C-96/89

Mr President, manioc to the Community. The observations Members of the Court, made by the Court at the time of the previous judgment cast light on what is at stake in the present proceedings. 1. In this action for failure to fulfil obli- gations, the Commission asks the Court to declare that the Kingdom of the Netherlands has failed to fulfil its obli- 'Article 1 of the Cooperation Agreement gations by admitting to free circulation, at restricts imports of manioc into the the reduced levy of 6% ad valorem laid Community at the preferential rate of 6% down by the Cooperation Agreement ad valorem, for the duration of the between the EEC and the Kingdom of agreement (January 1982 to December Thailand (hereinafter referred to as 'the 1986), to the quotas specified therein. EEC-Thailand Agreement'), ' a quantity of Compliance with those quotas is ensured by manioc exported from Thailand without an a system of double checks which, according export certificate and by refusing to to Article 5 of the Cooperation Agreement, establish and enter as own resources the requires the Thai authorities to issue export amount corresponding to the agricultural certificates only within the limits of the levy at the full rate. quotas specified in the agreement, and the Community authorities to issue import licences conferring entitlement to the pref- erential rate only subject to presentation of 2. The Court is thus required to consider an export certificate'.5 once more, after its judgment in the Krohn case,2 the detailed rules laid down by Commission Regulations (EEC) No 2029/82 of 22 July 19823 and (EEC) No 4 3383/82 of 16 December 1982 for the 'However, before the adoption of the system of fixing quotas for exports of Thai Cooperation Agreement and of Regulation No 2029/82 in July 1982, manioc was * Original language: Dutch. imported from Thailand without reference 1 — Agreement on manioc production, marketing and trade, to export certificates solely under the import approved on behalf of the Community by the Council in Decision 82/495/EEC of 19 July 1982 (Offical Journal licences issued by the authorities of the 1982 L 219, p. 52). Member States in accordance with 2 — Judgment of 15 January 1987 in Case 175/84 Krohn & Co Import-Export (GmbH & Co. KG) v Commission [1987] Commission Regulation (EEC) No 3183/80 ECR 97. of 3 December 1980 laying down common 3 — Regulation EEC N o 2029/82 laying down detailed rules detailed rules for the application of the for implementing the import arrangements applicable to products falling within subheading 07.06 A of the system of import and export licences and Common Customs Tariff, originating in Thailand and exported from that country Ín 1982 (Official Journal 1982 advance-fixing certificates for agricultural L 218, p. 8). products (Official Journal 1980 L 338, 4 — Regulation (EEC) N o 3382/82 laying down detailed rules p. 1)'.* for implementing the import arrangements applicable to produco falling within subheading 07.06 A of the Common Customs Tariff, originating in Thailand and exported from that country in 1983 (Official Journal 1982 5 — Case 175/84, cited above, paragraph 5. L 356, p. 8). 6 — Ibidem, paragraph 6.

'In that regard it must be borne in mind that, when the Cooperation Agreement the date on which the products were loaded entered into force, a number of import onto the vessel in Thailand precedes the licences issued previously were still valid date of the Thai export certificate'. and consequently enabled their holders to import the corresponding goods after the adoption of the Cooperation Agreement without having to present the export I would point out, for the sake of certificates issued by the Thai authorities. completeness, that by its judgment in the Accordingly, certain traders might have Krohn case the Court recognized that the been tempted to keep those export Commission, before the entry into force of certificates and re-utilize those that were Regulation No 499/83, was entitled, still valid for the purpose of requesting new import licences under the system established by Regulation N o 2029/82. Hence there 'pursuant to Article 7 of Regulation N o was a risk that a single export certificate 2029/82, to ascertain in case of doubt that might serve to import the quantity of the manioc for which an import licence was manioc specified therein into the sought was the same as that for which the Community twice'. 8 export certificate produced had been issued'.

In that respect, the Court pointed out that

3. The Commission, in order to defeat 9 — Regulation (EEC) N o 499/83 amending Regulations (EEC) N o 2029/82 and (EEC) N o 3383/82 laying down these manoeuvres, adopted Regulation 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 7 — Ibidem, paragraph 7. exported from that country in 1982 and 1983 (Official 8 — ibidem, paragraph 16. Journal 1983 L 56, p. 12).

