in the enquiries.
…
7.   Disputes which cannot be settled between the customs authorities of the importing State and those of the exporting country or territory, or those which raise a question as to the interpretation of this Annex, shall be submitted to the Committee on Origin set up by [Council Regulation (EEC) No 802/68 of 27 June 1968 on the common definition of the concept of the origin of goods (OJ, English Special Edition 1968(I) p. 165)].’
In accordance with Article 12(1) of that regulation, the Committee on Origin consists of representatives of the Member States, with a representative of the Commission acting as chairman.
The 1991 OCT Decision was applicable until 1 December 2001. On 2 December 2001, the 2001 OCT Decision entered into force. Article 4(1) of the latter decision provided:
‘Within the framework of the partnership laid down in Article 7, the OCT authorities shall assume primary responsibility for the formulation of association and development strategies and their implementation through the preparation, together with the Commission and the Member State to which the OCT is linked, of Single Programming Documents … and cooperation programmes.’
Article 7 of the 2001 OCT Decision provided:
‘1.   With the aim of enabling the OCT to take a full part in the implementation of the OCT-EC association, with due regard for the way that the institutions of the Member States concerned are organised, the association shall use a consultation procedure based on the provisions referred to below. It shall deal with any issue arising in relations between the OCTs and the Community.
…
3.   There shall be separate partnerships between the Commission, the Member State to which the OCT is linked and each OCT, represented by its authorities, to enable the objectives and principles of this Decision, in particular those referred to in Articles 4 and 19 to be put into practice. This trilateral consultation shall hereinafter be referred to as the “partnership”.
Partnership working parties, acting in an advisory capacity, shall be set up for each OCT. Their membership shall comprise the abovementioned three partners. These working parties may be convened at the request of the Commission, of a Member State or of an OCT. At the request of one of the partners, several partnership working parties may hold joint meetings to consider subjects of common interest or the regional aspects of the association.
4.   This consultation shall be conducted in full compliance with the respective institutional, legal and financial powers of each of the three partners.
…’
Article 35 of that decision stated:
‘1.   Products originating in the OCTs shall be imported into the Community free of import duty.
2.   The concept of originating products and the methods of administrative cooperation relating thereto are laid down in Annex III.’
Article 2 of Annex III to that decision, concerning the definition of the concept of ‘originating products’ and methods of administrative cooperation, determined, in paragraph 1, which products were to be considered as originating in the OCTs.
In accordance with Article 14(1)(a) of that annex, products originating in the OCTs were, on importation into the Community, to benefit from the 2001 OCT Decision upon submission of a movement certificate EUR. 1.
Article 15(1) and (4) of that annex provided:
‘1.   A movement certificate EUR. 1 shall be issued by the customs authorities of the exporting OCT on application having been made in writing by the exporter or, under the exporter’s responsibility, by his authorised representative.
…
4.   A movement certificate EUR. 1 shall be issued by the customs authorities of the exporting OCT if the products concerned can be considered as products originating in the OCT, in the Community or in the ACP and fulfil the other requirements of this Annex.’
Article 32 of Annex III to the 2001 OCT Decision, headed ‘Verification of proofs of origin’, was worded as follows:
‘1.   In order to ensure the proper application of this Annex, the OCT, the Community and the ACP States shall assist each other, through the competent customs administrations, in checking the authenticity of the movement certificates EUR. 1 or the invoice declarations and the correctness of the information given in these documents.
…
2.   Subsequent verifications of proofs of origin shall be carried out at random or whenever the customs authorities of the importing country have reasonable doubts as to the authenticity of such documents, the originating status of the products concerned or the fulfilment of the other requirements of this Annex.
…
8.   Where the verification procedure or any other available information appears to indicate that the provisions of this Annex are being contravened, the OCT on its own initiative or at the request of the Community shall carry out appropriate enquiries or arrange for such enquiries to be carried out with due urgency to identify and prevent such contraventions. The Commission may participate in the enquiries.’
Article 34 of that annex, headed ‘Dispute settlement’, stated, in the first paragraph:
‘Where disputes arise in relation to the verification procedures of Articles 32 and 33 which cannot be settled between the customs authorities requesting a verification and the customs authorities responsible for carrying out this verification or where they raise a question as to the interpretation of this Annex, they shall be submitted to the Customs Code Committee — Origin Section instituted by [Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (
OJ 1992 L 302, p. 1
)].’
In accordance with Article 247(1) of that regulation, the Customs Code Committee was composed of representatives of the Member States with a representative of the Commission as chairman.
The Customs Code
Article 220(2)(b) and Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (
OJ 1992 L 302, p. 1
), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (
OJ 2000 L 311, p. 17
) (‘the Customs Code’), specified the conditions under which the Member States could refrain from making a subsequent entry of customs duties in the accounts or repay or remit those duties.
Regulation (EC, Euratom) No 1605/2002
Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (
OJ 2002 L 248, p. 1
), as amended by Council Regulation (EC, Euratom) No 1995/2006 of 13 December 2006 (
OJ 2006 L 390, p. 1
) (‘the Financial Regulation’), provides, in Article 73a:
‘Without prejudice to the provisions of specific regulations and the application of the Council Decision relating to the Communities’ own resources system, entitlements of the Communities in respect of third parties and entitlements of third parties in respect of the Communities shall be subject to a limitation period of 5 years.
