Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

12 June 2003(1)

(Failure of a Member State to fulfil obligations - Communities' own resources - Error in crediting the account opened in the name of the Commission - Default interest)

In Case C-363/00,

Commission of the European Communities, represented by E. Traversa and G. Wilms, acting as Agents, with an address for service in Luxembourg,

applicant,

v

Italian Republic, represented by U. Leanza, acting as Agent, G. De Bellis, avvocato dello Stato, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by failing to make 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 (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ 2000 L 130, p. 1), and refusing to pay default interest owed on that amount pursuant to Article 11 of the same regulation, the Italian Republic has failed to fulfil its obligations under Articles 9, 10 and 11 of Regulation No 1150/2000 which, from 31 May 2000, repealed and replaced Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own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 (OJ 1989 L 155, p. 1), identical in aim,

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans, P. Jann, S. von Bahr (Rapporteur) and A. Rosas, Judges,

Advocate General: L.A. Geelhoed,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 9 July 2002,

gives the following

Judgment

1. By application lodged at the Court Registry on 29 September 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by failing to make 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 (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ 2000 L 130, p. 1), and refusing to pay default interest owed on that amount pursuant to Article 11 of the same regulation, the Italian Republic has failed to fulfil its obligations under Articles 9, 10 and 11 of Regulation No 1150/2000 which, from 31 May 2000, repealed and replaced 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 (OJ 1989 L 155, p. 1), identical in aim.

   Community legislation

2. Article 9(1) 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 appointed.

   This account shall be kept free of charge.

3. Under the first subparagraph of Article 10(3) of Regulation No 1552/89:

   VAT resources, the additional resource ... and, where appropriate, GNP financial contributions shall be credited on the first working day of each month, the amounts being one-twelfth of the relevant totals in the budget, converted into national currencies at the rates of exchange of the last day of quotation of the calendar year preceding the budget year, as published in the Official Journal of the European Communities.

4. According to Article 11 of Regulation No 1552/89:

   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 each month of delay. The increased rate shall be applied to the entire period of delay.

5. Regulation No 1150/2000 provides in Article 9(1) thereof:

   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.

   This account shall be kept free of charge.

6. The first subparagraph of Article 10(3) of Regulation No 1150/2000 provides:

   VAT resources, the additional resource ... and, where appropriate, GNP financial contributions shall be credited on the first working day of each month, the amounts being one-twelfth of the relevant totals in the budget, converted into national currencies at the rates of exchange of the last day of quotation of the calendar year preceding the budget year, as published in the Official Journal of the European Communities, C Series.

7. Under Article 11 of Regulation No 1150/2000:

   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 each month of delay. The increased rate shall be applied to the entire period of delay.

   National legislation

8. Article 4 of Decreto del Presidente della Repubblica No 321 di attuazione della decisione del Consiglio dei Ministri delle Comunità europee relativa alla sostituzione dei contributi finanziari degli Stati membri con risorse proprie delle Comunità, adottata a Lussemburgo il 21 aprile 1970, e dei regolamenti comunitari relativi al finanziamento della politica agricola comune, in applicazione dell'art. 3 della legge 23 dicembre 1970, No 1185 (Decree No 321 of the President of the Republic implementing the Decision of the Council of Ministers of the European Communities on the replacement of financial contributions from Member States by the Communities' own resources, adopted in Luxembourg on 21 April 1970, and the Community regulations on funding the common agricultural policy, pursuant to Article 3 of Law No 1185 of 23 December 1970) of 16 April 1971 (Gazette Ufficiale No 145 of 9 July 1971), as amended by Article 7 of Decreto del Presidente della Repubblica No 532 (Decree No 532 of the President of the Republic) of 4 July 1973 (hereinafter DPR No 321) provides:

   The Minister for the Treasury may make provision, by way of decree, for the necessary budget adjustments in order to enter in the budget revenue constituting own resources within the meaning of the Decision of the Council of Ministers of the European Communities of 21 April 1970, and for the necessary adjustments in order to make available to the Communities the aforementioned own resources and for the payment of the contribution payable by Italy to the Communities' budget, pursuant to the abovementioned Decision of 21 April 1970 as subsequently amended and supplemented.

   Notwithstanding the preceding paragraph, the sums to be paid to the European Communities under the system of own resources may be paid by the Ministry of the Treasury by treasury bank transfers.

   To that end, the Minister for the Treasury is authorised to open a non-interest bearing Treasury current account in the name of the Ministry of the Treasury credited from the amounts allocated annually to the appropriate entry in the budget of the Ministry.

   The amounts to be paid into the abovementioned account must relate to quarterly forecast requirements determined on the basis of the average amount paid to the Communities in that respect during the preceding year.

   ...