'the export certificate annexed to the regu- reply from the Dutch authorities, which lation contains a box for the name of the specified that 62 523 tonnes of manioc had vessel carrying the manioc covered by the been admitted into free circulation upon certificate, which enables the Commission to presentation of import licences issued in the check that information'.I0 Federal Republic of Germany by the Bundesanstalt für landwirtschaftliche Marktordnung (hereinafter referred to as 'BALM') before 21 March 1983.

5. The present action for failure to fulfil orities, by letters of 2 August 1983 and 1 obligations is based on the following facts. February 1984, to explain those facts, the On 31 January the Commission informed Commission requested them, by letter of 9 the competent authorities of all the Member February 1984, to proceed to recover the States, by telex, that, according to infor- agricultural levies not collected on the mation supplied by the Thai authorities, the manioc in question. Faced with the refusal vessel Equinox had left Thailand towards to do so by the Dutch authorities, the the middle of January, heading for the Commission sent a formal letter on 25 July Community with a cargo of manioc for 1985 and a reasoned opinion on 29 January which no export certificate had been issued. 1988. The telex stated that that cargo was not to be admitted into free circulation, even under the cover of import licences, since these could not have been issued against presen- 8. The submissions put forward in support tation of Thai export certificates. A second of the application ' ' are based on the telex from the Commission, on 6 May 1983, infringement, on the one hand, of Council sent this time only to the Dutch authorities, Regulation (EEC) No 2744/75, n which informed them that, according to infor- establishes the agricultural levy at the full mation received, the vessel Equinox had rate, of the EEC-Thailand Agreement and unloaded, for the account of the company of Regulations (EEC) Nos 604/83, 13 Krohn, 50 000 tonnes of manioc for which 2029/82 and 3383/82, and, on the other there were no export certificates. That telex hand, of Council Regulation (EEC,

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COMMISSION v NETHERLANDS

'the rules contained in Article 169 of the Treaty must be applied and the Commission 13. I now turn to the examination of the first submission. This is based on Article 5 14 — Council Regulation N o 2891/77 of 19 December 1977 of the Treaty and Article 7(1) of Regu- implementing the Decision of 21 April 1970 on the lations Nos 2029/82 and 3383/82. ' 8 T h e replacement of financial contributions from Member Sutes by the Communities' own resources (Official Journal 1977 L 336, p. 1). 17 — Judgment of 10 April 1984 in Case 324/82 Commitsion v 15 — P. 8 of the defence, in the French translation. Belgium [1984] ECR 1861, paragraph 12 (emphasis added). 16 — Judgment of 11 December 1973 in Case 120/73 Lorenz v 18 — See the application, paragraphs 6.2 and 6.3, p. 11 of the Germany [1973] ECR 1471. French translation.

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OPINION OF MR DARMON — CASE C-96/89

15. According to the Netherlands 18. Moreover, if the provision at issue Government, the provisions of Article 7(1) allows the Commission, by way of 'appro- of Regulations Nos 2029/82 and 3383/82 priate measures', to forbid the competent relate to the issuing of import licences and authorities from allowing cargoes covered not to the placing in free circulation. It was by import licences to be released into the Commission's responsibility to oppose free circulation, that may only happen, the issue of import licences by BALM; according to the provision itself, in the having failed to do so, the Commission may event of non-observance of the conditions not rely on a third control of the application governing the issue of the licence. of the EEC-Thailand Agreement which would have to be effected by the national authorities at the time when the goods came to be released into free circulation. 20 19. What are those conditions? In my view, these are, in particular, the obligations laid 19 — P. 12 of the application, in the French translation. 20 — P. 12 of the defence, in the French translation, p. 7 of the down by Article 6(1) and 6(3) of both the rejoinder. aforesaid regulations, namely, that of

