OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 8 June 2017 (1)
Joined Cases C‑593/15 P and C‑594/15 P
Slovak Republic
v
European Commission
Case C‑599/15 P
Romania
v
European Commission
(Appeal — Own resources of the European Union — Financial liability of the Member States — External Community transit procedure — Loss of a Member State’s import duties because of another Member State — Formal demand from the Commission that the latter Member State make good the loss — Letters from the Commission — Whether open to challenge)
I. Introduction
1. How can the Member States obtain legal clarity on whether an obligation to pay the European Union exists, where the European Commission has no authority to adopt a decision enforcing recovery of that claim and as long as it does not bring infringement proceedings?
2. That is the fundamental question raised by the present appeals, set against an otherwise relatively technical background.
3. These cases are primarily concerned with customs duties, that is to say, traditional own resources of the European Union, which the Federal Republic of Germany was unable to collect on account of problems with the Slovak and Romanian authorities. Taking the view that the Slovak Republic and Romania were responsible in those circumstances for the losses incurred, the Commission demanded that those Member States pay the amounts concerned. The Commission evidently intended, as it acknowledged at the hearing, to dispatch letters in an initial step before potentially instituting infringement proceedings. However, rather than drafting the letters in the manner customary for establishing initial contact, it presented them in the form of legally binding decisions, in particular laying down a distinct deadline for payment of the amounts concerned.
4. However, the General Court paid no further attention to that point and denied the letters any legal effect solely on the ground that the Commission had no authority to adopt binding decisions enforcing recovery of own resources from the Member States. It did not even examine the content of the letters or whether — as the parties called into question — the provisions on the Union’s own resources were applicable.
5. On first examination, the General Court’s approach may appear pragmatic.
6. The Commission itself emphasises in the present cases that it does not in fact have the authority, in the context of own resources, to adopt binding decisions vis-à-vis the Member States for the recovery of claims. Even beyond the scope of own resources there appears, on a first view at least, to be no general legal basis authorising the Commission to adopt binding decisions requiring the Member States to settle pecuniary claims.
7. Accordingly, proceeding on the premiss that the Commission’s letters have legal effect and are therefore open to challenge, the most likely outcome at best will be their annulment, rather than any legal clarity on the entitlements at issue. The complaint by the Member States parties to these proceedings, that the General Court should have declared the contested letters as being open to challenge solely for reasons of effective legal protection, is therefore irrelevant. What is the point of acknowledging that the letters at issue may be challenged if this cannot bring about legal clarity?
8. In spite of those pragmatic considerations, the General Court’s approach proves erroneous on the basis of the settled case-law on whether acts of the Union institutions are open to challenge: In examining the legal effects of such acts, the Union judicature cannot rely exclusively on the lack of decision-making power without paying any attention to the substance of the acts concerned. Such an approach appears all the more questionable where, in examining the powers of an institution of the Union, it relies, as in this case, exclusively on rules whose applicability is disputed without actually examining whether they are applicable.
9. Based on such an approach, a legal act of the Union is consequently deprived of assessment as to its legality by means of a clearly targeted assessment of admissibility. In a Union governed by the rule of law, with all its practical sensitivity to the implications of decisions by the Court of Justice and the effectiveness requirements of the Union’s administration, this is unacceptable, even though it is still perfectly clear that assessment of the content of a legal act will not generate definitive legal clarity on the substance.
10. However, this finding should the Court of Justice concur with it based on the approach proposed here does not prevent the Court from acknowledging that these appeals reveal a gap in the Union’s system of legal protection which consists in the absence of a general declaratory action. (2) Thus, where the Commission has no general power to adopt decisions for the recovery of pecuniary claims from the Member States and consequently cannot adopt an act that is open to challenge, in circumstances such as those arising here, whether a payment entitlement arises in respect of the Union can be determined only by means of infringement proceedings. As long as the Commission does not bring such proceedings, the Member States have no chance of obtaining clarification of the legal situation and must, by contrast, bear a significant interest rate risk.
11. Further to examining the orders under appeal from the General Court and the Commission letters at issue, the present proceedings afford the Court of Justice the opportunity to contemplate closing this gap in legal protection.
II. Legal framework
12. Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources (3) was replaced with effect from 1 January 2007 by Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources, (4) the provisions relevant to these proceedings remaining unchanged.
13. Under Article 2(1)(b) of Decision 2000/597 and Article 2(1)(a) of Decision 2007/436, ‘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’ inter alia are to constitute own resources entered in the budget of the European Union. Customs duties are referred to as ‘traditional own resources’. Under Article 2(3) of Decisions 2000/597 and 2007/436, Member States are to retain 25% of those amounts by way of collection costs.
14. In their respective Article 8(1), first and third subparagraphs, Decisions 2000/597 and 2007/436 provide that the Union’s own resources are to be collected by the Member States in accordance with the national provisions imposed by law, regulation or administrative action, which is, where appropriate, to be adapted to meet the requirements of Union rules, and are to be made available to the Commission.
15. Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing the decisions on the system of own resources (5) was initially amended by Council Regulation (EC, Euratom) No 2028/2004 of 16 November 2004 (6) and subsequently, with effect from 1 January 2007, by Council Regulation (EC, Euratom) No 105/2009 of 26 January 2009. (7)
16. Under Article 2(1) and (2) of Regulation No 1150/2000, as amended, the Union’s entitlement to the own resources defined in Decisions 2000/597 and 2007/436 is to be established as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor. The date of the establishment is, on this basis, to be the date of entry in the accounting ledgers provided for by the customs regulations.
