# 62015CJ0593

JUDGMENT OF THE COURT (Fourth Chamber)

25 October 2017 (
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(Appeal — Own resources of the European Union — Decision 2007/436/EC — Financial liability of the Member States — Loss of certain import duties — Obligation to pay the European Commission the amount corresponding to the loss — Actions for annulment — Admissibility — Letter from the European Commission — Concept of ‘actionable measure’)

In Joined Cases C‐593/15 P and C‐594/15 P,

TWO APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 November 2015,

Slovak Republic, represented by B. Ricziová, acting as Agent,

Slovak Republic

appellant,

supported by:

Czech Republic, represented by M. Smolek, J. Vláčil and T. Müller, acting as Agents,

Czech Republic

Federal Republic of Germany, represented by T. Henze and K. Stranz, acting as Agents,

Federal Republic of Germany

Romania, represented by R.-H. Radu, M. Chicu and A. Wellman, acting as Agents,

Romania

interveners in the appeal,

the other party to the proceedings being:

European Commission, represented by A. Caeiros, A. Tokár, G.-D. Balan and Z. Malůšková, acting as Agents,

European Commission

defendant at first instance,

THE COURT (Fourth Chamber),

composed of T. von Danwitz, President of the Chamber, C. Vajda, E. Juhász, K. Jürimäe (Rapporteur) and C. Lycourgos, Judges,

Advocate General: J. Kokott,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 23 March 2017,

after hearing the Opinion of the Advocate General at the sitting on 8 June 2017,

gives the following

Judgment

| 1 | By its appeals, the Slovak Republic seeks to have set aside the orders of the General Court of the European Union of 14 September 2015, Slovakia v Commission (T‐678/14, not published, ‘the first order under appeal’, EU:T:2015:661), and Slovakia v Commission (T‐779/14, not published, ‘the second order under appeal’, EU:T:2015:655) (together, ‘the orders under appeal’), by which it dismissed as inadmissible its actions for annulment of the decisions of the European Commission Directorate-General for Budget allegedly contained in the letter BUDG/B/03MV D (2014) 2351197 of 15 July 2014 (‘the first letter at issue’), and in the letter BUDG/B/03MV D (2014) 3139078, of 24 September 2014 (‘the second letter at issue’) (together, ‘the letters at issue’). |
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1

By its appeals, the Slovak Republic seeks to have set aside the orders of the General Court of the European Union of 14 September 2015, Slovakia v Commission (T‐678/14, not published, ‘the first order under appeal’, EU:T:2015:661), and Slovakia v Commission (T‐779/14, not published, ‘the second order under appeal’, EU:T:2015:655) (together, ‘the orders under appeal’), by which it dismissed as inadmissible its actions for annulment of the decisions of the European Commission Directorate-General for Budget allegedly contained in the letter BUDG/B/03MV D (2014) 2351197 of 15 July 2014 (‘the first letter at issue’), and in the letter BUDG/B/03MV D (2014) 3139078, of 24 September 2014 (‘the second letter at issue’) (together, ‘the letters at issue’).

Slovakia

Commission

Slovakia

Commission

Legal context

| 2 | Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17) repeals, with effect from 1 January 2007, Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42). |
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2

Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17) repeals, with effect from 1 January 2007, Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (OJ 2000 L 253, p. 42).

| 3 | Under Article 2(1)(b) of Decision 2000/597 and Article 2(1)(a) of Decision 2007/436, revenue deriving from, inter alia, ‘Common Customs Tariff duties and other duties established or to be established by the institutions of the [Union] in respect of trade with non-member countries’ (‘own resources’) are to constitute own resources entered in the general budget of the European Union. |
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3

Under Article 2(1)(b) of Decision 2000/597 and Article 2(1)(a) of Decision 2007/436, revenue deriving from, inter alia, ‘Common Customs Tariff duties and other duties established or to be established by the institutions of the [Union] in respect of trade with non-member countries’ (‘own resources’) are to constitute own resources entered in the general budget of the European Union.

| 4 | Under Article 2(1) of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000, implementing Decision 2007/436 (OJ 2000 L 130, p. 1), as amended by Council Regulation (EC, Euratom) No 105/2009 of 26 January 2009 (OJ 2009 L 36, p. 1, ‘Regulation No 1150/2000’), the Union’s entitlement to own resources is to 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. |
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4

Under Article 2(1) of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000, implementing Decision 2007/436 (OJ 2000 L 130, p. 1), as amended by Council Regulation (EC, Euratom) No 105/2009 of 26 January 2009 (OJ 2009 L 36, p. 1, ‘Regulation No 1150/2000’), the Union’s entitlement to own resources is to 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 | The first subparagraph of Article 9(1) of Regulation No 1150/2000 provides:
  ‘In accordance with the procedure laid down in Article 10, each Member State shall credit own resources to the account opened in the name of the Commission with its Treasury or the body it has appointed.’ |
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5

The first subparagraph of Article 9(1) of Regulation No 1150/2000 provides:

‘In accordance with the procedure laid down in Article 10, each Member State shall credit own resources to the account opened in the name of the Commission with its Treasury or the body it has appointed.’

| 6 | In accordance with Article 10(1) of that regulation, entry of own resources is to be made at the latest on the first working day following the nineteenth day of the second month following the month during which the entitlement was established in accordance with Article 2 of that regulation. |
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6

In accordance with Article 10(1) of that regulation, entry of own resources is to be made at the latest on the first working day following the nineteenth day of the second month following the month during which the entitlement was established in accordance with Article 2 of that regulation.

| 7 | Under Article 11(1) of Regulation No 1150/2000, any delay in making the entry in the account referred to in Article 9(1) of that regulation is to give rise to the payment of default interest by the Member State concerned. |
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7

Under Article 11(1) of Regulation No 1150/2000, any delay in making the entry in the account referred to in Article 9(1) of that regulation is to give rise to the payment of default interest by the Member State concerned.

Background to the dispute

| 8 | In 2006 and 2007, some companies made customs declarations, as customs debtors, in Germany in order to place goods destined for Slovakia under the external Community transit procedure in accordance with Article 91 et seq. of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). |
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8

In 2006 and 2007, some companies made customs declarations, as customs debtors, in Germany in order to place goods destined for Slovakia under the external Community transit procedure in accordance with Article 91 et seq. of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

| 9 | For those transit operations, the Slovak customs authorities informed the German authorities, within the required time limits and by means of the New Computerised Transit System (NCTS), of the presentation of the goods at the customs office of destination and the result of the check carried out. Accordingly, the transactions concerned were cleared and the financial guarantee provided by the main debtors was released. |
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9

For those transit operations, the Slovak customs authorities informed the German authorities, within the required time limits and by means of the New Computerised Transit System (NCTS), of the presentation of the goods at the customs office of destination and the result of the check carried out. Accordingly, the transactions concerned were cleared and the financial guarantee provided by the main debtors was released.

| 10 | However, a survey carried out in Slovakia found that, at the Slovakian destination customs office, there had been an irregular termination of transit operations following an unlawful introduction into the NCTS. |
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10

However, a survey carried out in Slovakia found that, at the Slovakian destination customs office, there had been an irregular termination of transit operations following an unlawful introduction into the NCTS.