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'the rule laid down in Articles 1 and 5 of the Cooperation Agreement to the effect that 22. It is by no means a question, as the manioc exports from Thailand to the Dutch Government claims, of redressing the Community may not exceed the agreed errors of the Commission or of BALM. In quantities'? 21 fact, while the first telex in question is dated 31 January 1983, it mentions that the Thai authorities have informed the Commission of the departure of the vessel Equinox towards mid-January with a cargo of In fact, in its judgment in the Krohn case, manioc for which there were no export the Court acknowledged that the power certificates. Consequently, it can only have conferred on the Commission by the first been during the second half of the month subparagraph of Article 7(1) to prevent the that the Commission received that infor- issue of import licences could be exercised mation. Some of the import licences issued in order to obtain additional information by BALM bear the dates of 6, 11, 19 and 27 and to ascertain that the licences applied for January. It is not certain, therefore, that the were not of such a kind as to lead to the Commission was yet in a position to quota being exceeded. It is difficult to see intervene with BALM to ask it not to issue how, with the same objectives in view, the the import licences. Furthermore, the Commission could not exercise the powers Commission's telex of 6 May 1983, sent to conferred by the second subparagraph of the Dutch authorities, specifies that no those same articles and take all appropriate application for an import licence concerning measures after the import licences had been those quantities had been communicated to issued. it in accordance with Article 9 of Regu- lations Nos 2029/82 and 3383/82. It is probable, therefore, that the import licences issued by BALM were for other cargoes of 21. Those measures must include the manioc, and it is difficult to see how the recommendation to national authorities not Commission could prevent their issue since to accept entry into free circulation at the it did not know that they would subsequently be utilized for a new cargo. Its 21 — Case 175/84, cited above, paragraph 15. only remaining course of action was to

make use of the powers conferred on it by 25. Finally, for the sake of completeness, it the second subparagraph of Article 7(1). does not appear to me that the issue of the impon licence can give rise, in the circum- stances at issue, to any legitimate expec- tation on the part of the economic operator concerned, given that, according to the 23. Nor is it a question of establishing a Court's case law, the principle of legitimate third systematic control. The 'appropriate expectations measures' can only be limited, ad hoc measures, directed at a specific cargo as in the case in point, as is apparent from the text of the provision which uses the singular 'may not be relied upon by an undertaking when it refers to the 'issue of the licence'. In which has committed a manifest infringe- the majority of cases, those measures will be ment of the rules in force'. 2 3 intended to prevent the consequences of irregularities detected on the occasion of the controls carried out either by the Thai auth- orities or by the national or Community 26. Consequently, the Commission could, authorities. to my mind, require the competent auth- orities of the Member States, on the basis of 'appropriate measures', to refuse to place the cargo of the vessel Equinox in free circulation upon the presentation of import licences, unless they ascertained the identity 24. Article 5 of the Treaty sheds light on of the manioc in question by demanding the the provisions of the second indent of communication of the corresponding export Article 7(1). The duty to cooperate which certificates. binds the national authorities ought to have led the Dutch authorities to contact BALM, if only by telephone, in order to ascertain the names of the vessels indicated on the 27. The Kingdom of the Netherlands has export certificates. Such an approach would thus failed to fulfil its obligations to the seem all the more normal because the Dutch Community by failing to check with BALM authorities could not have failed to be that export licences relating to the contested aware, at that time, of the particular diffi- cargo actually existed, and by allowing, in culties with which the Community was spite of the Commission's telex, some faced. In fact, Regulation No 499/83, 60 000 tonnes of manioc for which no which, in particular, requires the the name export certificate had been issued to be of the vessel to be indicated on the import placed in free circulation. licence, is dated 2 March 1983. The placing in free circulation can only have taken place after 18 March 1983, the date of the last import licence 22 submitted by the economic 28. The Netherlands Government submits operator. Even though Regulation No that it carried out an inquiry concerning the 499/83 did not come into force until 21 ports of call and the movements of the March 1983, the competent Dutch auth- vessel Equinox. According to the results of orities were most certainly aware of the that inquiry, the Equinox remained in dock reasons for its adoption as well as of its in a Thai port waiting to receive export provisions. certificates.

