Opinion of the Advocate General — ECLI:EU:C:2019:98
Date: 2019-02-06
Language of the case: Dutch
Subject matter: Financial provisions;Overseas countries and territories;Own resources
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

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 32 and the case-law cited). 53 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 33 and the case-law cited). 54 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 34 and the case-law cited). 55 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. 56 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. 57 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. 58 Accordingly, the plea of inadmissibility raised by the Kingdom of the Netherlands must be rejected. Substance Arguments of the parties 59 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. 60 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. 61 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. 62 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. 63 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. 64 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. 65 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 62), 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. 66 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. 67 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. 68 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. 69 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. 70 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 48), 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 71 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. 72 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. 73 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 64 and the case-law cited, and of 13 May 2014, Commission v Spain, C‑184/11, EU:C:2014:316, paragraph 43 and the case-law cited). 74 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. 75 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). 76 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 45 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. 77 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 78 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. 79 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. 80 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 62, and 1/94 (Agreements annexed to the WTO Agreement) of 15 November 1994, EU:C:1994:384, paragraph 17). 81 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). 82 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. 83 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). 84 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). 85 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. 86 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. 87 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’. 88 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. 89 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 62). 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. 90 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. 91 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. 92 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. 93 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. 94 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. 95 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 44, and of 5 December 2017, Germany v Council, C‑600/14, EU:C:2017:935, paragraph 94). 96 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. 97 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 98 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 37 and 38; of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35 and the case-law cited; and of 27 June 2019, Belgisch Syndicaat van Chiropraxie and Others, C‑597/17, EU:C:2019:544, paragraph 54). 99 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 54, and of 5 October 2006, Commission v Germany, C‑105/02, EU:C:2006:637, paragraph 88). 100 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). 101 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. 102 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. 103 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. 104 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 105 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. 106 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. 107 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. 108 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 48). 109 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. 110 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 48 and 49). 111 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. 112 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 113 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. 114 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] * Language of the case: Dutch