17. Article 6(3) of Regulation No 1150/2000 reads as follows:
‘3. (a) Entitlements established in accordance with Article 2 shall, subject to point (b) of this paragraph, be entered in the accounts at the latest on the first working day after the 19th day of the second month following the month during which the entitlement was established.
(b) Established entitlements not entered in the accounts referred to in point (a), because they have not yet been recovered and no security has been provided shall be shown in separate accounts within the period laid down in point (a). Member States may adopt this procedure where established entitlements for which security has been provided have been challenged and might, upon settlement of the disputes which have arisen, be subject to change.’
18. The first subparagraph of Article 9(1) of Regulation No 1150/2000 provides:
‘In accordance with the procedure laid down in Article 10, each Member State shall credit own resources to the account opened in the name of the Commission with its Treasury or the body it has appointed.’
19. Article 10(1) of Regulation No 1150/2000 provides as follows:
‘1. After deduction of … collection costs …, entry of the own resources … shall 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 this Regulation.
However, for entitlements shown in separate accounts under Article 6(3)(b) of this Regulation, the entry must be made at the latest on the first working day following the 19th day of the second month following the month in which the entitlements were recovered.’
20. Under Article 11(1) of Regulation No 1150/2000, any delay in making the entry in the account referred to in Article 9(1) of this regulation is to give rise to the payment of interest by the Member State concerned, the rate of which is established in Article 11(2) and (3).
21. Article 17(1) and (2) of Regulation No 1150/2000 reads as follows:
‘1. Member States shall take all requisite measures to ensure that the amount corresponding to the entitlements established under Article 2 are made available to the Commission as specified in this Regulation.
2. Member States shall be released from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements which prove irrecoverable either:
(a) for reasons of force majeure; or
(b) for other reasons which cannot be attributed to them.
Amounts of established entitlements shall be declared irrecoverable by a decision of the competent administrative authority finding that they cannot be recovered.
Amounts of established entitlements shall be deemed irrecoverable …
Amounts declared or deemed irrecoverable shall be definitively removed from the separate account referred to in Article 6(3)(b). …’
III. Background to the appeals
22. Prior to 2010, various goods were declared to the German customs authorities for their placing under the external Community transit procedure in accordance with Article 91 et seq. of the Community Customs Code. (8) That procedure allows the movement from one point to another within the customs territory of the Union of goods, without such goods being subject to import duties, provided, however, that the goods concerned are presented at the destination so that the customs authorities can check the arrival of the goods at the destination. (9) If this condition is not met, the goods are deemed to be imported into the Union, giving rise to a customs debt on importation. In the event that the place and time at which the goods concerned were withheld from customs surveillance is unclear, the time the goods were placed under the external transit procedure is taken to be the time at which the customs debt arose. This means that the authorities of the Member State in which the goods were placed under the external transit procedure are required to collect the customs debt and pay the relevant own resources to the Commission.
23. In the procedures at issue here, in which the destinations of the goods were in the Slovak Republic and Romania respectively, the arrival of the goods concerned was confirmed by the Romanian and Slovak authorities to the German authorities so that the latter authorities consequently completed the transit procedure and released the securities provided by the principals. However, it emerged subsequently that the goods in reality never reached their destinations and, therefore, the relevant transit procedures had, in error, been declared complete. Electronic confirmation in the computer-assisted customs system ‘NCTS’ (10) that the goods had been duly presented to customs was erroneous and had to be attributed either to fraudulent intentions of the Slovak and Romanian customs authorities themselves or to fraudulent intentions of third parties and a failure on the part of those authorities to introduce safeguards.
24. Since no erroneous conduct on the part of the principals could be established, the customs debts incurred by them were waived and declared irrecoverable. Thus, Germany’s obligation to pay the amounts concerned to the Commission ceased. In those circumstances the Commission considered that the Slovak Republic and Romania should make good the losses to the EU budget due to the errors committed by their authorities.
A. Commission letters at issue
25. The Commission therefore sent two letters, on 15 July (11) and 24 September (12) 2014, to the Slovak Republic, and one letter, on 19 September 2014, (13) to Romania (‘letters at issue’) demanding that those Member States pay the amounts corresponding to the customs debts, which Germany had been unable to collect owing to the errors committed by the Slovak and Romanian authorities.
26. In the letters at issue the Commission began by outlining the procedures concerned and stated that the Slovak Republic and Romania each would have to bear the responsibility for the losses incurred in those circumstances. It explained that the erroneous confirmation by the Slovak and Romanian authorities of completion of the transit procedures had prevented the German authorities from recovering customs debts which involved traditional own resources. Although the Slovak Republic and Romania had not been responsible for collecting these duties, Member States still bore the responsibility for losses of own resources incurred through the fault of their authorities. This was apparent from the Treaty, the system of own resources and the case-law of the Court of Justice. (14) In those circumstances, any refusal by the Slovak Republic or Romania to comply with the demand to make the relevant own resources available offended against the principle of sincere cooperation between the Member States and the Union and was contrary to the system of own resources.
27. The Commission therefore formally demanded the Slovak and Romanian authorities to make available to it the amounts concerned, after deduction of 25% by way of collection costs, by the first working day following the 19th day of the second month following the dispatch of the letters at issue. It concluded by pointing out that any delay in payment would give rise to the charging of interest in accordance with Article 11 of Regulation No 1150/2000.
