Opinion of Mr Advocate General Lenz delivered on 2 June 1987. - Commission of the European Communities v Hellenic Republic. - Failure to fulfil obligations - Delay in the payment of financial contributions - Refusal to pay default interest. - Case 70/86.



European Court reports 1987 Page 03545



Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - Facts

1 . The main issue in the action on which I give my Opinion today is whether or not a Member State may plead force majeure in order to escape from the obligation to pay interest where, as the result of a strike, its financial contributions to the budget of the Communities were not entered in due time .

2 . In June 1983, as a result of a strike of bank employees, the financial contribution of the Hellenic Republic was not entered in the Commission' s account at the Bank of Greece on Wednesday 1 June but only on Friday 3 June .

3 . By a letter of 8 July 1983 the Commission ( the applicant ) requested the Hellenic Republic ( the defendant ) to pay interest pursuant to Article 11 of Regulation No 2891/77 in respect of the two-day delay in the entry of contributions . By a letter of 1 August 1983 the defendant refused to pay interest . It stated that it had issued its transfer order in due time, on 30 May 1983 . In its view the fact that as a result of a general strike of bank employees on 1 and 2 June 1983 the transfer to the Commission' s account was executed only on 3 June constitutes force majeure .

4 . The applicant claims that the Court should :

Declare that, by failing to enter the financial resources based on GNP for June 1983 in due time and by subsequently refusing to pay interest in respect of that late entry, the defendant has failed to fulfil its obligations under the EEC Treaty;

Order the defendant to pay the costs .

5 . The defendant claims that the Court should :

Dismiss the action and order the applicant to pay the costs .

6 . I shall deal with the submissions of the parties, in so far as is necessary, in the course of my Opinion . For the rest, reference may be made to the Report for the Hearing .

B - Opinion

7 . I should state first of all that it is not disputed that the financial contributions owed by the defendant to the Community for June 1983 were entered in the applicant' s account two days late . In the absence of any justification or excuse, that constitutes an infringement of Article 10 ( 3 ) of Council Regulation No 2891/77 of 19 December 1977 on the replacement of financial contributions from Member States by the Communities' own resources; ( 1 ) the conditions set out in Article 11 of the regulation concerning the obligation to pay interest are met .

8 . The application must therefore be upheld unless the defendant' s plea of force majeure is well founded .

9 . It is clear from Article 17 ( 2 ) of Regulation No 2891/77 that force majeure can operate in the context of the financial relations between the Community and the Member States . Under that article Member States are freed from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements only if, for reasons of force majeure, these amounts have not been collected .

10 . However, that provision concerns only the traditional own resources of the Community ( customs duty and levies ), ( 2 ) and not the Member States' financial contributions, which are at issue in this case . Under that provision the risk that it will not be possible to collect established entitlements is borne by the Community and not the Member State, which must establish the own resources in accordance with its own legal provisions and place them at the disposal of the Commission . Consequently, where a Member State, for no fault of its own, has not been able to collect own resources it should be released from the obligation to place them at the disposal of the Community .

11 . The parties are agreed that Article 17 ( 2 ) is not directly relevant in this case . There was at first a difference of opinion concerning the application by analogy of that provision, but that has been resolved, since the applicant did not wish entirely to preclude the possibility of relying on the general principle of force majeure in the context of the financial relations between the Member States and the Community .

12 . I, on the other hand, have some doubt as to whether the concept of force majeure is applicable at all in relation to the financial provisions, with the exception of Article 17 ( 2 ).

13 . According to the eleventh recital in its preamble, the regulation contains provisions intended to enable the Communities to dispose of their own resources under the best possible conditions . Consequently, Article 11 provides that in the event of late entry of amounts in the applicant' s account interest is payable on all payments . The sole prerequisite for the obligation to pay interest is late entry, regardless of the reason for the delay in making the entry to the Commission' s account, as the Court has held on several occasions . ( 3 )

14 . Just as a Member State cannot, as the Court has consistently held, plead provisions, practices or circumstances in its internal legal system to justify a failure to comply with obligations and time-limits laid down in Community directives, it cannot plead force majeure in order to escape the obligation to pay interest pursuant to Article 11 of Regulation No 2891/77 . The financial provisions of Community law are among the fundamental rules of the Community legal structure which must be strictly observed if the Community is to function properly . The Community must be able to "dispose of its own resources under the best possible conditions" in order to meet its own financial obligations . That principle must apply equally to the payment of financial contributions by the Member States, since these financial contributions are a temporary substitute for VAT own resources . It is thus quite logical that under Article 11 of Regulation No 2891/77 the obligation to pay interest depends solely on a delay in the entry of the amounts concerned, so that the Member State bears the entire risk of entry in the Commission' s account in due time .

15 . In the alternative, and in the event that the Court, contrary to my views, should not wish to preclude the application of the concept of force majeure in this case, I shall briefly state why the conditions for the application of that concept are not met .

16 . As the Court has consistently held, ( 4 ) that concept requires "abnormal difficulties, independent of the will of the person concerned and apparently inevitable even if all due care is taken ".

17 . In the light of what the Court was told in the course of the written procedure and at the hearing it cannot be concluded that the defendant took all due care to ensure that its financial contributions were entered in the applicant' s account in due time .

18 . As early as 25 May 1983 there were reports in the Greek press of impending strike action . On 26 May it was reported that a 48-hour strike of bank employees was imminent . On 29 May the press stated that the Federation of Organizations of Bank Employees had decided to call a 24-hour strike on Monday 30 May and a further 48-hour strike on Wednesday and Thursday 1 and 2 June 1983 .

19 . In those circumstances the defendant could and should have taken measures to ensure that its financial contributions were entered in the applicant' s account in due time, for instance by issuing a transfer order beforehand with a value date of 1 June 1983 .

20 . If the defendant, in the light of those circumstances, was of the view that it was not necessarily to be inferred from the press reports that the threatened strike was inevitable, so as to necessitate precautionary measures, it can only be concluded that it thus assumed the risk of a delay in the entry of the contributions in question . That risk did in fact materialize, and it follows that the defendant must bear the consequences of its actions .

21 . The defendant cannot therefore plead force majeure in this case .

C - Conclusion

22 . In the light of all the foregoing I propose that the Court uphold the application and order the defendant to pay the costs .

(*) Translated from the German .

( 1 ) Official Journal 1977, L*336, p.*1 .

( 2 ) Article 2 of the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources(Official Journal, English Special Edition 1970 ( I ), p . 224 ).

( 3 ) Judgment of the Court of 20 March 1986 in Case 303/84 Commission v Federal Republic of Germany (( 1986 )) ECR 1171, at p . 1178; judgment of 18 December 1986 in Case 93/85 Commission v United Kingdom (( 1986 )) ECR 4011, at p . 4028 .

( 4 ) See for example the judgment of 9 February 1984 in Case 284/82 Busseni v Commission (( 1984 )) ECR 557 .