No C 163/8 Official Journal of the European Communities 23.6.84 
Whereas proper provision should be made in the 
general budget of the European Communities both 
for the financial risk of possible default by 
beneficiaries of European investment loans and for 
the support of interest service costs of beneficiaries; 
Whereas funds from the budgetary appropriations 
should be used only as and when required; 
Whereas adequate provision should be made for 
evaluation of the scheme, (c) Article 5 
'Equivalent amount . . . payment of loans' should 
be replaced by 'necessary funds transferred to the 
Bank in such amounts and on such dates as may 
be required to meet the interest liability'. 
A new sentence should be added as follows: 'An 
item shall also be opened in due course in the 
general budget of the European Communities to 
cover the financial risks arising from any 
defaulting by the enterprises.' 
HAS ADOPTED THE FOLLOWING OPINION: 
The Court of Auditors has the following specific 
observations to make on the draft Decision: 
(a) Preamble 
Add: 'Having regard to the opinion of the Court 
of Auditors'. 
(b) Article 3, third subparagraph 
After 'European Communities' should be added: 
'to the extent required by the financing plan 
related to the project'. (d) Article 7 
This Article should be amended to read as 
follows: 
'Two years at the latest after adoption of this 
Decision, and in any case when loans granted 
total 80 million ECU, the Commission shall 
prepare a report evaluating the progress of the 
scheme and whether or not it is meeting the 
objectives set for it. On the basis of this report, 
the Council shall examine whether the principles 
and conditions of the scheme are still adapted to 
the needs which led to its creation.' 
This opinion was adopted by the Court of Auditors at its meeting of 5 April 1984, 
Done at Luxembourg, 9 April 1984. 
For the Court of Auditors 
Pierre LELONG 
President 
OPINION No 4/83 
of the Court of Auditors of the European Communities on the second amendment to the 
proposal for a Council Regulation amending Regulation (EEC, Euratom, ECSC) No 
2891/77 implementing the Decision of 21 April 1970 on the replacement of financial 
contributions from Member States by the Communities' own resources 
(84/C 163/13) 
THE COURT OF AUDITORS OF THE EUROPEAN 
COMMUNITIES, 
Having regard to the Treaty establishing the 
European Coal and Steel Community, and in 
particular Article 78 nono thereof, Having regard to the Treaty establishing the 
European Economic Community, and in particular 
Article 209 thereof, 
Having regard to the Treaty establishing the 
European Atomic Energy Community, and in 
particular Article 183 thereof, 
23.6.84 Official Journal of the European Communities No C 163/9 
Having regard to Council Decision 70/243/ECSC, 
EEC, Euratom of 21 April 1970 on the replacement 
of financial contributions from Member States by the 
Communities' own resources ('), hereinafter referred 
to as 'the Decision of 21 April 1970', and in 
particular Article 6 thereof, 
Having regard to Council Regulation (EEC, 
Euratom, ECSC) No 2891/77 of 19 December 1977 
implementing the Decision of 21 April 1970, here­
inafter referred to as 'the Regulation' (2), 
Having regard to the Commission's original proposal 
of 23 July 1982 for a Council Regulation amending 
the said Regulation (EEC, Euratom, ECSC) No 
2891/77, hereinafter referred to as 'the original 
proposal' (3) 
Having regard to the second amendment to that 
proposal as submitted by the Commission to the 
Council on 24 October 1983 pursuant to Article 149 
(2) of the EEC Treaty and Article 119 (2) of the 
Euratom Treaty, hereinafter referred to as 'the 
second amendment' (4) 
Having regard to the decision of the Council of 7 
November 1983 to consult the Court of Auditors on 
this second amendment, in accordance with Articles 
78 nono of the Treaty establishing the European Coal 
and Steel Community, 209 of the Treaty establishing 
the European Economic Community and 183 of the 
Treaty establishing the European Atomic Energy 
Community; 
Whereas the Council, by its decision of 3 August 
1982, consulted the Court, in accordance with the 
said Articles 78 nono of the Treaty establishing the 
European Coal and Steel Community, 209 of the 
Treaty establishing the European Economic 
Community and 183 of the Treaty establishing the 
European Atomic Energy Community, on the original 
proposal; and the Court accordingly rendered its 
opinion No 2/82 on 16 November 1982 (5); 
Whereas, in particular, in this opinion No 2/82, the 
Court expressed the view that the proposal to amend 
the said Regulation (EEC, Euratom, ECSC) No 
2891/77 would be incomplete if it did not define 
more precisely the concept of 'establishment' in 
Article 2 of the Regulation; 
Whereas the second amendment introduces inter alia 
modifications to the text of the said Article 2, 
(') OJ No L 94, 28. 4. 1970, p. 19. 
(2) OJ No L 336, 27. 12. 1977, p. 1. 