B. Orders under appeal of the General Court
28. By applications of 22 September and 26 and 28 November 2014 respectively the Slovak Republic and Romania sought to have the contested letters annulled. The Commission then raised a plea of inadmissibility in each case, (15) asserting that the letters were not acts that were open to challenge in accordance with Article 263 TFEU. By orders of 14 September 2015 (16) the General Court upheld the respective pleas and dismissed the applications as inadmissible, (17) without going to the substance of the cases (‘orders under appeal’).
29. The General Court first established on the basis of the provisions on the Union’s own resources and the relevant case-law of the Court of Justice that the Member States themselves were responsible for determining whether there was a loss of traditional own resources or an obligation to make such funds available to the Union. There was no provision, however, for any Commission decision in that regard or for a procedure to adopt such a decision. Moreover, under Articles 258 to 260 TFEU, the Member States’ rights and obligations and the manner in which their conduct was to be assessed could be determined only from a judgment of the Court of Justice. (18)
30. Consequently, the General Court found that, since the Commission had no power to adopt a legal act requiring a Member State to make own resources available, the contested letters were for information purposes only and could constitute no more than simple requests. They were not, therefore, acts open to challenge under Article 263 TFEU. (19)
31. Thus, nor could the information provided by the Commission regarding the amount of the sums demanded, the deadline for payment and the interest charged for late payment produce any legal effects. The arguments put forth by the parties, by which they questioned the applicability of the provisions on own resources, were also irrelevant as they concerned only the legality of the letters. And finally, the arguments put forth in relation to the need for legal protection in the light of the existing legal uncertainty and the considerable interest rate risk also had to be rejected: The General Court held that the mere need for legal protection could not justify opening a measure up to challenge, and the Member States were able to counter the interest rate risk by making available to the Commission the amounts demanded subject to justification of its position. (20)
IV. Appeal proceedings and forms of order sought
32. By documents of 13 November 2015 the Slovak Republic lodged an appeal against the orders in Cases T‑678/14 and T‑779/14 (Joined Cases C‑593/15 P and C‑594/15 P). The Slovak Republic claims that the Court of Justice should set aside in their entirety the orders under appeal, rule itself on the admissibility of the applications and refer the cases back to the General Court for that court to rule on the substance of the applications, or, in the event that the Court should conclude that it does not have sufficient information to make a final decision on the Commission’s objections of inadmissibility, refer the cases back to the General Court for that court to rule on both the admissibility and the substance of the applications and order the Commission to pay the costs. Romania and the Federal Republic of Germany support the form of order sought by the Slovak Republic.
33. By document of 16 November 2015 Romania lodged an appeal against the order in Case T‑784/14 (Case C‑599/15 P). Romania claims that the Court should declare the appeal admissible, set aside the order under appeal in its entirety, and rule afresh in respect of the case by declaring the application for annulment to be admissible and by annulling the letter at issue, or refer the case back to the General Court in order that the latter may declare the application for annulment admissible and annul the letter at issue, and order the Commission to pay the costs. The Slovak Republic, the Federal Republic of Germany and the Czech Republic support the form of order sought by Romania.
34. The Commission contends that the Court should dismiss the appeals and order the appellants to pay the costs.
35. All parties submitted observations on the appeals before the Court in the written procedure and at a joint hearing on 23 March 2017.
V. Assessment
A. The appeals
36. It emerges from the arguments presented by the Slovak Republic and Romania respectively, which are divided into two separate grounds of appeal but overlap to a degree, that the appellants allege that the General Court in essence made two errors of law.
37. They claim, first, that the General Court erred in law by basing its reasoning on the provisions concerning the Union’s own resources without examining whether those provisions were actually applicable. Furthermore, the General Court did not explain why it was possible to refrain from examining that issue, with the result that the orders under appeal failed to provide adequate reasoning.
38. Secondly, the General Court erred in law in its assessment as to whether the letters in dispute were open to challenge because, in that assessment, it had relied solely on the Commission’s lack of competence to adopt binding decisions for the recovery of own resources. In so doing, it had disregarded the fact that, according to case-law, when examining whether acts of the Union institutions are open to challenge, regard must also be had in particular to the substance of those acts.
39. The latter line of argument will be discussed first below.
1. The General Court’s examination as to whether the contested letters are open to challenge
40. Proceedings may be brought under Article 263 TFEU for a declaration that all acts of the Union institutions which are intended to produce legal effects, irrespective of the form in which they are cast, are void. (21) In order to determine whether an act produces legal effects, it is therefore necessary to look in particular to its subject matter, its content and substance, as well as to the factual and legal context of which it forms part. (22)
41. The institution’s powers to adopt a measure can be taken into account when assessing whether the acts of the Union institutions have binding legal effects and are therefore open to challenge. (23) However, these proceedings concern only one of a number of criteria which must, ‘as appropriate’ — according to the Court of Justice —, be taken into account for assessing the binding legal effects of a measure. (24)
42. In fact, the various criteria to be taken into account for assessing the legal effects of an act of the Union institutions are a set of complementary criteria which can, when viewed as a whole, complement each other and cannot be assessed separately. Although one criterion’s significance in relation to the others may vary depending on the circumstances, (25) the EU judicature cannot have regard to one of those criteria individually without taking account of the others if they are also relevant in the circumstances concerned. In particular, the essential criteria of the content and subject matter of a contested act may not be overlooked arbitrarily in favour of another, complementary criterion, a fortiori as assessment of an institution’s powers is closely connected with assessment of the content of an act. (26)
43. Here, in the orders under appeal, the General Court started by including various references from the case-law on whether acts of the EU institutions are open to challenge. However, contrary to the arguments put forward by the Commission, in its subsequent assessment of the contested letters the General Court took no account whatsoever of their content, which was required under the case-law.