The date for calculating the limitation period and the conditions for interrupting this period shall be laid down in the implementing rules.’
Regulation (EC, Euratom) No 2342/2002
Article 85b of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Regulation No 1605/2002 (
OJ 2002 L 357, p. 1
), as amended by Commission Regulation (EC, Euratom) No 478/2007 of 23 April 2007 (
OJ 2007 L 111, p. 13
) (‘the Implementing Regulation’), headed ‘Rules for limitation periods’, states, in the first subparagraph of paragraph 1:
‘The limitation period for entitlements of the Communities in respect of third parties shall begin to run on the expiry of the deadline communicated to the debtor in the debit note …’
Netherlands law
In accordance with the Statuut voor het Koninkrijk der Nederlanden (Charter for the Kingdom of the Netherlands), in the version applicable during the period at issue, the Kingdom of the Netherlands was composed of three countries (
landen
), namely the Netherlands (
Nederland
), the Netherlands Antilles (
Nederlandse Antillen
) and Aruba. During that period, Curaçao was an integral part of the Netherlands Antilles.
Under Article 3(1)(b) of that Charter, foreign affairs were ‘matters for the Kingdom’.
According to Article 50(1) of the Charter:
‘Legislative and administrative measures in the Netherlands Antilles and in Aruba which conflict with this Charter, an international instrument, a national law or general administrative measure, or with interests the promotion or protection of which are a matter for the Kingdom, may be suspended and annulled by the King as head of the Kingdom by a reasoned decree. …’
Article 51 of that Charter was worded as follows:
‘If an authority in the Netherlands Antilles or Aruba does not or does not adequately perform its duties as required by the present Charter, an international instrument, a national law or general administrative measure, a general administrative measure indicating the legal grounds and the reasons on which it is based may determine how those duties are to be performed.’
Article 52 of the Charter for the Kingdom of the Netherlands provided:
‘With the assent of the King, a country ordinance may confer upon the King as head of the Kingdom and upon the Governor as an organ of the Kingdom powers with respect to the affairs of the country.’
Background to the dispute
In the period from 1997 to 2000, milk powder and rice from Curaçao were imported into Germany and, in 2002 and 2003, groats and meal were imported from Aruba into the Netherlands.
The authorities of Curaçao and of Aruba had issued movement certificates EUR. 1 (the ‘EUR. 1 certificates’) in respect of those goods, even though they did not meet the requirements for being considered products having a preferential origin, under Article 101(1) of the 1991 OCT Decision and Article 35(1) of the 2001 OCT Decision.
The issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba was investigated by the European Anti-Fraud Office (OLAF). OLAF published its mission reports concerning Curaçao and Aruba on 24 October 2000 and 23 December 2004, respectively.
Following those enquiries, the Commission informed the Netherlands and German authorities of the irregular nature of those EUR. 1 certificates and requested that they recover the customs duties relating to the corresponding imports. The Netherlands and German authorities established only part of those customs duties, the remainder being time-barred.
By letters dated 27 January and 31 May 2012, respectively, the Commission held the Kingdom of the Netherlands liable for the error made by the authorities of Curaçao and of Aruba. It requested the Netherlands to compensate, by no later than 20 March and 20 July 2012, respectively, the resulting loss of own resources.
The pre-litigation procedure
Since the Kingdom of the Netherlands had failed to comply with that request, the Commission sent a letter of formal notice to it on 21 November 2013. The Netherlands authorities replied to that letter on 20 February 2014, denying any liability for the actions of the OCTs.
On 17 October 2014, the Commission sent a reasoned opinion to the Kingdom of the Netherlands, in which it maintained the position set out in its letter of formal notice. The time limit for taking the necessary measures to comply with the reasoned opinion expired on 17 December 2014.
By letter of 19 November 2015, the Kingdom of the Netherlands replied to the reasoned opinion, maintaining its denial of any liability.
The Commission thus decided to bring the present action.
The action
Admissibility of the action
Arguments of the parties
The Kingdom of the Netherlands disputes the admissibility of the action on the ground that the application is ambiguous and does not present in a coherent and precise fashion the basis for its alleged failure to fulfil the obligations arising under Article 5 of the EC Treaty (subsequently Article 10 EC, now Article 4(3) TEU). In that regard, the Kingdom of the Netherlands notes that, in certain parts of the application, the Commission appears to argue that the Kingdom of the Netherlands is liable for the actions of the customs authorities of its OCTs as if they were its own authorities, whereas in others, the Commission accuses the Kingdom of the Netherlands of having failed to adopt appropriate measures to prevent the wrongful issue of EUR. 1 certificates by those authorities.
The Commission contends that its action is admissible.
Findings of the Court
It is apparent from settled case-law in relation to Article 120(c) of the Rules of Procedure of the Court of Justice that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule
ultra petita
or indeed fail to rule on one of the heads of claim (judgment of 11 July 2018, Commission v Belgium,
C‑356/15
,
EU:C:2018:555
, paragraph
and the case-law cited).
