Opinion of the Advocate General — ECLI:EU:C:2017:441
Date: 2017-06-08
Language of the case: Slovak
Subject matter: Financial provisions;Own resources
Procedure: Action for annulment;Appeal - unfounded
Origin: Slovakia

Summary 110. Since both the appeals and the actions before the General Court are well founded, the orders under appeal from the General Court must be set aside and the letters at issue from the Commission annulled. VI. Costs 111. Under Article 184(2) of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, it is to make a decision as to the costs. 112. Under Article 138(1) of the Rules of Procedure of the Court of Justice, which is to apply, under Article 184(1) thereof, to the procedure on appeal, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 113. Since the Commission is the unsuccessful party in these cases, it is to pay the appellants’ costs as applied for in their pleadings. 114. However, under Article 184(4) of the Rules of Procedure, the Court may order interveners at first instance that have taken part in the proceedings to bear their own costs. On that basis, the Member States that have intervened in support of the appellants should bear their own costs in the appeal proceedings. The same follows from Article 140(1) in conjunction with Article 184(1) of the Rules of Procedure with regard to the costs of those Member States that arose at first instance. 115. In the present cases therefore, the Slovak Republic and Romania, in so far as they mutually intervened in the other party’s proceedings, along with the Federal Republic of Germany and the Czech Republic are to bear their own costs. VII. Conclusion 116. In the light of the foregoing considerations, I propose, in respect of Joined Cases C‑593/15 P and C‑594/15 P, that the Court should: (1) Set aside the orders of the General Court of 14 September 2015 in Slovak Republic v Commission (T‑678/14, EU:T:2015:661, and T‑779/14, EU:T:2015:655); (2) Annul the decisions set out in the letters from the European Commission of 15 July 2014 (BUDG/B/3/MV D[2014] 2351197) and of 24 September 2014 (BUDG/B/3/MV D[2014] 3139078); (3) Order the European Commission to pay its own costs and the costs incurred by the Slovak Republic; (4) Order the Federal Republic of Germany and Romania to bear their own costs. 117. In addition, I propose, in respect of Case C‑599/15 P, that the Court should: (1) Set aside the order of the General Court of 14 September 2015 in Romania v Commission (T‑784/14, EU:T:2015:659); (2) Annul the decision set out in the letter from the European Commission of 19 September 2014 (BUDG/B/3/MV D[2014] 3079038); (3) Order the European Commission to pay its own costs and the costs incurred by Romania; (4) Order the Federal Republic of Germany, the Slovak Republic and the Czech Republic to bear their own costs. 1 Original language: German. 2 See, on the action for a declaratory judgment in connection with Article 272 TFEU, my Opinion in Planet v Commission (C‑564/13 P, EU:C:2014:2352, point 18 et seq.), and judgment of 26 February 2015, Planet v Commission (C‑564/13 P, EU:C:2015:124, paragraph 26). 3 OJ 2000 L 253, p. 42. 4 OJ 2007 L 163, p. 17. 5 OJ 2000 L 130, p. 1. 6 OJ 2004 L 352, p. 1. 7 OJ 2009 L 36, p. 1. 8 Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). 9 Article 4(19) of Regulation No 2913/92 defines the ‘presentation of goods to customs’ as ‘the notification to the customs authorities, in the manner laid down, of the arrival of goods at that customs office or at any other place designated or approved by the customs authorities’. 10 New Computerised Transit System. 11 BUDG/B/3/MV D(2014) 2351197, Annex No 2 to the appeal in Case C‑593/15 P. 12 BUDG/B/3/MV D(2014) 3139078, Annex No 2 to the appeal in Case C‑594/15 P. 13 BUDG/B/3/MV D(2014) 3079038, Annex No 1 to the application in Case T‑784/14 (appeal case before the Court of Justice C‑599/15 P). 14 In particular from paragraph 44 of the judgment of 8 July 2010, Commission v Italy (C‑334/08, EU:C:2010:414). 15 Under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991. 16 Orders of 14 September 2015, Slovakia v Commission (T‑678/14, not published, EU:T:2015:661), and Slovakia v Commission (T‑779/14, not published, EU:T:2015:655), and Romania v Commission (T‑784/14, not published, EU:T:2015:659). 17 In accordance with Article 130(1) of the Rules of Procedure of the General Court of 4 March 2015 which had since come into force. 18 Order under appeal in Case T‑678/14, paragraphs 27 to 40 and 43 to 46; order under appeal in Case T‑779/14, paragraphs 26 to 39 and 42 to 45, and order under appeal in Case T‑784/14, paragraphs 23 to 36 and 39 to 42. 19 Order under appeal in Case T‑678/14, paragraphs 41, 42, 47 and 48; order under appeal in Case T‑779/14, paragraphs 40, 41, 46 and 47, and order under appeal in Case T‑784/14, paragraphs 37, 38, 43 and 44. 20 Order under appeal in Case T‑678/14, paragraphs 50 to 59; order under appeal in Case T‑779/14, paragraphs 49 to 58, and order under appeal in Case T‑784/14, paragraphs 46 to 56. 