44. In contrast, it is clear from the orders under appeal that the General Court bases its conclusion that the contested letters produce no legal effects solely on the Commission’s lack of power to adopt binding decisions for the recovery of own resources from the Member States: Accordingly, the General Court finds that the rules on own resources require the Member States themselves to determine whether an obligation exists to make such funds available to the Union. (27) However, it also finds that those rules make no provision either for any authority on the part of the Commission to adopt a decision for the recovery of own resources or for any procedure for adopting such a decision. (28) On the contrary, the Court of Justice had exclusive jurisdiction to deliver judgment on such an obligation incumbent on the Member States. Therefore, the Commission itself could not settle a dispute concerning the making available of own resources by adopting a decision. (29)
45. In the light of those considerations the General Court concludes that, because the Commission has no power to adopt a decision requiring a Member State to make own resources available, the contested letters could constitute no more than simple expressions of opinion devoid of any legal effects. (30)
46. In support of that conclusion the General Court relies on orders of the Court of Justice in which that court likewise looked to the Commission’s lack of authorisation to adopt binding decisions. (31) However, in each instance that approach was adopted in the light of an examination of the content of the letters contested in those cases which likewise did not point to any legal effects. (32) In the present cases however, the General Court did not include the content of the contested letters in its assessment of them, although it had mentioned it at the start in its description of the facts. (33)
47. Contrary to the cases underlying the orders of the Court of Justice cited by the General Court, it can be clearly inferred from the content of the letters at issue in the present cases that they are intended to produce legal effects.
48. Contrary to the Commission’s view, it is not just obligations arising directly from the provisions of EU law that it reproduces in the letters at issue: The view that a Member State has to bear the responsibility for a loss of own resources in another Member State the fault for which lies with its own authorities, even though it was not originally responsible for collecting those funds, cannot be inferred directly from the provisions on own resources but from an interpretation of those provisions by the Commission. Moreover, the amount of the funds due, corresponding to the customs debts to be collected originally by Germany, could probably not have been determined by the Slovak and Romanian authorities themselves without the Commission’s letters, but at least not without investigation.
49. Admittedly, this factor alone still does not attribute legal effect to the letters at issue: The Commission could have informed the Member States concerned without obligation of its view that they owed the relevant amounts so as to enter into a dialogue with them with a view to possible infringement proceedings at a later stage.
50. However, the Commission was not content with informing the Slovak Republic and Romania without obligation that they, in its view, had to make good the losses incurred by virtue of their authorities’ errors. On the contrary, it established on an authoritative basis the legal situation applying to the Member States concerned and also imposed on them a deadline for payment based solely on the contested letters and not simply reproducing unavoidable legal consequences of other EU rules.
51. Contrary to the Commission’s original argument, the deadline for payment laid down in the letters at issue, upon which interest is to fall due, does not arise from Regulation No 1150/2000 on own resources. Although it is stated in Article 11 of the regulation that a delay in payment gives rise to the payment of interest, at a rate defined in the regulation, the deadline for payment, upon which the Union’s entitlement to the funds becomes due and upon expiry of which interest is incurred, differs in the regulation and in the letters at issue. Article 10 of the regulation accordingly defines the time of entry and, therefore, the time at which own resources fall due in relation to the time at which the Member States establish or recover the entitlements concerned. (34) In the letters at issue the Commission, in contrast, defines the time at which the amounts demanded fall due in relation to the time when those letters were sent. (35)
52. Thus, even if Regulation No 1150/2000 on own resources was considered applicable, which is subject to dispute in these proceedings, or if it was to be considered applicable by analogy, the deadline for payment mentioned in the letters at issue does not correspond with that laid down in the regulation. And even if the entitlements asserted by the Commission were to be classified as tortious or quasi-tortious, they would not fall due, according to the letters at issue, as is customary, from the time that the harmful event occurred but from a time in the future laid down in those letters. These arguments present strong indications that the letters at issue produce legal effects.
53. The Commission also acknowledged this implicitly, conceding at the hearing, upon enquiry from the Court, that even if the deadline for payment mentioned in the letters at issue was to differ from that laid down in Regulation No 1150/2000, the former was at any rate more favourable for the Member States than the latter, because it began to run at a later point. The fact that they grant the Member States a more favourable deadline for payment than one that is established by statute does not, however, argue against but actually supports the constitutive — though not entirely declaratory — nature of the letters at issue.
54. In this regard, the deadline imposed by the letters at issue must be distinguished from that imposed by so-called ‘notes de débit’ (‘debit notes’), (36) which are dispatched in the event of contracts with the Union’s institutions and, in accordance with the case-law of the Court, do not, in that context, constitute acts against which actions may be brought under Article 263 TFEU. (37) The extent to which these ‘notes de débit’ produce independent legal effects is not undisputed. (38) However, it seems relatively clear that the fixing of a payment deadline by means of those notes at any rate produces no legal effects that exist independently of the contractual entitlements, where that fixing — which is also possible in contracts between individuals — corresponds only to the fulfilment of a contractual or statutory condition determined elsewhere for those contractual entitlements to fall due. (39)
55. In this case, however, the extent to which the fixing of a deadline by means of the letters at issue might constitute only the fulfilment of a condition determined elsewhere for a Union entitlement to fall due in respect of the Slovak Republic and Romania is not evident. After all, this fixing of a deadline does not correspond to that for the falling due of entitlements to own resources, (40) nor is it apparent that tortious or quasi-tortious entitlements (41) could fall due by virtue of the fixing of such a deadline (rather than by virtue of the harmful event).
