14 September 2015 (*1)

‛Action for annulment — Own resources of the European Union — Financial responsibility of the Member States — Obligation to pay the Commission the amount corresponding to a loss of own resources — Letter from the Commission — Act not open to challenge — Inadmissibility’

In case T‑585/14,

Republic of Slovenia, represented by L. Bembič, acting as Agent,

applicant,

European Commission, represented by P. Ondrůšek, M. Wasmeier and M. Žebre, acting as Agents,

defendant,

APPLICATION for the annulment of the alleged decision of the Directorate-General for Budget of the European Commission, contained in letter BUDG/B/03MV D (2014) 1782918 of 2 June 2014, in which, the latter found, first, that the Republic of Slovenia was financially responsible for the loss of traditional own resources for the EU budget relating to the issue of a sugar import licence in respect of the calendar year 2011 and, second, that that Member State should make available to the EU budget an amount equivalent to the loss of traditional own resources.

THE COURT (Third Chamber, Extended Composition),

composed of S. Papasavvas, President, N.J. Forwood, I. Labucka, and E. Bieliūnas (Rapporteur) and V. Kreuschitz, Judges,

Registrar: E. Coulon,

makes the following

Background to the dispute

1.1 On 7 October 2011, Kandit d.o.o. (‘Kandit’), a company governed by Slovenian law, submitted an application for an import licence for a quantity of 3000 tonnes of sugar to the Agencija Republike Slovenije za kmetijske trge in razvoj podeželja (‘Agency of the Republic of Slovenia for the Agricultural Market and Rural Development’, ‘the Agency’).

2.2 On 10 October 2011, the Agency sent a notification to the Commission via the IT application called ‘Agricultural Market Information Quota’ (the ‘AMIS-Quota’) in accordance with Article 9(1)(a) of Commission Regulation (EC) No 891/2009 of 25 September 2009 opening and providing for the administration of certain Community tariff quotas in the sugar sector (OJ 2009 L 254, p. 82) (‘Regulation No 891/2009’). The Agency informed the Commission in the notification that Kandit had submitted an application for an import licence for a quantity of 3000 tonnes of sugar originating from Croatia under tariff quota No 09.4328.

3.3 On 24 October 2011, the Agency issued Kandit with an import licence relating to sugar originating from Croatia and which concerned import tariff No 09.4328.

4.4 On 2 November 2011, the Agency informed the Commission in accordance with Article 9(2)(i) of Regulation No 891/2009, and by means of the IT application AMIS-Quota, that it had issued the licence to Kandit.

5.5 On 7 November 2011, Kandit attempted to import sugar into Slovenia for the first time, relying on the licence with which it had been issued. On this occasion, the Slovenian customs authorities noted that the sugar in question originated from Serbia and therefore the import licence presented by Kandit, which covered Croatia and tariff quota No 09.4328, referred to the wrong country as the country from which the sugar came, the wrong country of origin, as well as the wrong tariff quota. After being told by the Agency that an administrative mistake had been made, the Slovenian customs authorities authorised the import of 71 tonnes of sugar.

6.6 On the same day, that is to say, before the end of the period laid down in Article 9(2)(i) of Regulation No 891/2009 for notifying to the Commission the details of the licences issued, the Agency corrected in the application AMIS-Quota its notification to the Commission relating to the import licence actually granted, in order to clarify that it had been issued in respect of the import of sugar originating from Serbia in the context of tariff quota No 09.4326.

7.7 The Agency informed the Commission by e-mail the same day that it had made the adjustment. The Agency also told the institution that it had to adjust the notification of 10 October 2011 referred to in paragraph 2 above, but that the period within which the notification of applications for import licences could be made, under Article 9(1) of Regulation No 891/2009, had elapsed.

8.8 Still on 7 November 2011, the services of the Commission informed the Agency that it was no longer possible to adjust retrospectively the mistake made in the notification of 10 October 2011.

9.9 The Slovenian authorities and the Commission services continued corresponding in 2012 and in 2014.

10.10 By letter dated 2 June 2014 (‘the contested letter’), the director of the directorate called ‘Own resources and financial programming’ of the Directorate-General for Budget of the Commission (‘the Director’) pointed out again the administrative mistake which had been made. He stressed that the quantities imported by means of licences, but which were not substantiated, could not benefit from reduced customs duties and attracted normal customs duties’ payments.