| 11 | The director of the Directorate for Financial Resources and Financial Programming of the Directorate-General for Budget of the European Commission (‘the director’) pointed out in the letters at issue that, by Decision C(2011) 9750 final, of 5 January 2012 (file REM 03/2010), the Commission had, following a request from the German authorities, found that a remission of import duties was justified under Article 239 of Regulation No 2913/92, as regards a German company which had, as the main debtor, filed several declarations on behalf of its customers for the transport to Slovakia, during the years 2006 and 2007, of goods subject to the external transit procedure. In that regard, the Commission pointed out that the irregular closure of transit operations constituted fraudulent manoeuvres that could only be reasonably explained by the active complicity of a customs official of the Slovak destination office or by a failure of organisation on the part of that office which allowed a third party to access the NCTS. |
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11

The director of the Directorate for Financial Resources and Financial Programming of the Directorate-General for Budget of the European Commission (‘the director’) pointed out in the letters at issue that, by Decision C(2011) 9750 final, of 5 January 2012 (file REM 03/2010), the Commission had, following a request from the German authorities, found that a remission of import duties was justified under Article 239 of Regulation No 2913/92, as regards a German company which had, as the main debtor, filed several declarations on behalf of its customers for the transport to Slovakia, during the years 2006 and 2007, of goods subject to the external transit procedure. In that regard, the Commission pointed out that the irregular closure of transit operations constituted fraudulent manoeuvres that could only be reasonably explained by the active complicity of a customs official of the Slovak destination office or by a failure of organisation on the part of that office which allowed a third party to access the NCTS.

| 12 | The director also stated, in essence, that the German authorities had, for the same reasons, granted a remission of customs duties in other cases. Thus, in the first letter at issue, the case of another company was mentioned and, in the second letter at issue, six other cases. |
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12

The director also stated, in essence, that the German authorities had, for the same reasons, granted a remission of customs duties in other cases. Thus, in the first letter at issue, the case of another company was mentioned and, in the second letter at issue, six other cases.

| 13 | In the letters at issue, the director explained that, in the view of the Commission services, the Slovak Republic was considered to be financially liable insofar as the confirmation of the clearance of the transit documents returned to the German office of departure had prevented the German authorities from collecting or recovering customs duties, which are traditional own resources. He pointed out that, although the Slovak Republic was not responsible for levying customs duties incurred for imports into the Union, a Member State remained financially liable for losses of own resources if its authorities or their representatives made mistakes or acted fraudulently. |
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13

In the letters at issue, the director explained that, in the view of the Commission services, the Slovak Republic was considered to be financially liable insofar as the confirmation of the clearance of the transit documents returned to the German office of departure had prevented the German authorities from collecting or recovering customs duties, which are traditional own resources. He pointed out that, although the Slovak Republic was not responsible for levying customs duties incurred for imports into the Union, a Member State remained financially liable for losses of own resources if its authorities or their representatives made mistakes or acted fraudulently.

| 14 | The director then pointed out that the Slovak authorities had been unable to guarantee that the customs provisions of the Union had been correctly applied. That incorrect application of EU law resulted, it is claimed, in a loss of traditional own resources in so far as the German authorities had not been able to collect customs duties and make them available to the Commission. The director concluded from this that the Slovak Republic had to compensate the Union budget for the loss thus caused. In that regard, he referred, by analogy, to paragraph 44 of the judgment of 8 July 2010, Commission v Italy (C‐334/08, EU:C:2010:414). |
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14

The director then pointed out that the Slovak authorities had been unable to guarantee that the customs provisions of the Union had been correctly applied. That incorrect application of EU law resulted, it is claimed, in a loss of traditional own resources in so far as the German authorities had not been able to collect customs duties and make them available to the Commission. The director concluded from this that the Slovak Republic had to compensate the Union budget for the loss thus caused. In that regard, he referred, by analogy, to paragraph 44 of the judgment of 8 July 2010, Commission v Italy (C‐334/08, EU:C:2010:414).

| 15 | The director explained, in essence, that any refusal by the Slovak Republic to make available such traditional own resources would be contrary to the principle of loyal cooperation between Member States and within the Union and would hamper the proper functioning of the system of own resources. |
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15

The director explained, in essence, that any refusal by the Slovak Republic to make available such traditional own resources would be contrary to the principle of loyal cooperation between Member States and within the Union and would hamper the proper functioning of the system of own resources.

| 16 | Consequently, he requested the Slovak authorities to make available to the Commission two gross amounts of own resources of EUR 1602457.33 and EUR 1453723.12 respectively, from which it is necessary to deduct 25% by way of collection costs, by the first working day following the nineteenth day of the second month following the dispatch of the letters at issue. He added that any delay would give rise to the payment of interest under Article 11 of Regulation No 1150/2000. |
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16

Consequently, he requested the Slovak authorities to make available to the Commission two gross amounts of own resources of EUR 1602457.33 and EUR 1453723.12 respectively, from which it is necessary to deduct 25% by way of collection costs, by the first working day following the nineteenth day of the second month following the dispatch of the letters at issue. He added that any delay would give rise to the payment of interest under Article 11 of Regulation No 1150/2000.

The proceedings before the General Court and the orders under appeal

| 17 | By applications lodged at the Registry of the General Court on 22 September and 26 November 2014 respectively, the Slovak Republic brought actions for annulment of the decisions allegedly contained in the letters at issue. |
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17

By applications lodged at the Registry of the General Court on 22 September and 26 November 2014 respectively, the Slovak Republic brought actions for annulment of the decisions allegedly contained in the letters at issue.

| 18 | By separate documents lodged at the Registry of the General Court on 5 December 2014 and 12 February 2015 respectively, the Commission raised pleas of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. In both cases those pleas were based on the absence of a measure against which an action for annulment may be brought and, in Case T‐678/14, on the purely confirmatory nature of the first letter at issue. |
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18

By separate documents lodged at the Registry of the General Court on 5 December 2014 and 12 February 2015 respectively, the Commission raised pleas of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. In both cases those pleas were based on the absence of a measure against which an action for annulment may be brought and, in Case T‐678/14, on the purely confirmatory nature of the first letter at issue.

| 19 | The Slovak Republic submitted its observations on these pleas of inadmissibility. |
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19

The Slovak Republic submitted its observations on these pleas of inadmissibility.

| 20 | By documents lodged at the Registry of the General Court on 8 and 23 January 2015 respectively, the Federal Republic of Germany and Romania applied to intervene in support of the form of order sought by the Slovak Republic in Case T‐678/14. By documents lodged at the Registry of the General Court on 10 April and 4 May 2015 respectively, those Member States applied to intervene in support of the form of order sought by the Slovak Republic in Case T‐779/14. |
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20

By documents lodged at the Registry of the General Court on 8 and 23 January 2015 respectively, the Federal Republic of Germany and Romania applied to intervene in support of the form of order sought by the Slovak Republic in Case T‐678/14. By documents lodged at the Registry of the General Court on 10 April and 4 May 2015 respectively, those Member States applied to intervene in support of the form of order sought by the Slovak Republic in Case T‐779/14.

| 21 | By the orders under appeal, the General Court ruled on the Commission’s pleas of inadmissibility pursuant to Article 130 of its Rules of Procedure. |
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21

By the orders under appeal, the General Court ruled on the Commission’s pleas of inadmissibility pursuant to Article 130 of its Rules of Procedure.

| 22 | In order to assess whether the letters at issue are actionable, the General Court examined, in paragraphs 27 to 37 and 39 of the first order under appeal and in paragraphs 26 to 36 and 38 of the second order under appeal, the division of powers between the Commission and the Member States regarding the determination of own resources under the provisions of Decision 2007/436 and Regulation No 1150/2000. It concluded, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, that, since the Commission had no power to adopt a measure requiring a Member State to make own resources available, the letters at issue were for information purposes only and could constitute no more than a simple request addressed to the Slovak Republic. |
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22