The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 11 July 2018, Commission v Belgium,
C‑356/15
,
EU:C:2018:555
, paragraph
and the case-law cited).
In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (judgment of 11 July 2018, Commission v Belgium,
C‑356/15
,
EU:C:2018:555
, paragraph
and the case-law cited).
In the present case, it must be noted that the Commission indicates precisely the provision of EU law allegedly infringed by the Kingdom of the Netherlands, namely Article 5 of the EC Treaty (subsequently Article 10 EC, now Article 4(3) TEU), and the facts alleged, namely the lack of compensation for the amount, together with interest, corresponding to the loss of traditional own resources resulting from the issue, by the authorities of Curaçao and of Aruba, of EUR. 1 certificates in breach of the 1991 and 2001 OCT Decisions.
In addition, although the Commission’s application refers to a possible failure by the Netherlands to adopt appropriate measures to avoid the wrongful issue of certificates, it is clear from that application that the Commission’s action concerns not that possible failure, but only the lack of compensation, from the Kingdom of the Netherlands, for the loss of traditional own resources resulting from the wrongful issue of the EUR. 1 certificates concerned.
Furthermore, as the Advocate General noted, in essence, in point 43 of his Opinion, the fact that the application does not specify whether, according to the Commission, that wrongful issue is the result of actions by the authorities of Curaçao and Aruba attributable to the Kingdom of the Netherlands or the consequence of the Kingdom of the Netherlands’ failure to adopt appropriate measures to prevent certificates from being wrongfully issued did not preclude the latter from exercising its rights of defence effectively with regard to the breach of obligations alleged.
Accordingly, the plea of inadmissibility raised by the Kingdom of the Netherlands must be rejected.
Substance
Arguments of the parties
The Commission maintains that the Kingdom of the Netherlands is bound, pursuant to the principle of sincere cooperation enshrined in Article 5 of the EC Treaty (subsequently Article 10 EC, now Article 4(3) TEU), to compensate the loss of traditional own resources resulting from the fact that the authorities of Curaçao and of Aruba issued EUR. 1 certificates in breach of the provisions of the 1991 and 2001 OCT Decisions and, in so doing, prevented the importing Member States from recovering certain customs duties relating to the imports in question.
In that regard, the Commission takes the view, in the first place, that the Kingdom of the Netherlands must, as a Member State, assume liability for acts adopted by and negligence on the part of the authorities of Curaçao and of Aruba in breach of the 1991 and 2001 OCT Decisions, in view of its special relationship with those OCTs, which, according to the Commission, were not independent States and were both an integral part of that Kingdom.
The Commission adds that the Kingdom of the Netherlands cannot invoke the self-governance of Curaçao and Aruba, in accordance with the Charter for the Kingdom of the Netherlands, to justify the failure to comply with its obligations under the principle of sincere cooperation. Moreover, the self-governance of those OCTs is not absolute, in so far as, under Articles 50 and 52 of that Charter, the authorities of the Kingdom of the Netherlands have powers to ensure that the authorities of Curaçao and of Aruba comply with the provisions of the 1991 and 2001 OCT Decisions.
In the second place, the Commission recalls that the principle of sincere cooperation requires Member States to take all appropriate measures to guarantee the application and effectiveness of EU law. In the present case, the wrongful issue of EUR. 1 certificates by the authorities of Curaçao and Aruba prevented the recovery of customs duties and the transfer of those duties to the EU budget as own resources. By failing to compensate that loss of own resources, the Kingdom of the Netherlands hindered the proper functioning of the European Union’s system of own resources, since that loss would have to be compensated by all Member States via an increase in the own resource based on gross national income. Therefore, protection of the EU budget requires that the Kingdom of the Netherlands may be held liable for the infringement, by the authorities of Curaçao and of Aruba, of the 1991 and 2001 OCT Decisions and be obliged to compensate the resulting loss of resources.
The Commission maintains, in the third place, that the Kingdom of the Netherlands is obliged to pay default interest on the amount equivalent to that loss of own resources. According to the Commission, the obligation to pay default interest is not based on EU legislation on own resources but flows directly from the obligation of sincere cooperation, in view of the inseparable link between the obligation to establish the European Union’s own resources, the obligation to credit them to the Commission’s account within the prescribed time limits and, last, the obligation to pay default interest.
The Kingdom of the Netherlands, supported by the United Kingdom of Great Britain and Northern Ireland, contests the allegation that it has failed to fulfil its obligations. In the first place, while acknowledging that it is directly liable for the actions of the countries of which it is composed, the Kingdom of the Netherlands submits that that liability extends only to an infringement of its obligations as Member State of the European Union.
According to the case-law of the Court resulting from Opinion 1/78 (International Agreement on Natural Rubber) of 4 October 1979 (
EU:C:1979:224
, paragraph
), it is important to determine the capacity in which the Kingdom of the Netherlands may be held liable, namely as Member State of the European Union or as representative of its OCTs in international relations. In accordance with Article 227(3) of the EC Treaty (subsequently Article 299(3) EC, now Article 355(2) TFEU), the territorial scope of that treaty is limited to the European part of the Kingdom, namely the Netherlands, whereas the OCTs are exclusively governed by the special arrangements set out in Part Four of that treaty. Thus, in the absence of an express reference, the general provisions of that treaty do not apply to the OCTs. In particular, the OCTs should be treated as third countries so far as concerns the importation of goods into the European Union. Consequently, the OCTs cannot be considered an integral part of the Member State with which they are associated.
