C-70/86

OPINION OF MR LENZ — CASE 70/86

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 2 June 1987 *

Mr President, 4. The applicant claims that the Court Members of the Court, should:

Declare that, by failing to enter the financial resources based on GNP for June 1983 in A — Facts due time and by subsequently refusing to pay interest in respect of that late entry, the defendant has failed to fulfil its obligations under the EEC Treaty; 1. The main issue in the action on which I give my Opinion today is whether or not a Member State may plead force majeure in Order the defendant to pay the costs. order to escape from the obligation to pay interest where, as the result of a strike, its financial contributions to the budget of the 5. The defendant claims that the Court Communities were not entered in due time. should:

Dismiss the action and order the applicant 2. In June 1983, as a result of a strike of to pay the costs. bank employees, the financial contribution of the Hellenic Republic was not entered in the Commission's account at the Bank of 6. I shall deal with the submissions of the Greece on Wednesday 1 June but only on parties, in so far as is necessary, in the Friday 3 June. course of my Opinion. For the rest, reference may be made to the Report for the Hearing.

12. I, on the other hand, have some doubt as to whether the concept of force majeure is 9. It is clear from Article 17 (2) of Regu­ applicable at all in relation to the financial lation No 2891/77 that force majeure can provisions, with the exception of Article 17 operate in the context of the financial (2). relations between the Community and the Member States. Under that article Member States are freed from the obligation to place at the disposal of the Commission the amounts corresponding to established entit­ 13. According to the eleventh recital in its lements only if, for reasons of force majeure, preamble, the regulation contains provisions these amounts have not been collected. intended to enable the Communities to dispose of their own resources under the best possible conditions. Consequently, Article 11 provides that in the event of late entry of amounts in the applicant's account 10. However, that provision concerns only interest is payable on all payments. The sole the traditional own resources of the prerequisite for the obligation to pay Community (customs duty and levies), 2and interest is late entry, regardless of the not the Member States' financial contri­ reason for the delay in making the entry to butions, which are at issue in this case. the Commission's account, as the Court has Under that provision the risk that it will not held on several occasions. 3 be possible to collect established entit­ lements is borne by the Community and not the Member State, which must establish the own resources in accordance with its own 14. Just as a Member State cannot, as the legal provisions and place them at the Court has consistently held, plead disposal of the Commission. Consequently, provisions, practices or circumstances in its where a Member State, for no fault of its internal legal system to justify a failure to own, has not been able to collect own comply with obligations and time-limits laid resources it should be released from the obligation to place them at the disposal of down in Community directives, it cannot the Community. plead force majeure in order to escape the obligation to pay interest pursuant to Article

11 of Regulation No 2891/77. The financial the defendant took all due care to ensure provisions of Community law are among the that its financial contributions were entered fundamental rules of the Community legal in the applicant's account in due time. structure which must be strictly observed if the Community is to function properly. The Community must be able to 'dispose of its own resources under the best possible conditions' in order to meet its own 18. As early as 25 May 1983 there were financial obligations. That principle must reports in the Greek press of impending apply equally to the payment of financial strike action. On 26 May it was reported contributions by the Member States, since that a 48-hour strike of bank employees was these financial contributions are a imminent. On 29 May the press stated that temporary substitute for VAT own the Federation of Organizations of Bank resources. It is thus quite logical that under Employees had decided to call a 24-hour Article 11 of Regulation No 2891/77 the strike on Monday 30 May and a further obligation to pay interest depends solely on 48-hour strike on Wednesday and Thursday a delay in the entry of the amounts 1 and 2 June 1983. concerned, so that the Member State bears the entire risk of entry in the Commission's account in due time.

19. In those circumstances the defendant could and should have taken measures to ensure that its financial contributions were 15. In the alternative, and in the event that entered in the applicant's account in due the Court, contrary to my views, should not time, for instance by issuing a transfer order wish to preclude the application of the beforehand with a value date of 1 June concept of force majeure in this case, I shall 1983. briefly state why the conditions for the application of that concept are not met.