European Commission v Kingdom of the Netherlands.
Date: 2019-10-31
52


It is apparent from settled case-law in relation to Article 120(c) of the Rules of Procedure of the Court of Justice that an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (judgment of 11 July 2018, Commission v Belgium, C‑356/15, EU:C:2018:555, paragraph 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).
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.
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.
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).
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.
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).
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).
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).
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).