21 Settled case-law since judgment of 11 November 1981, IBM v Commission (60/81, EU:C:1981:264, paragraph 9). 22 Order of 13 June 1991, Sunzest v Commission (C‑50/90, EU:C:1991:253, paragraph 12), and judgments of 31 March 1998, France and Others v Commission (C‑68/94 and C‑30/95, EU:C:1998:148, paragraph 63), and of 26 January 2010, Internationaler Hilfsfonds v Commission (C‑362/08 P, EU:C:2010:40, paragraph 58); see also Order of the General Court of 8 March 2012, Octapharma Pharmazeutika v EMA (T‑573/10, not published, EU:T:2012:114, paragraph 30). 23 See, for example, judgment of 27 March 1980, Sucrimex and Westzucker v Kommission (133/79, EU:C:1980:104, paragraph 16); orders of 17 May 1989, Italy v Commission (151/88, EU:C:1989:201, paragraph 22), of 13 June 1991, Sunzest v Commission (C‑50/90, EU:C:1991:253, paragraph 13), and of 27 January 1993, Miethke v Parliament (C‑25/92, EU:C:1993:32, paragraphs 15 and 16), and judgment of 1 December 2005, Italy v Commission (C‑301/03, EU:C:2005:727, paragraph 28); cf. also order of the General Court of 12 February 2010, Commission v CdT (T‑456/07, EU:T:2010:39, paragraph 59 et seq.), and judgment of the General Court of 31 March 2011, Italy v EESC (T‑117/08, EU:T:2011:131, paragraph 32). As regards the attribution of an act, see judgment of the General Court of 21 October 2010, Agapiou Joséphidès v Commission and EACEA (T‑439/08, not published, EU:T:2010:442, paragraph 34 et seq). 24 See judgment of 13 February 2014, Hungary v Commission (C‑31/13 P, EU:C:2014:70, paragraph 55): The ‘binding legal effects of a measure 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’ (emphasis added). 25 For a comprehensive account of the competence of the institution concerned in conjunction with the subject matter of the contested act, see, for example, order of 27 January 1993, Miethke v Parliament (C‑25/92, EU:C:1993:32, paragraph 13 et seq.); for an account of the powers to adopt decisions in connection with the assessment of various other criteria, see, for example, judgment of 1 December 2005, Italy v Commission (C‑301/03, EU:C:2005:727, paragraph 19 et seq). 26 See, for example, order of 17 May 1989, Italy v Commission (151/88, EU:C:1989:201, paragraphs 22 and 23); cf. also, clearly, judgment of the General Court of 31 March 2011 in Italy v EESC (T‑117/08, EU:T:2011:131, paragraph 32). 27 Cf. order under appeal in Case T‑678/14, paragraphs 27 to 34 and 43; order under appeal in Case T‑779/14, paragraphs 26 to 33 and 42, and order under appeal in Case T‑784/14, paragraphs 23 to 30 and 39. 28 Cf. order under appeal in Case T‑678/14, paragraphs 35 to 37 and 43; order under appeal in Case T‑779/14, paragraphs 34 to 36 and 42, and order under appeal in Case T‑784/14, paragraphs 31 to 33 and 39. 29 Cf. order under appeal in Case T‑678/14, paragraphs 38 to 40 and 45 to 47; order under appeal in Case T‑779/14, paragraphs 37 to 39 and 44 to 46, and order under appeal in Case T‑784/14, paragraphs 34 to 36 and 41 to 43. 30 Cf. order under appeal in Case T‑678/14, paragraphs 41, 42 and 48; order under appeal in Case T‑779/14, paragraphs 40, 41 and 47, and order under appeal in Case T‑784/14, paragraphs 37, 38 and 44. 31 Orders of 17 May 1989, Italy v Commission (151/88, EU:C:1989:201, paragraph 22), and of 13 June 1991, Sunzest v Commission (C‑50/90, EU:C:1991:253, paragraph 13). 32 Cf. orders of 17 May 1989, Italy v Commission (151/88, EU:C:1989:201, paragraphs 22 and 23), and of 13 June 1991, Sunzest v Commission (C‑50/90, EU:C:1991:253, paragraphs 5 and 13). 33 Cf., in particular, order under appeal in Case T‑678/14, paragraph 10; order under appeal in Case T‑779/14, paragraph 10, and order under appeal in Case T‑784/14, paragraph 7. 34 Under Article 10 of Regulation No 1150/2000 the entry of the own resources is to be made at the latest on the first working day following the 19th day of the second month following the month during which the entitlement was established in accordance with Article 2 of the regulation, that is to say, entered in the accounts for the purposes of the customs provisions, and for the entitlements under Article 6(3)(b) of the regulation shown in separate accounts, at the latest on the first working day after the 19th day of the second month following the month during which the amounts corresponding to the entitlements were recovered; cf. the corresponding provisions in points 16, 17 and 19 of this Opinion. 35 The letters at issue define the time at which the amounts demanded fall due as being the first working day after the 19th day of the second month following dispatch of the letters. 36 French terms used for better understanding: The payment requests, referred to in French as ‘notes de débit’, made by the Union’s institutions are referred to in English as ‘debit notes’, cf., for example, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562); see also Articles 80(3), 83(3), 88(1) and 93(1) of Commission Delegated Regulation (EU) No 1286/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1). 