Opinion of the Advocate General — ECLI:EU:C:2010:187
Date: 2010-04-15
Language of the case: Italian
Subject matter: Financial provisions;Own resources
Procedure: Action for failure to fulfil obligations - successful
Origin: Italy

Summary of the Judgment 1. Own resources of the European Communities – Establishment and making available by the Member States (Council Regulation No 1150/2000, Art. 17(1) and (2); Council Decision 2000/597, Arts 2(1)(a) and (b), and 8(1)) 2. Own resources of the European Communities – Establishment and making available by the Member States (Council Regulation No 1150/2000, Art. 17(2)) 3. Own resources of the European Communities – Establishment and making available by the Member States (Council Regulation 1150/2000, Art. 17(2); Council Decision 2000/597, Arts 2 and 8)) 4. Own resources of the European Communities – Establishment and making available by the Member States (Council Regulation No 1150/2000, Arts 6(3)(b), and 17(2)) 1. The Union’s own resources, referred to in Article 2(1)(a) and (b) of Decision 2000/597 on the system of the European Communities’ own resources, are, according to Article 8(1) of that decision, collected by the Member States, which are obliged to make them available to the Commission. Under Article 17(1) and (2) of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources, Member States are required to take all requisite measures to ensure that the amounts corresponding to the duties established under Article 2 of that regulation are made available to the Commission. Member States are to be free from that obligation only if recovery was not possible for reasons of force majeure or where collection finally proves impossible for reasons that cannot be attributed to them. In that regard, conduct of any State organ is, in principle, attributable to the State. An organ includes any person or entity which has that status in accordance with the national law of the State in question. The fact that, by its conduct, such a person or entity, empowered to exercise elements of governmental authority and acting in that capacity, infringes legal provisions, exceeds competences or contravenes instructions of his superiors, does not invalidate that conclusion. (see paras 34-35, 39) 2. The concept of force majeure referred to in Article 17(2) of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources must be understood in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided. One of the constituent elements of the concept of force majeure is the occurrence of an event outside the control of the person who wishes to rely on it, that is to say something which he cannot influence. The conduct of customs officials who, in the exercise of their functions, issue unlawful authorisations, cannot be considered as outside the control of the administration to which they belong. Furthermore, it has not been established that the consequences of that conduct, attributable to that Member State, could not have been avoided notwithstanding all the due care which that Member State was able to show. Consequently, that Member State may not rely on force majeure in order to be released from the obligation to place Union own resources at the disposal of the Commission. (see paras 42, 46-47, 49) 3. Although an error committed by the customs authorities of a Member State leads to the non-recovery of the Union’s own resources, such an error does not affect that Member State’s obligation to pay the entitlements which have been established and the interest in respect of late payment. In those circumstances, a Member State which fails to establish the European Union’s own resources and to make the corresponding amount available to the Commission, without any of the conditions laid down in Article 17(2) of Regulation No 1150/2000 implementing Decision 94/728 on the system of the Communities’ own resources being met, falls short of its obligations under European Union law, in particular Articles 2 and 8 of Decision 2000/597 on the system of the European Communities' own resources. (see paras 50-51) 4. If it is to be possible for a Member State to be exempted from its obligation to make available to the Commission the amounts corresponding to the established entitlements, not only must the conditions laid down in Article 17(2) of the amended Regulation No 1150/2000 implementing Decision 94/728 on the system of the European Communities’ own resources be met, but also the condition that those entitlements were properly entered in the B account must also have been satisfied. Article 6(1) of Regulation No 1150/2000 provides that each Member State is to keep an own resources account with its Treasury or with the body appointed by it. Under Article 6(3)(a) and (b) of that regulation, Member States are obliged to include in the A accounts the entitlements established in accordance with Article 2 of that regulation, at the latest on the first working day after the 19th day of the second month following the month during which the entitlement was established, without prejudice to the option of entering in the B accounts, within the same prescribed period, the established entitlements which have ‘not yet been recovered’ and for which ‘no security has been provided’, and also entitlements established and ‘for which security has been provided [and which] have been challenged and might, upon settlement of the disputes which have arisen, be subject to change’. Entry of own resources in the B account thus reflects an exceptional situation characterised by the decision to allow the Member State either not to place those entitlements at the disposal of the Commission from the time of their establishment, because they have not yet been recovered, under Article 6(3)(b) of Regulation No 1150/2000, or to be released from doing so because those entitlements prove irrecoverable for reasons of force majeure or other reasons which cannot be attributed to them, on the basis of Article 17(2) of that regulation. In those circumstances, in order to be eligible for such exceptional treatment, the entry of entitlements in the B account must have been carried out by the Member States in compliance with European Union law. (see paras 65-66, 68-69)