C-363/00
ECLI:EU:C:2002:427
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COMMISSION v ITALY
O P I N I O N OF ADVOCATE GENERAL GEELHOED delivered on 9 July 2002 1
I — Introduction implementing Decision 88/376/EEC, Eura- tom on the system of the Communities' own resources 3provides:
1. In this case the Commission claims that the Court should declare that by not 'In accordance with the procedure laid making available to the Commission the down in Article 10, each Member State sum of ITL 1 484 936 000 000 by way of shall credit own resources to the account own resources within the period laid down opened in the name of the Commission by Articles 9 and 10 of Council Regulation with its Treasury or the body it has (EC, Euratom) No 1150/2000 of 22 May appointed. 2000 implementing Decision 94/728/EC, Euratom on the system of the Commun- ities' own resources, 2 and subsequently refusing to pay default interest on that amount owed pursuant to Article 11 of the same regulation, the Italian Republic is in This account shall be kept free of charge.' breach of its obligations under Articles 9, 10 and 11 of that regulation.
3. Under the first paragraph of Article 10(3) of Regulation No 1552/89:
I I — Legal background 'VAT resources, the additional resource — excluding the own resources for the EAGGF (European Agricultural Guidance and Guarantee Fund) monetary reserve — and, where appropriate, GNP financial 2. Article 9(1) of Council Regulation (EEC, contributions shall be credited on the first Euratom) No 1552/89 of 29 May 1989 working day of each month, the amounts being one-twelfth of the relevant totals in
1 — Original language: Dutch. 2 — OJ 2000 L 130, p. 1. 3 — OJ 1989 L 155, p. 1.
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the budget, converted into national cur- opinion I will refer to the relevant articles rencies at the rates of exchange of the last of Regulation No 1552/89 because this day of quotation of the calendar year regulation was in force at the material time. preceding the budget year, as published in the Official Journal of the European Com- munities.'
6. A r t i c l e 9 ( 1 ) of Regulation No 1150/2000:
4. Article 11 of Regulation No 1552/89 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 'Any delay in making the entry in the appointed. account referred to in Article 9(1) shall give rise to the payment of interest by the Member State concerned at the interest rate applicable on the Member State's money market on the due date for short- term public financing operations, increased This account shall be kept free of charge.' by two percentage points. This rate shall be increased by 0.25 of a percentage point for each month of delay. The increased rate shall be applied to the entire period of delay.' 7. Under the first paragraph of Article 10(3) of Regulation No 1150/2000:
5. Regulation No 1552/89 has been amended several times. These amendments 'VAT resources, the additional resource — were c o n s o l i d a t e d by R e g u l a t i o n excluding an amount corresponding to the No 1150/2000. Articles 9(1), 10(3) and EAGGF (European Agricultural Guidance 11 of the original Regulation No 1552/89 and Guarantee Fund) monetary reserve, to have remained virtually unchanged and the reserve relating to loans and loan retained the same numbering. In its appli- guarantees and to the reserve for emergency cation the Commission refers to the provi- aid — and, where appropriate, GNP sions as they are now incorporated in financial contributions shall be credited Regulation No 1150/2000. These provi- on the first working day of each month, sions are set out below. However, in this the amounts being one-twelfth of the I - 5770
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relevant totals in the budget, converted into for the Treasury opened two accounts. The national currencies at the rates of exchange first account is numbered 435/23203 and is of the last day of quotation of the calendar in the name of the Ministry. The resources year preceding the budget year, as pub- owed to the European Communities were lished in the Official Journal of the Euro- 'parked' in this account. Monthly instal- pean Communities, "C" Series.' ments are to be transferred from this so-called transfer or transit account to the second account, account No 414/23200, which is in the name of the Commission. These two non-interest bearing accounts are connected to one another but only the 8. Article 11 of Regulation No 1150/2000 latter account is the account which is provides: referred to in Article 9 of the regulation and which must be in the name of the Commission.
'Any delay in making the entry in the account referred to in Article 9(1) shall give rise to the payment of interest by the Member State concerned at the interest rate applicable on the Member State's money market on the due date for short- term public financing operations, increased by two percentage points. This rate shall be increased by 0.25 of a percentage point for 10. Pursuant to Article 10 of Regulation each month of delay. The increased rate No 1552/89, which was in force at the shall be applied to the entire period of material time, the Italian Republic had to delay.' pay, by 3 June 1996 at the latest, the sum of ITL 1 486 422 594 526 for June 1996, this being one-twelfth of the Communities' own resources.