In that context, the Kingdom of the Netherlands emphasises that since the Kingdom alone has the status of subject of public international law and the competence to conclude treaties, it ratified the EC Treaty only in respect of the Netherlands, so that only the Netherlands are bound by the rights and obligations resulting from its accession to the European Union.
The Kingdom of the Netherlands contends that, in view of the self-governance of the Netherlands Antilles and Aruba, the suggestion that the Netherlands are liable for the actions of the authorities of those OCTs is contrary to Article 4(2) TEU and to Article 73 of the Charter of the United Nations. According to the provisions of the Charter for the Kingdom of the Netherlands, the Netherlands Antilles and Aruba could not be considered part of the Netherlands during the period at issue, since, if those two territories had, like the Netherlands, the status of countries (
landen
) of the Kingdom of the Netherlands, they would each have their own Staatsregeling (Basic Law) and would enjoy considerable autonomy at the level of the Kingdom. Moreover, Articles 50 to 52 of the Charter for the Kingdom of the Netherlands did not confer on the Netherlands any power with respect to the authorities of Curaçao and Aruba, and provided only for the possibility of adopting decisions in respect of those territories within the Kingdom’s Council of Ministers.
In the second place, the Kingdom of the Netherlands submits that the obligation to compensate and to pay default interest invoked by the Commission has no basis either in EU legislation on own resources or in the 1991 and 2001 OCT Decisions. Accordingly, to accept such an obligation would run counter to the principle of legal certainty. Nor, according to the Kingdom of the Netherlands, can the Commission rely in that respect on Article 5 of the EC Treaty (subsequently Article 10 EC, now Article 4(3) TEU), without establishing that the Netherlands have infringed their own obligations under EU law. Yet the Commission has not adduced proof in that respect and merely asserts that the Netherlands did not react ‘appropriately’ to the infringement committed by the OCTs concerned.
The Kingdom of the Netherlands further notes that, according to the 1991 and 2001 OCT Decisions, the issuing of EUR. 1 certificates was a matter for the authorities of the OCTs alone, while the authorities of the Member States had no opportunity to intervene, nor were they under any responsibility in that regard. In particular, those 1991 and 2001 OCT Decisions envisaged a system of administrative cooperation between, on the one hand, the authorities of those OCTs and, on the other, the Commission and the authorities of the Member States, enabling compliance with those decisions to be verified and the authorities of the OCTs to be approached directly to that end. In addition, problems arising between the OCTs and the European Union had to be settled in the context of the partnership.
Furthermore, putting in issue the liability of the Netherlands as Member State is contrary to the principle of legal certainty and to the principle of good administration. In that regard, the Kingdom of the Netherlands maintains that, contrary to the case-law resulting from the judgment of 13 November 2014, Nencini v Parliament (
C‑447/13 P
,
EU:C:2014:2372
, paragraph
), the Commission did not act within a reasonable time, in so far as it requested the transfer of the customs duties in question more than 7 years and more than 11 years, respectively, after OLAF had established the irregularities concerned.
Findings of the Court
As a preliminary point it must be noted that although, at the time of the conduct of the authorities of Curaçao and of Aruba that gave rise to the present action for failure to fulfil obligations, the principle of sincere cooperation was laid down in Article 5 of the EC Treaty and subsequently in Article 10 EC, those provisions had been replaced by Article 4(3) TEU when the Commission requested the Kingdom of the Netherlands to compensate the loss of own resources which, in its view, resulted from that conduct. It follows that the present action must be examined in the light of the principle of sincere cooperation as laid down in Article 4(3) TEU.
In accordance with the second subparagraph of Article 4(3) TEU, the Kingdom of the Netherlands is required, as a Member State of the European Union, to take all appropriate measures, general or particular, to ensure fulfilment of its obligations arising out of the Treaties or resulting from the acts of the institutions of the European Union.
While, to that end, all the authorities of that Member State must ensure the observance of the rules of EU law within the sphere of their competence, that Member State alone is, under Article 258 TFEU, responsible vis-à-vis the European Union for compliance with obligations arising under EU law (see, to that effect, judgments of 4 October 2012, Byankov,
C‑249/11
,
EU:C:2012:608
, paragraph
and the case-law cited, and of 13 May 2014, Commission v Spain,
C‑184/11
,
EU:C:2014:316
, paragraph
and the case-law cited).
As the Commission made clear in its reply, the present action for failure to fulfil obligations is based not on errors committed by the authorities of the Netherlands but on the liability of that Member State for a loss of own resources following the infringement, which is not disputed, of the provisions of the 1991 and 2001 OCT Decisions governing the issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba.