(») OJNoC231,4. 9. 1982, p. 2. 
(4) OJ No C 303, 10. 11. 1983, p. 19. 
(5) OJ No C 133, 20. 5. 1983, p. 3. HAS ADOPTED THE FOLLOWING OPINION: 
PART 1 
General observations 
1.1. Article 2 of the Regulation states that 'an 
entitlement shall be deemed to be established as soon 
as the corresponding claim has been duly determined 
by the appropriate department or agency of the 
Member State.' Articles 7 and 9 require the Member 
States to enter these established entitlements in 
national accounts of own resources and to credit the 
amounts to accounts opened for the purpose in the 
name of the Commission. 
1.2. This has presented a practical difficulty in 
some cases, particularly where the basis of assessment 
available to the Member State was irregular, 
incomplete or disputed, and where the Member State 
was thus unable to establish the amount due and/or 
to enforce collection. Accordingly, there has been 
some variance in the way in which Member States 
have interpreted the application of Article 2. 
1.3. The purpose of the second amendment to the 
proposal is to clarify the concept of establishment so 
that entitlements should be established as early as 
possible, irrespective of any judicial decision, and to 
give to the Member States powers to defer crediting 
the Community account when the processes of 
recovery action are expected to be prolonged. Further 
powers are given to the Commission to relieve 
Member States of their financial obligations where 
specified conditions prevent collection. This 
amendment is an alteration to the principle set out in 
the Decision of 21 April 1970 whereby establishment 
and making available to the Communities of all 
entitlements should be simultaneous. This was a 
principle to which was linked the refund of 10 % for 
collection expenses and risks and the Court suggests 
that the financial implication of this amendment be 
evaluated at a later date. 
1.4. The Court, however, welcomes this 
amendment for the prompt establishment of all 
identified entitlements and the inclusion in a special 
section of the accounts of established entitlements 
subject to prolonged recovery action. The Court 
notes that the Commission anticipated that these 
cases should be subject to regular reporting to the 
Commission and this opinion accordingly proposes 
No C 163/10 Official Journal of the European Communities 23. 6. 84 
amendment of Article 10a (2) (c) to include this 
specifically. The Court hopes that this will lead to an 
improvement in the information at present available 
on such cases. 
1.5. The Court notes that Article 10a (2) will 
require the Commission to draw up a list of model 
cases in accordance with which the provision for 
deferment of making available established 
entitlements may be applied. The Court will examine 
such definitions and their application in due course. It 
notes, however, that the text foresees no means by 
which a Member State can be required to revise its 
decisions if their application of the model cases is 
considered inappropriate. The Court suggests that the 
Commission should be given such a power of control. PART 2 
Detailed remarks 
2.1. The Court wishes to make a number of 
detailed amendments, with a view to clarifying 
and/or strengthening the proposed text. These are set 
out in the following schedule. 
2.2 The left-hand column contains only those 
Articles or paragraphs for which the Court is 
suggesting amendment. The text given is that of the 
present Regulation, as amended by the Commission's 
proposals as appropriate. 
2.3. The middle column states the Court's 
proposed amendment. The third column gives the 
reasons justifying the Court's proposals. 
2.4. The proposed amendments of the Commission 
and of the Court are printed in italic and bold type 
respectively. 
Commission's second amendment 
to the proposal 
(OJNoC303, 10. 11. 1983) Amendments proposed by the Court of Auditors Remarks 
Article 2: 
'1. (a) For the purpose of applying this 
Regulation, in cases where 
Community rules impose an 
obligation to enter an entitlement 
in the accounts, the entitlement 
shall be deemed to be established 
as soon as it has been entered in 
the accounts. 
(b) In cases not covered by these rules, 
however, an entitlement shall be 
deemed to be established as soon 
as its amount has been 
determined by the appropriate 
department or agency of the 
Member State. 
2. The second (unnumbered) para­
graph of Article 2 is numbered para­
graph 2.' 
Article 10a: 
'1. Member States shall take all 
requisite measures to ensure that the 
amount corresponding to the 
entitlements established under Articles 1 
and 2 are made available to the 
Commission as specified in this Regu­
lation. 
2. (a) The Member State may, however, 
subject to the conditions set out 
below, defer making available an 
entitlement established in accord­
ance with Article 2 (1) (b) where 
the entitlement cannot be re­
covered within the normal time 
allowed. Add at end of (a): 
'. . . of the competent department or 
agency of the Member State.' 
Amend (b) to read: 
'. . . In cases not covered by these 
rules, however, an entitlement shall 
be deemed to be established as soon 
as its amount has been determined or 
may be estimated by the appropriate 
department or agency of the Member 
State.' To clarify which accounts are referred 
to. 
To avoid the problems already noted in 
interpreting 'determined'. 