I I I— Facts and pre-litigation procedure
9. Under Presidential Decree No 321, as amended by Decree No 532, 4the Minister
11. On 28 May 1996 5the ministero del 4 — Decree No 321 of the President of the Republic of 16 April 1971 implementing the Council Decision of 21 April 1970 Tesoro, Ragioneria Generale dello Stato on the replacement of financial contributions from Member States by the Communities' own resources and the regu- lations on funding the common agricultural policy, pursuant to Article 3 of Law No 1185 of 23 December 1970, Gazette Ufficiale of 9 July 1971, No 145. 5 — Letter of 28 May 1996, No 142798.
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(Ministry of the Treasury, State Accounts the transfer to account No 414/23200 'EEC Department) ordered the Direzione Gener- Commission — Own resources'. The ale del Tesoro (Directorate-General of the amount stated in letters in this order was Treasury) to transfer from account correct, but the numbers '422' were missing No 435/23203 'Ministry of the Treas- from the amount indicated in figures. ury — Article 7 of Decree of the President of the Republic No 532 of 4 July 1973' to account No 414/23200 'EC Commis- sion — Own resources' the sum of ITL 1 486 422 594 526, this being the sum owed by way of VAT resources and GNP resources for June 1996, pursuant to Article 10(3) of Regulation No 1552/89. 14. The following day, 30 May 1996, the The final sentence of the relevant letter Central Treasury issued a receipt 7indicat- pointed out that the transaction had to be ing that the sum of ITL 1 486 594 526 had completed by 3 June 1996 in order to avoid been transferred to the Commission's payment of default interest. account.
15. On 27 June 1996 the Directorate-Gen- 12. On the same date the Ministry of the eral of the Treasury issued a new order Treasury informed the Commission by fax authorising the Central Treasury to transfer that this order had been given. 6The fax and credit to account No 414/23200 'CEE stated: 'to have effected the transfer to the Ris. proprie' the sum of ITL 1 484 936 000 Commission's current account 000, with a value date of 30 May 1996 and No 4 1 4 / 2 3 2 0 0 — due date 3 June the statement 'by way of supplement to the 1993 — the total sum of ITL 1 486 422 transfer referred to in receipt No 12912 of 594 526'. 30 May 1996 of ITL 1 486 594 526 and in full settlement'.
13. On 29 May 1996 the Directorate-Gen- 16. On the same date, 27 June 1996, the eral of the Treasury ordered the Tesoreria Central Treasury issued a receipt 8stating Centrale dello Stato (State Central Treas- that the sum of ITL 1 484 936 000 000 had ury) to transfer resources to account been transferred to the Commission's No 414/23203 and to issue a receipt for
7 — Receipt No 12912, type 80 T. 6 — Fax of 28 May 1996, No 9835. 8 — Receipt No 16817, type 80 T.
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account, with a value date of 30 May 1996 19. However, the Italian Minister for the and the statement 'by way of supplement to Treasury refused to comply with this the transfer referred to in receipt No 12912 request. 9 He took the view that there had of 30 May 1996 of ITL 1 486 594 526 and been no delay in making available the full in full settlement'. sum owed for June. There had merely been a substantive error in the internal account- ing procedure.
20. The Commission issued a reasoned 17. The Commission concluded from the opinion on 15 November 1999, calling statements of account (type 56 T) relating upon the Italian Government to take the to May and June 1996 from the Italian measures necessary to comply with the bank that only ITL 1 486 594 526 rather opinion within two months. Since the than ITL 1 486 422 594 526 had been Italian Government failed to do so, the credited to account No 23200 'EEC own Commission brought the present action on resources' on 30 May 1996, that the 29 September 2000. remainder due was not entered until 27 June 1996, and that the Italian Republic had thus failed to make available the full sum owed in due time in contravention of Regulation No 1552/86, as subsequently amended, in particular Articles 9 and 10 thereof. The Commission therefore decided to apply Article 11 of Regulation No 1552/89. IV — Submissions of the parties
21. The Commission notes that the state- ments of account from the Italian bank show that part of the sum owed was 18. It considered that, according to the credited to account No 414/23200 'EEC wording of Article 11 of the regulation, the own resources' on 30 May 1996 but that interest rate was 10.24%, that the the remainder was not entered until 27 June remainder had been paid 24 days late, 1996. It contends that only accurate and that therefore the sum of ITL 9 970 accounting documents which show clearly 980 092 in interest for delay had to be paid. and beyond doubt the actual entry of own By letter of 28 November 1996 the Com- mission requested that the Italian auth- orities make this amount available to it. 9 — Letter of 30 January 1997.