As is apparent from Article 227(3) of the EC Treaty, read in conjunction with Annex IV thereto (subsequently Article 299(3) EC and Annex II to the EC Treaty, now Article 355(2) TFEU and Annex II to the FEU Treaty), Curaçao and Aruba were among the OCTs listed in that annex and were, therefore, subject to the special arrangements for association set out in Part Four of the EC Treaty, which grouped together Articles 131 to 137 of that treaty (subsequently Articles 182 EC to 188 EC, now Articles 198 to 204 TFEU), the details and procedures of which were established by the 1991 and 2001 OCT Decisions on the basis of Article 136 of that treaty (subsequently Article 187 EC, now Article 203 TFEU).
In that context, it must be pointed out that, while the Court has ruled that the general provisions of the EC Treaty, namely those which are not referred to in Part Four of that treaty, are not applicable to OCTs in the absence of an express reference (judgment of 5 June 2014, X and TBG,
C‑24/12 and C‑27/12
,
EU:C:2014:1385
, paragraph
and the case-law cited), the infringement alleged against the Kingdom of the Netherlands is not covered by the situation envisaged by that case-law. The Commission does not argue that the principle of sincere cooperation applies to Curaçao and Aruba, but maintains that the Kingdom of the Netherlands is bound, by virtue of that principle, to answer for the consequences of the wrongful issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba. As recalled in paragraph 72 of the present judgment, that principle is binding on the Kingdom of the Netherlands as Member State of the European Union.
In the light of those considerations, the Court must consider, first, whether the Kingdom of the Netherlands is, by virtue of its obligations as Member State under Article 4(3) TEU, liable, vis-à-vis the European Union, for any issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba in breach of the 1991 and 2001 OCT Decisions; second, whether it is required, pursuant to that provision, to compensate the amount, together with any default interest, of any resulting loss of own resources of the European Union; and, third, if so, whether the infringement alleged against the Kingdom of the Netherlands is well founded.
–
Liability of the Kingdom of the Netherlands as a result of any wrongful issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba
The Commission maintains that it is by virtue of the special relations linking Curaçao and Aruba to the Kingdom of the Netherlands that that Member State is accountable to the European Union for the acts and omissions of the authorities of Curaçao and Aruba when they issued EUR. 1 certificates in breach of the 1991 and 2001 OCT Decisions.
The Kingdom of the Netherlands is among those Member States which, according to the first paragraph of Article 131 of the EC Treaty (subsequently the first paragraph of Article 182 EC, now the first paragraph of Article 198 TFEU), have ‘special relations’ with OCTs. Under that provision, those countries and territories were subject to the special arrangements for association set out in Part Four of the EC Treaty on the basis, at the time when the certificates were issued, of those special relations.
Those special relations are characterised by the fact that the OCTs are not independent States but countries and territories that depend on such a State, which is responsible, in particular, for representing them internationally (see, to that effect, Opinions 1/78 (International Agreement on Natural Rubber) of 4 October 1979,
EU:C:1979:224
, paragraph
, and 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994,
EU:C:1994:384
, paragraph
).
Under Article 131 of the EC Treaty (subsequently Article 182 EC, now Article 198 TFEU), application of the special arrangements for association set out in Part Four of that treaty, intended to promote the economic, social and cultural development of the OCTs, benefits only countries and territories having special relations with the Member State concerned, where that Member State requested that the special arrangements for association be made applicable to them. In the particular case of Curaçao and Aruba, which were part of the Netherlands Antilles when the EEC Treaty entered into force, the Member States concluded Agreement 64/533/EEC of 13 November 1962 amending the Treaty establishing the European Economic Community to make the special arrangements for association set out in Part Four of the Treaty applicable to the Netherlands Antilles (JO 1964, P 150, p. 2414).
Thus, the terms used notably in the first recital and in Article 234 and Article 235(2) of the 1991 OCT Decision and, in particular, in Articles 4 and 7 of the 2001 OCT Decision, to designate the Member State ‘responsible for’ the OCTs or the Member State ‘to which [the OCTs] are linked’ are an expression of the special relations that exist between them, according to the first paragraph of Article 131 of the EC Treaty (subsequently the first paragraph of Article 182 EC, now the first paragraph of Article 198 TFEU). That interpretation is supported by Article 1 of the 1991 OCT Decision, read in conjunction with point 4 of Annex I thereto, from which it is apparent that Curaçao and Aruba were OCTs ‘of’ the Kingdom of the Netherlands.
In addition, in the context of those special arrangements for association, goods originating in Curaçao and Aruba had privileged access to the internal market free of customs duties and charges having equivalent effect, in accordance with Article 133(1) of the EC Treaty (subsequently Article 184(1) EC, now Article 200(1) TFEU), read in conjunction with Article 101(1) and the first indent of Article 108(1) of, and Annex II to, the 1991 OCT Decision (Article 35 and Annex III to the 2001 OCT Decision).
The issuing of EUR. 1 certificates was governed by EU law. According to Article 12(6) of Annex II to the 1991 OCT Decision (Article 15(4) of Annex III to the 2001 OCT Decision), which applied to the territories of the OCTs by virtue of Article 237 thereof, those certificates, establishing origin, were required to be issued by the authorities of the OCTs. Accordingly, when issuing such certificates, those authorities were obliged to comply with the requirements contained in Annex II to the 1991 OCT Decision (Annex III to the 2001 OCT Decision).
