(2)

As in other cases I shall not stop short at this conclusion. I must, in the alternative at least, consider the sub-stance of the case (that is the question whether the applicant's complaints appear justified or whether the method of calculation selected by the Commission is compatible with the Treaty and with secondary Community law). In describing the tacts in the present case I have already shown how the Commission arrived at its statement of accounts and solved the monetary problems with which it was confronted; it is consequently pointless to repeat that description here. Let us then consider first of all what are the principles governing the drawing up of statements of accounts under the Financial Regulation, the secondary law governing the present case, and consider whether the Commission has observed them. The important tactor here is the relationship between the quarterly credit and debit notes on the one hand and the statement of accounts to be drawn up at the end of the financial year on the other; I must therefore consider whether the purpose of the former is finally to establish certain factors in the calculation or whether they merely constitute provisional information and, if so, whether the reimbursements and contributions must be recalculated at the end of the year in accordance with the rules of parity applicable for drawing up the statement of accounts at the end of the financial year, in particular when changes in parity have occurred. I should like to state from the outset that when the Commission declares itself unwilling to review the figures notified in the course of the financial year it may cite in its support both the wording of the Financial Regulation of 1961 and the system which it established. This regulation in fact unconditionally provides, without stating that these accounts are not final, that the Commission shall draw up both quarterly and annual accounts. This finding by itself is of great importance for the present problem. As the Court is aware, Article 16 of the Financial Regulation entrusts various tasks to the Commission. First of all it must credit each Member State with 50 % of the expenses incurred and approved by the Commission in the foregoing quarter pursuant to the regulation on the European Social Fund. This is a simple operation since the necessary figures may be taken from the decisions granting the aid of the Social Fund and it is unnecessary to convert the currency as the credits may be inserted in the national currency. Furthermore the Commission must also draw up the aggregate amount of the contributions made available to the European Social Fund for each quarter; these are the sum of the contributions credited to the various Member States given in the national currencies of those States. Since only amounts given in the same currency can be added, this operation requires the initial conversion of each of the currencies in question into units of account, the basic currency of the Financial Regulation (as is moreover laid down in Article 21 (2) of the Financial Regulation with regard to fixing the contributions of Member States). In the absence of provisions to the contrary, however, the parity to be taken into account for this purpose is that prevailing at the moment of conversion, namely that applicable at the end of each quarter. The amount thus obtained expressed in units of account must furthermore be divided amongst the Member States in accordance with Article 16 (c), in accordance with the scale given in Article 200 of the EEC Treaty; that is, to say, the contribution of each Member State shall be calculated by dividing the amount obtained in units of account and then reconverting those sums into national currency on the basis of the parities prevailing at the end of each quarter. On the other hand the annual statement of accounts, drawn up in accordance with Article 17 of the Financial Regulation, only constitutes a statement of the balances of the accounts referred to in Article 16 of the Financial Regulation and thus is a simple bookkeeping operation. It follows from this that the figures for each of the quarterly accounts must be for fixed values given in units of account since the balances are expressed in units of account pursuant to Article 21 (3). In fact the Community legislature has nowhere provided that the amount of the aids and of the contributions must be recalculated in fixing the balances of the accounts of the Member States. When they have been drawn up those accounts are converted into national currency in order that the payments necessary for their discharge may be made. Article 23 of the Financial Regulation provides that for this operation the parity to be applied to Member States with a credit balance is that prevailing on the day when the accounts are drawn up as provided in Article 17 of this regulation; the Commission was thus required to make a conversion in accordance with the parity prevailing on 31 December. As the Commission has rightly emphasized, Article 23 consequently refers only to the procedure for operations to be effected after the closure of the accounts; it determines the parity applicable to the making up of the balances but does not relate to the statement of accounts properly so-called, that is to say, to the fixing of the sums pertaining to the aids and contributions. It could only have been otherwise if the Community legislature had expressly laid down in the Financial Regulation that the parity prevailing at the end of the financial year should be applied to all accounting operations. This method of calculation advocated by the Federal Government cannot be deduced by reading in conjunction Articles 17 and 23 of the Financial Regulation and as the Commission has converted the balances of the accounts in accordance with the parity prevailing on 31 December 1969 the complaints related by the Federal Government in fact appear to be unfounded. This is the only proper solution in the light of the provisions of the Financial Regulation. In fact, as Articles 22 to 24 of this regulation show, the Community legislature did not lose sight of the problem of the alteration in monetary parities. Article 24 which contains the rules applicable in cases of modification of the parity of the currency of a creditor State after the accounts are drawn up is particularly revealing in this respect. The Court is not unaware that in this sphere it is provided that the risks inherent in modifications of parity shall be shared. As the Commission has shown, the argument of the Federal Government would result in extending this principle since, according to it, the Member States as a whole should bear the consequences of any alteration in parity even if it occurs before the closing of the accounts. This is in fact the solution following from the calculations effected by the Federal Government which takes the view that the contributions of other Member States ought to be increased if its argument were admitted to be relevant. Nevertheless on several grounds I am doubtful whether this view may be reconciled with the principles of the Financial Regulation. As it is certain that the Community legislature did not lose sight of the problem occasioned by the alteration in the parity of a currency when it adopted the Financial Regulation, it may be supposed from the outset that it would not have limited the solution provided in Article 24 to