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resources can serve as proof that they were the Italian Government since under made available to the Commission within national law it cannot dispose of the funds the prescribed periods. In the present case credited to account No 435/23203 other the statements of account and receipt than to the benefit of the Community. No 12912 show that there was a delay in crediting the full sum owed. None of the other documents submitted by the Italian Government can serve as evidence to the contrary.
24. The sum of ITL 2 650 billion had been budgeted for and paid into the transit account half way into May 1996 and therefore there was considerably more in this account that was necessary.
22. It also considers that Member States cannot make rectifications with retrospec- tive effect such as that made by the Italian Ministry of the Treasury on 27 June 1996. 25. Directly after the transfer of the Firstly, credits of sums with retrospective resources from the transit account to the effect make no sense in a system of non- Commission's account had been approved, interest bearing accounts such as the 'own the Commission was informed by fax of the resources' account in the name of the order to effect the transfer. The Italian Commission. Secondly, to allow account- Government contends that the resources ing rectifications with retrospective effect were in fact available, given that the would deprive the obligation to pay default transfer had been made to account interest of any practical effect. No 435/23203 and that the exact sum due to the Commission by way of own resources was stated.
26. The Italian Government considers that the orders at the end of May were lawfully issued and carried out even though in the 23. The Italian Government observes that latter case the amount had been stated as soon as the sum of own resources laid incorrectly in figures. It notes that, in down in the budget is paid into the transit accordance with a general principle of account it is de facto no longer available to Italian law, in the event of a discrepancy I - 5774
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between the amount in letters and that in availability of the reserved resources paid figures, the amount in letters is binding. into account No 435/23203.
27. Since the transactions are effected between two current, non-interest bearing V — Appraisal accounts, they are both operated within the same government administration, and the financial resources concerned are reserved for the same purpose, the Italian Govern- 30. Under Article 9 of the regulation and ment considers that the incorrect indication the first paragraph of Article 10(3) thereof, of the amount in figures constitutes a the Member State is required to enter the straightforward substantive error which sums due in the Commission's account on has had only a purely internal effect and the first working day of the month. Under which is, as a rule, to be rectified without Article 11 of the regulation, any delay in external consequences on the lawfulness of making the entry means that default inter- the transaction concerned. est must be paid.
31. The essential question in this case is 28. As regards the retrospective effect, the whether, by 3 July 1996, the Italian auth- Italian Government contends that no orities had transferred the required sum to manipulation of accounts is involved, but account No 414/23200, an account within that this is an accepted practice in the the meaning of Article 9 of the regulation, accounting and banking world to rectify a in the sense that the sum was also available mistake such as the one at issue here. to the Commission in practice.
32. The fact that there was an intention to 29. The Italian Government also notes that do so is evident from the fax which the the Commission suffered no adverse effects, Italian authorities sent to the Commission the Italian State itself has derived no benefit on 28 May 1996. This intention was therefrom, and any request by the Com- followed up by an internal procedure mission for the full sum owed to be made within the Italian administration during available to it could have been complied which an initial error was made in that the with immediately, even if account amount in figures was incorrectly stated on No 414/23200 was not in funds, given the the order form. This initial error was
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incorporated in a subsequent form (receipt proof that the correct sums were credited to No 12912) which stated an amount which the Commission's account in due time. was too low both in letters and in figures. Conversely, it must be concluded from the When the Italian authorities noticed this statements of account from the Italian bank error, a new order and authorisation was and the receipt issued on 30 May 1996 that given and a new receipt issued. The rec- the full sum of own resources had not been tification operation was given retrospective made available at the beginning of June. effect. The Italian Government's argument that there were sufficient resources in account No 435/23203, a so-called transit account, and that the full sum owed was available to the Commission likewise does not hold water. This account is in the name of the Ministry and not in that of the Commis- sion. Consequently, the Commission did not have the funds in this account at its disposal. 33. The Italian Government considers that the fax of 28 May 1996 is sufficient to establish that the resources were available to the Commission in due time and the other documents relate to internal com- munications. However, the Commission considers that the only account documents which it has and which have sufficient probative value establish the contrary. It claims that it must be concluded from these documents that there was a delay in making the entry. 35. It follows from the foregoing that on 3 June 1996 the Commission did not have the resources at its disposal and that Italy therefore failed to fulfil in due time its obligations under Articles 9 and 10 of Regulation No 1552/89.
34. I concur with the Commission's view. In other words, the Italian Government has failed to show that the Commission had available to it the full sum owed on 3 June 1996. The fax of 28 May 1996 merely states an intention, it does not show that the own resources had also in fact been credited by 3 June 1996. Similarly, the order of 29 May 1996 authorising the 36. As the Commission has correctly transfer from the transit account to the observed, there is an inseparable link Commission's account does not constitute between the obligation to establish the
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Communities' own resources, the obli- 38. Furthermore, I should also note that gation to credit them to the Commission's the observation made by the Italian Gov- account within the prescribed time-limit ernment, namely that the Commission and the obligation to pay default interest. 10 suffered no adverse effects, is of no rel- Where it is established that a sum should evance. Failure by a Member State to fulfil have been credited to the account on a an obligation imposed by Community law particular date — in this case 3 June is sufficient to constitute a breach of Treaty 1996 — and the sum is not in that account obligations and the fact that the failure had on that date, Article 11 of the regulation no adverse effects is irrelevant. 13 The automatically enters into effect. This auto- contention that no adverse effects were matic applicability means that default suffered is not only irrelevant but also interest is payable in respect of the delay incorrect. The Commission did not have in paying this sum, regardless of the reason the own resources at its disposal on the for the delay in making the entry in the abovementioned date and therefore was Commission's account. 1 1It was the inten- unable to use them for investments, for tion of the Community legislature that such example. a penalty should be the result of a Member State's failure to fulfil its Treaty obli- gations.
37. Nor are there any circumstances which would provide grounds for an exception to this automatic application. The fact that 39. Moreover, a rectification with retro- the Italian Government acted in good faith spective effect cannot have the effect of and its failure to fulfil its obligations was making the resources available to the unintentional is irrelevant 12 and the pro- Commission on 3 June 1996, quite apart ceedings do not relate to force majeure or a from the fact that rectifying value dates dispute over interpretation. As regards the makes no sense in the case of non-interest latter, the wording of the regulation is bearing accounts. Finally, the argument clear. In the present case there has been a that the Italian Government was also substantive error. This error is not such unable to derive any benefit from the delay that the Italian Government can evade its in making the entry is also of no relevance. obligations to pay default interest arising It provides no grounds for the fact that the from the regulation. Italian Republic failed to fulfil its obli- gations under Article 10(3) of the regu- lation between 3 June 1996 and 27 June 10 — Case C 96/89 Commission v Netherlands [1991] ECR 1996. I-2461, paragraph 38. 11 — In this connection the Commission refers to Case 54/87 Commission v Italy [1989] ECR 385, paragraph 12. 12 — Case 93/85 Commission v United Kingdom [1986] ECR 13 — Case C-348/97 Commission v Germany [2000] ECR 4011, paragraphs 34 and 37. I-4429, paragraph 62.
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VI — Conclusion
40. In the light of foregoing, I would recommend that the Court:
(1) declare that by not making available to the Commission the sum of ITL 1 484 936 000 000 by way of own resources within the period laid down by Articles 9 and 10 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources, subsequently consolidated in Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/72 8/EC, Euratom on the system of the Communities' own resources, and subsequently refusing to pay default interest on that amount owed pursuant to Article 11 of that regulation, the Italian Republic is in breach of its obligations under Articles 9, 10 and 11 of Regulation No 1552/89.
(2) order the Italian Republic to pay the costs.
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