29. A check of this kind, however, does not apparent than real, between the parties. The appear to be adequate. It is apparent that, in Netherlands Government, in fact, puts fact, while the Equinox did receive export forward a first argument according to which certificates for part of its cargo, the 60 000 it is not for the Commission to establish tonnes of manioc in question did not benefit own resources, that power being exclusively from the issue of such certificates since, it exercised by the Member States. The will be recalled, it was upon the presen- Commission replies, rightly in my opinion, tation of export certificates indicating the that whilst the responsibility for establishing names of other vessels that the import own resources actually belongs only to the licences were issued by BALM for that Member States, in accordance with Article 1 quantity. The inquiry carried out by the of Regulation No 2891/77, it follows from Netherlands Government was thus not a the provisions of that regulation that the correct implementation of the 'appropriate Member States are under an obligation to measures' taken by the Commission on the establish as own resources the amounts of basis of the second paragraph of Article 7(1) credits as soon as they become due. That of Regulations Nos 2029/82 and 3383/82. the Commission has itself no power to That, to my mind, is sufficient for the Court establish own resources is indisputable; the to declare that there has been an essential difficulty lies in knowing whether a infringement in that respect. It is not Member State is required to declare debts necessary, therefore, to examine the alter- which it disputes. native submission put forward by the Commission, 24 based on the Netherlands authorities' refusal to proceed to the post- clearance recovery of the levies not collected. 32. To my mind, the only answer can be that it is. A Member State may not be allowed, for the sole reason that it disputes that it is owed a certain sum, to hinder the making available of own resources to the Community authorities. The Court has 30. I now turn to the second submission. acknowledged, with regard to Council This refers to the failure on the part of the Regulation (EEC, Euratom, ECSC) No Netherlands Government to establish as 2/71 of 2 January 1971, 2 5 that the existence own resources the amount corresponding to of a system of monthly entries in the the difference between the levy at the full Community accounts as revenue to be rate and that at the reduced rate and to collected as well as the payment of interest make that amount available to the for any default in making an entry requires Commission by 29 June 1984 at the latest as that from then onwards the Commission the Commission had demanded by letter of shall have a right to ask for additional 18 April of that year. measures of control and, where necessary, to be associated with them 'as from the time when the resources ought to have been established'. 26 The acknowledgement of the possession of such a power by the

Commission can only be understood if the 'the wording of Article 11 of Regulation No Member State is required, in spite of its 2891/77 shows that interest is payable in reluctance, to establish the Communities' respect of "any delay' in crediting the own resources. If it should fail to do so, this amounts to the Commission's account. It is, as it were, 'at its own risk', in so far as it follows that, regardless of the reason for the will have to pay the interest laid down by delay in making the entry in the Commission 's Article 11 of Regulation N o 2891/77. account, interest is payable without any distinction being called for according to whether the delay was caused by failure to 33. On this last point, too, the parties determine the relevant amounts by the due differ. According to the Dutch Government, date or by failure to comply with the Article 11 imposes default interest only time-limit laid down in Article 10(1) of where a Member State, after establishing Regulation No 2891/77'. 2 9 own resources in accordance with Articles 1 and 2 of the same regulation, has failed to credit them to the account opened in the name of the Commission with its Treasury by the 20th day of the se.cond month following the month during which the en- 35. Admittedly, in the case which gave rise titlement was established. 27 It does not to that judgment, a Commission regulation apply, on the other hand, where a Member required the Member States to establish the State has refused to establish own resources, entitlements due before a certain date. It which clearly gives rise to a failure to make does not seem to me that that fact should an entry. alter the reasoning which the Court followed there. In the present case, even though, strictly speaking, there is no time-limit for establishing the entitlements, 34. The Court's case-law has already it follows from Article 2 of Regulation No rejected such a point of view. In its 2891/77 that the entitlement must be estab- judgment in a case between the Commission lished 'as soon as the corresponding claim and Germany, that Member State has been duly determined by the appropriate considered that department or agency of the Member State'. Furthermore, the Court adopted the same point of view in a recent judgment in a case 'Article 11 of Regulation N o 2891/77 between the Commission and Italy. 30 Mr imposes an obligation to pay interest only Advocate General Mancini had, moreover, where a Member State exceeds the period pointed out in his Opinion in Case 303/84 provided for by Article 10(1) of the regu- that lation, within which, after the amounts payable have been determined, the Member State must credit those amounts to the Commission's account, and not in a case where there is a delay in the preliminary step of determining the amounts in 'the determination . . . is not the event which question', 28 gives rise to the right to the resources but only the event which gives rise to the Member States' obligation to place those resources at to which the Court replied that the Commission's disposal. If it were

— by refusing to establish as the Communities' own resources the amount which it unduly omitted to levy on that cargo, namely HFL 19 765 281.39, and to make that amount, together with the interest provided for in Article 11 of Regulation N o 2891/77 calculated as from 29 June 1984, available to the Commission.

I also propose that the defendant Member State be ordered to pay the costs.

31 — Opinion in Case 303/84, cited above, [1986] ECR 1176.

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