this particular case if it had intended a general application but would rather have extended it expressly to other situations, for example, to restrict ourselves to the present case, by inserting in Article 21 a requirement that the Commission should in any event effect the conversion necessary to fix the respective contributions of the Member States on the basis of the parity prevailing at the end of the financial year. The Financial Regulation contains no such provision. On the other hand the principle established by Article 24 of the Financial Regulation would only have to be regarded as generally applicable if in Community law or even in international law there is a general principle to this effect (the sharing of risks on an alteration of monetary parities). The Commission has clearly shown, however, that Community law only allows the sharing of monetary risks in certain specific cases such as that referred to in Article 24 of the Financial Regulation and within certain limits (making up balances). I might further quote Article 12 of Regulation No 64/127 of the Commission, the Financial Regulation on the Agricultural Guidance and Guarantee Fund, the context of which is the same as that of Article 24 of the Financial Regulation of 1961. On the other hand many other rules show that the risk inherent in an alteration of monetary parities must on any view be borne by the Member State responsible for such alteration. Thus, whilst Article 7 of the Financial Regulation provides that the financial contributions made available to the Commission by the Member States in their national currency indeed retain the value corresponding to the parity in force on the day on which they were deposited in favour of the Community with the debtor State, it requires the Member State which has modified its monetary parity during this period or the Commission to make a supplementary payment or a reimbursement depending on whether the alteration in parity corresponded to a devaluation or a revaluation. I should also like to point to Article 7 of the Protocol on the Statute of the European Investment Bank under which increases or reductions in the bank's capital arising from an alteration in the monetary parity of a Member State shall be adjusted between the Bank and the Member State concerned. In conclusion I wish to cite Article 22 of the Financial Regulation of 1961 under which the debtor State alone bears any financial risk arising from an alteration in monetary parity occurring between 31 December and settlement of the balances closed off (this system was also applied in the agricultural sphere under Article 11 (1) of Regulation No 127/64). The points which I have just described carry weight in the present context even although they relate only to bilateral relationships, since, despite the clearing procedure, the relationships within the framework of the European Social Fund ultimately constitute bilateral relationships between the Commission and each of the Member States. These additional references which I have just provided thus indicate to the Court that the method of calculation followed by the Commission is in complete conformity with the provisions and principles of the Financial Regulation. Nevertheless this does not conclude my consideration of the present proceedings. The Federal Government goes on to claim, and indeed this is a principal point in its argument, that the solution to the dispute must essentially be sought in the light of the principles contained in Article 125 of the EEC Treaty, that is to say, having regard to the fact that the Fund must meet 50 % of the expenditure approved by it in national currency. It thus considers that it is from the outset entitled to receive the contributions in German marks up to a specific amount and that the book-keeping technicalities of the Financial Regulation cannot reduce this amount. According to the applicant, since the Financial Regulation constitutes secondary Community law it must be construed in this fashion, especially as Article 21 (1) prescribes that the amounts to be reimbursed by the European Social Fund to the Member States shall be calculated in the national currency of those States on the basis of the sums which they have actually expended. With regard to this line of argument it must indeed be recognized that the amounts in German marks appearing in decisions relating to the sums to be reimbursed to the Federal Government and the figures for the Federal Government's contribution to the Social Fund force me to admit that the method of calculation employed by the Commission has in fact reduced to a certain extent Germany's right to obtain a re-imbursement in German marks. Nevertheless closer consideration of the question leads me to find that this argument is also unfounded. In fact it will be observed first of all that the rule in Article 21 (1) of the Financial Regulation merely lays down that the amounts to be covered shall be calculated ‘on the basis’ of the sums which the Member States have actually expended. Thus the Court cannot draw clear conclusions from this in favour of the applicant's argument. Further, with regard to Article 125 of the EEC Treaty the Court will be led to find that it too is worded so loosely that it cannot provide a ground for a direct action in the present case. In fact, the words ‘within the framework of the rules provided for in Article 127’ refer to the provisions of Regulation No 9, and also to the Financial Regulation which gives particulars of the right to payment through accounting provisions. The regulations thus also determine the effects of the alteration in monetary parities since the Treaty in no way guarantees a change. Since it is equally certain, as I have shown, that the principle of sharing the risks arising from alterations in parity is foreign to the Treaty (a principle which in the present case involves increasing the contributions from other Member States and thereby a substantial modification of the scale inserted in Article 200 of the Treaty), it only remains for me to find that neither the Treaty itself nor the principles which characterize it contain anything which could provide grounds for the application made by the Federal Government. Finally, for the sake of completeness, I should like to state further that the judgment in Case 111/63, in which the Court gave a ruling on the problem of the alteration in monetary parities within the framework of the system of the equalization of ferrous scrap, scarcely provides any assistance in the present case. In fact this judgment merely settles the question whether the parity to be adopted is that in force during a period of calculation or the parity applicable in the drawing up of the account for this period; it is thus irrelevant to the problem of the application of several different parities during a specific period. If I nevertheless endeavour to infer from this a certain trend in the case-law of the Court, that could at most constitute support for the view propounded by the Commission as it is clear that the Court has adopted the parities applicable during the period of calculation in question and not that in force when the accounts were drawn up. I consequently consider that the Commission's view is also the proper one with regard to the substance of the case and that the procedure which it followed in drawing up the statement of accounts cannot be disputed.