1.

By its appeal, the Czech Republic seeks to have set aside the order of the General Court of the European Union of 28 June 2018, Czech Republic v Commission, ( 2 ) by which the General Court dismissed the action for annulment which the Czech Republic had brought against the alleged decision of the European Commission contained in the letter of 20 January 2015 from the director of the Own Resources and Financial Programming Directorate of the Directorate-General for Budget bearing the reference Ares (2015)217973 (‘the letter at issue’), on the ground that the action was inadmissible.

2.

That appeal raises a number of fundamental questions as to the functioning of the system of the European Union’s traditional own resources (TOR) and the concept of payment subject to reservations, but also, more generally, concerning the Member States’ access to effective judicial protection in the event of disputes over the extent of their financial liabilities to the European Union.

3.

The first paragraph of Article 263 TFEU provides:

‘The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.’

4.

Under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’):

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.’

5.

According to recital 2 of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources, ( 3 ) the own resources system must ‘ensure adequate resources for the orderly development of the [Union’s] policies, subject to the need for strict budgetary discipline’.

6.

Under Article 2(1)(a) of Decision 2007/436, revenue from, inter alia, Common Customs Tariff duties and other duties established or to be established by the EU institutions in respect of trade with non-member countries is to constitute own resources entered in the general budget of the European Union.

7.

Article 8(1) further states that the own resources referred to in Article 2(1)(a) are to be collected by the Member States. The latter are to make those resources available to the Commission.

8.

Recital 21 of Regulation (EC, Euratom) No 1150/2000 ( 4 ) states that close collaboration between Member States and the Commission will facilitate proper application of the financial rules relating to own resources.

9.

Under Article 2(1) of Regulation No 1150/2000, the European Union’s entitlement to the own resources referred to in Article 2(1)(a) of Decision 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.

10.

Article 6(1) and (3) provides:

‘1.   Accounts for own resources shall be kept by the Treasury of each Member State or by the body appointed by each Member State and broken down by type of resources.

…

3   

…’

11.

Article 9(1) 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.

…’

12.

Under Article 10(1), entry of the own resources referred to in Article 2(1)(a) of Decision 2007/436 is to 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 Regulation No 1150/2000.

13.

Article 11(1) provides that any delay in making the entry in the account referred to in Article 9(1) is to give rise to the payment of interest by the Member State concerned.

14.

Finally, under Article 17(1) to (4):

‘1.   Member States shall take all requisite measures to ensure that the amounts 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:

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, at the latest, after a period of five years from the date on which the amount has been established in accordance with Article 2 or, in the event of an administrative or judicial appeal, the final decision has been given, notified or published.

If part payment or payments have been received, the period of five years at maximum shall start from the date of the last payment made, where this does not clear the debt.

Amounts declared or deemed irrecoverable shall be definitively removed from the separate account referred to in Article 6(3)(b). They shall be shown in an annex to the quarterly statement referred to in Article 6(4)(b) and where applicable, in the quarterly statement referred to in Article 6(5).

3.   Within three months of the administrative decision mentioned in paragraph 2 or in accordance with the time limits referred to in that paragraph, Member States shall provide the Commission with information on those cases where paragraph 2 has been applied provided the established entitlements involved exceed EUR 50000.

…

This report, which shall be made on a form to be produced by the Commission after consulting the committee referred to in Article 20, shall include all the facts necessary for a full examination of the reasons referred to in paragraph 2(a) and (b), which prevented the Member State concerned from making available the amounts in question, and the recovery measures the Member State took in the case or cases in question.

4.   The Commission has six months from the receipt of the report provided for in paragraph 3 to forward its comments to the Member State concerned.

Where the Commission finds it necessary to request additional information, the six month time limit shall run from the date of receipt of the requested supplementary information.’

15.

The background to the dispute may be summarised as follows.

16.

On 30 May 2008, the European Anti-Fraud Office (OLAF) delivered a final report following an investigation to check imports of pocket flint lighters from Laos between 2004 and 2007. Those lighters in fact originated in China and should have been subject to an anti-dumping duty.

17.

The report stated that ‘the evidence of Chinese origin established in the course of the mission is sufficient for Member States to take administrative duty recovery proceedings’. According to the report, it was necessary ‘that Member States institute follow up audits and investigations if appropriate of the importers concerned and initiate recovery proceedings as a matter of urgency’.

18.

As far as the Czech Republic is concerned, the findings of the OLAF report identified 28 cases of imported goods which came within the competence of three different customs offices.

19.

The customs offices concerned took steps to carry out tax adjustment and recovery in those 28 cases.

20.

However, the Czech Republic was not in a position to effect recovery within the prescribed time limit in any of those 28 cases.

21.

Between November 2013 and November 2014, the Czech Republic entered into the WOMIS system ( 5 ) 28 cases in which the recovery of own resources was impossible.

22.