In order to assess whether the letters at issue are actionable, the General Court examined, in paragraphs 27 to 37 and 39 of the first order under appeal and in paragraphs 26 to 36 and 38 of the second order under appeal, the division of powers between the Commission and the Member States regarding the determination of own resources under the provisions of Decision 2007/436 and Regulation No 1150/2000. It concluded, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, that, since the Commission had no power to adopt a measure requiring a Member State to make own resources available, the letters at issue were for information purposes only and could constitute no more than a simple request addressed to the Slovak Republic.

| 23 | In that regard, the General Court pointed out, in paragraphs 42 to 44 of the first order under appeal and in paragraphs 41 to 43 of the second order under appeal, that an opinion issued by the Commission, such as that contained in those letters, does not bind the national authorities and, in paragraphs 45 to 47 of the first order under appeal and in paragraphs 44 to 46 of the second order under appeal, that it cannot, any more than a reasoned opinion in the pre-litigation stage of an infringement procedure, constitute an actionable measure. |
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23

In that regard, the General Court pointed out, in paragraphs 42 to 44 of the first order under appeal and in paragraphs 41 to 43 of the second order under appeal, that an opinion issued by the Commission, such as that contained in those letters, does not bind the national authorities and, in paragraphs 45 to 47 of the first order under appeal and in paragraphs 44 to 46 of the second order under appeal, that it cannot, any more than a reasoned opinion in the pre-litigation stage of an infringement procedure, constitute an actionable measure.

| 24 | Finally, the General Court dismissed the arguments raised by the Slovak Republic. In particular, in paragraphs 54 and 55 of the first order under appeal and in paragraphs 53 and 54 of the second order under appeal, the General Court rejected as ineffective the arguments alleging that the Commission had misinterpreted the relevant rules, that the letters at issue had no legal basis or that the amounts referred to therein could not be regarded as ‘own resources’, on the ground that those arguments concerned the merits of the content of those letters. In paragraphs 56 to 59 of the first order under appeal and in paragraphs 55 to 58 of the second order under appeal, the General Court also responded to arguments based on the complete system of legal remedies, effective judicial protection and the urgency of the situation in the present case, which, it is claimed, result in particular from the risk of having to pay considerable default interest. |
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24

Finally, the General Court dismissed the arguments raised by the Slovak Republic. In particular, in paragraphs 54 and 55 of the first order under appeal and in paragraphs 53 and 54 of the second order under appeal, the General Court rejected as ineffective the arguments alleging that the Commission had misinterpreted the relevant rules, that the letters at issue had no legal basis or that the amounts referred to therein could not be regarded as ‘own resources’, on the ground that those arguments concerned the merits of the content of those letters. In paragraphs 56 to 59 of the first order under appeal and in paragraphs 55 to 58 of the second order under appeal, the General Court also responded to arguments based on the complete system of legal remedies, effective judicial protection and the urgency of the situation in the present case, which, it is claimed, result in particular from the risk of having to pay considerable default interest.

| 25 | In the light of the above, the General Court accepted those pleas of inadmissibility raised by the Commission and dismissed the actions of the Slovak Republic as inadmissible, in so far as they were directed against measures which could not be the subject of an action, without ruling on the applications for leave to intervene by the Federal Republic of Germany and Romania. |
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25

In the light of the above, the General Court accepted those pleas of inadmissibility raised by the Commission and dismissed the actions of the Slovak Republic as inadmissible, in so far as they were directed against measures which could not be the subject of an action, without ruling on the applications for leave to intervene by the Federal Republic of Germany and Romania.

Forms of order sought and proceedings before the Court

| 26 | By its appeals, the Slovak Republic claims that the Court should:





  – | set aside in their entirety the orders under appeal; |
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26

By its appeals, the Slovak Republic claims that the Court should:

–

set aside in their entirety the orders under appeal;

| – | rule itself on the admissibility of the Slovak Republic’s appeals and refer the cases back to the General Court for that court to rule on the substance of the appeals, or, alternatively, refer the cases back to the General Court for that court to rule both on the admissibility and the substance of the appeals, and |
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–

rule itself on the admissibility of the Slovak Republic’s appeals and refer the cases back to the General Court for that court to rule on the substance of the appeals, or, alternatively, refer the cases back to the General Court for that court to rule both on the admissibility and the substance of the appeals, and

| – | order the Commission to pay the costs. |
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–

order the Commission to pay the costs.

| 27 | In its response, the Commission asks the Court to:





  – | dismiss the appeals and |
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27

In its response, the Commission asks the Court to:

–

dismiss the appeals and

| – | order the Slovak Republic to pay the costs. |
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–

order the Slovak Republic to pay the costs.

| 28 | In their statements in intervention, the Federal Republic of Germany and Romania request, in essence, the Court to allow the appeals. |
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28

In their statements in intervention, the Federal Republic of Germany and Romania request, in essence, the Court to allow the appeals.

| 29 | By order of the President of the Court of 12 January 2016, Cases C‐593/15 P and C‐594/15 P were joined for the purposes of the written and oral procedure and the judgment. |
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29

By order of the President of the Court of 12 January 2016, Cases C‐593/15 P and C‐594/15 P were joined for the purposes of the written and oral procedure and the judgment.

Concerning the appeals

| 30 | In support of its appeals, the Slovak Republic raises two grounds of appeal alleging, first, errors of law and, secondly, in the alternative, infringement of the General Court’s obligation to state reasons. |
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30

In support of its appeals, the Slovak Republic raises two grounds of appeal alleging, first, errors of law and, secondly, in the alternative, infringement of the General Court’s obligation to state reasons.

The first ground of appeal

The first ground of appeal

Arguments of the parties

Arguments of the parties

| 31 | By its first ground of appeal, the Slovak Republic alleges that the General Court committed several errors of law in its assessment of the nature and effects of the letters at issue. This ground is divided into three sets of arguments. |
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31

By its first ground of appeal, the Slovak Republic alleges that the General Court committed several errors of law in its assessment of the nature and effects of the letters at issue. This ground is divided into three sets of arguments.

| 32 | In the first place, the Slovak Republic alleges, in essence, that the General Court misconstrued the nature of the amounts claimed in the letters at issue by qualifying them, at least implicitly, as ‘own resources’ within the meaning of Article 2(1) of Decision 2007/436. The General Court thus erroneously applied the regulatory provisions and case-law relating to own resources in order to rule on the Commission’s decision-making powers. In so far as the correct legal classification of those amounts was relevant to the assessment of the admissibility of the applications, the General Court could not, moreover, without erring in law, simply consider, in paragraphs 54 and 55 of the first order under appeal and in paragraphs 53 and 54 of the second order under appeal, that the arguments put forward by the Commission in that regard concerned the substantive assessment. |
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32

In the first place, the Slovak Republic alleges, in essence, that the General Court misconstrued the nature of the amounts claimed in the letters at issue by qualifying them, at least implicitly, as ‘own resources’ within the meaning of Article 2(1) of Decision 2007/436. The General Court thus erroneously applied the regulatory provisions and case-law relating to own resources in order to rule on the Commission’s decision-making powers. In so far as the correct legal classification of those amounts was relevant to the assessment of the admissibility of the applications, the General Court could not, moreover, without erring in law, simply consider, in paragraphs 54 and 55 of the first order under appeal and in paragraphs 53 and 54 of the second order under appeal, that the arguments put forward by the Commission in that regard concerned the substantive assessment.