56. As is apparent from the considerations above, it can be inferred from the content of the letters at issue that they produce legal effects. Thus, the General Court erred in law by focusing exclusively on the relevant institution’s lack of power to adopt decisions and by excluding the content of the letters at issue from its assessment as to whether they were open to challenge.
57. Instead of examining the content of the letters at issue and subsequently drawing its conclusions on whether they were open to challenge, the General Court took the opposite course of action. Thus, it refused to take account of the content of the letters and, in particular, the fixing of the deadline on the ground that, since the Commission did not have the competence to determine whether the Member States concerned must make available the funds demanded, nor could it be authorised to impose a deadline for such payment. Since the letters at issue could not produce legal effects in terms of the Member States’ obligation to make funds available, nor could they therefore a fortiori produce any legal effects in terms of the deadline imposed for making such funds available. (42)
58. As the Slovak Republic and Romania rightly observe, allowing such a course of action in circumstances such as these would mean that the plea alleging a lack of competence, expressly mentioned in Article 263 TFEU, would be deprived of all relevance and the legal acts concerned would not be subject to any review of legality, since only the responsible institution’s lack of competence to adopt decisions would result in the ruling of inadmissibility. The existence of the plea alleging a lack of competence therefore confirms, conversely, that in circumstances where an action taken by a body not authorised to adopt decisions produces legal effects, the power to adopt decisions cannot be an essential criterion for examining whether the measure concerned is open to challenge. As the Commission itself concedes, it is indeed necessary, even in the case of decisions adopted by a body without competence in that regard, to distinguish between decisions having legal effect and measures without legal effects. If the lack of competence to take decisions were to rule out automatically any challenge before the courts, in the case of decisions having legal effect, this would offend against the principle of effective judicial protection. Only in the event of serious ultra vires acts à laCaptain of Köpenick might the judicial protection be confined to the Court’s ruling of the non-existence of those acts as part of its examination of admissibility. However, we are still far removed from such circumstances in these proceedings.
59. In this instance the above examination has shown that the letters at issue are not acts without legal effects but decisions with legal effect and are therefore acts that may be challenged under Article 263 TFEU. Whether these acts were adopted by a body which had no competence in that regard can therefore be determined only by an assessment of their legality.
60. In line with the foregoing considerations it must be noted that the General Court erred in law by disregarding the essential criterion of the content of the letters at issue in examining, first, the legal effects of the letters and, by extension, whether they are open to challenge. That error of law in itself is grounds for setting aside the orders under appeal because it is the basis for the General Court’s finding that the letters at issue are not acts open to challenge under Article 263 TFEU.
2. The General Court’s application of the provisions on own resources
(a) No assessment as to the applicability of the provisions on own resources
61. By a further line of reasoning the Slovak Republic and Romania complain that the General Court denied the legal effects of the letters at issue on the basis of the Commission’s lack of competence to adopt binding decisions for the recovery of own resources without examining whether the provisions on the Union’s own resources were in fact relevant. By that reasoning the Member States concerned ultimately criticise the fact that the General Court ruled separately on the Commission’s pleas of inadmissibility and did not give that ruling in conjunction with the decision on the substance of the respective disputes. (43)
62. The orders under appeal were, in this regard, vitiated by a lack of reasoning, given that the General Court did not explain why it considered the amounts demanded to be own resources and why the relevant provisions were applicable. Nor did it explain why it considered it unnecessary to give a ruling on the admissibility in conjunction with a ruling on the substance.
63. These complaints by the appellants are also well founded.
64. It is apparent from the above comments on the failure to examine the content of the letters at issue that the General Court based its conclusion that the letters produce no legal effects exclusively on the Commission’s lack of authority to determine by means of an order whether Member States are obliged to make own resources available.
65. As the appellants rightly criticise, first, the General Court’s conclusions are based on the premiss that the letters at issue were to be assessed on the basis of the provisions on own resources. The General Court should not have founded its considerations on such a premiss without first examining whether the relevant provisions were applicable, which the parties dispute. That is made all the more evident as the answer to this question is neither apparent nor obvious from the provisions on the Union’s own resources.
66. Contrary to the Commission’s argument, assessment of the applicability of the provisions on own resources would not only have been necessary to assess the merits of the entitlements asserted in the letters at issue. On the contrary, this matter was also relevant for assessing whether those letters could be challenged before the courts because the General Court opted to rely to that end on the Commission’s lack of competence to adopt decisions for the recovery of own resources.
67. The assessment of the respective pleas of inadmissibility in these circumstances therefore depended on the assessment of the pleas in law raised at first instance in respect of the contested letters. Thus, the General Court should have examined those pleas in conjunction with the substantive issues raised by the disputes.
68. Secondly, the reasons given by the General Court for the orders under appeal are insufficient. The obligation to state reasons under Article 36 in conjunction with Article 53, first paragraph, of the Statute of the Court of Justice indeed does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may be implicit on the condition that it enables the person concerned to know why the measures in question were taken and that it provides the Court with sufficient material for it to exercise its power of review. (44)
69. However, the orders under appeal do not satisfy those conditions: First, it is not clear from the General Court’s reasoning whether and, if so, why it treated the amounts demanded as own resources. Secondly, it is unclear whether and for what reasons the General Court proceeded on the principle that the provisions on own resources were directly applicable, or whether it merely took the view that the provisions were applicable by analogy. And finally, nor can it be inferred from reading the orders under appeal why the General Court took the view that it could assess the disputes on the basis of the provisions on own resources without addressing the parties’ arguments as to the non-applicability of those provisions. In these circumstances, the Court of Justice cannot effectively review the legality of the General Court’s reasoning.
