6.

Under the laws of numerous Member States, setoff is possible so long as (a) the parties represent two separate centres of economic interest in which, depending upon the viewpoint, each of them may be classified as the debtor or the creditor; (b) in both centres, the credit and the debit attach to a person acting in the same legal capacity. However, different rules apply to setoffs between the State and economic operators. Thus, in some systems (France, Italy, the Netherlands and Belgium) only the public authorities have a right of setoff; on the other hand, under German and English law private individuals may also have a right of setoff, provided that the debit and the credit are enforced against the same fund (Paragraph 395 of the BGB and Article 35 (2) of the Crown Proceedings Act 1947). In the light of those considerations, I shall examine the provision on which the national court seeks a ruling. In my opinion, it is ‘neutral’ with respect to the problem in this case; that is, it enables States to agree that payment of the monetary compensatory amounts due from the importing State is to be made by the exporting State, but it does not qualify the legal position of the exporting State or of the latter's intervention agency. However, in its interpretation of that provision in the Pescb judgment, the Court ruled that the procedure under that provision allows the exporting State the possibility of paying the import monetary compensatory amounts ‘on... behalf’ of the importing State (Pesch judgment). Can it be deduced therefrom, as Irish Meat maintains, that by using those words the Court intended to indicate that the relations between the two States were based on the concept of agency? I do not think so; that is to say I consider that those words were not used in a technical sense. As we have already seen, in the later case of Anglo-Irish Meat, the Commission explained those words by describing the exporting State as the ‘paying agent’ of the importing State, whereas the plaintiff and the defendant regarded the national intervention agencies as agents of the EAGGF. Faced with those conflicting views, the Court could have repeated, and perhaps even clarified, the rule laid down in Pesch. However, the Court did not do so, precisely — I presume — because the arguments put forward by the parties made the Court aware of the interpretative difficulties which might result. Moreover, the meaning which the Commission then read into it and which Irish Meat now reads into it is untenable. It is ruled out not only by the arguments of the United Kingdom but also by the fact that, once the agreement referred to in Article 2 a is concluded and the tariff classification and the figure for the monetary compensatory amounts have been determined by the customs authorities in the importing State, no relationship exists between the intervention agency in the exporting State and the importing State. The solution to this problem must therefore be sought elsewhere, and specifically in the legislation governing the common agricultural policy and the financing thereof. In other words, it seems to me that the argument put forward by the Commission in this case, to the effect that, when paying and collecting import and export monetary compensatory amounts, the intervention agencies operate as ‘agents of the Community’, is substantially correct. However, that argument requires to be examined in some detail. In particular, it is necessary to consider whether it conflicts with the consistent case-law of the Court to the effect that the national administration enjoys complete independence from the Community authorities. Let me say immediately that, in my opinion, there is no conflict. In the recent judgment in Eurico (18 October 1984 in Case 109/83 [1984] ECR 3581) and in earlier judgments (22 January 1976 in Case 60/75 Russo [1976] ECR 45; 13 February 1979 in Case 101/78 Granaria [1979] ECR 623; 27 March 1980 in Case 133/79 Sucrimex [1980] ECR 1299; 10 June 1982 in Case 217/81 Interagra [1982] ECR 2233), the Court has held, with respect to various losses suffered by private individuals as a result of implementation of the common agricultural policy, that, regardless of the role played by the Commission, it is the intervention agencies of the State concerned which are responsible. Although I understand the reasons for the Court's upholding that rule, it does not seem to me that it can remove or detract from the Community basis of the agricultural policy. That policy is determined by the Community and it is the Community that lays down the rules governing it. The role assigned to the Member States therefore is merely that of executives. It should be added that, with respect to the financing of that policy, monetary compensatory amounts are regarded as a means of regulating the agricultural markets (Article 7 (2) of Regulation No 974/71, as amended by Regulation No 2746/72) and that they are therefore charged to the Community budget (items relating to the EAGGF). The only responsibility of the Member States is to designate the authorities and bodies which are to effect the payments for which the Commission makes funds available (Articles 4 and 5 of Regulation No 729/70 of the Council of 21 April 1970). That, it seems to me, provides a sufficient foundation for the view that, by administering the monetary compensatory amounts (and thus also when paying import monetary compensatory amounts to an undertaking which is liable to them for export monetary compensatory amounts), the Member States discharge the function of paying agents to which the Community advances funds. It follows from all those considerations that, at least in those countries whose laws governing setoff follow the pattern outlined above, setoff is possible. And indeed the right of setoff is particularly useful — and conducive to fulfilment of the need to make the best use of Community funds — where, as in the present case, an insolvent undertaking is involved. Only by that means — and I shall use words similar to those of the DEKA judgment — is it in fact possible to ensure that the solvent creditor-debtor is not obliged to make the payment incumbent upon it where the insolvency of the other party prevents it from satisfying its own claim.