23. 6. 84 Official Journal of the European Communities No C 163/11 
Commission's second amendment 
to the proposal 
(OJNoC 303, 10. 11. 1983) Amendments proposed by the Court of Auditors Remarks 
(b) The Member States shall send the 
Commission a description of the 
situations in which they plan to 
make use of this provision. After 
consulting the Committee referred 
to in Article 20, the Commission 
shall draw up a list of model cases 
in which this provision may he 
applied. 
(c) The amounts of the entitlements to 
which the Member State applies 
this provision shall be recorded in a 
special section of the own resources 
accounts referred to in Article 6, 
broken down by the type of re­
sources involved and the type of 
case as contained in the list 
provided for in (b) above. 
(d) The entitlements referred to in this 
paragraph shall be made available 
to the Commission not later than 
the first working day after the 19th 
day of the second month following 
that in which: 
— they were recovered; any 
interest paid on the entitlements 
by the person liable shall also 
be made available, 
— the Member State decided to 
terminate the recovery pro­
cedure without making use of 
the provisions of Article 10b.' 
Article 10b: 
'1. (a) A Member State may be auth­
orized not to make available to 
the Commission the amounts 
corresponding to established 
entitlements in cases where re­
covery of the entitlement proves 
impossible or the Member State is 
released under Community law 
from the obligation to recover the 
entitlement and: 
— the non-recovery referred to in 
the previous Article is not the 
result of an error by the 
Member State, 
— the same taxable event has not 
given rise to the collection of 
national revenue. Add at end of (c): 
'The monthly statement referred to in 
Article 6 (3) shall include details of 
each outstanding case and indicate 
progress in the recovery action.' 
(Alternatively this could be given in 
the yearly summary account referred 
to in Article 8.) See Part 1, paragraph 1.4. 
After 'recover the entitlement' in 
1 (a), amend to read: 
'. . . provided in both cases: 
— the non-recovery referred to is 
not the result of an error by the 
Member State, 
taxable event has not 
rise to the collection of 
national revenue.' — the same 
given rise to To make the conditions apply to both 
categories. 
Delete 'in the previous Article' as the 
reference is either incorrect or vague 
(does it refer to Article 10 (a) or Article 
9, and which paragraph.'). 
NoC 163/12 Official Journal of the European Communities 23. 6. 84 
Commission's second amendment 
to the proposal 
(OJNoC 303, 10. 11. 1983) Amendments proposed by the Court of Auditors Remarks 
(b) At the request of a Member State 
the Commission shall decide, after 
consulting the Committee referred 
to in Article 20, whether the 
conditions set out in (a) have been 
met and whether the request of the 
Member State should be granted. 
(c) However, if the amount of the 
entitlemend referred to in (a) 
above is less than an amount 
which is initially fixed at 100 
ECU and which may be revised 
by the Commission referred to in 
Article 20, a Member State which 
considers that the conditions set 
out in (a) above have been met 
may itself decide not to make these 
amounts available to the 
Commission. 
During the first and third quarters 
of the year it shall send the 
Commission a list of cases in 
which decisions not to make own 
resources as available have been 
taken during the previous half-
year and the reasons for these 
decisions. 
(a.) The effect of the Commission's 
decision to grant the request of a 
Member State or the decision of a 
Member State taken under 1 (c) 
shall be: 
to authorize the Member State 
which has paid over amounts 
under Article 10 (a) (1) to 
deduct these amounts from the 
own resources to be made avail­
able to the Commission on the 
first working day after the 
19th day of the second month 
following that in which the 
Commission's decision was 
taken or the communication 
referred to in 1 (c) was made, 
to authorize the Member State 
which has availed itself of the 
facility referred to in Article 10 
(a) (2) not to pay to the 
Commission the amount of the 
entitlements in question. Add at end 
question': of 2 (a), after 'in To complete the accounting record. 
'The entry in the special section of the 
own resources accounts referred to in 
Article 10 (a) (2) (c) shall be adjusted 
accordingly.' 
23. 6. 84 Office journal of the European Communities No C 163/13 
Commission's second amendment 
to the proposal 
(OJNoC 303, 10. 11. 1983) 
(b) If the Commission does not accede 
to the request of a Member State 
which has availed itself of the 
facility referred to in Article 10 (a) 
(2), the Member State shall make 
available to the Commission the 
amount of the entitlements in 
question not later than the first 
working day after the 19th day of 
the second month following that in 
which the decision was taken. 
(c) The entitlements referred to in this 
Article shall be listed case by case 
in a special section of the own res­
ources accounts referred to in 
Article 8.' Amendments proposed by the Court of Auditors Remarks 
This opinion was adopted by the Court of Auditors at its meeting of 14 March 
1984. 
Done at Luxembourg, 27 March 1984. 
For the Court of Auditors 
Pierre LELONG 
President