| 33 | In any event, the case-law cited by the General Court in paragraphs 28 to 34 of the first order under appeal and in paragraphs 27 to 33 of the second order under appeal is irrelevant in the present case since it sets out the obligations of the Member States in respect of own resources in bilateral relations between the Commission and the Member State responsible for making such resources available. The present cases, it is claimed, involve a tripartite relationship between the Commission, the Federal Republic of Germany as Member State responsible for making own resources available, and the Slovak Republic, which was not responsible for making available such resources. |
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33

In any event, the case-law cited by the General Court in paragraphs 28 to 34 of the first order under appeal and in paragraphs 27 to 33 of the second order under appeal is irrelevant in the present case since it sets out the obligations of the Member States in respect of own resources in bilateral relations between the Commission and the Member State responsible for making such resources available. The present cases, it is claimed, involve a tripartite relationship between the Commission, the Federal Republic of Germany as Member State responsible for making own resources available, and the Slovak Republic, which was not responsible for making available such resources.

| 34 | The Slovak Republic, in its observations on the statements in intervention, further emphasises the legal uncertainty and the risk of serious financial consequences arising from the uncertainty concerning the legal basis of the alleged obligation to make available the amounts claimed. It disputes the very existence of such an obligation under EU law. Since, by the letters at issue, the Commission has established an obligation and consequences not provided for by that law, those letters, it is claimed, clearly produce legal effects capable of affecting its interests. In any event, it would be useful for the Court to clarify the issues relating to that legal basis in the present cases. |
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34

The Slovak Republic, in its observations on the statements in intervention, further emphasises the legal uncertainty and the risk of serious financial consequences arising from the uncertainty concerning the legal basis of the alleged obligation to make available the amounts claimed. It disputes the very existence of such an obligation under EU law. Since, by the letters at issue, the Commission has established an obligation and consequences not provided for by that law, those letters, it is claimed, clearly produce legal effects capable of affecting its interests. In any event, it would be useful for the Court to clarify the issues relating to that legal basis in the present cases.

| 35 | In the second place, the Slovak Republic submits that the General Court erred in law by raising, in essence, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, the criterion of the powers of the institution which adopted the contested measure as a sine qua non condition for the existence of an actionable measure. It is true that the Court held, in paragraph 55 of the judgment of 13 February 2014, Hungary v Commission (C‐31/13 P, EU:C:2014:70), that the effects of a measure must be assessed in accordance with the powers of the institution which adopted the measure. However, that case-law cannot be interpreted as meaning that the inevitable consequence of a lack of power is that an act of an institution of the European Union could in no circumstances constitute a measure producing binding legal effects amenable to an action for annulment under Article 263 TFEU. Such an approach would render irrelevant the plea of illegality alleging lack of competence of the authority which adopted the measure. |
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35

In the second place, the Slovak Republic submits that the General Court erred in law by raising, in essence, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, the criterion of the powers of the institution which adopted the contested measure as a sine qua non condition for the existence of an actionable measure. It is true that the Court held, in paragraph 55 of the judgment of 13 February 2014, Hungary v Commission (C‐31/13 P, EU:C:2014:70), that the effects of a measure must be assessed in accordance with the powers of the institution which adopted the measure. However, that case-law cannot be interpreted as meaning that the inevitable consequence of a lack of power is that an act of an institution of the European Union could in no circumstances constitute a measure producing binding legal effects amenable to an action for annulment under Article 263 TFEU. Such an approach would render irrelevant the plea of illegality alleging lack of competence of the authority which adopted the measure.

sine qua non

| 36 | In the third place, the Slovak Republic claims that, contrary to what the General Court held in paragraph 59 of the first order under appeal and in paragraph 58 of the second order under appeal, the possibility for it to make a conditional payment is not such as to overcome the inadequacy of judicial protection and of access to justice nor to remedy the urgency of the situation in a case such as that considered in the present cases. If the actions brought before the General Court were inadmissible, this would have unacceptable adverse effects on the situation of the Slovak Republic, since it could only challenge the Commission’s claims in the event of an action for failure to fulfil obligations and it therefore had to run the risk of paying high default interest. However, the option of making conditional payment, which, it is claimed, is not provided for by any legal act of the Union and whose recovery is not guaranteed by the case-law, would in no way guarantee to it access to justice. |
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36

In the third place, the Slovak Republic claims that, contrary to what the General Court held in paragraph 59 of the first order under appeal and in paragraph 58 of the second order under appeal, the possibility for it to make a conditional payment is not such as to overcome the inadequacy of judicial protection and of access to justice nor to remedy the urgency of the situation in a case such as that considered in the present cases. If the actions brought before the General Court were inadmissible, this would have unacceptable adverse effects on the situation of the Slovak Republic, since it could only challenge the Commission’s claims in the event of an action for failure to fulfil obligations and it therefore had to run the risk of paying high default interest. However, the option of making conditional payment, which, it is claimed, is not provided for by any legal act of the Union and whose recovery is not guaranteed by the case-law, would in no way guarantee to it access to justice.

| 37 | The Commission disputes the merits of all those arguments and considers that the first ground of appeal must be rejected as unfounded. |
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37

The Commission disputes the merits of all those arguments and considers that the first ground of appeal must be rejected as unfounded.

| 38 | In the first place, that institution contends that the arguments relating to the nature of the amounts claimed, their payment by the Slovak Republic and the existence of an obligation on that Member State to make them available concern the assessment of the merits of the appeals and not their admissibility. As regards the assessment of admissibility, the Commission is of the view that the General Court examined the content of the letters at issue in accordance with the case-law and correctly held that, having regard to that content, those letters contain only an invitation to make own resources available, which neither the Slovak Republic nor the intervening Member States have challenged. The General Court was therefore right to assess the applications in the light of the provisions and case-law relating to own resources. |
| --- | --- |

38

In the first place, that institution contends that the arguments relating to the nature of the amounts claimed, their payment by the Slovak Republic and the existence of an obligation on that Member State to make them available concern the assessment of the merits of the appeals and not their admissibility. As regards the assessment of admissibility, the Commission is of the view that the General Court examined the content of the letters at issue in accordance with the case-law and correctly held that, having regard to that content, those letters contain only an invitation to make own resources available, which neither the Slovak Republic nor the intervening Member States have challenged. The General Court was therefore right to assess the applications in the light of the provisions and case-law relating to own resources.

| 39 | In that regard, on the one hand, it is not disputed that the amounts at issue constitute customs duties and, therefore, traditional own resources. On the other hand, when analysing those provisions at the admissibility stage, the General Court did not rule on any obligation on the part of the Slovak Republic to make available the amounts at issue. It would appear from all of those provisions, as interpreted by the case-law, and from the rules governing infringement proceedings, that no power has been conferred on the Commission to make a binding determination of the amount of own resources, to fix the time limit for their payment and to determine default interest. |
| --- | --- |

39

In that regard, on the one hand, it is not disputed that the amounts at issue constitute customs duties and, therefore, traditional own resources. On the other hand, when analysing those provisions at the admissibility stage, the General Court did not rule on any obligation on the part of the Slovak Republic to make available the amounts at issue. It would appear from all of those provisions, as interpreted by the case-law, and from the rules governing infringement proceedings, that no power has been conferred on the Commission to make a binding determination of the amount of own resources, to fix the time limit for their payment and to determine default interest.