In addition, the procedures laid down by the 1991 and 2001 OCT Decisions to settle disputes or problems that might arise in that context reflected the centrality, in terms of the arrangements for association set out in Part Four of the EC Treaty, of the special relations within the meaning of the first paragraph of Article 131 of the EC Treaty (subsequently the first paragraph of Article 182 EC, now the first paragraph of Article 198 TFEU) between the OCT concerned and the Member State responsible for it.
In that regard, account must be taken, in particular, of Article 26(7) of Annex II to the 1991 OCT Decision and Article 34 of Annex III to the 2001 OCT decision, according to which disputes about the legality of EUR. 1 certificates which could not be settled between the customs authorities of the importing State and those of the exporting OCT had to be settled at the level of the Committee on Origin, now the Customs Code Committee, in the context of a procedure in which, inter alia, a representative of the Member State responsible for the exporting OCT would participate, but not the relevant local authorities of that OCT.
Furthermore, as regards the possible resolution of problems that might arise in connection with the wrongful issue of EUR. 1 certificates in the context of the partnership referred to in Articles 234 and 235 of the 1991 OCT Decision (now Article 7 of the 2001 OCT Decision), it must be noted that that partnership could not be based on a bilateral dialogue between the OCT concerned and the Commission, but called for a trilateral consultation in which not only the Commission but also the Member State responsible for the OCT and the relevant local authorities of the OCT had to take part. According to the first paragraph of Article 10 of the 1991 OCT Decision, the participation in that trilateral consultation of the Member State responsible for the OCT was required in order to ensure that the ‘powers of the respective central authorities of the Member States concerned’ were respected. Similarly, Article 7(1) of the 2001 OCT Decision emphasised the need to have due regard for ‘the way that the institutions of the Member States concerned are organised’.
In those circumstances, the existence of special relations, within the meaning of the first paragraph of Article 131 of the EC Treaty (subsequently the first paragraph of Article 182 EC, now the first paragraph of Article 198 TFEU), between the Kingdom of the Netherlands and its OCTs creates a specific liability on the part of that Member State vis-à-vis the European Union when the authorities of those OCTs issue EUR. 1 certificates in breach of those decisions.
The Kingdom of the Netherlands denies, however, that that liability exists. First, it maintains that, since the EC Treaty was ratified only in respect of the Netherlands, a distinction must be made between Curaçao and Aruba, on the one hand, and the Kingdom of the Netherlands as Member State, on the other, in accordance with the case-law resulting from Opinion 1/78 (International Agreement on Natural Rubber) of 4 October 1979 (
EU:C:1979:224
, paragraph
). Second, according to the Kingdom of the Netherlands, the system of administrative cooperation established by the 1991 and 2001 OCT Decisions enabled the authorities of those OCTs to be approached directly, so that the Commission cannot hold it liable for the actions of those authorities on the basis of Article 4(3) TEU. Third, recognition of such liability would undermine the self-governance of those OCTs, contrary to Article 4(2) TEU and Article 73 of the Charter of the United Nations.
As regards the first argument, the Court did indeed rule, in essence, in paragraph 62 of the opinion cited in the preceding paragraph, that when a Member State concludes an international agreement as international representative of an OCT for which that State is responsible, it is not acting in its capacity as a Member State. However, that finding, on the basis of which the Court was able to conclude that such representation did not affect the ‘demarcation of spheres of competence within the Community’, is not relevant for the purposes of assessing the liability of a Member State in the context of the issue, by the authorities of an OCT for which that Member State is responsible, of EUR. 1 certificates in breach of the 1991 and 2001 OCT Decisions, which was governed by the rules of EU law applicable on the territory of the OCTs.
As regards the second argument of the Kingdom of the Netherlands, relating to the system of administrative cooperation established by the 1991 and 2001 OCT Decisions, it is true that, under Article 26(6) of Annex II to the 1991 OCT Decision, subsequently Article 32(8) of Annex III to the 2001 OCT Decision, it was for the authorities of the OCT concerned, inter alia, to carry out appropriate enquiries where the verification procedure referred to in Article 26(1) of Annex II to the first decision and subsequently Article 32(2) of Annex III to the second decision or any other available information appeared to indicate that the provisions of those annexes were being contravened. However, those provisions stated that the Commission ‘may participate’ in the enquiries to detect and prevent contraventions of the provisions governing the issue of EUR. 1 certificates, but did not impose an obligation on it in that respect. Moreover, although Article 26(7) of Annex II to the 1991 OCT Decision and subsequently Article 34 of Annex III to the 2001 OCT Decision provided that disputes arising on the occasion of such enquiries or raising a question of interpretation ‘shall be submitted’ to a dispute resolution procedure, it is apparent from the actual terms of those provisions that they covered only disputes arising between the importing State and the exporting OCT and, therefore, were not binding on the Commission.
