Commission of the European Communities v Kingdom of the Netherlands. (Action for a declaration of failure by a Member State to fulfil its obligations) [1991] EUECJ C-96/89 (16 May 1991)

Judgment 1 By application lodged at the Court Registry on 21 March 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by admitting into free circulation in 1983, at the reduced levy of 6% ad valorem, some 60 000 tonnes of manioc exported from Thailand without an export certificate, the Kingdom of the Netherlands had failed to fulfil its obligations under the EEC Treaty. 2 According to the form of order sought in its application, the Commission accuses the Kingdom of the Netherlands of having, in particular: (a) admitted into free circulation in or around April 1983 some 60 000 tonnes of manioc: - without applying the agricultural levy at the full rate laid down by Articles 2 and 4 of Council Regulation (EEC) No 2744/75 of 29 October 1975 on the import and export system for products processed from cereals and from rice (Official Journal L 281, p. 65); - and without checking, in accordance with Article 5 of the Treaty and Article 7 of Commission Regulations (EEC) No 2029/82 of 22 July 1982 and No 3383/82 of 16 September 1982 laying down detailed rules for implementing the import arrangements applicable to products falling within subheading 07.06 A of the Common Customs Tariff, originating the Thailand and exported from that country in 1982 and 1983 respectively (Official Journal L 218, p. 8, and L 356, p. 8), whether the manioc could be admitted at the reduced rate laid down by the EEC-Thailand Cooperation Agreement; (b) refused to establish as the Communities' own resources and to make available to the Commission the amount of HFL 19 765 281.39, together with interest as from 29 June 1984, in accordance with Article 11 of Council Regulation (EEC, EURATOM, ECSC) No 2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources (Official Journal L 336, p. 1). 3 The Cooperation Agreement between the European Economic Community and the Kingdom of Thailand on manioc production, marketing and trade was approved, on behalf of the Community, by Council Decision 82/495/EEC of 19 July 1982 (Official Journal L 219, p. 52). By certain provisions of that agreement Thailand undertook to limit its exports to the Community of manioc falling within subheading 07.06 A of the Common Customs Tariff during the period of validity of the agreement (from January 1982 to December 1986) to the quotas fixed therein. For its part, the Community undertook, in particular, to limit to 6% the levy applicable to imports of manioc covered by the Agreement. To that end, Article 5 of the Agreement requires the Thai authorities to issue export certificates only within the limits of the quotas fixed and the Community authorities to issue import licences only on presentation of a Thai export certificate. 4 The application of the Cooperation Agreement within the Community was provided for by Council Regulation (EEC) No 2646/82 of 30 September 1982 on the import system applicable in 1982 to products falling within subheading 07.06 A of the Common Customs Tariff (Official Journal L 279, p. 81) and by Council Regulation (EEC) No 604/83 of 14 March 1983 on the import system applicable in 1983 to 1986 to products falling within subheading 07.06 A of the Common Customs Tariff and amending Regulation (EEC) No 950/68 on the Common Customs Tariff (Official Journal L 72, p. 3). Those regulations provide for the charging of an import levy of 6% ad valorem on manioc originating in Thailand, within the limits of the quantities fixed by the Cooperation Agreement, in derogation from Articles 2 and 4 of Regulation No 2744/75, which provide that the rate of the levy for products falling within subheading 07.06 A of the Common Customs Tariff is to be calculated with reference to the levy fixed for barley. 5 The detailed rules for implementing the system laid down by the Cooperation Agreement were laid down for 1982 and for 1983 by Regulations Nos 2029/82 and 3383/82 respectively. Pursuant to certain provisions of those regulations, applications for import licences must be submitted to the competent authorities of the Member States, accompanied by the original of the export certificate, indicating in particular the name of the vessel transporting the manioc to the Community. 6 Under Article 7(1) of the said regulations, whose wording is identical: "The import licence shall be issued on the fifth working day following the day on which the application was lodged, except where the Commission has informed the competent authorities of the Member State by telex that the conditions laid down in the Cooperation Agreement have not been fulfilled. In the event of non-observance of the conditions governing the issue of the licence, the Commission may, where necessary, and following consultation with the Thai authorities, adopt appropriate measures." 7 The Commission amended the provisions of Regulations Nos 2029/82 and 3383/82 by Commission Regulation (EEC) No 499/83 of 2 March 1983 (Official Journal L 56, p. 12). Under Article 2, this regulation is applicable to certificates the applications for which are lodged from 21 March 1983 onwards. It provides, first, that the import licence is also to indicate the name of the vessel given on the Thai export certificate submitted with the application. Secondly, it specifies that the import licence may not be accepted in support of the declaration of entry into free circulation unless it is clear, in particular from a copy of the bill of lading, that the products for which entry into free circulation is requested were transported to the Community in the vessel mentioned on the export certificate and that the date on which the products were loaded onto the vessel in Thailand precedes the date of the Thai export certificate. 