| 40 | In any event, the Commission considers that, even if the letters at issue were to be regarded as not relating to the payment of own resources, those letters cannot be capable of producing binding legal effects. No legal basis for the adoption of such a binding legal measure, it is contended, has been determined. |
| --- | --- |

40

In any event, the Commission considers that, even if the letters at issue were to be regarded as not relating to the payment of own resources, those letters cannot be capable of producing binding legal effects. No legal basis for the adoption of such a binding legal measure, it is contended, has been determined.

| 41 | In the second place, the Commission contends, in essence, that the examination of the scope of its powers, in the present cases, falls within a complex examination to determine whether the letters at issue are actionable in the light of their nature, the context of their adoption and the powers of the institution which adopted them. In its view, it is necessary to distinguish, on the one hand, measures which produce legal effects and which have been adopted by an institution lacking competence and, on the other, measures which do not produce such effects and which could not, therefore, be the subject of an action for annulment. |
| --- | --- |

41

In the second place, the Commission contends, in essence, that the examination of the scope of its powers, in the present cases, falls within a complex examination to determine whether the letters at issue are actionable in the light of their nature, the context of their adoption and the powers of the institution which adopted them. In its view, it is necessary to distinguish, on the one hand, measures which produce legal effects and which have been adopted by an institution lacking competence and, on the other, measures which do not produce such effects and which could not, therefore, be the subject of an action for annulment.

| 42 | In the third place, the Commission considers that the inevitable consequence of the characteristics of the own resources system is that the Commission does not have the power to adopt binding decisions in that regard. The lack of such competence cannot therefore be regarded as a denial of the right of the Slovak Republic to effective judicial protection. The same would apply to the obligation on that Member State to pay default interest, which, it is contended, follows directly from Article 11 of Regulation No 1150/2000. Moreover, conditional payment is intended not to guarantee the right to effective judicial protection, but to mitigate the possible financial charge which a Member State may incur as a result of the obligation to pay default interest. Furthermore, the risk of incurring default interest is, it is contended, associated with the failure to make the own resources available to the Commission and not with the letters at issue containing an invitation to that effect. |
| --- | --- |

42

In the third place, the Commission considers that the inevitable consequence of the characteristics of the own resources system is that the Commission does not have the power to adopt binding decisions in that regard. The lack of such competence cannot therefore be regarded as a denial of the right of the Slovak Republic to effective judicial protection. The same would apply to the obligation on that Member State to pay default interest, which, it is contended, follows directly from Article 11 of Regulation No 1150/2000. Moreover, conditional payment is intended not to guarantee the right to effective judicial protection, but to mitigate the possible financial charge which a Member State may incur as a result of the obligation to pay default interest. Furthermore, the risk of incurring default interest is, it is contended, associated with the failure to make the own resources available to the Commission and not with the letters at issue containing an invitation to that effect.

| 43 | The lack of competence to adopt binding decisions regarding own resources is also confirmed, it is contended, by the Council’s rejection of a proposal to amend Article 17 of Regulation No 1150/2000, which would have conferred on the Commission the power to examine the case and to adopt a duly reasoned decision if the amount of duty determined was greater than EUR 50000. |
| --- | --- |

43

The lack of competence to adopt binding decisions regarding own resources is also confirmed, it is contended, by the Council’s rejection of a proposal to amend Article 17 of Regulation No 1150/2000, which would have conferred on the Commission the power to examine the case and to adopt a duly reasoned decision if the amount of duty determined was greater than EUR 50000.

| 44 | The Commission also observes that an action for annulment may be brought only if the dispute concerns the validity of an act producing legal effects. On the other hand, if the subject matter of the dispute is the existence of an obligation of a Member State arising under EU law, the only remedy available is an action for failure to fulfil obligations. The Treaties do not provide for any procedure open to a Member State to determine whether it has complied with its obligations under EU law. |
| --- | --- |

44

The Commission also observes that an action for annulment may be brought only if the dispute concerns the validity of an act producing legal effects. On the other hand, if the subject matter of the dispute is the existence of an obligation of a Member State arising under EU law, the only remedy available is an action for failure to fulfil obligations. The Treaties do not provide for any procedure open to a Member State to determine whether it has complied with its obligations under EU law.

| 45 | The Czech Republic, the Federal Republic of Germany and Romania are of the opinion that the first ground of appeal should be upheld. |
| --- | --- |

45

The Czech Republic, the Federal Republic of Germany and Romania are of the opinion that the first ground of appeal should be upheld.

Findings of the Court

Findings of the Court

| 46 | According to consistent case-law, any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘actionable measures’, within the meaning of Article 263 TFEU (judgment of 13 February 2014, Hungary v Commission, C‐31/13 P, EU:C:2014:70, paragraph 54 and the case-law cited). |
| --- | --- |

46

According to consistent case-law, any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘actionable measures’, within the meaning of Article 263 TFEU (judgment of 13 February 2014, Hungary v Commission, C‐31/13 P, EU:C:2014:70, paragraph 54 and the case-law cited).

| 47 | To ascertain whether or not a contested measure produces such effects, it is necessary to look to its substance (judgment of 22 June 2000, Netherlands v Commission, C‐147/96, EU:C:2000:335, paragraph 27 and the case-law cited). Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (judgment of 13 February 2014, Hungary v Commission, C‐31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited). |
| --- | --- |

47

To ascertain whether or not a contested measure produces such effects, it is necessary to look to its substance (judgment of 22 June 2000, Netherlands v Commission, C‐147/96, EU:C:2000:335, paragraph 27 and the case-law cited). Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure (judgment of 13 February 2014, Hungary v Commission, C‐31/13 P, EU:C:2014:70, paragraph 55 and the case-law cited).

| 48 | In the orders under appeal, the General Court ruled on the Commission’s pleas of inadmissibility without going to the substance of the case. As explained in paragraphs 22 and 23 of the present judgment, following an examination of the division of powers between the Commission and the Member States regarding the determination of own resources under the provisions of Decision 2007/436 and Regulation No 1150/2000, the General Court concluded, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, that, in the absence of a provision empowering the Commission to adopt a measure requiring a Member State to make own resources available, the letters at issue should be regarded as being for information purposes only and as a simple invitation addressed to the Slovak Republic. |
| --- | --- |

48

In the orders under appeal, the General Court ruled on the Commission’s pleas of inadmissibility without going to the substance of the case. As explained in paragraphs 22 and 23 of the present judgment, following an examination of the division of powers between the Commission and the Member States regarding the determination of own resources under the provisions of Decision 2007/436 and Regulation No 1150/2000, the General Court concluded, in paragraph 41 of the first order under appeal and in paragraph 40 of the second order under appeal, that, in the absence of a provision empowering the Commission to adopt a measure requiring a Member State to make own resources available, the letters at issue should be regarded as being for information purposes only and as a simple invitation addressed to the Slovak Republic.

| 49 | In that regard, the General Court pointed out that an opinion issued by the Commission, such as that contained in those letters, does not bind the national authorities and that it cannot, any more than a reasoned opinion in the pre-litigation stage of an infringement procedure, constitute an actionable measure. |
| --- | --- |

49

In that regard, the General Court pointed out that an opinion issued by the Commission, such as that contained in those letters, does not bind the national authorities and that it cannot, any more than a reasoned opinion in the pre-litigation stage of an infringement procedure, constitute an actionable measure.