(b) Specific regard to the distinction from infringement proceedings
70. Furthermore, the General Court could not base the inadmissibility of the actions at first instance — as pointed out at the hearing — on any ‘systemic’ considerations that would be derived from the distinction between the types of action or from the need to distinguish between an action for annulment under Article 263 TFEU and infringement proceedings under Articles 258 to 260 TFEU.
71. First of all, the General Court’s finding that the entitlements at issue here can be determined only by virtue of infringement proceedings is, for its part, based on the Commission’s lack of competence to adopt decisions for the recovery of own resources. Thus, this finding is likewise based on the unverified and insufficiently reasoned premiss that the present facts are to be assessed in the light of the applicability of the provisions on own resources.
72. Secondly, even ‘systemic’ considerations, focused on an overall view of the Union’s system of legal protection, in this case could not alter the fact that the letters at issue satisfy the conditions laid down in the case-law on the legal effect of acts of the Union institutions and are therefore open to challenge under Article 263 TFEU.
73. And thirdly, an assessment of admissibility based on the distinction from infringement proceedings would in this case be pointless at any rate, (45) because, should it emerge from an examination of the legality of the letters at issue that the Commission was not authorised to adopt binding decisions, the Commission would in any case be referred to infringement proceedings in order to enforce any obligations imposed on the Member States. If, however, an assessment of the legality of the letters at issue concluded that the Commission was authorised to adopt binding decisions, an action for annulment of those decisions would have to be possible specifically for reasons of effective judicial protection.
3. Intermediate conclusion
74. It is apparent from the foregoing considerations that the orders under appeal are based on an erroneous examination of the admissibility of the actions at first instance. Therefore, the orders under appeal must be set aside.
B. The actions at first instance
75. Under the first paragraph of Article 61 of its Statute, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.
76. That is precisely the case here.
77. First, the disputes in relation to whether the contested letters were open to challenge, thus rendering the actions at first instance admissible, are such as to permit a decision by the Court.
78. Secondly, the merits of those actions at first instance were not discussed, nor did the parties have any opportunity to exchange views on all relevant arguments. Thus, the disputes are not yet in a state such as to permit judgment inasmuch as it is impossible at the current stage of the proceedings to give judgment on the substance of the claims put forward in the letters at issue. However, it is clear from examining those letters that a judgment on their legality is not possible in any case since they do not provide a sufficient statement of reasons, contrary to the second paragraph of Article 296 TFEU. Consequently, they must in any event be annulled without any assessment of their substantive legality in the matter. (46)
79. Thirdly and lastly, attention should be focused on the appellants’ line of reasoning that these proceedings highlight a gap in judicial protection in the system of EU legal protection.
1. Admissibility of the actions at first instance
(a) The legal effects of the letters at issue
80. From the examination of the appeal carried out above it is clear that, by virtue of the legally binding finding of the specific obligations incumbent on the Slovak Republic and Romania and in particular the fixing of a deadline for payment, which are based only on the letters at issue, those letters produce legal effects, irrespective of whether the provisions on own resources are applicable. (47) Thus it can be established that these letters constitute decisions of a Union institution that are open to challenge under Article 263 TFEU without it being necessary to state whether the amounts demanded are own resources or whether and, if so, how far the provisions on the Union’s own resources are applicable directly or by analogy.
81. Furthermore, the parties submitted observations on the issue of the content of the letters at issue and in particular on the assessment of the payment deadline imposed in those letters first in their written pleadings and then orally at the hearing before the Court of Justice. (48) Thus the parties’ right to a fair hearing was observed and the Court can rely on that point in support of its judgment.
82. And finally, during the proceedings before the Court, no new arguments were put forward challenging the legal effects of the letters at issue and, by extension, questioning whether they are open to challenge. Thus, the Commission was content in particular with reiterating that it had no competence to recover the amounts demanded.
83. Were the Commission’s comment made at the hearing — that no judgment as yet could be given in the matter concerning the disputed entitlements on the basis of the letters at issue because that would require further discussions between the parties — to be construed as the Commission’s seeking to treat the letters at issue as interim measures and consequently to render them unchallengeable, such reasoning could not have any effect.
84. After all, it is true that intermediate measures, whose aim is to prepare a final decision and which express a provisional opinion of the institution concerned, cannot as a rule be the subject matter of an action for annulment. (49) However, there is nothing in these proceedings to indicate that the letters at issue express a provisional opinion of the Commission since they determine definitively in particular the amount of the funds demanded as well as the payment deadline. Furthermore, it is not clear whether the letters are assigned to proceedings upon whose conclusion fresh, final Commission decisions would be made.