Nor, furthermore, and contrary to what is contended by the Kingdom of the Netherlands, do the provisions relating to the consultation referred to as ‘partnership’ preclude a Member State from being held liable, under Article 4(3) TEU, for the wrongful issue of EUR. 1 certificates by the authorities of its OCTs. According to the actual wording of Article 234 of the 1991 OCT Decision, EU action was to be based only ‘as far as possible’ on that consultation between the Commission, the Member State responsible for the OCT and the relevant local authorities of that OCT. Moreover, according to Article 235(2) of that decision, working parties in association with the OCTs ‘may be set up’, notably at the request of the OCTs concerned, to deal with any problem arising between the OCTs and the European Union. Similarly, Article 7(3) of the 2001 OCT Decision provided only that the partnership working parties set up for each OCT ‘may be convened’ at the request, inter alia, of an OCT. Thus, while it is true that that partnership framework was not implemented in this instance, the fact remains that the wording of those provisions indicates that such implementation was optional.
The third argument, relating to the constitutional self-governance of Curaçao and Aruba, cannot be accepted either, in so far as the Kingdom of the Netherlands does not state how the liability of a Member State for the actions of its OCTs, which is without prejudice to the tasks entrusted to them by the 1991 and 2001 OCT Decisions, could undermine their self-governance.
It is also necessary to assess the types of errors made by an OCT in the context of the issue of EUR. 1 certificates for which the Member State having responsibility for that OCT must be held liable.
In that regard, it follows from the principle of sincere cooperation laid down in Article 4(3) TEU that the Member States are obliged to take all the measures necessary to guarantee the application and effectiveness of EU law (see, to that effect, judgments of 7 October 2010, Stils Met,
C‑382/09
,
EU:C:2010:596
, paragraph
, and of 5 December 2017, Germany v Council,
C‑600/14
,
EU:C:2017:935
, paragraph
).
In view of the preferential and derogating nature of the customs arrangements that applied to products originating in the OCTs, under the conditions provided for in Article 133(1) of the EC Treaty (subsequently Article 184(1) EC, now Article 200(1) TFEU) and in Article 101(1), read in conjunction with the first indent of Article 108(1) and with Annex II to the 1991 OCT Decision (Article 35 and Annex III to the 2001 OCT Decision), the obligation referred to in the preceding paragraph must be fulfilled all the more strictly in the present case. Therefore, the liability vis-à-vis the European Union of the Member State responsible for an OCT extends, by virtue of Article 4(3) TEU, to any error made by the authorities of that OCT, in the context of the issue of EUR.1 certificates.
Having regard to all of these considerations, it must be concluded that the Kingdom of the Netherlands is, by virtue of its obligations as Member State under the first paragraph of Article 131 of the EC Treaty (subsequently the first paragraph of Article 182 EC, now the first paragraph of Article 198 TFEU) and Article 4(3) TEU, liable, vis-à-vis the European Union, for any issue by the authorities of Curaçao and Aruba of EUR. 1 certificates in breach of the 1991 and 2001 OCT Decisions (see, by analogy, judgment of today’s date,
Commission
v
United Kingdom (Liability for the action of an OCT)
, C‑391/17, paragraph 95).
–
The obligation to compensate any loss of own resources, under Article 4(3) TEU
It has consistently been held that, pursuant to the principle of sincere cooperation, the Member States are required to nullify the unlawful consequences of an infringement of EU law. Consequently, the authorities of Member States are required to take, within the sphere of their competence, all measures necessary to remedy an infringement of EU law (see, to that effect, judgments of 21 June 2007, Jonkman and Others,
C‑231/06 to C‑233/06
,
EU:C:2007:373
, paragraphs
and
; of 26 July 2017, Comune di Corridonia and Others,
C‑196/16 and C‑197/16
,
EU:C:2017:589
, paragraph
and the case-law cited; and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others,
C‑597/17
,
EU:C:2019:544
, paragraph
).
In so far as the issue of a EUR. 1 certificate in breach of the 1991 and 2001 OCT Decisions prevents, in the circumstances provided for in Article 220(2)(b) and in Article 239 of the Customs Code, the authorities of the importing Member State concerned from collecting the customs duties which they would have had to collect in the absence of such a EUR. 1 certificate, the resulting loss of traditional own resources of the European Union constitutes the unlawful consequence of an infringement of EU law. According to the case-law of the Court, such a loss must be offset either by another own resource or by an adjustment of expenditure (see, by analogy, judgments of 15 November 2005, Commission v Denmark,
C‑392/02
,
EU:C:2005:683
, paragraph
, and of 5 October 2006, Commission v Germany,
C‑105/02
,
EU:C:2006:637
, paragraph
).
Consequently, the Member State which is liable, vis-à-vis the European Union, for the wrongful issue of such a certificate is bound, in accordance with the principle of sincere cooperation, to take all measures necessary to remedy that infringement of EU law and, in particular, to compensate the resulting loss of own resources (see, by analogy, judgment of today’s date,
Commission
v
United Kingdom
(Liability for the action of an OCT)
, C‑391/17, paragraph 98).
With regard, more specifically, to the question whether default interest is, in certain circumstances, to be added to the amount of that loss of own resources, suffice it to note that compensation only for the amount of customs duties which could not be collected is not sufficient to nullify the unlawful consequences of the wrongful issue of an EUR. 1 certificate.