   Facts and pre-litigation procedure

9. Under Article 9(1) and the first subparagraph of Article 10(3) of Regulation No 1552/89, in force at the material time, the Italian Republic was to enter, by 3 June 1996 at the latest, in the account opened for that purpose in the name of the Commission a sum corresponding to one-twelfth of the Communities' own resources.

10. By letter No 142798 of 28 May 1996, the Ministero del Tesoro, Ragioneria Generale dello Stato (Ministry of the Treasury, State Accounts Department) requested the Direzione Generale del Tesoro (Directorate-General of the Treasury), pursuant to Article 10(3) of Regulation No 1552/89, to transfer from current account No 435/23203 Ministero del Tesoro - art. 7 D.P.R. 4 luglio 1973, No 532 to account No 414/23200 Commissione CEE - risorse proprie the sum of ITL 1 486 422 594 526 as the amount owed by way of VAT resources and GNP resources for June 1996. The final sentence pointed out that the transaction [should] be completed by 3 June 1996 in order to avoid payment of default interest.

11. The Commission was informed of the transaction by facsimile No 9835, also dated 28 May 1996, in which the Ministero del Tesoro, Ragioneria Generale dello Stato claimed to have effected the transfer to the EC Commission's current account No 414/23200 - due date 3 June 1996 - of the total sum of ITL 1 486 422 594 526.

12. By order of 29 May 1996, the Direzione Generale del Tesoro authorised the Tesoreria Centrale dello Stato (State Central Treasury) to make the abovementioned withdrawal from account No 435/23203 and to issue a receipt for the amount deposited into account No 414/23200 Commissione CEE - Risorse proprie. The amount stated in words in that order was correct, but the amount indicated in figures was ITL 1 486 594 526.

13. Receipt No 12912 of 30 May 1996, issued by the Tesoreria Centrale dello Stato, indicates that the amount transferred to the Commission's account was ITL 1 486 594 526.

14. On 27 June 1996, the Direzione Generale del Tesoro issued a new order authorising the Tesoreria Centrale dello Stato to transfer the sum of ITL 1 484 936 000 000 from account No 435/23203 to account No 414/23200 CEE Ris. proprie with a value date of 30 May 1996 accompanied by the statement by way of supplement to the transfer referred to in receipt No 12912 of 30 May 1996 of ITL 1 486 594 526 and in full settlement.

15. Also on 27 June 1996, the Tesoreria Centrale dello Stato issued receipt No 16817 acknowledging that the sum of ITL 1 484 936 000 000 had been transferred to the Commission's account, with a value date of 30 May 1996, accompanied by the statement by way of supplement to the transfer referred to in receipt No 12912 of 30 May 1996 of ITL 1 486 594 526 and in full settlement.

16. The Commission, taking the view that it was clear from the statements of account for May and June 1996 from the Bank of Italy that account No 414/23200 CEE - Risorse proprie had been credited on 30 May 1996 with ITL 1 486 594 526, and that the outstanding amount, namely ITL 1 484 936 000 000, was credited to that account on 27 June 1996, concluded that the Italian Republic had improperly delayed in making available Community own resources, contrary to Regulation No 1552/86, as subsequently amended, in particular Articles 9 and 10 thereof.

17. The Commission therefore decided to apply Article 11 of Regulation No 1552/89. Having calculated the interest rate to be 10.24% which, when applied to the amount paid 24 days late, resulted in default interest amounting to ITL 9 970 980 092, it requested the Italian authorities by letter of 28 November 1996 to make that amount available to the Commission.

18. By letter of 30 January 1997, the Ministero del Tesoro refused to comply with the Commission's request, stating that there had been no delay in making available the total amount owed for June 1996; it had been wrongly entered in the account as a result merely of a clerical error in the internal accounting procedure of the treasury.

19. In accordance with the procedure laid down in the first paragraph of Article 226 EC, the Commission, having sent the Italian Republic formal notice to submit its observations, by letter of 15 November 1999, sent a reasoned opinion to that Member State requesting it to bring into force the measures necessary to comply therewith within two months of the date of its notification. Since the Italian Republic did not respond to that opinion, the Commission brought this action.

    Preliminary observations

20. First of all, the Commission points out that Regulation No 1552/89, by virtue of which the infringement proceedings were initiated, was repealed and replaced by Regulation No 1150/2000, which merely codified the former regulation and the three regulations which subsequently amended it. Since there has been no substantive legal change in the relevant provisions between the administrative and judicial stages of these infringement proceedings and the numbering of the articles of Regulation No 1552/89 have themselves remained unchanged, the Commission takes the view that it can refer to the relevant articles of Regulation No 1150/2000 in its action.

21. In that connection, the Court has held that, in the context of proceedings under Article 226 EC, the existence of an infringement must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 42, and Case C-365/97 Commission v Italy [1999] ECR I-7773, paragraph 32).