(b) The argument that the contested letter in Case T‑678/14 is a confirmatory measure
85. With regard to the first of the contested letters to the Slovak Republic of 15 July 2014 (50) the Commission asserted in its objection of inadmissibility raised in Case T‑678/14 that it was only a confirmatory measure: The letter was only a follow-up letter to an initial letter dispatched on 18 March 2014 (51) to which the Slovak authorities had replied by letter of 16 May 2014. (52)
86. That objection cannot, however, preclude the letter of 15 July 2014 being open to challenge.
87. Whilst it is accordingly true that a purely confirmatory measure may not be the subject of an action for annulment, the fact remains that a measure is to be regarded as purely confirmatory of an existing measure only if it contains no new factors as compared with the existing measure. (53)
88. This is not the case as regards the letter of 15 July 2014 as compared with the letter of 18 March 2014: As the Slovak Republic rightly states in its observations on the Commission’s objection of inadmissibility in Case T‑678/14, the letter of 15 July 2014 fixes a different payment deadline to that laid down in the letter of 18 March 2014. (54) Also, as already explained above, the fixing of an independent deadline for payment, based on the contested letters only, is indeed an essential criterion representing the legal effects of those letters. (55) Therefore, the letter of 15 July 2014 is not a confirmatory measure in relation to the letter of 18 March 2014.
(c) Intermediate conclusion
89. On balance, all three contested letters are open to an action for annulment under Article 263 TFEU. Thus, all three actions before the General Court are admissible.
2. The substance of the actions at first instance
(a) The reasons given in the contested letters
90. In the proceedings at first instance and on appeal, detailed consideration was given to whether the contested letters could produce legal effects in view of the Commission’s (lack of) competence to adopt decisions for the recovery of the claims asserted.
91. In the contested letters themselves the Commission cited no legal basis authorising it to adopt decisions requiring the Member States to pay the amounts demanded. In this regard a distinction must be drawn between, on the one hand, the legal basis for authorising the adoption of binding decisions for the recovery of the amounts and, on the other hand, the basis of entitlement governing the relevant Member States’ obligation to make those funds available. The Commission certainly referred to the latter in the contested letters when it stated that the obligation incumbent on the Slovak Republic and Romania to make good the losses to the Union budget incurred as a result of the errors of their authorities arose from the principle of sincere cooperation and from the need to ensure the proper functioning of the system of the Union’s own resources.
92. The fact that, in contrast, no reference is made to any basis of authorisation for adopting decisions for the recovery of the amounts demanded might initially make sense from the perspective of the Commission’s reasoning. The Commission in any case maintains that the letters at issue could not produce legal effects in the absence of power to adopt binding decisions. However, as already stated, this view is not justified because the letters at issue do indeed produce legal effects by virtue of their content.
93. The question of whether this approach was the original intention or whether, in particular, the fixing of the deadline in the contested letters is attributable to an error, as the Commission asserted at the hearing, can be left unanswered in this context. In examining the legal effects of the acts of the Union institutions account should also be taken of the intention of the author of those acts. (56) However, such an intention must be apparent from the relevant measure itself and cannot be made clear only at the stage of the subsequent court proceedings. In this instance, however, it precisely cannot be inferred from the letters at issue that these are non-binding letters of formal notice. On the contrary, the letters produce legal effects not least by virtue of the fixing of a binding deadline for payment. Thus, the matter involves decisions in which the Commission should have indicated the legal basis authorising it to demand authoritatively payment of the amounts in question.
94. Failure to refer to a legal basis may not be a material error only when the legal basis for the measure may be determined clearly and without difficulty from other parts of the measure. However, such an explicit reference is indispensable where, in its absence, the parties concerned and the Court would be left uncertain as to the precise legal basis. (57) That is precisely the situation here: As illustrated by the parties’ intensive discussions on the Commission’s competence to adopt decisions for the recovery of the amounts demanded, the legal basis invoked by the Commission authorising it to demand payment of those amounts from the parties by means of a binding decision cannot in fact be determined clearly from any parts of the letters at issue.
95. If the definitive imposition of an obligation to pay and the indication of a binding deadline for payment in the letters at issue are in reality to be attributed to an error on the part of the Commission, given that the Commission actually intended to convey merely non-binding views, this also means that the insufficient reasoning in the letters at issue contributes to that error. The obligation to state reasons under the second paragraph of Article 296 TFEU is intended to secure the self-regulation of the relevant authority and thus to ensure that the institution responsible is called upon carefully to verify the conditions governing the adoption of a measure. (58) Had the Commission adequately complied with that obligation, it should have occurred to it even when drafting the letters at issue that it should have either stated a legal basis for the adoption of binding decisions or dispensed with laying down a binding obligation to pay together with a deadline for payment.
96. Consonant with the above considerations it should be noted that the reasons stated in the letters at issue are inadequate, thus rendering it impossible to verify their substantive legality in the matter and demanding their annulment. An inadequate statement of reasons contained in the letters at issue was already alleged in the actions before the General Court, and in any case the Court of Justice may establish a failure to state reasons, moreover, of its own motion, (59) provided that the adversarial principle is observed. (60) In view of these considerations, in spite of the failure to discuss the merits of the actions at first instance, the parties had sufficient opportunity, in particular at the hearing before the Court of Justice, to express their views on the reasoning underlying the letters concerned. Consequently, the letters must be annulled for a failure to state the reasons on which they are based.
(b) The legality of the letters at issue
97. Should the Court consider, contrary to the opinion expressed here, that the letters at issue are adequately reasoned and therefore ought to be assessed as to their substance, it should refer the cases back to the General Court for a decision in the matter.