37 See judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai CheirourgikoKentro v Commission (C‑506/13 P, EU:C:2015:562, paragraphs 23 to 25), and order of 29 September 2016, Investigación y Desarrollo en Soluciones y Servicios IT v Commission (C‑102/14 P, not published, EU:C:2016:737, paragraphs 53 to 61). 38 See Opinion of Advocate General Cruz Villalón in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:110, point 46 et seq). 39 See, to this effect, judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 45 et seq.), and Opinion of Advocate General Cruz Villalón in Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:110, points 105, 106 and 112 to 115). 40 See points 51 and 52 above. 41 See point 52 above. 42 Cf. order under appeal in Case T‑678/14, paragraphs 50 to 53, order under appeal in Case T‑779/14, paragraphs 49 to 52, and order under appeal in Case T‑784/14, paragraphs 46 to 49. 43 Romania bases its argument in this regard explicitly on an infringement of the provisions of the Rules of Procedure of the General Court on the plea of inadmissibility (Article 130(7) and (8) of the Rules of Procedure of the General Court of 4 March 2015). The Slovak Republic’s argument effectively reaches the same conclusion, alleging that the General Court should have considered the plea of inadmissibility in conjunction with the decision on the substance, since it should not have treated the amounts demanded ‘from the outset’ (‘d’emblée’) as own resources without examining the applicability of the relevant provisions (cf. paragraphs 19 and 23 of the appeal in Cases C‑593/15 P and C‑594/15 P). 44 Cf. judgments of 14 May 1998, Council v De Nil and Impens (C‑259/96 P, EU:C:1998:224, paragraphs 32 and 33), of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 82), and of 14 June 2016, Commission v McBride and Others (C‑361/14 P, EU:C:2016:434, paragraph 61). 45 For an assessment of admissibility based on the relationship between various types of action in a different set of circumstances that cannot be transposed to this case, see judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission (C‑506/13 P, EU:C:2015:562, paragraph 19). 46 Nor, moreover, does the Slovak Republic, although in the form of order sought it formally only asks the Court itself to decide on the admissibility of its actions at first instance and to refer the cases back to the General Court for a ruling on the substance, set out reasons, within the meaning of Article 170(2) of the Court’s Rules of Procedure, why the state of proceeding does not permit a decision by the Court of Justice on the question of the lack of the reasons for the letters at issue. 47 See points 50 to 56 above. 48 See, in this regard, point 53 above. 49 Cf. judgment of 13. October 2011, Deutsche Post and Germany v Commission (C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraphs 50 to 54 and the case-law cited). 50 BUDG/B/3/MV D(2014) 2351197; Annex No 2 to the appeal in Case C‑593/15 P. 51 BUDG/B/3/MV D(2014) 777983; Annex No 20 to the application in Case T‑678/14. 52 No 1400100/1/230330/2014; Annex No 21 to the application in Case T‑678/14. 53 Judgment of 3 April 2014, Commission v Netherlands and ING Groep (C‑224/12 P, EU:C:2014:213, paragraph 69 and case-law cited). 54 Since both letters define the deadline for payment as the first working day following the 19th day of the second month following dispatch of the letter, a different deadline is therefore fixed in each instance. 55 See points 50 to 56 above. 56 Cf. judgment of 7 July 2005, Le Pen v Parliament (C‑208/03 P, EU:C:2005:429, paragraph 46). 57 Cf. judgments of 26 March 1987, Commission v Council (45/86, EU:C:1987:163, paragraph 9), of 1 October 2009, Commission v Council (C‑370/07, EU:C:2009:590, paragraph 56), and of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 66). 58 Cf. in this regard my Opinions in Mellor (C‑75/08, EU:C:2009:32, points 29 and 30), and in LS Customs Services (C‑46/16, EU:C:2017:247, points 82 and 83). 59 Cf. judgments of 2 April 1998, Commission v Sytraval and Brink’s France (C‑367/95 P, EU:C:1998:154, paragraph 67), and of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742, paragraph 34). 60 Cf. judgments of 2 December 2009, Commission v Ireland and Others (C‑89/08 P, EU:C:2009:742, paragraph 54), and of 3 December 2015, Italy v Commission (C‑280/14 P, EU:C:2015:792, paragraph 24). 61 Judgment of 17 December 2009, Review in M v EMEA (C‑197/09 RX-II, EU:C:2009:804, paragraph 30). 62 See in that sense, judgment of 26 May 1982, Germany and Bundesanstalt für Arbeit v Commission (44/81, EU:C:1982:197, paragraph 6). 63 Cf. judgment of 16 December 2008, Masdar (UK) v Commission (C‑47/07 P, EU:C:2008:726, paragraphs 44 to 50). 64 Cf., on a similar point, judgment of 13 March 2007, Unibet (C‑432/05, EU:C:2007:163, paragraph 58). 65 Cf. in this regard judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3, paragraph 54).