22. Thus, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less true that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions. Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the measure concerned, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see Commission v Italy, cited above, paragraphs 36 and 39).

23. In the present case, it is not disputed that the obligations arising under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1150/2000 were already applicable under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1552/89.

24. In those circumstances, the Commission has standing to seek a declaration that the Italian Republic has failed to fulfil its obligations under Articles 9, 10 and 11 of Regulation No 1150/2000.

    Substance

    Arguments of the parties

25. The Commission submits that it is clear from the statement of account for May 1996 from the Bank of Italy that account No 414/23200 CEE - Risorse proprie was credited on 30 May 1996 with ITL 1 486 594 526. The numbers 422 which should have appeared between 1 486 and 594 526 were clearly omitted. It is apparent from the statement of account for June 1996 that the outstanding amount, namely ITL 1 484 936 000 000, was credited to the Commission's account on 27 June 1996.

26. Moreover, both the order for withdrawal of the funds of 27 June 1996 and receipt No 16817 of the same date bore the statement: by way of supplement to the transfer referred to in receipt No 12912 of 30 May 1996 of ITL 1 486 594 526 and in full settlement. Furthermore, the statement of account for June 1996 effectively shows that the credit of 27 June 1996 matched receipt No 16817.

27. Consequently, the Commission points out that the Court has held that the rule in Article 11 of Regulation No 1150/2000 that any delay in making the entry in the Commission's account gives rise to the payment of default interest automatically applies as soon as there is such a delay on the part of the Member State concerned (see, in particular, Case 54/87 Commission v Italy [1989] ECR 385, paragraph 12).

28. As regards retroactive rectifications such as those made by the Italian Republic on 27 June 1996, the Commission maintains that, first, they serve no purpose in a financial context characterised by the use of non-interest bearing accounts and that, secondly, to accept them would deprive the obligation to pay default interest of all practical effectiveness.

29. As regards the purpose of account Nos 435/23203 and 414/23200, the Commission submits that it cannot make the least use of sums deposited in account No 435/23203, which falls within the exclusive competence of the Ministry of the Treasury, and that it is not even informed when deposits are paid into that account. It is only when funds are transferred from transit account No 435/23203 to account No 414/23200, opened in the name of the Commission, that those funds are made available by Italy to the Communities.

30. The Italian Government points out first of all that, under Article 4 of DPR No 321, transit account No 435/23203 was opened in the name of the Ministry of the Treasury exclusively for the depositing of sums intended for the Communities which are subsequently transferred to account No 414/23200 opened directly in the name of the Commission. Neither account is interest-bearing.

31. As soon as the sums are paid into the first of those accounts, they are in actual fact no longer available to the Italian Government since, under the abovementioned legislation, it cannot dispose of the funds credited to account No 435/23203 other than to the benefit of the Communities. Thus, as soon as the amount payable is determined, it is transferred from transit account No 435/23203 to account No 414/23200 opened in the name of the Commission.

32. In the present case, the Ragioneria Generale dello Stato, by decree of 16 May 1996, authorised ITL 2 650 billion, a sum far greater than required, to be entered in the State budget for that purpose and to be credited to account No 435/23203 Ministero del Tesoro - art. 7 D.P.R. 4 luglio 1973, n. 532. The relevant payment order was discharged on 24 May 1996.

33. It was in those circumstances that, immediately after authorising the transfer of funds between the two accounts by letter No 142798 of 28 May 1996, the Ragioneria Generale dello Stato sent its confirmation to the Commission by facsimile No 9835 dated the same day. Funds were in fact available, given the earlier payment into account No 435/23203, and the precise amount to be paid to the Commission as own resources was indicated on the facsimile.

34. The Italian Government submits that, in light of the evidence provided by a valid order to effect the transfer between the two current accounts, namely letter No 142798 of 28 May 1996, followed by the order to withdraw funds of the Direzione Generale del Tesoro of 29 May 1996, the transaction must be considered to have been properly effected in so far as, although the amount indicated in figures was wrong, the latter order was valid. According to a general principle of Italian law, in the event of a discrepancy between the amount in words and that in figures, the amount in words is decisive. The Italian Government takes the view that, so far as concerns transactions between two current, non-interest bearing accounts within the same government administration and reserved for the same purpose, the incorrect indication of the amount in figures constitutes merely a clerical error which has only a purely internal effect which is, as a rule, rectifiable without external repercussions affecting the lawfulness of the transaction concerned.

35. So far as concerns the case-law relied on by the Commission regarding the consequences of delays in crediting own resources to the account opened in the name of the Commission, the Italian Government maintains that the facts in those cases were different from those of the present case. The only matter at issue in the present case is observance of the period for making available own resources where there has been a mere clerical error, rectified immediately after having been established, rather than an error in law.

36. Finally, the Italian Government submits that the clerical error committed by the Italian treasury when entering the accounting transaction requested of it did not adversely affect the Commission nor give any advantage to the Italian State.

37. Accordingly, the Italian Government concludes that, given that what was involved was merely a clerical error and that there was no intention to evade payment on its part, the application should be dismissed.

    Findings of the Court

38. In the present case, the parties agree that the sum of ITL 1 486 422 594 526, determined by the Italian Republic as being one-twelfth of the Communities' own resources for June 1996, was to have been credited, by 3 June 1996 at the latest, to the account opened for that purpose in the name of the Commission.

39. The parties also agree that on 30 May 1996 the sum of ITL 1 486 594 526 was paid into account No 414/23200 CEE - risorse proprie, opened in the name of the Commission, and that the outstanding amount, namely ITL 1 484 936 000 000, was paid into that account on 27 June 1996.

40. It follows that the latter sum was credited to the Commission's account with a delay of 24 days.

41. In that connection, it is irrelevant that, by 24 May 1996, a greater sum than required was credited to transit account No 435/23203, opened in the name of the Ministry of the Treasury, and that it was available to the Italian Republic only for the purposes of transferring it to the Communities, that the precise amount owing to the Commission by way of own resources for June 1996 was indicated in facsimile No 9835 of 28 May 1996 and that, according to a general principle of Italian law, in the event of a discrepancy between the amount in words and that in figures, the amount in words is decisive.

42. It is clear from Article 9(1) and the first subparagraph of Article 10(3) of Regulation No 1150/2000 that the own resources owed must be credited to the account opened for that purpose in the name of the Commission at the latest by the first working day of each month and therefore be directly and actually available to the Commission from that date, which was not the case here.

43. Accordingly, it must be pointed out that the Court has consistently held (see, in particular, Case 68/88 Commission v Greece [1989] ECR 2965, paragraph 17, and Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 38) that there is an inseparable link between the obligation to establish the Communities' own resources, the obligation to credit them to the Commission's account within the prescribed time-limit and the obligation to pay default interest.

44. The default interest provided for by Article 11 of Regulation No 1150/2000 is payable in respect of any delay, regardless of the reason for the delay in making the entry in the Commission's account (see, in particular, Commission v Italy, paragraph 12, and Case C-359/97 Commission v United Kingdom [2000] ECR I-6355, paragraph 78).

45. Contrary to the Italian Government's contention, it follows, on the one hand, that no distinction may be made between where delay is due to a clerical error and where it is due to an error in law and, on the other, that the unintentional nature of the delay in making the entry cannot eliminate the obligation to pay default interest (see, to that effect, Case 93/85 Commission v United Kingdom [1986] ECR 4011, paragraphs 34 and 37).

46. Similarly, the fact that the outstanding amount was entered with a value date of 30 May 1996 when crediting account No 414/23200 is of no relevance in that regard. As the Commission rightly pointed out, such retroactive rectifications not only serve no purpose in a financial context characterised by the use of non-interest bearing accounts, but to accept them would moreover deprive the obligation to pay default interest of all practical effectiveness.

47. As to the Italian Government's argument that the Commission was not adversely affected, it need merely be pointed out that failure by a Member State to fulfil an obligation imposed by a rule of Community law is sufficient to constitute a breach of Treaty obligations and the fact that the failure had no adverse effects is irrelevant (see Case C-150/97 Commission v Portugal [1999] ECR I-259, paragraph 22, and Case C-348/97 Commission v Germany [2000] ECR I-4429, paragraph 62), as is the view that it gave the Member State concerned no advantage.

48. It must therefore be held that, by failing to make 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 Regulation No 1150/2000 and refusing to pay default interest owed on that amount pursuant to Article 11 of the same regulation, the Italian Republic has failed to fulfil its obligations under Articles 9, 10 and 11 of that regulation which, from 31 May 2000, repealed and replaced Regulation No 1552/89, identical in aim.

    Costs

49. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission applied for an order for costs and the Italian Republic has been unsuccessful, the latter must be ordered to pay the costs of the proceedings.

On those grounds,

THE COURT (Fifth Chamber),

hereby:

1. Declares that, by failing to make available to the Commission of the European Communities 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 (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources, and refusing to pay default interest owed on that amount pursuant to Article 11 of the same regulation, the Italian Republic has failed to fulfil its obligations under Articles 9, 10 and 11 of Regulation No 1150/2000 which, from 31 May 2000, repealed and replaced 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, identical in aim;

2. Orders the Italian Republic to pay the costs.

WatheletTimmermans Jann von BahrRosas

Delivered in open court in Luxembourg on 12 June 2003.

R. Grass M. Wathelet

Registrar President of the Fifth Chamber

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1: Language of the case: Italian.