6.

I must say at once that neither of those arguments satisfies me entirely, for all the energy with which they were put forward. In fact I find that, as often happens, the weaknesses of the one correspond to the strengths of the other. For instance, the Commission's arguments fly in the face of the wording of Article 11 (‘any delay in making the entry ... shall give rise to the payment of interest’), which is one of the main pillars of the German Government's case. The German Government, on the other hand, is reduced to blaming the authors of the legislation for the illogical results to which its own arguments lead, while the Commission, which is at its most effective when it condemns those illogical results, lacks conviction when its search for a remedy leads it to the equally absurd opposite extreme, which is to impose the penalty laid down by Article 11 on a Member State which fails to determine the relevant amounts before 31 December even though it credits them within one month and 20 days from that date. Those inconsistencies prompt me to look elsewhere for the solution to the point at issue. I would first point out that the purpose of Council Decision No 70/243 ‘is to define own resources allocated to the Community budget and not to stipulate the [authorities] competent to impose duties, taxes, charges, levies or other forms of revenue. As a measure adopted under budgetary law, that decision does not prevent the [Community institutions] from creating a levy such as the one imposed on the production of [sugar] ... [The] power ... to create that levy has its basis ... in the provisions of the Treaty’ (judgment of 30 September 1982, Case 108/81 Amylumv Council [1982] ECR 3107). As for Regulation No 2891/77, I have already said that its purpose is to implement that decision so as to enable ‘the Communities to dispose of their own resources under the best possible conditions’. This means that its provisions are financial in nature as well. It follows that the two legislative measures do not call in question the principle that in certain sectors, and in particular in agricultural and customs matters, the power to impose taxes and charges of a fiscal nature belongs to the Community, while it is only in order to finance the Community budget that the Member States are to determine the revenue and credit it to the account of the Commission. In the light of that distribution of powers, it is evident that the actual determination of the relevant resources by the Member States cannot defer the time at which the Community's right to those resources arises. It cannot have that effect because the right arises — as indeed happens under the tax law of most of the Member States — once the conditions laid down for that purpose by the Community legislation are fulfilled. Put in another way, the determination of own resources (except in a case which I shall be discussing later on) is not the event which gives rise to the right to the resources but only the event which gives rise to the Member States' obligation to place those resources at the Commission's disposal. If it were otherwise, and the creation of the right depended on the determination of the resources by the Member States, the States would in practice recover a power to impose taxes which they have surrendered. In fact the distinction I have drawn between the event giving rise to the right to own resources and the actual determination of those resources is reflected in the budgetary provisions of Regulation No 2891/77. In this regard I note that the French and Italian versions of Article 2 are less specific than the equivalent English, German and Dutch versions in so far as the latter do not provide that the entitlement ‘is’ but that it ‘shall be deemed’ (‘gilt als’, ‘geldt als’) ‘to be established as soon as the corresponding claim has been duly determined’. What do those expressions in fact mean? In my view they clearly demonstrate that the legislation has set up a legal presumption regarding the time at which the entitlement is established. In any event, such a presumption was indispensable if the intention was — as indeed it must have been — to prevent the actual establishment of an entitlement which has already been determined, and is therefore legally perfect, from depending on the initiative of the national authorities responsible for making the determination, because otherwise the crediting of the resources might be postponed at will. In that perspective, the decisive factor is that the entitlement should have been ‘duly determined’, an operation which is obviously intended to take place subject to the provisions laid down from time to time by the regulations which introduce Community resources. In this case, as we have seen, Article 5 of Regulation No 700/73 requires the Member States to determine the amounts to be paid not later than 31 December and to collect them before 15 January of the following year. At that point there are two alternatives. If the Member, State determines the amount to be credited before 31 December, the entitlement is established and arises before the date specified in the regulation by virtue of the determination. If the Member State does not take the necessary action at the proper time, the entitlement arises at the moment when the time-limit expires and, by virtue of the abovementioned presumption, it ‘shall be deemed to be’ established. Article 2 should therefore be read as follows: for the purpose of making Community resources available to the Commission, an entitlement shall be deemed to be established as soon as the corresponding claim has been duly determined by the national authorities and, in any event, when the conditions laid down by the Community regulation creating it are fulfilled. From this point the solution to the dispute is only a short step away. Because of the presumption which I have mentioned, the period of one month and 20 days laid down by Article 10 of Regulation No 2891/77 for the entry of own resources runs from the date on which the relevant entitlement is deemed to have been established and not, as the German Government argues, from the date on which the national authorities actually had the entitlement established. Since the production levy on sugar for the 1980/1981 sugar year is to be deemed to have been established on 31 December 1981, the corresponding amounts should have been entered in the Commission's account by 22 February 1982. Since that time-limit was not respected, the Federal Republic of Germany was therefore bound, by virtue of Article 11 of the regulation, to pay interest on the arrears. One last point. From what I have said, it follows that the failure to observe the different time-limit laid down by Regulation No 700/73, despite being established and undisputed, cannot form the subject of a specific declaration by the Court under Articles 169 and 171 of the EEC Treaty. In fact that noncompliance is, in a manner of speaking, subsumed in the presumption of the establishment of the entitlement under Article 2 of Regulation No 2891/77.