At the Commission’s request, the Czech Republic submitted additional information to the Commission through the WOMIS system in July and December 2014.

23.

In the letter at issue, the director of the Own Resources and Financial Programming Directorate of the Commission’s Directorate-General for Budget informed the Czech authorities that the requirements for their being released from the obligation to make own resources available, laid down in Article 17(2) of Regulation No 1150/2000, had not been met in any of the abovementioned cases. He requested the Czech authorities to take the measures necessary to credit the Commission’s account in the amount of 53976340 Czech koruny (CZK) (approximately EUR 2112708), at the latest on the 1st working day following the 19th day of the 2nd month following the month in which that letter was sent. The director added that any delay would give rise to the payment of interest under Article 11 of Regulation No 1150/2000.

24.

On 17 March 2015, the Czech Republic paid the disputed amount into the Commission’s account, although it reiterated its reservations regarding the Commission’s position in the letter at issue.

25.

By application lodged at the Registry of the General Court on 30 March 2015, the Czech Republic brought an action for annulment of the decision allegedly contained in the letter at issue.

26.

By separate document lodged at the Registry of the General Court on 11 June 2015, the Commission raised a plea of inadmissibility on the ground that the letter at issue did not constitute a decision against which an action for annulment could be brought. The Czech Republic submitted its observations on that plea.

27.

By document lodged at the Registry of the General Court on 20 July 2015, the Slovak Republic requested leave to intervene in support of the form of order sought by the Czech Republic.

28.

By decision of 22 December 2015, having received the observations of the main parties, the General Court stayed the proceedings before it pending delivery of the judgments in Slovakia v Commission ( 6 ) and Romania v Commission. ( 7 ) The proceedings resumed following the delivery of those judgments and the main parties were invited to express their views on the inferences to be drawn from them.

29.

By the order under appeal, the General Court upheld the Commission’s plea of inadmissibility on the ground, set out in paragraphs 64 and 87 of that order, that the letter at issue merely constituted a written expression of opinion intended to convey information, together with a request to make own resources available, so it could not be the subject of an action for annulment.

30.

That classification followed from an analysis of, first, the context in which the letter at issue was sent and the Commission’s powers concerning the European Union’s own resources and, second, the letter’s content.

31.

In the first place, the General Court held, in essence, that, under Decision 2007/436 and Regulation No 1150/2000, the onus was directly on the Member States to establish and make available own resources (paragraphs 37 to 43 of the order under appeal), without those acts laying down any specific procedure at the end of which the Commission would be required to adopt a decision regarding the obligation to make own resources available (paragraph 47 of that order). In particular, regarding the exceptional release from that obligation provided for in Article 17(2) of Regulation No 1150/2000, the Commission could only comment, pursuant to paragraph 4 of that article, on the reasons which prevented a Member State from making available an amount declared irrecoverable by decision of the competent national administrative authority and on the measures taken by that Member State to ensure recovery. Those comments are not binding and, therefore, do not have binding legal effect (paragraphs 44 to 49 of that order).

32.

Furthermore, in paragraphs 51 to 55 of the order under appeal, the General Court added, in essence, that any disputes between a Member State and the Commission concerning the establishment and making available of own resources could be settled in infringement proceedings.

33.

In the second place, the General Court held, in paragraph 59 of the order under appeal, that the content of the letter at issue shows that the Commission had, in essence, forwarded comments to the Czech Republic, in accordance with Article 17(4) of Regulation No 1150/2000, regarding the latter’s request to be released from the obligation to make the disputed amount available and that the Commission had asked that Member State to make that amount available. In so far as that letter referred to a time limit for making that amount available, the General Court noted, in paragraphs 62 and 63 of that order, that, in view of the overall content of the letter, the reference to such a time limit did not permit the inference that the Commission intended to adopt a measure producing binding legal effects and that, in that reference, the letter at issue echoed the wording of Articles 10 and 11 of Regulation No 1150/2000.

34.

Finally, the General Court dismissed the various arguments advanced by the Czech Republic. In particular, as regards an argument based on the right to effective judicial protection, it stated as follows, in paragraphs 81 to 84 of the order under appeal:

‘81. … although the requirement as to binding legal effects must be interpreted in the light of the right to effective judicial protection as guaranteed in the first paragraph of Article 47 of the [Charter], it is sufficient to note that this right is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation relating to the abovementioned Article 47, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter. Thus, the interpretation of the concept of “actionable measure” in the light of that Article 47 cannot have the effect of setting aside that condition without going beyond the jurisdiction conferred by the Treaty on the EU Courts ([Slovakia v Commission], paragraph 66, and [judgment] of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 68).

82. Moreover, it was open to the Czech Republic, on receipt of the [letter at issue], not to act on the [letter at issue] pending the possible initiation by the Commission of infringement proceedings.

