61971CJ0002_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 2/71
GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY DR R . MORAWITZ, MINISTERIALRAT TO THE FEDERAL MINISTRY FOR ECONOMIC AFFAIRS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF THE HEAD OF CHANCERY AT THE EMBASSY OF THE FEDERAL REPUBLIC OF GERMANY, 3 BOULEVARD ROYAL, APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, R . BAEYENS AND P . KARPENSTEIN, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF A DECISION OF REJECTION OF THE COMMISSION OF 6 NOVEMBER 1970 AND OF THE STATEMENT OF THE ACCOUNTS OF THE EUROPEAN SOCIAL FUND FOR THE FINANCIAL YEAR 1969 ON WHICH THAT DECISION IS BASED,
Grounds
1 ON 11 JANUARY 1971 THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY LODGED AN APPLICATION UNDER ARTICLE 173 OF THE EEC TREATY FOR THE ANNULMENT OF THE DECISION OF REJECTION OF THE COMMISSION OF 6 NOVEMBER 1970 TOGETHER WITH THE STATEMENT OF ACCOUNTS FOR THE EUROPEAN SOCIAL FUND FOR THE YEAR 1969 ON WHICH THE DECISION IS BASED .
2 UNDER THE FINANCIAL REGULATION RELATING TO THE METHODS AND PROCEDURE WHEREBY THE CONTRIBUTIONS OF MEMBER STATES SPECIFIED IN ARTICLE 200 ( 1 ) AND ( 2 ) OF THE TREATY AND TO THE TECHNICAL CONDITIONS FOR CONDUCTING THE FINANCIAL AFFAIRS OF THE EUROPEAN SOCIAL FUND ADOPTED ON 31 JANUARY 1961 ( JO NO 22 1961, P . 509 ), THE COMMISSION, BY LETTERS OF 2 AND 6 MARCH 1970, COMMUNICATED TO THE FEDERAL GOVERNMENT THE STATEMENT OF ACCOUNTS OF THE EUROPEAN SOCIAL FUND FOR THE FINANCIAL YEAR 1969 AND NOTIFIED THE GOVERNMENT OF THE AMOUNT OF THE SUMS TO BE PAID TO IT . BY LETTER OF 25 MARCH 1970, THE FEDERAL MINISTER OF FINANCE RAISED OBJECTIONS TO THOSE MEASURES, BUT THE COMMISSION BY A LETTER OF 6 NOVEMBER 1970 DISMISSED THE OBJECTIONS AND MAINTAINED ITS DECISIONS .
3 SINCE THE DEFENDANT CONSIDERED THAT THE LETTER OF 6 NOVEMBER 1969 MERELY CONSTITUTED A REFUSAL TO GO BACK ON A PRIOR DECISION ESTABLISHING THE STATEMENT OF ACCOUNTS FOR THE FINANCIAL YEAR 1969 WHICH WAS NOTIFIED TO THE FEDERAL GOVERNMENT BY LETTERS OF 2 AND 6 MARCH, IT PLEADED THAT THE APPLICATION WAS MADE OUT OF TIME .
4 THE APPLICANT REPLIES THAT AS LONG AS THE COMMISSION HAD NOT STATED ITS ATTITUDE TO THE OBJECTIONS SET OUT IN THE LETTER FROM THE FEDERAL MINISTER OF FINANCE OF 25 MARCH 1970 THE STATEMENT OF ACCOUNTS AND THE NOTIFICATIONS RELATING THERETO COULD NOT BE REGARDED AS FINAL . FURTHERMORE THE BEHAVIOUR OF THE COMMISSION GAVE THE IMPRESSION THAT IT ITSELF CONSIDERED ITS DECISIONS IN THIS MATTER AS PROVISIONAL .