11.11 In the contested letter, the Director also explained that the Slovenian authorities had issued an invalid import licence for tariff quota No 09.4326 (Serbia), in respect of which there had not been any relevant notification. In this respect, he noted that Article 7(1) of Commission Regulation (EC) No 1301/2006 of 31 August 2006 laying down common rules for the administration of import tariff quotas for agricultural products managed by a system of import licences (OJ 2006 L 238, p. 13) clearly provided that no import licence could be issued for quantities which had not been notified to the Commission. He also pointed out that the Commission had not been able to correct the mistake on the grounds that, on the one hand, mistakes made by operators could not be taken into consideration with a view to potential adjustments, and on the other hand, the mistake in question had been pointed out after the end of the process for issuing licences.

12.12 The Director concluded from this that a quantity of up to 3000 tonnes of sugar could have been imported outside the quota, if the licence had been used to its full extent. He added that the maximum loss of traditional own resources that could have occurred amounted to EUR 1257000, since the specific rate for customs duties for the import of sugar had been set at EUR 419 per tonne net. He asked the Slovenian authorities to make available to the budget of the Union the amount corresponding to the loss of traditional own resources for which the Slovenian authorities were financially responsible, and which could have stemmed from their mistake. In order to limit the amount of default interest under Article 11 of Council Regulation, as amended, (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 2007/436/EC, Euratom on the system of the Communities’ own resources (OJ 2000 L 130, p. 1) (‘Regulation No 1150/2000’), he recommended that the Slovenian authorities should act as quickly as possible. He clarified that all the accounting information should also be sent to the Commission so that it could calculate the default interest. To that end, a table to be completed was annexed to the contested letter.

Procedure

13.13 By application lodged at the Registry of the General Court on 4 August 2014, the Republic of Slovenia brought the present action.

14.14 In the application, the Republic of Slovenia requested that the case be decided by a Chamber composed of at least five Judges, pursuant to the second subparagraph of Article 51(1) of the Rules of Procedure of the General Court of 2 May 1991 (‘Rules of Procedure’).

15.15 By separate document lodged at the Court Registry on 13 November 2014, the Commission raised a plea of inadmissibility under Article 114(1) of the Rules of Procedure.

16.16 The Republic of Slovenia lodged its observations on that plea of inadmissibility on 6 February 2015.

17.17 By documents lodged at the Court Registry on 28 November 2014 and 13 March 2015 respectively, the Portuguese Republic and the Kingdom of Spain made an application for leave to intervene in support of the Republic of Slovenia’s claim for annulment, in accordance with Article 115 of the Rules of Procedure.

18.18 In light of the request referred to in paragraph 14 above and having regard to the wording of the second subparagraph of Article 51(1) of the Rules of Procedure, the Court assigned the case to the Third Chamber (Extended Composition) on 17 June 2015.

Forms of order sought

19.19 In its application, the Republic of Slovenia claims that the Court should:

—annul the alleged decision of the Commission’s Directorate-General for Budget in the contested letter;

—order the Commission to pay the costs.

20.20 In its plea of inadmissibility, the Commission contends that the Court should:

—dismiss the action as inadmissible;

—order the Republic of Slovenia to pay the costs.

21.21 In its observations on the plea of inadmissibility, the Republic of Slovenia claims that the Court should:

—reject the plea of inadmissibility raised by the Commission;

—in the alternative, reserve its decision on the plea of inadmissibility until judgment in the main proceedings.

Law

22.22 Under Article 130(1) of its Rules of Procedure, the Court may rule on inadmissibility or lack of competence without going to the substance of the case, if the defendant so requests. In the present case, the Court considers it has sufficient information from the documents in the file and has decided to give a decision without taking further steps in the proceedings.

23.23 The Commission contends that the action is inadmissible on the ground that neither the contents of the contested letter nor the context of its formulation or its powers indicate that the letter contains a binding decision or that it creates binding legal effects. The Commission also argues that the contested letter is preliminary in nature or confirms the contents of an earlier letter.

24.24 The Republic of Slovenia disputes the Commission’s arguments. First, it argues that the contested letter was written by the Commission, an institution of the Union. Second, it stresses that it had to give effect to the requirements set out in that letter. Third, it argues that the contested letter creates binding effects. Indeed, in this letter, the Republic of Slovenia contends that the Commission made, failing any legal base, final assessments by which it ordered the Member State to make available to the Union budget the amount of own resources which were lost in this case. Furthermore, the contested letter produced legal effects on third parties. Fourth, the Republic of Slovenia maintains that the Commission has acted ultra vires, on the ground that it adopted a decision that has no basis in EU law. Fifth, it disputes that the contested letter is preliminary in nature or merely confirms previous correspondence.