| 50 | On the one hand, it is indeed the case that the General Court essentially based its assessment of the actionable nature of the letters at issue on an examination of the powers of the Commission on the basis of the provisions of Decision 2007/436 and of Regulation No 1150/2000. In so doing, contrary to the allegations of the Slovak Republic, it did not, however, assess the nature of the funds claimed or treat those funds as ‘own resources’. |
| --- | --- |

50

On the one hand, it is indeed the case that the General Court essentially based its assessment of the actionable nature of the letters at issue on an examination of the powers of the Commission on the basis of the provisions of Decision 2007/436 and of Regulation No 1150/2000. In so doing, contrary to the allegations of the Slovak Republic, it did not, however, assess the nature of the funds claimed or treat those funds as ‘own resources’.

| 51 | The General Court limited itself, in the orders under appeal, to an abstract explanation of the obligations and powers of the Member States and the Commission respectively in the area of the Union’s own resources. Since, as is apparent from paragraphs 4 to 10 of the first order under appeal and from paragraphs 4 to 10 of the second order under appeal, the Commission had sent the letters at issue in that area, the General Court could, without committing errors of law, assess those obligations and powers in the light of the regulations concerning own resources, for the sole purpose of examining the actionable nature of those letters and without prejudice to the substantive question of its applicability to the circumstances of the case and the classification of the amounts in question. |
| --- | --- |

51

The General Court limited itself, in the orders under appeal, to an abstract explanation of the obligations and powers of the Member States and the Commission respectively in the area of the Union’s own resources. Since, as is apparent from paragraphs 4 to 10 of the first order under appeal and from paragraphs 4 to 10 of the second order under appeal, the Commission had sent the letters at issue in that area, the General Court could, without committing errors of law, assess those obligations and powers in the light of the regulations concerning own resources, for the sole purpose of examining the actionable nature of those letters and without prejudice to the substantive question of its applicability to the circumstances of the case and the classification of the amounts in question.

| 52 | Furthermore, it must be held that, in those circumstances, the General Court was right, at paragraph 55 of the first order under appeal and in paragraph 54 of the second order under appeal, to reject as ineffective the arguments raised by the Slovak Republic and based on the merits of the content of the letters at issue. |
| --- | --- |

52

Furthermore, it must be held that, in those circumstances, the General Court was right, at paragraph 55 of the first order under appeal and in paragraph 54 of the second order under appeal, to reject as ineffective the arguments raised by the Slovak Republic and based on the merits of the content of the letters at issue.

| 53 | On the other hand, however, it should be pointed out that, as the Slovak Republic rightly points out, the General Court merely examined the powers of the institution which adopted the measure, without carrying out an analysis of the content of the letters at issue, contrary to the requirements of the case-law referred to in paragraph 47 of the present judgment. |
| --- | --- |

53

On the other hand, however, it should be pointed out that, as the Slovak Republic rightly points out, the General Court merely examined the powers of the institution which adopted the measure, without carrying out an analysis of the content of the letters at issue, contrary to the requirements of the case-law referred to in paragraph 47 of the present judgment.

| 54 | Consequently, the General Court erred in law. |
| --- | --- |

54

Consequently, the General Court erred in law.

| 55 | However, if the grounds of a decision of the General Court disclose an infringement of EU law, but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that decision, and a substitution of grounds must be made (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‐584/10 P, C‐593/10 P and C‐595/10 P, EU:C:2013:518, paragraph 150, and of 5 March 2015, Commission and Others v Versalis and Others, C‐93/13 P and C‐123/13 P, EU:C:2015:150, paragraph 102 and the case-law cited). |
| --- | --- |

55

However, if the grounds of a decision of the General Court disclose an infringement of EU law, but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that decision, and a substitution of grounds must be made (see, to that effect, judgments of 18 July 2013, Commission and Others v Kadi, C‐584/10 P, C‐593/10 P and C‐595/10 P, EU:C:2013:518, paragraph 150, and of 5 March 2015, Commission and Others v Versalis and Others, C‐93/13 P and C‐123/13 P, EU:C:2015:150, paragraph 102 and the case-law cited).

| 56 | That is the situation in the present case. |
| --- | --- |

56

That is the situation in the present case.

| 57 | Having regard to the case-law referred to in paragraphs 46 and 47 of the present judgment, it is apparent from an analysis of the content of the letters at issue, taking into account the context of their issue and the powers of the Commission, that those letters cannot be regarded as ‘actionable measures’. |
| --- | --- |

57

Having regard to the case-law referred to in paragraphs 46 and 47 of the present judgment, it is apparent from an analysis of the content of the letters at issue, taking into account the context of their issue and the powers of the Commission, that those letters cannot be regarded as ‘actionable measures’.

| 58 | First, as regards the content of those letters, it should be pointed out that, after recalling the facts at issue, the director expressed the Directorate’s view that the Slovak Republic was considered to be liable for the loss of own resources incurred in Germany. It took the view that the Slovak Republic had to compensate for these losses and that, in the event of refusal to make available the amounts in question, the latter would infringe the principle of sincere cooperation and jeopardise the proper functioning of the own resources system. In the light of those factors, the Commission requested the Slovak Republic to make available to it the amounts corresponding to the losses in question and specified that failure to pay within the period laid down in those letters would give rise to the payment of default interest pursuant to Article 11 of Regulation No 1150/2000. |
| --- | --- |

58

First, as regards the content of those letters, it should be pointed out that, after recalling the facts at issue, the director expressed the Directorate’s view that the Slovak Republic was considered to be liable for the loss of own resources incurred in Germany. It took the view that the Slovak Republic had to compensate for these losses and that, in the event of refusal to make available the amounts in question, the latter would infringe the principle of sincere cooperation and jeopardise the proper functioning of the own resources system. In the light of those factors, the Commission requested the Slovak Republic to make available to it the amounts corresponding to the losses in question and specified that failure to pay within the period laid down in those letters would give rise to the payment of default interest pursuant to Article 11 of Regulation No 1150/2000.

| 59 | It is apparent from that reminder that, by the letters at issue, the Commission, in essence, explained to the Slovak Republic its opinion as to the legal consequences of the losses of own resources incurred in Germany and the obligations which, according to the Commission, would result for the Slovak Republic. In the light of that opinion, it requested that Member State to make the amounts in question available. |
| --- | --- |

59

It is apparent from that reminder that, by the letters at issue, the Commission, in essence, explained to the Slovak Republic its opinion as to the legal consequences of the losses of own resources incurred in Germany and the obligations which, according to the Commission, would result for the Slovak Republic. In the light of that opinion, it requested that Member State to make the amounts in question available.

| 60 | It must be held that neither the statement of a simple legal opinion, nor a simple request to make available the amounts in question can be capable of producing legal effects. |
| --- | --- |

60

It must be held that neither the statement of a simple legal opinion, nor a simple request to make available the amounts in question can be capable of producing legal effects.

| 61 | It cannot be inferred from the mere fact that the letters at issue lay down a time limit for making those amounts available, whilst indicating that a delay may give rise to default interest, in view of the overall content of those letters, that the Commission intended, rather than expressing its opinion, to adopt measures which have binding legal effects or, therefore, to confer on those letters the nature of actionable measures. |
| --- | --- |

61

It cannot be inferred from the mere fact that the letters at issue lay down a time limit for making those amounts available, whilst indicating that a delay may give rise to default interest, in view of the overall content of those letters, that the Commission intended, rather than expressing its opinion, to adopt measures which have binding legal effects or, therefore, to confer on those letters the nature of actionable measures.