8 It is apparent from the papers before the Court that this amendment was intended to deal with the difficulties which had arisen owing to the fact that, when the EEC-Thailand agreement entered into force, a certain number of import licences which had been issued previously were still valid and consequently allowed the importers holding them to carry out the corresponding imports after the entry into force of the Agreement without, however, having to submit the export certificates issued by the Thai authorities. Certain economic operators could thus be tempted to keep old export certificates and to re-use those of them which were still valid in order to seek new import licences under the system established by Regulation No 2029/82. The same export certificate could therefore be used to import into the EEC double the quantity of manioc indicated in the document. As the Court has already declared in its judgment of 15 January 1987 in Case 175/84 Krohn & Co Import-Export (GmbH & Co KG) v Commission [1987] ECR 97 such practices compromise the observance of the quotas fixed by the EEC-Thailand Cooperation Agreement. 9 By telex of 31 January 1983 the Commission informed the authorities of the Member States that the vessel Equinox had left Thailand with a cargo of manioc for which no export certificates had been issued and asked them to ensure that this manioc was not imported under an import licence issued in application of the Agreement. 10 On 16 June 1983 the Netherlands authorities informed the Commission that the vessel Equinox had, in April 1983, discharged 117 581 478 kilograms of manioc, of which 62 523 478 were covered by import licences which had been issued by the German intervention authority, the Bundesanstalt fuer landwirtschaftliche Marktordnung (Federal Office for the Organisation of Agricultural Markets, hereinafter referred to as "BALM"), before 21 March 1983 and which did not indicate the name of the vessel, while the remainder were covered by import licences issued after that date and indicating the name of the vessel Equinox. 11 Informal contacts took place between the Commission and the Netherlands authorities during 1984. On 25 July 1985 the Commission initiated the Article 169 procedure by a letter requesting the Dutch Government to submit its observations. On 29 January 1988 the Commission issued the reasoned opinion provided for by Article 169. 12 Taking the view that the Netherlands authorities should not have admitted into the Community the quantity of manioc in question amounting to some 60 000 tonnes at the reduced levy of 6% ad valorem and that they had thus failed to establish as Communities' own resources the amount of Hfl 19 765 281, corresponding to the levy applicable to that cargo, and also to make that amount available to the Commission, together with the interest provided for in Article 11 of Regulation No 2891/77 calculated as from 29 June 1984, the Commission brought the present action. 13 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. Admissibility 14 The Netherlands Government considers, in the first place, that the application is inadmissible owing to the delays attributable to the Commission in these proceedings. While the first letter sent by the Commission to the Netherlands Government regarding the matters in question dates from 1 February 1984, the Commission did not bring its action until 21 March 1989, that is to say, more than five years later. The Commission' s slowness has meant that the rights of defence of the Netherlands Government have been infringed and produced unacceptable financial consequences, in so far as the Netherlands Government risks having to pay the default interest provided for by Article 11 of Regulation No 2891/77 on the amount claimed by the Commission as uncollected levies. 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. 18 It follows that the arguments based on the inadmissibility of the present application must be dismissed and the substance of the case must be examined. Substance Failure to apply the levy laid down by Regulation No 2744/75 19 The Commission accuses the Dutch Government of not having applied to the contested quantity of manioc the levy at the full rate resulting from the application of Regulation No 2744/75. That quantity, exported from Thailand without export certificates being issued for that purpose by the authorities of that country, in application of the EEC-Thailand Cooperation Agreement, should not have benefited from the reduced levy fixed by that agreement and reproduced by Regulations Nos 2646/82 and 604/83. 20 The Netherlands Government has disputed that the quantity of manioc in question has been shown to have been exported from Thailand without being covered by export certificates. It has argued, in particular, that even if the Thai export certificates, submitted in order to obtain the import licences used for the customs clearance of that manioc, indicate the names of vessels other than the Equinox, it is possible that the manioc was finally loaded onto that vessel and not the one initially envisaged, or that it was transferred during the course of the voyage. 21 In regard to that argument it must be pointed out that it was the Thai authorities responsible for issuing the export certificates who themselves informed the Commission that the vessel Equinox was carrying manioc that was not covered by export certificates. Furthermore, the Thai export certificates submitted in order to obtain the import licences, which have been submitted at the Court' s request, actually indicate the names of vessels other than the Equinox. 