5 WITH REGARD TO THE NATURE OF THE STATEMENT OF ACCOUNTS AND THE NOTIFICATIONS THEREOF, THE FINANCIAL REGULATION OF 31 JANUARY 1961 PROVIDES IN ARTICLE 17 THAT : " ON 31 DECEMBER OF EACH YEAR THE COMMISSION SHALL DETERMINE : ( A ) THE BALANCES OF THE ACCOUNTS SPECIFIED IN ARTICLE 16 OF THIS REGULATION, ( B ) THE AMOUNTS OF THE TRANSFERS TO BE MADE IN ORDER TO LIQUIDATE THE CREDIT OR DEBIT BALANCES . "
ARTICLE 18 OF THAT REGULATION PROVIDES THAT : " AS SOON AS THE OPERATIONS SPECIFIED IN ARTICLE 17 OF THIS REGULATION HAVE BEEN COMPLETED AND IN ANY CASE NOT LATER THAN 31 JANUARY NEXT, THE COMMISSION SHALL NOTIFY : ( A ) EACH DEBTOR MEMBER STATE OF THE AMOUNT PAYABLE BY IT TO THE COMMISSION; ( B ) EACH CREDITOR MEMBER STATE OF THE AMOUNT PAYABLE IN ITS FAVOUR BY ORDER OF THE COMMISSION . "
IT IS CLEAR FROM THOSE PROVISIONS THAT BOTH THE STATEMENT OF ACCOUNTS AND THE NOTIFICATIONS TO MEMBER STATES MUST BE EFFECTED WITHIN A GIVEN PERIOD WHICH HAS MOREOVER BEEN EXCEEDED IN THIS CASE . IN THOSE CIRCUMSTANCES THE MEASURES MUST BE CONSIDERED AS FINAL DECISIONS AND NOT AS PROVISIONAL STATEMENTS OF POSITION .
6 IN ADDITION, THE NATURE OF THE MEASURES IN QUESTION PREVENTS THEM FROM BEING CONSIDERED AS PROVISIONAL . IN FACT THE OPERATIONS RELATING TO THE STATEMENT OF ACCOUNTS OF THE EUROPEAN SOCIAL FUND ARE COMPLEX AND CONCERN ALL THE MEMBER STATES IN THE SAME WAY, SINCE THE DECISIONS AND FINDINGS MADE REGARDING ONE MEMBER STATE AUTOMATICALLY AFFECT THE BALANCES OF THE OTHERS . ONE AND THE SAME STATEMENT OF ACCOUNTS WHICH HAS BEEN NOTIFIED TO ALL THE MEMBER STATES THUS CANNOT BE REGARDED AS A PROVISIONAL STATEMENT WITH REGARD TO ONE OF THOSE STATES .
7 IT IS CLEAR FROM THE FOREGOING THAT THE LETTERS OF THE COMMISSION OF 2 AND 6 MARCH 1970 CONSTITUTED FINAL MEASURES WHICH WERE CAPABLE OF BEING CONTESTED UNDER ARTICLE 173 . SINCE THE APPLICANT FAILED TO BRING AN ACTION WITHIN THE PERIOD OF TWO MONTHS, IT MAY NOT REPAIR THIS OMISSION BY INSTITUTING PROCEEDINGS AGAINST A SUBSEQUENT LETTER REFUSING TO RECONSIDER THE MEASURES IN QUESTION .
8 CONSEQUENTLY, THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .
Decision on costs
9 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS . IN THIS CASE THE APPLICANT HAS FAILED IN ITS APPLICATION AND MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, ESPECIALLY ARTICLES 125, 173 AND 200;
HAVING REGARD TO THE FINANCIAL REGULATION RELATING TO THE METHODS AND PROCEDURE WHEREBY THE CONTRIBUTIONS OF MEMBER STATES SPECIFIED IN ARTICLE 200 ( 1 ) AND ( 2 ) OF THE EEC TREATY AND TO THE TECHNICAL CONDITIONS FOR CONDUCTING THE FINANCIAL AFFAIRS OF THE EUROPEAN SOCIAL FUND OF 31 JANUARY 1961 ( JO NO 22 1961, P . 509 ), ESPECIALLY ARTICLES 17 AND 18;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE;
2 . ORDERS THE APPLICANT TO BEAR THE COSTS .