| 62 | Secondly, as regards the context, it should be pointed out that, at the hearing, the Commission, without being contradicted on this point either by the Slovak Republic or by the intervening Member States, observed that the dispatch of letters such as the letters at issue was a common practice of that institution intended to initiate informal discussions on a Member State’s compliance with EU law, which could be followed by the initiation of the pre-litigation phase of an infringement procedure. That context is reflected in the letters at issue, which clearly set out the reasons why the Commission considers that the Slovak Republic could have infringed provisions of EU law. Furthermore, it is clear from the applications lodged by the Slovak Republic before the General Court that that context was known to it and that the intention of the Commission to enter into informal contacts was well understood. |
| --- | --- |

62

Secondly, as regards the context, it should be pointed out that, at the hearing, the Commission, without being contradicted on this point either by the Slovak Republic or by the intervening Member States, observed that the dispatch of letters such as the letters at issue was a common practice of that institution intended to initiate informal discussions on a Member State’s compliance with EU law, which could be followed by the initiation of the pre-litigation phase of an infringement procedure. That context is reflected in the letters at issue, which clearly set out the reasons why the Commission considers that the Slovak Republic could have infringed provisions of EU law. Furthermore, it is clear from the applications lodged by the Slovak Republic before the General Court that that context was known to it and that the intention of the Commission to enter into informal contacts was well understood.

| 63 | It is clear from the case-law that, in view of the Commission’s discretion to initiate infringement proceedings, a reasoned opinion is not capable of producing binding legal effects (see, to that effect, judgment of 29 September 1998, Commission v Germany, C‐191/95, EU:C:1998:441, paragraph 46 and the case-law cited). The same applies a fortiori to letters which, like the letters at issue, can be regarded as simple informal contacts prior to the opening of the pre-litigation phase of an action for failure to fulfil obligations. |
| --- | --- |

63

It is clear from the case-law that, in view of the Commission’s discretion to initiate infringement proceedings, a reasoned opinion is not capable of producing binding legal effects (see, to that effect, judgment of 29 September 1998, Commission v Germany, C‐191/95, EU:C:1998:441, paragraph 46 and the case-law cited). The same applies a fortiori to letters which, like the letters at issue, can be regarded as simple informal contacts prior to the opening of the pre-litigation phase of an action for failure to fulfil obligations.

| 64 | Thirdly, as regards the powers of the Commission, it is common ground between the parties that, in any event, that institution has no power to adopt binding measures requiring a Member State to make available amounts such as those at issue in the present cases. On the one hand, even assuming that, as the Slovak Republic points out, those amounts cannot be treated as ‘own resources’, the Commission stated before the Court that no legal basis for adopting a binding measure could be determined. On the other hand, even supposing that those amounts must be regarded as ‘own resources’, contrary to the arguments of the Slovak Republic, it must be observed that the Commission’s argument, that no decision-making power has been conferred on it either by Decision 2007/436 or by Regulation No 1150/2000, was not contradicted by that Member State. |
| --- | --- |

64

Thirdly, as regards the powers of the Commission, it is common ground between the parties that, in any event, that institution has no power to adopt binding measures requiring a Member State to make available amounts such as those at issue in the present cases. On the one hand, even assuming that, as the Slovak Republic points out, those amounts cannot be treated as ‘own resources’, the Commission stated before the Court that no legal basis for adopting a binding measure could be determined. On the other hand, even supposing that those amounts must be regarded as ‘own resources’, contrary to the arguments of the Slovak Republic, it must be observed that the Commission’s argument, that no decision-making power has been conferred on it either by Decision 2007/436 or by Regulation No 1150/2000, was not contradicted by that Member State.

| 65 | In the light of all the foregoing considerations, it must be concluded that the letters at issue do not constitute ‘actionable measures’ within the meaning of Article 263 TFEU, without it being necessary to rule on the substantive question concerning the applicability of Decision 2007/436 and Regulation No 1150/2000 and the legal classification of the amounts claimed. |
| --- | --- |

65

In the light of all the foregoing considerations, it must be concluded that the letters at issue do not constitute ‘actionable measures’ within the meaning of Article 263 TFEU, without it being necessary to rule on the substantive question concerning the applicability of Decision 2007/436 and Regulation No 1150/2000 and the legal classification of the amounts claimed.

| 66 | That conclusion is not called into question by the arguments of the Slovak Republic based on the right to effective judicial protection, the unnecessary prolongation of the dispute between it and the Commission and the risk of default interest. Although the requirement as to mandatory legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, it is sufficient to note that this right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to the abovementioned Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Thus, the interpretation of the concept of ‘actionable measure’ in the light of that Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts (see, by analogy, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‐131/03 P, EU:C:2006:541, paragraph 81, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‐477/11 P, not published, EU:C:2012:292, paragraph 54). |
| --- | --- |

66

That conclusion is not called into question by the arguments of the Slovak Republic based on the right to effective judicial protection, the unnecessary prolongation of the dispute between it and the Commission and the risk of default interest. Although the requirement as to mandatory legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, it is sufficient to note that this right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to the abovementioned Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‐583/11 P, EU:C:2013:625, paragraph 97 and the case-law cited). Thus, the interpretation of the concept of ‘actionable measure’ in the light of that Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts (see, by analogy, judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‐131/03 P, EU:C:2006:541, paragraph 81, and order of 14 May 2012, Sepracor Pharmaceuticals (Ireland) v Commission, C‐477/11 P, not published, EU:C:2012:292, paragraph 54).

| 67 | Therefore, the operative part of the orders under appeal, in so far as it dismisses the actions brought by the Slovak Republic as inadmissible, is well founded, so that the first ground of appeal must be dismissed. |
| --- | --- |

67

Therefore, the operative part of the orders under appeal, in so far as it dismisses the actions brought by the Slovak Republic as inadmissible, is well founded, so that the first ground of appeal must be dismissed.

The second ground of appeal

Arguments of the parties

| 68 | By its second ground of appeal, raised in the alternative, the Slovak Republic argues that the General Court infringed its obligation to state reasons. |
| --- | --- |

68

By its second ground of appeal, raised in the alternative, the Slovak Republic argues that the General Court infringed its obligation to state reasons.

| 69 | In the first place, the General Court did not give any reasons for the conclusion that the amounts claimed constituted own resources. The statement of reasons supporting that conclusion was all the more important in the present cases since, on the one hand, that conclusion constitutes the premiss of the General Court’s assessment regarding the admissibility of the applications, which the Slovak Republic claims is incorrect, and that, on the other hand, the treatment of those amounts as ‘own resources’ was contested by the Slovak Republic in its observations on the pleas of inadmissibility. Similarly, the General Court should have set out the reasons justifying the applicability, which the Slovak Republic had also challenged before the General Court, of the case-law relating to the obligations of Member States concerning own resources in bilateral relations, to a tripartite relationship such as that at issue in the present case. |
| --- | --- |

69

In the first place, the General Court did not give any reasons for the conclusion that the amounts claimed constituted own resources. The statement of reasons supporting that conclusion was all the more important in the present cases since, on the one hand, that conclusion constitutes the premiss of the General Court’s assessment regarding the admissibility of the applications, which the Slovak Republic claims is incorrect, and that, on the other hand, the treatment of those amounts as ‘own resources’ was contested by the Slovak Republic in its observations on the pleas of inadmissibility. Similarly, the General Court should have set out the reasons justifying the applicability, which the Slovak Republic had also challenged before the General Court, of the case-law relating to the obligations of Member States concerning own resources in bilateral relations, to a tripartite relationship such as that at issue in the present case.