22 While it is true that the manioc could have been loaded on a different ship from the one initially envisaged, the fact remains that, according to certain documents among the papers before the Court which have not been disputed, the practice of the Thai authorities consists of not issuing an export certificate until after the ship has been loaded. Since the Netherlands Government has not shown the slightest evidence that the Thai authorities departed from this practice or that the manioc in question was transferred during the voyage, it must be taken as proved to the requisite legal standard that the contested quantity of manioc was exported from Thailand without the authorities of that country having issued export certificates. 23 It follows that, as the Commission contends, the manioc in question could not benefit from the reduced levy laid down by the Cooperation Agreement and by Regulations Nos 2646/82 and 604/83. Consequently, the Commission' s case on this first point must be upheld. Failure to ascertain whether the manioc could benefit from the reduced levy 24 The Commission contends that the Netherlands authorities failed to ascertain, in accordance with Article 5 of the Treaty and Article 7 of Regulations Nos 2029/82 and 3383/82, whether the manioc in question had been exported from Thailand under cover of the export certificates provided for by the Cooperation Agreement and were thus eligible for the application of the reduced levy. In particular, those authorities failed to act upon the request for verification which, contained in the abovementioned telex of 31 January 1983, constituted an appropriate measure, adopted following consultation with the Thai authorities, within the meaning of Article 7 of the aforesaid regulations. In the alternative, the Commission accuses the Dutch authorities of not proceeding to the post-clearance recovery of the uncollected levies. 25 The Netherlands Government takes the view, first of all, that, before Regulation No 499/83 came into force, the Commission only had the power to oppose the issue of import licences and not the power to demand that the authorities of the Member States ascertain the identity of the quantities of manioc presented for entry into free circulation under import licences issued by the competent authority of a Member State. The national authorities did not have the means to ascertain that identity and could not redress the error committed by the Commission, which had not in any way opposed the issuing of import licences. Secondly, any refusal to clear quantities of manioc duly accompanied by import licences infringes the legitimate expectations of the operators concerned. Finally, the telex of 31 January 1983 does not constitute an appropriate measure within the meaning of Article 7 of Regulations Nos 2029/82 and 3383/82, was not sent following consultation with the Thai authorities, and was signed by an Deputy Director General who was not competent to do so. 26 The submissions of the Dutch Government cannot be accepted. It must be pointed out, in the first place, that, according to the wording of the second subparagraph of Article 7(1) of the aforementioned regulations, the Commission is authorised to adopt measures in the event of the infringement of the conditions to which the issue of import licences is subject. It is therefore clear that the Commission' s intervention must take place at a time subsequent to the issue of those licences. 27 It is important to emphasize, in the second place, that the first subparagraph of paragraph 1 of the same article confers on the Commission the power to oppose the issue of import licences. It follows that the power to adopt appropriate measures, which the Commission derives from the second subparagraph, serves no purpose unless it is exercised after the issue of those licences. 28 In the third place, the practical difficulties invoked by the Netherlands Government are not to be taken seriously. The national authorities responsible for clearing goods into free circulation could easily have contacted their counterparts in the other Member States which had issued import licences and which, having available the Thai export certificates submitted for that purpose, could have provided them with all the necessary information for ascertaining the identity of the imported manioc. 29 Fourthly, as regards the errors allegedly committed by the Commission, the very facts of this case show that the Commission could act only after the import licences had been issued. In fact, the information provided by the Thai authorities concerning the departure of the vessel Equinox could not have reached the Commission until after BALM had issued in the first days of January a number of import licences used when the manioc in question was placed in free circulation. The Commission cannot, therefore, have committed errors which the national authorities were required to correct. 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. 31 Finally, Article 7 of the aforementioned regulations do not make the Commission' s intervention subject to any condition as to form, so that the telex of 31 January 1983 could constitute an appropriate measure within the meaning of those provisions. Moreover, it is apparent from the very words of that telex that the Thai authorities, by the information which they provided, did, in effect, prompt the Commission' s intervention, so that formal consultation of them by the Commission was no longer needed. 