83. Admittedly, it follows from the general logic of Article 258 TFEU that the Commission is not bound to bring such proceedings, since its discretion as to whether it is appropriate to bring infringement proceedings before the Court implies that no one is entitled to require it to adopt a specific position (see order of 14 September 2015, Romania v Commission, T‑784/14, not published, EU:T:2015:659, paragraph 55 and the case-law cited).

84. However, it would likewise have been open to the Czech Republic to make [the amount] in question available conditionally while expressing reservations as to the validity of the Commission’s arguments, the Court having referred to that possibility on several occasions (see, to that effect, judgments of 16 May 1991, Commission v Netherlands, C‑96/89, EU:C:1991:213, paragraph 17; of 12 September 2000, Commission v United Kingdom, C‑359/97, EU:C:2000:426, paragraph 31; and order of 4 October 2007, Finland v Commission, C‑457/06 P, not published, EU:C:2007:582, paragraph 39).’

35.

Consequently, the General Court dismissed the Czech Republic’s action for annulment as inadmissible, without ruling on the Slovak Republic’s application to intervene.

36.

In its appeal, brought on 13 September 2018, the Czech Republic claims that the Court should:

37.

For its part, the Commission contends that the Court should:

38.

The Kingdom of the Netherlands intervened in support of the form of order sought by the Czech Republic.

39.

The parties to the appeal put their respective cases at the hearing on 11 November 2019.

40.

In its appeal, the appellant relies on a single ground, alleging infringement of Article 263 TFEU, read in conjunction with Article 47 of the Charter. Before examining the parties’ submissions, I think it useful to recall the principles laid down in law and case-law governing TOR and, in particular, the making available of TOR.

41.

TOR (including customs duties) are intended to finance EU policies. Since the European Union does not have a body of officials with the authority to collect those resources, the Member States are responsible for collecting and managing them, and they are subject to a number of obligations in that regard (in accordance with Regulation No 1150/2000 at the material time). ( 8 )

42.

Own resources are due as soon as they are established. It should be noted that the Member States are required to establish an entitlement to own resources ‘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’ (see Article 2(1) of Regulation No 1150/2000). ( 9 )

43.

The Member States have no discretion on that point. According to the Court’s settled case-law, the Member States may not dispense with determining entitlements, even where these are disputed; ‘otherwise, it would have to be accepted that the financial equilibrium of the European Union may be disrupted’ by the conduct of a Member State. ( 10 ) It follows that a challenge (if any) may be raised only after the fact.

44.

Once an entitlement has been established, each Member State is to credit the own resources to the account opened for that purpose in the Commission’s name with the Treasury or the body which that Member State has appointed. Each Member State acts, as it were, in the capacity of banker and depositary of the resources in question, with the obligation to make those resources available to the Commission in their entirety, irrespective of whether or not they have been recovered. ( 11 ) Thus, the Member States can avoid their obligation to make own resources available only in the situations listed in Article 17(2) of Regulation No 1150/2000 — namely where the amounts corresponding to established entitlements prove irrecoverable, either for reasons of force majeure or for other reasons which cannot be attributed to the Member States concerned.

45.

That strict mechanism is justified by the need to ensure the ‘efficient and rapid’ availability of the European Union’s own resources. ( 12 ) Among other purposes, it seeks to hold the Member States accountable.

46.

It is also for that reason that breach of the obligations highlighted above leads to the imposition of high rates of interest under Article 11 of Regulation No 1150/2000. In that regard, according to the Court, there is ‘an inseparable link’ between the obligation to establish own resources, the obligation to credit them to the Commission’s account within the prescribed time limits and the obligation to pay interest. ( 13 )

47.

In that connection, the Commission is responsible for ensuring that the Member States fulfil their obligations. It is entitled to commence infringement proceedings under Article 258 TFEU where a Member State fails to fulfil those obligations.

48.

In the event of a dispute as to the existence of TOR or the amount owed by a Member State, that State may avoid the penalty of interest ‘by making available to the Commission the amount claimed while expressing reservations as to the validity of that institution’s arguments’. ( 14 )

49.

However, the Court has not set out detailed rules for payments made subject to reservations. Nor has it ruled on whether such a payment may — ultimately — be regarded as having been made ‘in full’ from a legal perspective or whether the Member State concerned is in breach of its obligations.

50.

The Court has merely noted that, although the Commission cannot refuse a Member State the right to make a payment subject to reservations, the possibility of (the Commission) negotiating the conditions and procedures of payment runs counter to the TOR system. ( 15 )

51.

That situation arises from a particular characteristic of the TOR system: the Commission has no decision-making power under Regulation No 1150/2000.

52.

Although under Article 17(4) of Regulation No 1150/2000 the Commission is bound to make comments as to whether a Member State may be released from its obligation to make certain amounts available, it is not required to adopt a decision in that regard. Similarly, the Member States retain control over the accounts which they hold on the Commission’s behalf and may even withdraw the disputed amounts, ( 16 ) at the risk of having potentially to face infringement proceedings and payment of the abovementioned interest.

53.

This is not an oversight on the part of the legislature: it deliberately chose not to confer such a power on the Commission. In a proposal to amend Regulation No 1150/2000 dating from 2003, the new Article 17(4) provided for the Commission to take a ‘substantiated decision’ in the event of disagreement as to whether a definitive failure to recover an amount was due to force majeure or other reasons not attributable to the Member State concerned. ( 17 ) The Council rejected that proposal. The Member States preferred to maintain their powers and denied the Commission any decision-making power over the amounts to be paid.

54.

However, that lack of decision-making power does not call into question the Commission’s role as guardian of the Treaties, nor its power to provide legal opinions on the Member States’ obligations under Regulation No 1150/2000.

55.

In this connection, as academic writers have pointed out, the Commission (sometimes) has to send warning letters to recalcitrant Member States. ( 18 )

56.

The Court has already held that such letters do not constitute ‘actionable measures’ under Article 263 TFEU. ( 19 ) Member States wishing to challenge the Commission’s assessment are therefore faced with an awkward dilemma: either they refuse to make the amounts claimed available to the Commission, thereby incurring the risk of having to pay extremely high interest, or, in order to guard against that risk, they make a payment subject to reservations, without, however, being certain that the Commission will initiate infringement proceedings enabling the Court to rule on the merits of the dispute. ( 20 )

57.

The appeal before the Court in the present case is symptomatic of that almost Kafkaesque legal situation. The Czech Republic wished to challenge the Commission’s position in the letter at issue. In order to do so, it made a payment subject to reservations and brought an action for annulment under Article 263 TFEU. The General Court declined to uphold that action on the ground that the letter at issue did not constitute an actionable measure. The Commission considered that there had been no failure to fulfil obligations in so far as the payment claimed had been made; it would seem that, in the Commission’s view, the reservations were devoid of legal effect. ( 21 )

58.

It is against that particular legal backdrop that I shall now analyse the single ground of appeal raised by the appellant and the submissions of the other parties to the appeal.

59.

By its single plea in law, alleging infringement of Article 263 TFEU, read in conjunction with Article 47 of the Charter, the Czech Republic claims — in essence — that it lacks an effective legal remedy allowing it to bring before the Courts of the European Union its dispute with the Commission concerning the existence (or absence) of an obligation to make TOR available, contrary to what the General Court stated in paragraph 81 et seq. of the order under appeal.

60.

As a preliminary point, the Czech Republic points out that, when the Commission asks a Member State to make available to it an amount of own resources by means of a document such as the letter at issue, that Member State is — de facto — obliged to pay the amount claimed within the prescribed period, notwithstanding any reservations regarding the Commission’s position. If it does not do so, that Member State risks having to pay high interest for failure to fulfil its obligation to make TOR available. The amount of interest due depends in practice on the date on which the Commission initiates the infringement procedure and on the duration of that procedure, and is therefore outwith the control of the Member State concerned.

61.

First, in view of the Commission’s discretion in commencing infringement proceedings ( 22 ) and the absence of any time limit for doing so, a Member State cannot be certain that the merits of the dispute will be examined by the Court. In so far as access to the Court depends, in that respect, on the Commission’s goodwill, the right to effective judicial protection is not guaranteed. ( 23 )

62.

The position would be different only if, following a payment subject to reservations made by the Member State in question, the Commission was required to initiate infringement proceedings against that Member State. As matters stand, ( 24 ) however, no such obligation is apparent either from the order under appeal or from the Court’s case-law on payments subject to reservations. In addition, that case-law is imprecise with regard to the conditions and effects of such a payment, which creates a state of legal uncertainty and undermines the right to effective judicial protection.

63.

Second, the Czech Republic submits that the Commission’s current practice shows that it does not consider itself bound to bring infringement proceedings where a payment is made subject to reservations. ( 25 )

64.

Third, the Czech Republic considers that the shortcomings in the judicial protection of a Member State (in the event of a payment subject to reservations), as outlined in the arguments set out above, constitute an element of the ‘factual and legal context’ in which the letter at issue was sent, which is a relevant criterion for assessing whether that letter is open to challenge. ( 26 ) In view of that context, the concepts of ‘binding legal effects’ and ‘actionable measure’ should be interpreted in a manner different from that adopted by the General Court in the order under appeal in order to guarantee the right to effective judicial protection.

65.

The Czech Republic observes that it re-stated its reservations (regarding its obligation to make the disputed amount available) and requested the Commission to repay that amount or initiate infringement proceedings, without success.

66.

The Kingdom of the Netherlands, which intervened in support of the form of order sought by the Czech Republic, asserts that the letter at issue was intended to produce legal effects, in particular in so far as it determined independently the date from which interest is payable.

67.

The Commission contends that the single ground of appeal is unfounded.

68.

First, it notes that the Czech Republic does not call into question the interpretation (set out, inter alia, in paragraphs 42 and 47 of the order under appeal) of Decision 2007/436 and Regulation No 1150/2000, according to which it is for the Member States to establish the European Union’s own resources and those instruments do not provide for any specific procedure allowing the Commission to adopt a decision regarding the obligation to make TOR available. On that basis, the Commission considers that it has no decision-making power.

69.

In the absence (undisputed by the Czech Republic) of such a power, the Commission is entitled to communicate to the Member State concerned its opinion on the classification of certain sums as TOR belonging to the European Union. However, since such an opinion has no legal effect, it cannot be the subject of an action for annulment.

70.

In the Commission’s view, the arguments which the Czech Republic bases on the right to effective judicial protection owing to the financial risk associated with interest should not lead to an alternative conclusion. According to the Commission, similar arguments have already been dismissed in Slovakia v Commission.

71.

In that regard, the Commission adds in its observations on the statement in intervention of the Kingdom of the Netherlands that the latter has not put forward any arguments that would warrant distinguishing the present case from that giving rise to the judgment in Slovakia v Commission. Moreover, the obligation to pay interest is merely a necessary corollary of the failure of the Member State concerned to fulfil its obligation under the rules governing the TOR system to make those resources available to the Commission in good time (even where it disputes its obligation to pay the amounts in question).

72.

The Commission also observes that, in view of the current state of the TOR system, there is only one means to settle a dispute between it and a Member State concerning that Member State’s obligation to establish those resources and make them available: infringement proceedings. On that point, it refers to paragraphs 51 and 53 to 55 of the order under appeal, in which the General Court drew attention to the Court of Justice’s exclusive jurisdiction in determining the Member States’ obligations in that matter.

73.

In its replies to the Court’s questions, the Commission also stated that, despite the reservations to which it is subject, the payment made by the Czech Republic has, from a legal perspective, been made in full, and that those reservations do not constitute a failure to comply with the rules on TOR. ( 27 ) According to the Commission, the unilateral expression of reservations by the Member State concerned cannot alter the legal status of funds which must be made unconditionally available to it under the rules on TOR. Otherwise, the European Union’s financial stability and credit rating are likely to be seriously undermined.

74.

The Commission also notes that if a Member State is convinced that its position is valid and wishes to recover the funds made available, it may (unilaterally) make a correction to its accounts, without the need for judicial protection mechanisms to be provided to this end. However, by doing so, the Member State lays itself open to infringement proceedings, with the risk of ultimately having to pay the interest prescribed by the rules on TOR. That interest is, in a sense, the price paid by a Member State which acts against the Commission’s opinion, ‘at its own risk’. ( 28 ) If the Commission delayed in bringing infringement proceedings, thereby increasing the amount of interest due, the Courts of the European Union would be empowered to reduce the Member State’s burden in that regard.

75.

In my view, a two-step assessment should be carried out.

76.

In the first step, I shall consider whether the General Court erred in law in finding that the action for annulment brought by the appellant in respect of the letter at issue was inadmissible in the absence of an actionable measure. As I shall explain below, the position adopted by the General Court seems to me to be legally correct. Nevertheless, it is also undeniable that, as matters stand, there is a gap in the TOR system, in that it does not allow a Member State effectively to contest the position adopted by the Commission without running the risk of ‘breaking the law’ and having to pay extremely high interest.

77.

For that reason, I shall, in the second step, consider alternative approaches that offer the Member States an effective judicial remedy in the event of a dispute over the obligation to make TOR available.

78.

According to settled case-law, ‘any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects’ are ‘actionable measures’ for the purposes of Article 263 TFEU. ( 29 )

79.

In order to ascertain whether or not a measure which has been challenged produces such effects, it is necessary to look to its substance. ( 30 ) Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the measure. ( 31 )

80.

I note, on this point, that the General Court carried out a detailed, rigorous analysis of the context in which the letter at issue was sent, and of the Commission’s powers in relation to TOR, in paragraphs 36 to 56 of the order under appeal. The General Court held that the Commission was not empowered to adopt a decision capable of producing binding legal effects and that the letter at issue must be regarded as intended to provide information and to make a mere request.

81.

In view of the legal and case-law framework set out above (I refer to points 41 to 58 of this Opinion), the General Court’s analysis is correct.

82.

The parties to the appeal appear to agree with that finding. I point out, so far as is relevant, that at the hearing the Czech Republic was unable to establish the precise legal basis of the decision allegedly adopted by the Commission in the present case: as I have pointed out, no article of Regulation No 1150/2000 confers any decision-making power on the Commission.

83.

As regards the content of the letter at issue, the appellant also fails to establish how the General Court’s analysis in paragraphs 57 to 64 of the order under appeal is incorrect. ( 32 )

84.

As regards the argument of the Kingdom of the Netherlands that the letter at issue produces legal effects because it makes interest start to run on a date different from that laid down in Article 10(1) of Regulation No 1150/2000, I note that such an argument has already been dismissed by the Court as insufficient to confer such effects on a letter of that kind. ( 33 )

85.

In the light of the foregoing, only the question of access to effective judicial protection under Article 47 of the Charter remains.

86.

The Czech Republic is in effect requesting the Court to redefine the concept of an actionable measure so as to extend it to documents such as the letter at issue, with the sole aim of establishing a remedy for Member States in the event of a dispute over the making available of TOR.

87.

The General Court has pointed out, quite correctly, that the right to an effective remedy enshrined in Article 47 of the Charter is not ‘intended to change the system of judicial review laid down by the Treaties’. ( 34 ) On that basis, the reinterpretation (proposed by the Czech Republic) of the concept of an ‘actionable measure’ in the light of that article cannot succeed since it would have the effect of setting aside an admissibility requirement in a manner which exceeds the powers conferred on the Courts of the European Union by the Treaties.

88.

In addition, although it is hard to deny that the TOR system is imperfect, as I have already pointed out, ( 35 ) I doubt that an action for annulment is the most appropriate solution for bridging the gaps which I have identified.

89.

The appellant’s argument implies that the Commission has arrogated to itself the power of taking decisions which establish the Member States’ obligations with regard to TOR. As I have observed several times, in view of the division of powers in respect of TOR, it is indisputable that the Commission does not have such a power and, moreover, has never claimed to exercise such a power.

90.

If the Commission had assumed such a power and had actually adopted a measure producing legal effects (quod non), then that measure could be annulled for lack of a legal basis.

91.

However — even if that argument were accepted — the fact remains that an action for annulment would not lead to any alteration of the Commission’s alleged decision. The General Court would be required to annul it on the ground of lack of competence, without, however, being able to substitute its own assessment for that of the Commission and, therefore, without being in a position to settle the real problem: determining the obligations of the Member State concerned with regard to TOR.

92.

In my view, this is therefore, in any event, a dead end.

93.

On that basis, the single ground of appeal raised by the Czech Republic is ineffective and the appeal must be dismissed as unfounded, in so far as the General Court was right to conclude that the action for annulment was inadmissible in the absence of an actionable measure.

94.

What other solutions should be envisaged given that the Czech Republic cannot bring an action for annulment?

95.

The Commission advocates the status quo. It submits that it is by no means abnormal for a Member State that disagrees with its analysis to have no choice but to ‘break the law’ and run the risk of incurring substantial interest in return for the hope (and not the certainty) that the situation will ultimately be examined by the Court through an action for failure to fulfil obligations. Similarly, according to the Commission, the reservations expressed by a Member State when it makes available a disputed amount by way of TOR are (de facto) devoid of any legal consequences. From a legal point of view, the payment has been made in full, and therefore infringement proceedings are unwarranted in those circumstances. At most it accepts that the submission of reservations may, in accordance with the principle of sincere cooperation, establish an obligation (on the Commission’s part) to engage in ‘constructive dialogue’ with the Member State concerned with a view to reconciling their viewpoints. Following such a dialogue, having been duly enlightened by the Commission’s wisdom, that Member State could decide to acknowledge that the Commission’s assessment was well founded or to withdraw the funds previously made available to the Commission — thus laying itself open (once more) to the risk of having to pay high interest in the event of a judgment of the Court of Justice finding a failure to fulfil the obligation to make TOR available.

96.

I do not concur with that analysis. It seems to me circular and incapable of providing a satisfactory response to the issue of access to effective judicial protection. ( 36 )

97.

In my view, the concept of payment subject to reservations must be clarified at the outset. To date, as I have explained above in points 48 to 50 of this Opinion, the Court has not elaborated on that concept or defined its legal parameters.

98.

The Commission’s interpretation strips those reservations of all tangible meaning and significance. In my opinion, it should, on the contrary, be held that a payment subject to reservations cannot be regarded as having been made in full from a legal perspective and therefore implies a breach of obligations. The Court has accepted that procedure so as to allow Member States to avoid adverse financial consequences (associated with the interest imposed by the TOR rules) while formally expressing disagreement as to the legal status of the funds concerned. ( 37 ) A payment subject to reservations means that the underlying debt remains in dispute. The Commission cannot consider such a payment as having been (definitively) made.

99.

Although the funds concerned have actually been made available to the Commission, and although the Commission can use them, the Member State’s reservations cannot be disregarded and require conclusive clarification. It seems to me that the infringement procedure, allowing a constructive exchange of views between the Commission and the Member State in question (at least during the pre-litigation stage), may be an appropriate forum for that purpose.

100.

The following question arises: can the Commission be required to initiate infringement proceedings in such a situation?

101.

The case-law presents two obstacles which would have to be overcome before that conclusion is reached.

102.

First, as the Court has pointed out on numerous occasions, in view of the Commission’s role as guardian of the Treaties, that institution alone is competent to decide whether it is appropriate to initiate proceedings against a Member State for failure to fulfil its obligations. Likewise, it alone is competent to decide whether it is appropriate to continue the pre-litigation procedure by delivering a reasoned opinion, just as it has the option, but not the obligation, on completion of that procedure, to bring an action before the Court for a declaration that the Member State concerned is in breach of its obligations as alleged. ( 38 ) There are (a priori) no exceptions to that entirely discretionary power. ( 39 ) As regards TOR, the General Court has already held that the Commission’s discretion as to whether it is appropriate to bring infringement proceedings before the Court of Justice implies that no one is entitled to require it to adopt a specific position. ( 40 )

103.

Second, as I noted in point 50 above, the Court has already held that ‘the possibility of negotiating the conditions and procedures of payment runs counter’ to the TOR system. ( 41 ) On the same occasion, the Court stated that the principles of sincere cooperation and legal certainty do not confer on the Member State concerned the right to require that negotiations be entered into, particularly in the context of infringement proceedings brought against it. ( 42 )

104.

To sum up, according to that case-law, the Commission therefore has discretionary power and the Member State concerned may indeed express reservations, but it is not entitled to require the Commission to initiate infringement proceedings nor to make its payment subject to the initiation of such proceedings. ( 43 )

105.

In order to overcome those two obstacles in the case-law, the Court will therefore have to find — on a purely exceptional basis — that the Commission is obliged to initiate infringement proceedings in the event of payment subject to reservations. That obligation will be strictly limited to the field of own resources. ( 44 )

106.

That obligation to act is justified for two reasons.

107.

First, under Article 17(1) TEU, the Commission ‘shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them’. The Commission oversees the application of EU law under the control of the Court of Justice. To that end, it is required to ensure that Regulation No 1150/2000 is properly applied. ( 45 ) In this connection, it must monitor and ensure that the Member States are making TOR available correctly. As I have stated above, a payment subject to reservations can hardly be regarded as having been made in full and requires some clarification which the Court will ultimately have to provide. ( 46 )

108.

Second, such an obligation is also justified in the light of the principle of sincere cooperation enshrined in Article 4(3) TEU and reflected in recital 21 of Regulation No 1150/2000, ( 47 ) read in conjunction with Article 47 of the Charter, which lays down the right to an effective remedy. Unless such an obligation is placed on the Commission, and given its current practice of regarding a payment subject to reservations as having been made ‘in full’, the dispute between the Commission and the Member State concerned over the validity of the obligation to make TOR available will persist ( 48 ) and never be decided by the Court. The Member State concerned will not be able to obtain a ruling on the compatibility of its conduct with the TOR rules from the body competent to give such a ruling, namely the Court. ( 49 )

109.

If the Court refuses to find that the Commission is under such an obligation, what other approach could be considered to allow the Czech Republic to submit the dispute to review by the Courts of the European Union and, if appropriate, to have the disputed amount refunded?

110.

In my view, an action for damages could also enable that dispute to be resolved by the General Court, ( 50 ) allowing the Member State in question to recover the disputed amount in an orderly legal fashion.

111.

The TOR system is based on the idea that those resources belong to the European Union as soon as they are established. Theoretically, the Member States are simply required to act as the collectors of those resources and are not intended to be impoverished by collecting and managing them. The position is different where such resources prove irrecoverable, but the Member State concerned is unable to plead force majeure or other reasons which cannot be attributed to it: in such a situation, the Member State must make those resources available from its own funds.

112.

If there is a dispute concerning the entitlement and the Member State, whilst entering reservations, has made payment, it cannot thereafter retrieve the sum in dispute without laying itself open to the financial risks previously identified.

113.

In that context, two routes to compensation must be examined under Article 268 and the second paragraph of Article 340 TFEU. ( 51 ) These are an action for non-contractual liability for a wrongful act and an action for unjust enrichment (action ‘de in rem verso’), the existence of which was established by the Court in Masdar. ( 52 )

114.

In my view, the first route (non-contractual liability for a wrongful act) must be ruled out.

115.

According to settled case-law, the non-contractual liability of the European Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of. ( 53 )

116.

As regards the unlawfulness of the act or omission at issue, the court must be able to establish the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals ( 54 ) resulting from a deliberate choice or negligence on the part of the institution concerned.

117.

In the present case, it should be borne in mind that the Commission has no decision-making power as regards obligations to make TOR available; furthermore, a Member State cannot be regarded as an individual; and finally, the existence of a mere difference in the manner in which the Commission and that Member State interpret the legislation is not sufficient to establish a ‘sufficiently serious breach’ of a rule of law constituting a wrongful act on the part of the Commission. ( 55 )

118.

Without such a breach, there is no need to determine whether the other two conditions referred to in point 115 (above) are met. ( 56 )

119.

That first route to compensation must therefore be abandoned.

120.

I turn to examine the second route to compensation referred to above: the action for unjust enrichment.

121.

In Masdar, the Court found that, ‘according to the principles common to the laws of the Member States, a person who has suffered a loss which increases the wealth of another person without there being any legal basis for that enrichment has the right, as a general rule, to restitution from the person enriched, up to the amount of the loss’. ( 57 ) In that connection, ‘a claim for restitution based on unjust enrichment of the European Union requires, in order to succeed, proof of an enrichment on the part of the European Union for which there is no legal basis and of impoverishment on the part of the applicant which is linked to that enrichment’. ( 58 )

122.

Actions for unjust enrichment do not fall under the rules governing non-contractual liability in the strict sense, ( 59 ) which, to arise, requires the conditions set out in point 115 of this Opinion to be satisfied.

123.

It is generally accepted in the tradition of countries governed by civil law that an applicant bringing a claim for unjust enrichment must produce evidence of: (i) an enrichment, (ii) an impoverishment, (iii) a causal link between the enrichment and the impoverishment, (iv) the subsidiary nature of that action, and (v) the absence of cause for the enrichment and impoverishment. ( 60 )

124.

The action is subsidiary in that it ‘cannot serve as a roundabout means of providing what the law does not allow to be granted’. ( 61 ) The subsidiary nature of an action for unjustified enrichment means that it cannot succeed if the applicant had another remedy which he has allowed to lapse, ( 62 ) in particular by letting the limitation period expire.

125.

The enrichment must be devoid of any legal basis, meaning that the reason for the transfer of property cannot be a legal or contractual obligation or a voluntary disposition (such as, for example, a gift).

126.

Here, in the case of payment subject to reservations, it seems to me that the five elements referred to in point 123 of this Opinion are present.

127.

As I pointed out in point 111 (above), when a Member State resigns itself to paying, from its own funds, TOR which it was unable to recover from the debtor (who should have settled the customs debt), the Member State is impoverished and, in consequence, the European Union is correspondingly enriched. The causal link is plain. It is equally undeniable that, in such circumstances, an action de in rem verso would be subsidiary since there is no remedy allowing the Member State concerned to challenge the Commission’s assessment and recover the disputed amount. Finally, in my view, once the General Court has found, in a declaratory judgment, that the Member State in question was not in fact required to make the disputed amount available to the Commission, the payment (whether or not subject to reservations) automatically becomes devoid of any legal basis. Since that finding is retroactive, the fifth condition (the absence of cause) is satisfied.

128.

It will be for the General Court, ruling on that action, to determine the exact amount to be repaid to the Member State concerned. In my view, in order not to upset the financial equilibrium of the EU institutions, only the funds which that Member State actually made available to the European Union should be reimbursed. Those funds are not intended to generate interest for the Member State.

129.

Finally, it will also be for the General Court to assess the action’s compliance with admissibility requirements, in particular the rules on limitation. ( 63 )

130.

In my view, the ground of appeal relied on by the Czech Republic must be rejected as unfounded and the appeal must therefore be dismissed.

131.

Nevertheless, it would be appropriate for the Court to respond to the issue raised by this appeal by finding, as I have explained in points 100 to 108 of this Opinion, that a payment made subject to reservations cannot be regarded as having been made in full from a legal standpoint and that, in such circumstances, the Commission is obliged to bring infringement proceedings in order to establish that the Member State concerned has breached its obligations to make TOR available.

132.

If infringement proceedings are not brought, the only other route for submitting such a dispute for consideration by the Courts of the European Union would be an action for unjust enrichment.

133.

In my view, the infringement proceedings route is the most suitable since it enables the Court to rule on the substance of the matter, namely compliance by the Member State concerned with its obligations with regard to TOR, and, where appropriate, to establish a failure to fulfil those obligations. The major disadvantage, the significance of which should not be underestimated, is that this route would require making an exception to the rule laid down in case-law that the Commission enjoys complete discretion over whether to bring infringement proceedings. That obstacle is not insurmountable provided that that exception is clearly restricted to TOR.

134.

The route of an action for damages (based on unjust enrichment) seems to me less appropriate since it would result in the General Court being required (indirectly) to rule on a Member State’s compliance with its obligations under EU law. That is not its role within the current judicial framework. However, that route is still acceptable as a default solution.

135.

In the future, it is plainly desirable that the legislature should itself address this issue and improve the functioning of the TOR system by providing for an adequate judicial review mechanism. Pending that initiative, however, it is for the Court to decide the matter before it by relying on the procedural tools that exist in EU law.

136.

Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

137.

Since the Commission has applied for costs to be awarded against the Czech Republic and the Czech Republic has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission.

138.

Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, provides that the Member States and institutions which intervene in the proceedings are to bear their own costs.

139.

Consequently, the Kingdom of the Netherlands must bear its own costs.

140.

In the light of the foregoing considerations, I propose that the Court should: