Case C‑391/17

European Commission

v

United Kingdom of Great Britain and Northern Ireland

Judgment of the Court (Grand Chamber) of 31 October 2019

(Failure of a Member State to fulfil obligations — Own resources — Association of the Overseas Countries and Territories (OCT) with the European Union — Decision 91/482/EEC — Article 101(2) — Acceptance for import into the European Union free of customs duties of products not originating in the OCT but which are in free circulation in an OCT and are re-exported as such to the European Union — Export certificates EXP — Wrongful issue of certificates by the authorities of an OCT — Article 4(3) TEU — Principle of sincere cooperation — Liability of the Member State having special relations with the OCT concerned — Obligation to compensate for the loss of the European Union’s own resources caused by the wrongful issue of export certificates EXP — Imports of aluminium from Anguilla)

1. Member States — Obligations — Obligation of sincere cooperation — Own resources — Association of the overseas countries and territories (OCT) with the European Union — Acceptance for import into the European Union free of customs duties — Wrongful issue of export certificates by the authorities of an OCT — Liability of the Member State having special relations with the OCT concerned — Failure of the Member State to compensate the loss resulting from the wrongful issue — Breach of the obligation of sincere cooperation — Obligation to pay default interest

   (Art. 4(3) TEU)

   (see paragraphs 76-86, 92-102, 126)

2. Own resources of the European Union — Post-clearance recovery of import or export duties — Conditions for waiver of entry in the accounts of import duties set out in Article 220(2)(b) of Regulation No 2913/92 — Commission decision that post-clearance entry of duties in the accounts should be waived — Conditions specified for similar decisions to be taken by the Member States in comparable cases — Assessments binding on all the authorities of the Member State to which the decision was addressed and on the authorities of the other Member States in such cases — Assessment of the comparability of the situation covered by the Commission decision and the situation in another case

   (Council Regulation No 2913/92, as amended by Regulation No 2700/2000, Art. 220(2)(b); Commission Regulation No 2454/93, as amended by Regulation No 1335/2003, Arts 873 and 907)

   (see paragraphs 105, 107, 108)

Résumé

Member States which have special relations with the overseas countries and territories (OCT) are obliged to compensate the loss of EU own resources caused by the wrongful issue of export certificates by the local authorities of those OCTs

In the judgments in Commission v United Kingdom (C‑391/17) and Commission v Netherlands (C‑395/17), the Court held that the United Kingdom and the Kingdom of the Netherlands have failed to fulfil their obligations under Article 4(3) TEU by failing to compensate the loss of own resources resulting from the wrongful issue, in the light of decisions on the association of the overseas countries and territories with the European Economic Community/European Community ( 1 ) (‘the OCT decisions’), respectively, by the authorities of Anguilla, of export certificates EXP in respect of the imports of aluminium from Anguilla during the period 1999/2000, and, by the authorities of Curaçao and of Aruba, of movement certificates EUR.1 in respect of imports of milk powder and rice from Curaçao during the period 1997/2000 and imports of groats and meal from Aruba during the period 2002/2003.

These two cases concern actions brought by the Commission after letters of formal notice were sent to the United Kingdom and the Kingdom of the Netherlands requesting that they compensate the loss of own resources corresponding to the customs duties resulting from errors committed by the local authorities of the OCTs concerned. Since both Member States denied any liability for the actions of those local authorities, the Commission decided to bring two actions for failure to fulfil obligations before the Court.

As regards the OCTs, the Member States agreed, under the EC Treaty, to associate with the European Union the non-European countries and territories which have special relations with certain Member States, including the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands. Pursuant to that treaty, the OCTs concerned were thus subject to special arrangements for association set out by the treaty. Those special arrangements mean, inter alia, that imports into the Member States of goods originating in the OCTs are completely exempt from customs duties. That exemption is clarified by the decisions in question, in that products originating in the OCTs and, under certain conditions, products not originating in the OCTs but which are in free circulation in an OCT and are re-exported as such to the European Union are to be accepted for import into the European Union free of customs duties and taxes having equivalent effect. It is also apparent from the OCT decisions that both the Member States and the competent authorities of the OCTs are, together with the Commission, involved in operations carried out by the European Union under those decisions.