32 In the alternative, the Netherlands Government has submitted an argument according to which it acted upon the Commission' s telex by carrying out a check and thus learnt that the vessel Equinox had remained in dock in a Thai port awaiting the issue of the export certificates. 33 In that respect, it is sufficient to point out that, by the said telex, the Commission had expressly asked the competent authorities of the Member States to ensure that the cargo of the Equinox, which was not accompanied by Thai export certificates, was not released into free circulation under cover of import licences issued in application of the Cooperation Agreement, in accordance with Regulations Nos 2029/82 and 3383/82. The information obtained by the Netherlands Government was not inconsistent with the content of the Commission' s telex and did not render superfluous checks aimed at preventing quantities of manioc exported from Thailand without export certificates from benefiting from the reduced levy. 34 It follows from the foregoing that the Commission' s second complaint must be accepted on the sole basis of Article 7 of Regulations Nos 2029/82 and 3383/82, without it being necessary to rule on the arguments based on Article 5 of the Treaty or on the alternative submission concerning the failure to effect post-clearance recovery of the amounts not collected as levies. Failure to establish as own resources and to make available to the Commission the amount of the uncollected levies 35 The Commission takes the view that the defendant State has infringed the provisions of Regulation No 2891/77 by refusing to establish as own resources and to make available to the Commission the amount of the levies pertaining to the contested manioc, namely HFL 19 765 281.39, together with interest calculated as from 29 June 1984. 36 The Dutch Government considers, first of all, that Article 2 of Regulation No 2891/77 attributes exclusively to the Member States the right to establish own resources and that they are not required to pay to the Commission amounts which it requires to be paid as a disputed claim. As regards default interest, this is payable, under Article 11 of the same regulation, only on amounts which have been established as own resources or which ought to have been so established by virtue of a mandatory time-limit. Finally, the amount of interest claimed is, inter alia, a result of the delays caused by the Commission in the present proceedings. 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. 40 The last point of the Commission' s claim must therefore be upheld. 41 It follows from all the foregoing considerations that it must be declared that the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty: (a) by admitting into free circulation in or around April 1983 some 60 000 tonnes of manioc which had been exported from Thailand without an export certificate - without applying the full rate of agricultural levy as provided for in Articles 2 and 4 of Council Regulation (EEC) No 2774/75 of 29 October 1975 on the import and export system for products processed from cereals and rice, - and without checking, in accordance with Article 7 of Commission Regulation (EEC) No 2029/82 of 22 July 1982 and No 3383/82 of 16 December 1982 laying down detailed rules for implementing the import arrangements applicable to products falling within subheading 07.06 A of the Common Customs Tariff, originating in Thailand and exported from that country in 1982 and 1983 respectively, whether there existed, in respect of the manioc, entitlement to application of the lower levy provided for in the Cooperation Agreement between the EEC and Thailand; and (b) by refusing to establish that the amount which was wrongly not levied on the manioc, namely Hfl 19 765 281.39, is the Communities' own resources and to make it available to the Commission together with interest calculated as from 29 June 1984, in accordance with Article 11 of Council Regulation (EEC, Euratom, ECSC) No 2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources. Costs 42 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Kingdom of the Netherlands has been unsuccessful in its submissions, it must be ordered to pay the costs. On those grounds, THE COURT hereby: 1. Declares that the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty: (a) by admitting into free circulation in or around April 1983 some 60 000 tonnes of manioc which had been exported from Thailand without an export certificate - without applying the full rate of agricultural levy as provided for in Articles 2 and 4 of Council Regulation (EEC) No 2774/75 of 29 October 1975 on the import and export system for products processed from cereals and rice, - and without checking, in accordance with Article 7 of Commission Regulation (EEC) No 2029/82 of 22 July 1982 and No 3383/82 of 16 December 1982 laying down detailed rules for implementing the import arrangements applicable to products falling within subheading 07.06 A of the Common Customs Tariff, originating in Thailand and exported from that country in 1982 and 1983 respectively, whether there existed, in respect of the manioc, entitlement to application of the lower levy provided for in the Cooperation Agreement between the EEC and Thailand; and (b) by refusing to establish that the amount which was wrongly not levied on the manioc, namely Hfl 19 765 281.39, is the Communities' own resources and to make it available to the Commission, together with interest calculated as from 29 June 1984, in accordance with Article 11 of Council Regulation (EEC, Euratom, ECSC) No 2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources; 2. Orders the Kingdom of the Netherlands to pay the costs. © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII