Commission of the European Communities v Kingdom of the Netherlands.
Date: 1991-05-16
15 In that regard, it is sufficient to point out that, as the Court ruled in its judgment of 10 April 1984 in Case 324/82 Commission v Belgium [1984] ECR 1861, the rules of Article 169 of the Treaty, unlike those of Article 93 which derogate expressly therefrom, must be applied and the Commission is not obliged to act within a specific period. In the present case, the Commission has explained that it had decided to await the Court' s judgment, cited above, in the Krohn case, as well as the reactions of the Netherlands Government to that judgment before bringing this action. In doing that the Commission has not exercised the discretion which it has under Article 169 in a way that is contrary to the Treaty.
16 It is true that in certain cases the excessive duration of the pre-litigation procedure laid down by Article 169 is capable of making it more difficult for the Member State concerned to refute the Commission' s arguments and of thus infringing the rights of the defence. However, in the instant case, the Netherlands Government has not proved that the unusual length of the procedure had any effect on the way in which it conducted its defence.
17 Finally, it must be accepted, as the Commission has rightly pointed out, that the Netherlands Government could have avoided the adverse financial consequences to which it refers by making available to that institution the amount claimed while formulating reservations as to the validity of the Commission' s arguments.
30 Fifthly, as the Advocate General has rightly pointed out in paragraph 25 of his Opinion, the principle of the protection of legitimate expectations does not prevent the national authorities from refusing to clear into free circulation quantities of manioc exported from Thailand without an export certificate but none the less with an import licence fixing the levy at 6%. As the Court ruled in its judgment of 12 December 1985 in Case 67/84 Sideradria SpA v Commission [1985] ECR 3983, that principle may not be relied upon by an undertaking which has committed a manifest infringement of the rules in force.
37 With regard to the first argument, it must be pointed out that, under Article 2 of Regulation No 2891/77, an entitlement shall be deemed to be established as soon as the corresponding claim has been duly determined by the appropriate department or agency of the Member State. However, it may not be inferred from that provision that the Member States may dispense with determining the claims, even where these are disputed. Otherwise, it would have to be accepted that the financial equilibrium of the Community may be disrupted, even temporarily, by the arbitrary conduct of a Member State.
38 As to the second argument, it must be pointed out that, according to the well-established case-law of the Court (see, in particular, the judgment of 21 September 1989 in Case 68/88 Commission v Greece [1989] ECR 2965), there is an inseparable link between the obligation to establish the Communities' own resources, the obligation to credit them to the Commission' s account within the prescribed time-limit and the obligation to pay default interest; in addition, default interest is payable regardless of the reason for the delay in making the entry in the Commission' s account. It follows that it is unnecessary to distinguish between a situation in which a Member State has established the Communities' own resources without paying them and one in which it has wrongfully omitted to establish them, even in the absence of a mandatory time-limit.
39 Finally, as regards the consequences of the alleged delays attributable to the Commission, the Court has already observed, in paragraph 17 of this judgment, that the Netherlands Government could easily have avoided them.