| 70 | In the second place, the General Court failed to justify its conclusion that the concept of conditional payment could resolve the complex problem of access to justice and the urgency of the situation arising in the present cases. |
| --- | --- |

70

In the second place, the General Court failed to justify its conclusion that the concept of conditional payment could resolve the complex problem of access to justice and the urgency of the situation arising in the present cases.

| 71 | In the third place, the Slovak Republic states that the reasons given for the orders under appeal are almost identical to those of several orders issued by the General Court on the same day, albeit under different factual circumstances. It refers in particular to the order of 14 September 2015, Slovenia v Commission (T‐585/14, EU:T:2015:662), which, in its view, concerned a case of loss of traditional own resources due to the grant of an import license for sugar and involved, unlike the present cases, a bilateral relationship between the Member State and the Commission. |
| --- | --- |

71

In the third place, the Slovak Republic states that the reasons given for the orders under appeal are almost identical to those of several orders issued by the General Court on the same day, albeit under different factual circumstances. It refers in particular to the order of 14 September 2015, Slovenia v Commission (T‐585/14, EU:T:2015:662), which, in its view, concerned a case of loss of traditional own resources due to the grant of an import license for sugar and involved, unlike the present cases, a bilateral relationship between the Member State and the Commission.

| 72 | The Commission contests the merits of all those arguments. |
| --- | --- |

72

The Commission contests the merits of all those arguments.

Findings of the Court

| 73 | It must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of that statute and Article 117 of the Rules of Procedure of the General Court. It has consistently been held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‐288/11 P, EU:C:2012:821, paragraph 83 and the case-law cited). |
| --- | --- |

73

It must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of that statute and Article 117 of the Rules of Procedure of the General Court. It has consistently been held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 19 December 2012, Mitteldeutsche Flughafen and Flughafen Leipzig-Halle v Commission, C‐288/11 P, EU:C:2012:821, paragraph 83 and the case-law cited).

| 74 | Furthermore, it is settled case-law that the obligation on the General Court to state reasons does not require it to provide an account which follows exhaustively, one after the other, all the arguments put forward by the parties to the case. It is sufficient that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, to that effect, order of 12 July 2016, Pérez Gutiérrez v Commission, C‐604/15 P, not published, EU:C:2016:545, paragraph 27 and the case-law cited). |
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74

Furthermore, it is settled case-law that the obligation on the General Court to state reasons does not require it to provide an account which follows exhaustively, one after the other, all the arguments put forward by the parties to the case. It is sufficient that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, to that effect, order of 12 July 2016, Pérez Gutiérrez v Commission, C‐604/15 P, not published, EU:C:2016:545, paragraph 27 and the case-law cited).

| 75 | In the present case, the General Court clearly set out, in the orders under appeal, the reasons which led it to conclude that the letters at issue were not capable of being the subject of an action for annulment under Article 263 TFEU. It is clear from the examination of the first ground of appeal raised by the Slovak Republic that the reasons given for those orders enabled that Member State to understand the reasoning which led to the finding of inadmissibility and to contest its validity and that those reasons enabled the Court of Justice to exercise its review. |
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75

In the present case, the General Court clearly set out, in the orders under appeal, the reasons which led it to conclude that the letters at issue were not capable of being the subject of an action for annulment under Article 263 TFEU. It is clear from the examination of the first ground of appeal raised by the Slovak Republic that the reasons given for those orders enabled that Member State to understand the reasoning which led to the finding of inadmissibility and to contest its validity and that those reasons enabled the Court of Justice to exercise its review.

| 76 | It follows that the orders under appeal are not vitiated by an infringement of the obligation to state reasons. |
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76

It follows that the orders under appeal are not vitiated by an infringement of the obligation to state reasons.

| 77 | That conclusion is not called into question by the arguments put forward by the Slovak Republic. |
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77

That conclusion is not called into question by the arguments put forward by the Slovak Republic.

| 78 | First, in so far as that Member State argues that the General Court should have set out the reasons why it considered that it could apply Decision 2007/436 and Regulation No 1150/2000 in order to assess the actionable nature of the letters at issue, it must be observed that the General Court responded to the arguments raised before it and alleging the inapplicability of those texts by considering that those arguments concerned the assessment of the merits of the appeals. |
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78

First, in so far as that Member State argues that the General Court should have set out the reasons why it considered that it could apply Decision 2007/436 and Regulation No 1150/2000 in order to assess the actionable nature of the letters at issue, it must be observed that the General Court responded to the arguments raised before it and alleging the inapplicability of those texts by considering that those arguments concerned the assessment of the merits of the appeals.

| 79 | In those circumstances, secondly, it is also irrelevant, even if it were established, that the reasons given for the orders under appeal are almost identical to those given in other cases concerning other factual circumstances. |
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79

In those circumstances, secondly, it is also irrelevant, even if it were established, that the reasons given for the orders under appeal are almost identical to those given in other cases concerning other factual circumstances.

| 80 | Thirdly, by correctly pointing out that, although the condition relating to mandatory legal effects must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts, the General Court responded to the requisite legal standard to the arguments of the Slovak Republic alleging inadequate effective judicial protection given the alleged urgency of the situation. |
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80

Thirdly, by correctly pointing out that, although the condition relating to mandatory legal effects must be interpreted in the light of the principle of effective judicial protection, such an interpretation cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU courts, the General Court responded to the requisite legal standard to the arguments of the Slovak Republic alleging inadequate effective judicial protection given the alleged urgency of the situation.

| 81 | In the light of all the foregoing considerations, the second ground of appeal must be dismissed and the appeals must therefore be dismissed in their entirety. |
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81

In the light of all the foregoing considerations, the second ground of appeal must be dismissed and the appeals must therefore be dismissed in their entirety.

Costs

| 82 | Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. |
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82

Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

| 83 | Since the Commission has applied for costs to be awarded against the Slovak Republic and the Slovak Republic has been unsuccessful, it must be ordered to bear its own costs and pay those incurred by the Commission. |
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83

Since the Commission has applied for costs to be awarded against the Slovak Republic and the Slovak Republic has been unsuccessful, it must be ordered to bear its own costs and pay those incurred by the Commission.

| 84 | Under Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, Member States and institutions which intervene in the proceedings are to bear their own costs. |
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84

Under Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, Member States and institutions which intervene in the proceedings are to bear their own costs.

| 85 | Accordingly, the Czech Republic, the Federal Republic of Germany and Romania are to bear their own costs. |
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85

Accordingly, the Czech Republic, the Federal Republic of Germany and Romania are to bear their own costs.

| | On those grounds, the Court (Fourth Chamber) hereby: |
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On those grounds, the Court (Fourth Chamber) hereby:

| | 1. | Dismisses the appeals; |
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1.

1.

Dismisses the appeals;

Dismisses the appeals;

| | 2. | Orders the Slovak Republic to bear its own costs and pay those incurred by the European Commission; |
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2.

2.

Orders the Slovak Republic to bear its own costs and pay those incurred by the European Commission;

Orders the Slovak Republic to bear its own costs and pay those incurred by the European Commission;

| | 3. | Orders the Czech Republic, the Federal Republic of Germany and Romania to bear their own costs. |
| --- | --- | --- |

3.

3.

Orders the Czech Republic, the Federal Republic of Germany and Romania to bear their own costs.

Orders the Czech Republic, the Federal Republic of Germany and Romania to bear their own costs.

| | [Signatures] |
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[Signatures]

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(
  *1
  )	Language of the case: Slovak.

*1