25.25 According to consistent case-law, developed in the context of actions for annulment brought by Member States or institutions, any measures adopted by the institutions, whatever their form, which are intended to have binding legal effects are regarded as acts open to challenge, within the meaning of Article 263 TFEU (see judgment of 13 October 2011 in Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, ECR, EU:C:2011:656, paragraph 36 and the case-law cited).

26.26 According to case-law, preparatory acts are not alone in falling outside the scope of the judicial review provided for in Article 263 TFEU: so does any act which does not produce binding legal effects, such as confirmatory measures and purely implementing measures, mere recommendations and opinions and, in principle, internal instructions (see, to that effect, order of 14 May 2012 in Sepracor Pharmaceuticals (Ireland) v Commission, C‑477/11 P, EU:C:2012:292, paragraph 52 and the case-law cited).

27.27 Again according to case-law, where annulment of a measure is sought, it is necessary to look at the substance of that measure in order to ascertain whether it is open to challenge; the form in which it is cast is, in principle, immaterial in that regard (see order of 26 January 2011 in FIBE v Parliament, T‑550/10, EU:T:2011:19, paragraph 17 and the case-law cited).

28.28 In this case, first, it should be noted that, according to Article 2(1)(a) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17) (‘Decision 2007/436’), revenue from levies, premiums, additional or compensatory amounts, additional amounts or factors, common customs tariff duties and other duties established or to be established by the institutions of the Union in respect of trade with non-member countries, customs duties on products under the expired Treaty establishing the European Coal and Steel Community, as well as contributions and other duties provided for within the framework of the common organisation of the markets in sugar, is to constitute own resources entered in the general budget of the European Union.

29.29 As is clear from Article 8(1) of Decision 2007/436, the Union’s own resources referred to in Article 2(1)(a) of that decision are collected by the Member States which are obliged to make those own resources available to the Commission (see, by analogy, judgments of 15 November 2005 in Commission v Denmark, C‑392/02, ECR, EU:C:2005:683, paragraph 55, and 8 July 2010 in Commission v Italy, C‑334/08, ECR, EU:C:2010:414, paragraph 40).

30.30 In addition, according to the case-law of the Court of Justice, Member States have the duty to establish the Union’s own resources. Indeed, Article 2(1) of Regulation No 1150/2000 must be interpreted as meaning that the Member States may not dispense with determining claims, even when they contest those claims; otherwise, it would have to be accepted that the financial equilibrium of the Union may be disrupted by the conduct of a Member State (see judgment of 17 March 2011 in Commission v Portugal, C‑23/10, EU:C:2011:160).

paragraph 58; see also, by analogy, judgment in Commission v Denmark, cited in paragraph 29 above, EU:C:2005:683, paragraph 60).

Furthermore, Article 9(1) of Regulation No 1150/2000 provides essentially that each Member State shall credit own resources to the account opened with its Treasury, or the body it has appointed for this purpose, in the name of the Commission.

Under Article 17(1) and (2) of Regulation No 1150/2000, Member States are bound to take all requisite measures to ensure that the amounts corresponding to the duties established under Article 2 thereof are made available to the Commission. Member States are to be free from that obligation only if, for reasons of force majeure, those amounts could not be collected, or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them (see judgment in Commission v Italy, cited in paragraph 29 above, EU:C:2010:414, paragraph 35 and the case-law cited).

Finally, a Member State which fails to establish the Union’s own resources and to make the corresponding amount available to the Commission, without any of the conditions laid down in Article 17(2) of Regulation No 1150/2000 being met, falls short of its obligations under EU law (see judgment of 3 April 2014 in Commission v United Kingdom, C‑60/13, EU:C:2014:219, paragraph 50 and the case-law cited).

Accordingly, it is directly apparent from the provisions of Decision 2007/436 and Regulation No 1150/2000 that it is for the Member States themselves to determine the occurrence of loss of traditional own resources, as well as the existence of the obligation to pay such resources. It is for them to establish the Union’s own resources and to make these resources available once the conditions set out in these legal texts are met, without need of a Commission decision. Performance of the obligation to make available own resources set out in these texts therefore falls within the competence of the Member States.

The responsibility of the Member States’ authorities for making available traditional own resources is supported, on the one hand by recital 2 of Regulation No 1150/2000, which specifies that the Union must have the own resources referred to in Article 2 of Decision 2007/436 available in the best possible conditions, and on the other hand, the need to secure the quick and effective availability of the Union’s own resources (see, to that effect, order of 4 October 2007 in Finland v Commission, C‑457/06 P, EU:C:2007:582, paragraph 39 and the case-law cited).

Secondly, it should be noted that Decision 2007/436 and Regulation No 1150/2000 do not provide for a specific procedure which results in a decision by the Commission regarding the Member States’ obligation to make traditional own resources available to the Union budget.

It transpires in particular from recitals 10 and 20, as well as Articles 18 and 19 of Regulation No 1150/2000, that the Commission is competent to monitor and assess actions by the Member States, if need be by making onsite checks.

By contrast, no provision of Decision 2007/436 or Regulation No 1150/2000 gives the Commission the power to determine, by means of a decision, the obligation to make available traditional own resources laid down by that legislation.

Furthermore, it is settled case-law that, according to the system established by Articles 258 TFEU to 260 TFEU, the rights and duties of Member States may be determined and their conduct appraised only by a judgment of the Court of Justice (judgments of 29 September 1998 in Commission v Germany, C‑191/95, ECR, EU:C:1998:441, paragraph 45, and 15 January 2014 in Commission v Portugal, C‑292/11 P, ECR, EU:C:2014:3, paragraph 49).

Accordingly, in the context of its monitoring of the implementation of the obligation for the Member States to make available traditional own resources, stemming from Decision 2007/436 and Regulation No 1150/2000, the Commission may not prejudice the exclusive jurisdiction of the Court of Justice to decide whether specific behaviour is compatible with that regulation.

It follows that, where there is a dispute between the Commission and a Member State as to whether certain behaviour complies with the obligation to make available traditional own resources as provided in Decision 2007/436 and Regulation No 1150/2000, the Commission may not, by means of a decision, rule on its own on the final outcome of the dispute.

Thus, failing any provision enabling the Commission to adopt a measure directing a Member State to make available own resources, the contested letter can only be regarded as informative and as a mere invitation addressed to the Republic of Slovenia.

The view taken by the Commission in the contested letter is not capable of creating binding legal effects, since the application of the Union’s provisions in respect of making available own resources is first and foremost the responsibility of the Member States, and, no provision in Decision 2007/436 and Regulation No 1150/2000, adopted in this field, confers on the Commission the power to adopt decisions on its interpretation, so that the Commission merely has the option, which is always open to it, of expressing an opinion which is in no circumstances binding on the national authorities (see, to that effect, orders of 17 May 1989 in Italy v Commission, 151/88, ECR, EU:C:1989:201, paragraph 22, and 13 June 1991 in Sunzest v Commission, C‑50/90, ECR, EU:C:1991:253, paragraph 13 and the case-law cited).

In other words, it is the Member States’ responsibility to make available traditional own resources and the Commission can only give its opinion, which is not binding on the Member States, and the expression of such opinion falls within the context of cooperation between the Commission and Member States’ authorities responsible for the application of the Union’s rules (see, to that effect, judgment of 15 September 1998 in Oleifici Italiani and Fratelli Rubino v Commission, T‑54/96, ECR, EU:T:1998:204, paragraph 51 and the case-law cited).

In this respect, it must be added that, according to settled case-law, the non-binding nature of an institution’s position cannot be put in question by the fact that the government which is the addressee of the measure has complied with it (see order of 5 September 2006 in Comunidad autónoma de Madrid and Mintra v Commission, T‑148/05, EU:T:2006:234, paragraph 43 and the case-law cited).

Thirdly, it should be noted that the sole purpose of the pre-litigation phase of the infringement procedure provided for by Article 258 TFEU being to enable the Member State to comply of its own accord with the requirements of the Treaty or, as the case may be, to give it the opportunity to justify its position, none of the acts adopted by the Commission for that purpose has binding effect (see order of 19 September 2005 in Aseprofar and Edifa v Commission, T‑247/04, ECR, EU:T:2005:327, paragraph 47 and the case-law cited).

Regarding specifically the issuing of a reasoned opinion, the Court of Justice has further held that it amounted to a preliminary procedure that had no binding legal effect for the addressee of the reasoned opinion (judgment in Commission v Germany, cited in paragraph 39 above, EU:C:1998:441, paragraph 44).

Thus, a fortiori, the contested letter, in which the Commission informally requests the Republic of Slovenia to make available to the budget of the Union its traditional own resources, cannot be challenged.

In these circumstances, the contested letter should be regarded as merely a written expression of opinion of an informative nature, combined with an invitation to the Republic of Slovenia to make available traditional own resources. The letter cannot amount therefore to a decision which could form the basis of an action for annulment since it is neither capable of producing, nor intended to, produce any legal effects.

The conclusion formulated in paragraph 49 above cannot be called into question by the other arguments raised by the Republic of Slovenia.

First, regarding the amount of traditional own resources, the means of making them available and the potential payment of default interest, it should be stressed that, according to the Court of Justice’s case-law, there is an unbreakable link between the obligation to establish the Union’s own resources, the obligation to credit them to the Commission’s account within the prescribed time-limit and the obligation to pay default interest. Furthermore, that default interest is payable regardless of the reason for the delay in entering those resources in the Commission’s account. It follows that there is no need to draw any distinction between a situation in which a Member State has established the own resources without paying them and one in which it has wrongfully omitted to establish them, even when there is no mandatory time-limit (judgments of 16 May 1991 in Commission v Netherlands, C‑96/89, ECR, EU:C:1991:213, paragraph 38, and Commission v Denmark, cited in paragraph 29 above, EU:C:2005:683, paragraph 67).

Thus, the assessment of whether the contested letter is open to challenge in that it relates to the amount of traditional own resources and the possible payment of default interest, cannot be undertaken independently of the assessment of whether the letter is open to challenge in that it mentions the obligation to make available own resources to the Union’s budget (see, to that effect, judgment of 20 March 1986 in Commission v Germany, 303/84, ECR, EU:C:1986:140, paragraph 11).

Failing any judgment of the Court of Justice finding that the Republic of Slovenia has failed to fulfil the obligation, which is contested, to make available traditional own resources in accordance with Regulation No 1150/2000, the Commission cannot be entitled to make the final decision regarding the amount of traditional own resources at issue, nor to resolve once and for all the issue of late payment interest.

Therefore, the contested letter, which creates no binding legal effect by requesting the Republic of Slovenia to make available to the budget of the Union traditional own resources, cannot a fortiori create binding legal effects where it deals with the amount of the loss of own resources that may have occurred and the obligation to pay default interest as provided in Article 11 of Regulation No 1150/2000.

Second, the arguments of the Republic of Slovenia alleging that the Commission has misinterpreted the relevant provisions of the legislation at issue or that the contested letter has no proper legal basis should be rejected.

Indeed, inasmuch as the contested letter cannot be the subject of an action for annulment brought under Article 263 TFEU, the arguments of the Republic of Slovenia alleging that the assessments of the Commission in that letter are incorrect or have no legal basis must be rejected as irrelevant.

Third, and for the same reasons as above, the line of argument of the Republic of Slovenia alleging that the contested letter creates legal effects binding on third parties, and in particular on Kandit, on the grounds that the Commission pre-empted its decision regarding a possible reimbursement procedure or remission of the payment of customs duties in favour of that company, must also be rejected as irrelevant.

In any event, it should be noted that the obligation to make available own resources concerns the relations between the Union and its Member States. By contrast, the recovery of a customs debt concerns the relationship between a Member State and its debtors.

As pointed out by the Court of Justice in paragraph 63 of the judgment in Commission v Denmark, cited in paragraph 29 above, (EU:C:2005:683), the existence of a distinction between the rules governing the obligation to establish the Union’s entitlement to own resources and those pertaining to the possibility for Member States of recovering duties has already been upheld by the Court on 7 September 1999 in De Haan (C‑61/98, ECR, EU:C:1999:393).

Thus, the possibility of Kandit obtaining a remission or a refund of the customs duties that it paid over cannot depend on whether the Republic of Slovenia may in due course be obliged to make own resources available to the budget of the Union.

In view of all the foregoing, the contested letter is not a measure against which an action for annulment may be brought. The action must therefore be dismissed as inadmissible and it is not necessary to examine the Commission’s other arguments, nor is there any need to rule on the Portuguese Republic and the Kingdom of Spain’s applications for leave to intervene.

Costs

Under Article 134(1) of the Rules of Procedure, 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 Republic of Slovenia has been unsuccessful, it must be ordered to bear, in addition to its own costs, those incurred by the Commission, in accordance with the latter’s pleadings.

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Furthermore, in accordance with Article 144(10) of the Rules of Procedure, the Republic of Slovenia, the Commission, the Portuguese Republic and the Kingdom of Spain are each to bear their own costs relating to the applications for leave to intervene.

On those grounds,

hereby orders:

1.The action is dismissed.

2.There is no need to rule on the applications of the Portuguese Republic and the Kingdom of Spain.

3.The Republic of Slovenia is ordered to bear its own costs and pay those incurred by the European Commission.

4.The Republic of Slovenia, the Commission, the Portuguese Republic and the Kingdom of Spain shall each bear their own costs relating to the applications for leave to intervene.

Luxembourg, 14 September 2015.

Registrar

President

*1 Language of the case: Slovenian.