98. It is possible, in certain circumstances, for a ruling to be given on the substance of an action, even though the proceedings at first instance were confined to a plea of inadmissibility which the General Court upheld. That may be so where, first, the setting aside of the judgment or order under appeal necessarily brings about a definitive resolution of the substance of the action in question, or second, the examination of the substance of the application for annulment is based on arguments exchanged by the parties in the appeal proceedings in response to the reasoning of the General Court. (61)
99. However, those circumstances do not arise in this case. First, the setting aside of the orders under appeal is based exclusively on an erroneous assessment of admissibility by the General Court, not necessarily bringing about a definitive resolution of the substance of the actions at first instance which, in particular, disputed the existence of the entitlements asserted in the letters at issue. Moreover, the setting aside of the orders under appeal does not bring about a substantive resolution vis-à-vis the Commission’s competence to adopt the decisions at issue. It is merely established that, for the purpose of examining their legal effects, the General Court could not turn only to the Commission’s lack of competence and for that purpose could not rely on provisions whose applicability was in dispute. However, the issue of the relevant provisions and whether the Commission enjoyed competence on the basis of those provisions to adopt the decisions at issue remains open.
100. Secondly, nor would a substantive assessment of the actions at first instance in these proceedings be based on arguments exchanged by the parties. After all, neither the written nor the oral exchanges were concerned to a sufficient degree with the issues of the applicability of the provisions on the Union’s own resources or the merits of the entitlements asserted in the letters at issue.
3. The problem of the lack of legal protection in situations such as those arising here
101. Following assessment of the appeals and actions at first instance, the problem outlined at the beginning is demonstrated: Although the orders under appeal from the General Court must be set aside and the actions at first instance declared admissible, this does not ultimately settle the issue, as so emphatically requested by the Member States concerned, as to whether or not the Member States must now, in situations such as these arising here, make good a loss of own resources.
102. This is so not only because the letters at issue have to be annulled solely on account of a lack of reasons. This puts the ball firmly back in the Commission’s court, as it now, in theory, has the opportunity to review whether there is a legal basis enabling it, by means of binding decisions, to enforce the obligation incumbent on the Member States to make good the loss of own resources. If it establishes such a legal basis, it could adopt the annulled decisions afresh, this time with a sufficient statement of reasons.
103. In view of the Commission’s line of reasoning and the fact that at least at the current stage of the proceedings no legal basis for authorisation is apparent, it seems more probable that the Commission would conclude, upon re-examination, that it does not have the power to require the Member States by means of a decision to fulfil payment obligations such as those in dispute here. In the absence of a general legal basis authorising the adoption of decisions against the Member States and on the basis of the principle of conferral under Articles 4 and 5 TEU, where the Commission does not have specific power to adopt decisions, it then has reference to the infringement procedure under Article 258 TFEU in order to enforce existing obligations under EU law in respect of the Member States.
104. However, that is precisely the problem to which the Member States parties to these proceedings so urgently require a solution: As long as the Commission does not bring infringement proceedings, the Member States have no chance of obtaining legal clarity on their obligations and must instead bear a significant interest rate risk.
105. As the Member States parties have also explained, to some extent on the basis of past experiences, the possibility of making funds temporarily available to the Commission on the condition that the demand is well founded is not such as to resolve this problem. Although this approach obviates subsequent interest payments if the Commission’s demands are proven to be justified, once they have made funds temporarily available to the Commission, the Member States still have no chance of bringing about a review of the merits of the claims. The Commission, on the other hand, at that point no longer has any incentive to bring infringement proceedings.
106. Although the Commission itself suggested at the hearing that it could be required in such a situation, in accordance with the principle of sincere cooperation under Article 4(3) TEU, to bring infringement proceedings for the purpose of clarifying the legal situation, that view has no foundation in the case-law of the Court of Justice, which has thus far left the task of determining whether it should bring or continue infringement proceedings to the Commission’s discretion.
107. Faced with those issues, the Commission submitted that the problem could be resolved by the Member States’ simply reversing the entry in the accounts of funds made available under reserve, if the Commission still has not brought infringement proceedings after a certain period. According to information from the Federal Republic of Germany, such a reversal in the accounts would nonetheless be subject to the Commission’s consent. If this were true, the Commission’s refusal to grant such consent could be construed as an act against which recourse could be had to the action for annulment under Article 263 TFEU, which could lead to clarification of the substance of the entitlement. Contrary to the assumption made by the Federal Republic of Germany, a plain refusal by the Commission to reimburse amounts paid under reserve would probably also be an act open to challenge for the purposes of Article 263 TFEU. It would be difficult to deprive such a refusal of specific legal effects. (62)
108. Finally, after making funds available under reserve to the Commission, the Member States could also conceivably clarify the issue of the Commission’s substantive entitlement to those funds by means of an action for compensation for damage under Article 268 TFEU. By making the funds available the Member States necessarily have a loss of liquidity that they can assert in an action for damages. Similarly it seems possible that Member States will invoke a claim for unjustified enrichment, which can also be made under Articles 268 and 340(2) TFEU. (63) In order to clarify the entitlement to compensation or claim for unjustified enrichment, the General Court would first have to verify whether the Commission was entitled to the funds made available and whether the Member States were obliged to pay those funds into the Union budget. Thus, in its function to determine claims for damages, the action for damages could assist the Member States to obtain effective legal protection for the purpose of clarifying their payment obligations vis-à-vis the Commission. (64)
109. Although in the context of the solutions outlined in the preceding two points the General Court would have to rule on Member States’ obligations that could also be the subject matter of proceedings for failure to fulfil obligations before the Court of Justice, the decisions that the General Court would have to adopt in those circumstances would not conflict with the exclusive jurisdiction conferred on the Court of Justice to rule on such infringement proceedings. (65) As long as no infringement proceedings are pending in relation to the respective payment obligations, there is no question of the jurisdiction of the Court of Justice being undermined.
C. 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.