That interpretation cannot be called into question by the argument as to the principle of legal certainty invoked by the Kingdom of the Netherlands and the United Kingdom, according to which such a compensation obligation cannot exist if there is no express provision for it in EU law. The obligation to compensate the loss of own resources resulting from the wrongful issue of EUR. 1 certificates is merely a particular expression of the obligation, arising from the principle of sincere cooperation, under which the Member States are required to take all necessary measures to remedy an infringement of EU law and to nullify the unlawful consequences of it. As is apparent from the settled case-law recalled in paragraph 98 of the present judgment, the latter obligation extends to all unlawful consequences of an infringement of EU law, in particular those which are of a financial nature, such as those at issue in this case.
However, default interest does not start to run until the date of the request addressed to the Member State concerned for compensation for that loss of own resources.
Having regard to all of these considerations, it must be concluded that the Member State which is liable vis-à-vis the European Union for the wrongful issue of EUR. 1 certificates by an OCT that is under the responsibility of that Member State is obliged, in accordance with the principle of sincere cooperation, to compensate any loss of own resources, together with any default interest.
–
The alleged breach of obligations
It is apparent from the documents available to the Court that, in the period from 1997 to 2000 and in 2002 and 2003, goods benefiting from EUR. 1 certificates issued by the authorities of Curaçao and of Aruba were imported into the Netherlands and Germany free of import duties.
It is common ground that the EUR. 1 certificates in question were issued by those authorities even though the goods concerned did not meet the requirements for being considered to be products having a preferential origin, under Article 101(1) of the 1991 OCT Decision and Article 35(1) of the 2001 OCT Decision. It is also undisputed that the breach of those provisions entailed a loss to the European Union of own resources, in the form of import duties.
In those circumstances, the Kingdom of the Netherlands is required, in accordance with Article 4(3) TEU, to compensate the amount of that loss of own resources, as requested by the Commission by letters of 27 January and 31 May 2012.
The Kingdom of the Netherlands nevertheless submits that the principles of legal certainty and of good administration preclude in this instance the possibility of finding that there has been a failure to fulfil the obligation of compensating that loss, since the Commission failed to request such compensation within a reasonable time in accordance with the case-law arising from the judgment of 13 November 2014, Nencini v Parliament (
C‑447/13 P
,
EU:C:2014:2372
, paragraph
).
In that regard, it must be pointed out that the case-law resulting from the judgment cited in the preceding paragraph concerns Article 85b of the Implementing Regulation setting the starting point for the five-year limitation period under Article 73a of the Financial Regulation as the expiry of the deadline communicated to the debtor in the debit note.
It is true that, in that judgment, the Court ruled that, where the applicable texts are silent, the principle of legal certainty requires the institution concerned to make that communication within a reasonable time, whilst making clear that the period in which a debit note is communicated must be presumed to be unreasonable where that communication takes place outside a period of 5 years from the point at which the institution was, in normal circumstances, in a position to claim its debt (see, to that effect, judgment of 13 November 2014, Nencini v Parliament,
C‑447/13 P
,
EU:C:2014:2372
, paragraphs
and
).
However, without it being necessary to consider whether Article 73a of the Financial Regulation and Article 85b of the Implementing Regulation are applicable to the obligation to compensate a loss of own resources under Article 4(3) TEU, such as that at issue in the present case, it must be held that the Commission did not in any event exceed the period of 5 years beyond which the period in which a debit note is communicated must be presumed to be unreasonable according to the case-law arising from the judgment cited in the preceding paragraph. The parties do not dispute that the loss of EU own resources resulting from the wrongful issue of EUR. 1 certificates by the authorities of Curaçao and of Aruba did not become definitive until 2009. In so far as, prior to that date, the Commission was not in a position to seek compensation for that loss, it must be concluded that the Commission observed that five-year time limit when it requested that compensation from the Kingdom of the Netherlands in 2012.
Consequently, it must be held that, by failing to compensate the loss of own resources resulting from the wrongful issue, in the light of the 1991 OCT Decision and subsequently the 2001 OCT Decision, by the authorities of Curaçao and of Aruba, of EUR. 1 certificates in respect of, respectively, imports of milk powder and rice from Curaçao during the period 1997/2000 and imports of groats and meal from Aruba during the period 2002/2003, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 4(3) TEU.
Costs
Under Article 138(1) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of the Netherlands has been unsuccessful, the Kingdom of the Netherlands must be ordered to pay the costs.
In accordance with Article 140(1) of the Rules of Procedure, according to which the Member States which have intervened in the proceedings are to bear their own costs, the United Kingdom is to bear its own costs.

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

1.
Declares that, by failing to compensate the loss of own resources resulting from the wrongful issue, in the light of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community and then of Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community, by the authorities of Curaçao and of Aruba, of movement certificates EUR. 1 in respect of, respectively, imports of milk powder and rice from Curaçao during the period 1997/2000 and imports of groats and meal from Aruba during the period 2002/2003, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 4(3) TEU;

2.
Orders the Kingdom of the Netherlands to pay the costs;

3.
Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

[Signatures]
(
*1
)	Language of the case: Dutch