Evidence of compliance with the provisions relating to that exemption is provided by a certificate issued by the customs authorities of the exporting OCT. That certificate may be verified subsequently by the customs authorities of the importing State. However, related disputes are referred to a committee chaired by a representative of the Commission and composed of representatives of the Member States, in which the local authorities of the exporting OCT do not participate.

In Case C‑391/17, a company established in Anguilla had set up a transhipment scheme, in 1998, under which imports of aluminium from third countries were declared for customs purposes in Anguilla and then transported to the European Union. The Anguillan authorities had issued export certificates for the re-export in question, whilst granting the EU importers transport aid.

In Case C‑395/17, milk powder and rice from Curaçao had been imported into Germany in the period from 1997 to 2000. In addition, groats and meal from Aruba had been imported into the Netherlands in 2002 and 2003. The authorities of Curaçao and of Aruba had issued movement certificates in respect of those goods, even though they did not meet the requirements for being considered products originating in those OCTs that are covered by the exemption from customs duties and taxes having equivalent effect.

In both cases, enquiries had been carried out. Following those enquiries, the Commission adopted decisions in which it concluded, having established the irregularity of the certificates examined, that it was appropriate to waive post-clearance entry in the accounts of customs duties relating to the imports made upon submission of those certificates. On the basis of those decisions, the Member States that imported the products concerned from Anguilla, Curaçao and Aruba waived post-clearance entry in the accounts of those duties. The Commission had, therefore, called on the United Kingdom and the Kingdom of the Netherlands to compensate the loss of EU own resources resulting from the issue of the certificates concerned. Since those Member States denied any liability in that regard, the Commission decided to bring actions for failure to fulfil obligations against them.

The Court has examined these actions in the light of the principle of sincere cooperation, as enshrined in Article 4(3) TEU.

First, the Court recalls that, under the first paragraph of Article 198 TFEU, the two Member States concerned are among those which have special relations with OCTs and that the special arrangements for association were based, at the time when the relevant certificates were issued, on those special relations. Those relations are characterised by the fact that the OCTs are not independent States but depend on a Member State, which is responsible, in particular, for representing them internationally. Under that article, application of the special arrangements for association benefits only countries and territories having special relations with the Member State concerned, where that Member State requested that the special arrangements for association be made applicable to them.

Next, the Court finds that the issuing of the disputed certificates was governed by the OCT decisions and thus by EU law, and that the authorities of the OCTs were therefore obliged to comply with the requirements contained in those decisions. The procedures laid down by those decisions to settle differences or problems in that context reflect the centrality, in terms of the arrangements for association, of the special relations between the OCT concerned and the Member State responsible for it. Those special relations create a specific liability on the part of the Member State vis-à-vis the European Union when the authorities of the OCTs issue certificates in breach of those decisions. The Court makes clear that the preferential and derogating nature of the customs arrangements that apply to the goods in question in both cases mean that the obligation of the Member States, linked to the principle of loyalty, to take all the measures necessary to guarantee the application and effectiveness of EU law must be fulfilled all the more strictly in the present cases. The Court concludes from this that the two Member States concerned are liable, vis-à-vis the European Union, for any error committed by the authorities of their OCTs, in the context of the issue of the certificates in question.

Last, the Court finds that, in so far as the issue of certificates in breach of the OCT decisions prevents the importing Member State from collecting the customs duties which it would have had to collect in the absence of those certificates, the resulting loss of own resources constitutes the unlawful consequence of an infringement of EU law. That consequence obliges the Member State which is liable vis-à-vis the European Union for the wrongful issue of certificates to offset the loss. The compensation obligation is merely a particular expression of the obligation, arising from the principle of sincere cooperation, under which the Member States are obliged to take all necessary measures to remedy an infringement of EU law and to nullify the unlawful consequences of it. Default interest, calculated from the date on which the Commission requested compensation for the loss, must be added to that loss, given that compensation only for the amount of customs duties which could not be collected is not sufficient to nullify the unlawful consequences of the wrongful issue of the certificates in question.

( 1 ) Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1), and Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (‘Overseas Association Decision’) (OJ 2001 L 314, p. 1).