JOINED OPINION OF MR ADVOCATE GENERAL VILACA DELIVERED ON 17 SEPTEMBER 1987. - ITALIAN REPUBLIC V COMMISSION OF THE EUROPEAN COMMUNITIES. - CLEARANCE OF EAGGF ACCOUNTS - 1980 FINANCIAL YEAR. - CASE 342/85.



European Court reports 1987 Page 04677



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . I - The Italian Republic has asked the Court to declare partly void Commission Decisions 85/459/EEC and 85/460/EEC of 28 August 1985 ( 1 on the clearance of the accounts of expenditure to be financed by the European Agricultural Guidance and Guarantee Fund ( EAGGF ), Guarantee Section, presented by the Italian Republic for 1980 and 1981 respectively inasmuch as they refuse to charge to the EAGGF certain sums paid by way of aid for skimmed-milk powder in intervention, aid for the consumption of olive oil, financial compensation for withdrawal from the market of fishery products and monetary compensatory amounts .

II - A - Aid for skimmed-milk powder

2 . Since there were no stocks of skimmed-milk powder in Italy in 1978 the Council decided by means of Regulation No 1763/78 of 25 July 1978 ( 2 to transfer to the Italian intervention agency part of the stocks held by the intervention agencies in other Member States, to be made into animal feed .

3 . The transfer was accomplished in two stages, the second being governed by Commission Regulation No 516/80 of 29 February 1980, ( 3 amended for the last time by Regulation No 3314/80 of 19 December 1980.*(4 )

4 . It is the final amount of the aid payable, and therefore eligible for financing by the EAGGF, which is the subject of these applications, at this stage .

5 . In order to settle the dispute it is necessary to consider the relationship between the various provisions governing aid for skimmed milk .

6 . Regulation No 804/68 of the Council of 27 June 1968 ( 5 ) established a common organization of the market in milk and milk products; Article 10 provided that aid was to be granted for skimmed milk and skimmed-milk powder used for animal feedingstuffs .

7 . Pursuant to Article 10*(2 ) the Council adopted by means of Regulation No 986/68 of 15 July 1968 ( 6 ) a number of general rules governing such aid; pursuant to Article 10*(3 ) it also laid down detailed rules governing the application of them .

8 . The general rules governing the amount of the aid ( whether for purchases on the open market or purchases from an intervention agency, and in both cases whether made in the trader' s country or in another Member State ) are to be found in Commission Regulation No 1725/79 of 26 July 1979 ( 7 ) which replaced Regulation No 990/72 of 15 May 1972 . ( 8 Article 9*(1 ) of Regulation No 1725/79 provided that "the amount of aid shall be that applicable on the day on which the skimmed milk or skimmed-milk powder is denatured or on the day on which it is processed into compound feedingstuffs ".

9 . According to the general rule laid down in Article 3*(1 ) of Regulation No 986/68, aid is to be paid in principle by the Member State in whose territory the skimmed milk was denatured or processed and subject to proof of completion of that process ( Art . 3*(2 )*).

10 . However, in the case of skimmed-milk powder produced in one Member State and denatured or processed into compound animal feedingstuffs in another Member State ( whether purchased on the open market or from the relevant intervention agency ) Commission Regulation No 1624/76 of 2 July 1976 ( 9 ) established special arrangements : the amount of the aid - to be paid by the consignor Member State subject to production of proof that the milk has been subjected to customs or administrative control, and to the lodging of a security - is to be, in principle, that applicable on the day the customs formalities for export are completed ( Article 8*(1 )*); however, the trader may obtain a supplementary payment if the amount of aid applicable on the day of processing or denaturing was greater than that paid by the consignor Member State ( Article 8*(2 )*).

11 . The Commission maintains that that special rule was introduced in order to deal particularly with the situation in Italy, which was at that time the only country with inadequate stocks of skimmed-milk powder, obliging traders to have recourse to importation and thus subjecting them, under the general rules, to the difficulties inherent in the administrative delays in paying aid in Italy .

12 . The result of the two sets of rules taken together is that, in general, the amount of the aid is to be calculated at the time of processing or denaturing - and not the time of purchase or any other earlier event - in the following cases :

purchase in the trader' s own country;

purchase by the trader in another Member State when the amount of aid applicable at the time of processing was greater than that applicable at the time of export .

13 . Other special arrangements were laid down to govern the case - and that is what concerns us here - of powdered milk being transferred from an intervention agency in one Member State to the Italian intervention agency in order to compensate for the absence of stocks in Italy . It was Regulation No 516/80, as amended by Regulation No 1146/80 of 7 May 1980, ( 10 ) which defined in relation to the transaction at issue here the conditions in which the Italian agency was to sell the milk made available to it .

14 . Article 3a of Regulation No 516/80 refers generally to the provisions of Commission Regulation No 2213/76 of 10 September 1976 ( 11 ( as last amended by Regulation No 90/80 of 17 January 1980 ( 12 )) which lays down the general rules applicable to the sale of skimmed-milk powder from public storage, in particular as regards prices .

15 . In addition to that, Article 3a lays down a number of special conditions, including ( paragraph 3 ) one to the effect that "at the time of payment of the purchase price, that price shall be reduced by the amount of the aid referred to in Article 10 of Regulation ( EEC ) No 804/68 ".

16 . The purpose and the extent of that reduction is what lies, ultimately, at the root of the dispute between the applicant and the defendant as regards this part of the application .

17 . The Italian Government maintains that the reduction pursuant to Article 10 of Regulation No 804/68 must incorporate the provisions governing its application, in particular that contained in Article 9*(1 ) of Regulation No 1725/79 - a rule which is in any case already expressly referred to in Article 3a*(1 ) ( in the same way as Regulation No 990/72, the predecessor to Regulation No 1725/79, was expressly referred to in Article 5 of Commission Regulation No 2972/76 of 7 December 1976 ( 13 ) laying down detailed rules for the application of earlier transfers to the Italian intervention agency ).

18 . For those reasons, since there had been an increase in the amount of aid between the time of sale and that of processing the milk, the Italian intervention agency decided to pay traders the relevant difference in accordance with the procedure laid down in Article 8*(2 ) of Regulation No 1624/76 .

19 . The Commission did not accept that interpretation, and refused to charge the difference to the EAGGF on the ground that the amount of aid payable was simply that applicable on the day on which the contract of sale was concluded .

20 . The Commission maintains that in the absence of an express exemption, that is the natural consequence of the application of the principle tempus regit actum .

21 . The Commission also maintains that since the detailed rules for granting and paying the aid vary according to the way in which the purchase was made ( purchase on the open market, purchase on the open market with denaturing or processing in the territory of another Member State and purchase from intervention agencies ), the reduction afforded by Article 10 cannot include all the rules adopted in order to implement it . It cannot, in particular, embrace the special case which is sub judice of purchases by traders from the intervention agency in their own country of skimmed-milk powder coming from intervention stocks in another Member State .

22 . I cannot endorse the Commission' s interpretation .

23 . In the first place, I consider - as does the Italian Government - that since Article 10 of Regulation No 804/68 fixes directly neither the amount nor the detailed rules and conditions for granting the aid to which it refers, the aid can only be determined in accordance with the rules for implementing it provided for in Article 10*(2 ) and ( 3 ) which are, moreover, referred to in paragraph 10*(1 ).

24 . As we have seen, however, the general rule for determining the amount of the aid is the one which requires the amounts applicable on the date of processing or denaturing to be taken into account .

25 . Now there is not a trace of any legal provision applicable to sales, by an intervention agency, of milk transferred to it from another intervention agency, which indicates clearly that in such cases that general rule does not apply . Regulation No 516/80 contains no such provision, nor do any of the others which govern such transfers .

26 . The rules of good interpretation would therefore seem to require in such a case the application in principle of the common rules governing the determination of the amount of the aid, and not the application of an exception for which, as regards the case in hand, no clear support is to be found in any of the legal texts .

27 . By contrast, the Commission' s argument ( referred to in the Summary Report on the clearance of the EAGGF accounts ) concerning the absence of a provision corresponding to that which appears in Article 8 of Regulation No 1624/76, providing for identical rules to govern transfers of milk between intervention agencies, cannot be valid .

28 . In the case of the exceptional rules for early payment by the consignor Member State provided for in Article 2 of that regulation, it was necessary ( even if that was not the sole purpose of the provision ) to state which intervention agency was to pay the difference in the amount of the aid and on what conditions, given that the processing took place in another Member State . Article 8*(2 ) describes those rules in terms which indicate, moreover, that the legislature regarded payment of the difference as being based on other, earlier, provisions, in particular Regulation No 990/72, to which it expressly refers .

29 . The application of the general rule tempus regit actum should not affect the interpretation which has just emerged : we are not concerned here with the application of any rule which came into existence after the act of purchase, but with the determination and interpretation of a group of rules which were already in existence and in force at that time and which require a date subsequent to the purchase to be taken into account for fixing the amount of the aid .

30 . Nor do I consider that it can be challenged ( see the Summary Report ) on the basis of Article 1*(2)*(b ) of Regulation No 1725/79 : "The skimmed milk and skimmed-milk powder ... may qualify for aid only if ... they have not qualified and are not likely to qualify for aid or a reduction in prices by virtue of other Community provisions ". One cannot rely on that provision when what is to be determined is only the final amount of the same aid, in accordance with the provisions of that regulation .

31 . Similarly, the reference made by the Commission, in its reply to the questions put by the Court, to the special conditions of sale laid down in Commission Regulations Nos 368/77 of 23 February 1977 ( 14 ) and 443/77 of 2 March 1977 ( 15 ) does not appear to me to be relevant; those regulations laid down special conditions of sale and price-fixing ( sale by tender and sale at a fixed price respectively ) and cannot, in my opinion, serve to support any argument regarding the mode of calculating the amount of the aid, when such aid is payable .

32 . The fact is that in the case of sale by tender the sale is made at a very reduced price so that it is not necessary, in order to make the product competitive and ensure its disposal on the market, to grant the aid provided for in Article 10 of Regulation No 804/68 ( fifth recital in the preamble and Article 19*(b ) of Regulation No 368/77 ); as regards the conditions governing sale at a fixed price, Regulation No 443/77 states that the price must be fixed in such a way as to give priority to sale by tender ( second recital in the preamble ) and stipulates that the sales to which it refers must be governed by, inter alia, Article 19 of Regulation No 368/77 which provides that aid is not payable .

33 . Were there not, however, - as the Commission alleges - sufficiently strong reasons to justify abandoning the application of the general rule in this case?

34 . In connection with that argument, the Commission refers to a number of economic considerations which, in its view, justify a different approach .

35 . In particular, the Commission draws attention to the fact that where traders purchase from the Italian intervention agency milk coming from intervention in another Member State, they do not have to bear the costs of transporting the milk to Italy, as they do when purchases are made under the provisions of Regulation No 1624/76 .

36 . Secondly, again according to the Commission, traders benefit in that case from immediate payment of the aid whereas under Regulation No 1725/79 they must first pay the full price and await the time of processing in order to be able, not in fact to receive, but to apply for the aid .

37 . Finally, ( and this argument is relied on solely in the Summary Report ) the Commission referred to the fact that only under the system introduced by Regulation No 1624/76 is there a fixed period within which processing must be carried out ( six months after completion of the customs formalities ), whereas in the case of transfers between intervention agencies traders are free to choose the best moment for processing in order to receive the highest level of aid .

38 . In my view those considerations are not capable of invalidating the conclusions I have reached concerning the interpretation of the existing rules . Since there is no provision which clearly supports the approach favoured by the Commission, I do not regard the arguments adduced by it as sufficiently strong to support it, in the light of an interpretation based on the logic and equilibrium of the rules in force .

39 . I am not swayed by the consideration that if the purchases had been made from the Italian intervention agency otherwise than in connection with transfers from other intervention agencies or if they were made on the open market in Italy, the amount of aid applicable would be that applicable on the day of processing, even if transport costs had not been incurred . It may be said, as the Commission pointed out, that that difference in treatment is a corollary of the traders' option to choose between various ways of purchasing, each having its own advantages and disadvantages .

40 . That argument can in fact serve to support the opposite conclusion that the system challenged is not the same as the others and may entail advantages not conferred by others or avoid disadvantages which others do not .

41 . What cannot be overlooked, however, is the discrimination which exists between Italian traders and traders in other Member States who purchase from their own intervention agencies . The latter receive the amount of aid applicable on the day of processing; the former receive only the amount of aid applicable on the day of purchase, and are thus penalized by comparison with all the others .

42 . Now, I do not consider such discrimination acceptable, at least when it is the consequence, as it is here, of a derogation from the general rules not expressly intended by the legislature .

43 . In addition, I do not support the argument that Italy had benefited sufficiently from the special rules designed to compensate for the structural deficiencies traditionally to be found there : the rules in question also serve the interests of other Member States, enabling them to dispose of surpluses, as is stated in the first and second recitals in the preamble to Regulation No 1763/78, and that is sufficient to separate the question of transport costs ( which is governed by Community rules ) from that of the amount of the aid .

44 . On the other hand, the fact that Italian traders benefit from receiving the larger part of the aid before they undertake processing is also evident in the provisions of Regulation No 1624/76, in which it is also provided that payment must be made of the difference between the amount paid and that applicable at the time of processing .

45 . Lastly, as the Italian Government pointed out, Article 3 of Commission Regulation No 3314/80 of 19 December 1980, 4 amending Regulation No 516/80, fixed a period of 60 days for denaturing or processing the milk ( see also Article 9 of that regulation ).

46 . Since it has not been shown, therefore, that there was any reason to abandon the general rules when calculating the amount of the aid - which would, moreover, entail discrimination between traders in different Member States - I am of the opinion that Decisions 85/459/EEC and 85/460/EEC of the Commission must be declared void in so far as they refuse to charge to the EAGGF expenditure amounting to LIT*655*750 and 677*198*690 respectively, in connection with aid granted for skimmed-milk powder .

B - Aid for olive oil consumption

47 . In this connection, the applications for annulment concern decisions not to charge to the EAGGF amounts corresponding to aid paid to undertakings which, in their own country, have been charged in criminal or administrative proceedings with wrongfully receiving payment of aid . The Commission' s decisions were based not only on the fact that the irregularities had not been communicated to it ( as required by Council Regulation No 283/72 of 7 February 1972 ( 16 )) but also on the fact that the national checks were not carried out until after the expiry of the period ( 150 days ) of validity of the security which - according to the combined provisions of Article 8 of Council Regulation No 3089/78 of 19 December 1978 ( 17 ) and Articles 10 and 11 of Commission Regulation No 557/79 of 23 March 1979 ( 18 ) ( Articles 9 and 11 of Regulation No 3172/80 of 5 December 1980, as from December 1980 ( 19 )) - served as a guarantee for the advance payment of the aid applied for, thus making it impossible to recuperate by means of that security the sums wrongfully paid, even if the irregularities were discovered in the course of those checks .

48 . In my view, each of those aspects of the conduct of the Italian authorities is sufficient to justify refusal to charge the expenditure in question to the EAGGF, since that expenditure was not incurred in accordance with the Community rules ( Article 3 of Regulation No 729/70 of 21 April 1970 ( 20 )).

49 . The Italian Government asserted that it had carried out numerous checks but that the irregularities were only discovered after those checks . Asked by the Commission to explain how the irregularities came to be discovered after the checks, the Italian Government merely stated that they might have been discovered as a result of other checks, but no positive proof has been adduced in these proceedings to show that the requisite controls were carried out in due time . It appears that the only checks made were fiscal ones, carried out long after the transactions were completed .

50 . In addition, the Italian Government claims that there is no justification for refusing finance before the criminal and administrative proceedings have been concluded, since only then can it be determined whether or not there were irregularities . That argument is irrelevant for the purposes of financing by the EAGGF in view of Article 8*(2 ) of Regulation No 729/70, which provides that "in the absence of total recovery, the financial consequences of irregularities or negligence shall be borne by the Community with the exception of the consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States" ( the emphasis is mine ).

51 . Since it is the Italian administrative authorities who are responsible for not having carried out the checks within the period of validity of the securities, and who are thus responsible for the financial consequences thereof, they must bear the expenditure which has not been recovered .

52 . In addition, the provisions regarding the checks to be carried out by the Member States and notification to the Commission of any irregularities found to exist ( Article 8*(1 ) of Regulation No 729/70, Article 3 of Regulation No 283/72, Articles 7 and 8 of Regulation No 3089/78, Article 12 of Regulation No 557/79 ) are sufficiently clear for there to be no doubt as to the obligations they impose on the Member States .

53 . The Commission also pointed out that it only excluded from financing cases where there was a total absence of checks, other than negative ones, pointing out that many of the checks not carried out within the appropriate time became impossible to make subsequently for various reasons ( cessation of business, missing accounts, etc .). As regards the other checks, the Commission accepted those carried out even after the 150-day period prescribed for them and after the securities had lapsed ( the Italian Government having extended their period of validity often up to as much as 10 months ), provided that they did not reveal any irregularity .

54 . In the alternative, the Italian Government claims that the exclusion from financing by the EAGGF of the relevant aid should be restricted to the aid connected with the alleged irregularities, that is to say : LIT*597*899*016 for 1980 and LIT*1*268*602*210 for 1981 . The adjustments to the initial amounts are set out in the annex to a letter received by the EAGGF on 28 May 1985 ( Annex 8 to the application ), and meet, in the view of the Italian Government, the criteria approved by the Commission .

55 . However, the latter accepted only the figures supplied in a letter of 28 November 1984 ( Annex 2 to the defence ), since the table dated 28 May 1985 proved to be unusable because it merely contained a list of the pending criminal and administrative proceedings, which differed from previous lists annexed by the Italian authorities to another letter dated 2 March 1985 .

56 . An examination of the letter of 28 May 1985 ( which was sent to the Commission after the expiry of the period within which documents relating to the 1981 financial year should have been submitted ) reveals that it does not contain, in a satisfactory form, the necessary information regarding the items to be cleared, being restricted in fact to a list of undertakings involved in criminal and administrative proceedings . Moreover, the table it supplied bears not the slightest resemblance to the information requested by the Commission in its letter of 5 March 1984 ( Annex 1 to the defence ), contrary to what was stated in the letter sent by the Italian authorities on 28 November 1984 . It was therefore entirely understandable that the decision concerning the clearance of the accounts took no account of the figures contained in that letter, particularly in view of the fact that the Commission called attention once again, in a letter dated 5 March 1984, to the fact that the periods prescribed for effecting the checks were binding, and not merely indicative .

57 . In other words, the Italian Government had adequate opportunity during the procedure for clearing the accounts to put forward its views; it has not succeeded, however, in proving that the figures used by the Commission were inaccurate .

58 . On those grounds, I am of the opinion that the applications must be dismissed in so far as they concern aid for olive oil consumption, so that there are no grounds for declaring the decision definitively void in that respect or for re-examining it in the light of any factors which were not sufficiently taken into account .

C - Financial compensation connected with market withdrawal of fishery products

59 . The third part of the applications concerns the entire expenditure declared to the EAGGF by two producers' organizations : Domar of Porto Garibaldi and San Marco of Chioggia .

60 . In the case of Domar ( Cases 342 and 343/85 ) both its management and the members of the local control committee responsible for checking that fishery products had actually been withdrawn from the market were charged with fraud on the ground that they had unlawfully obtained or attempted to obtain the Community aid available for the withdrawal from the market of fishery products between 1978 and 1982 . On that ground, and in view of the total absence of valid checks on the transactions in question, the Commission refused to allow the expenditure declared by Domar . However, the Italian Government maintains that the expenditure in question must be borne by the EAGGF, because the Italian administration cannot be held responsible for the wrongful conduct, if any, of the persons appointed to carry out the checks, and because, as the criminal proceedings are still in progress, the extent of the irregularities or negligence has not yet been established .

61 . That argument cannot be accepted, however .

62 . Article 8*(2 ) of Regulation No 729/70 provides that the financial consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States must be borne by them . In addition to that, there is a specific provision applicable to the subject-matter in question here, Article 8 of Regulation No 2062/80 of 31 July 1980, ( 21 ) which provides as follows : "The Member States shall exercise continuous supervision of the operation of recognized producers' organizations and associations, with particular regard to the application of Article 4 of Regulation ( EEC ) No 105/76 and Article 5 of this regulation ".

63 . In these proceedings the Italian Government has not denied the absence of checks within the prescribed period; the alleged fraud was, moreover, detected and reported by the Italian fiscal authorities and it is presumed that the control bodies themselves participated in it .

64 . The resulting irregularities cannot but be imputed to the Member State in question, in accordance with the obligations imposed by Community law .

65 . The absence of checks is, therefore, the sole and direct cause of the aid paid and not recovered by the Italian State and it is irrelevant to the issue here ( the financial consequences of the irregularities ) whether the Italian administration was partly responsible ( as it probably was ).

66 . Similarly, there is no justification for provisionally accepting the expenditure pending the conclusion of the relevant legal proceedings, as the Italian Government sought to maintain in the alternative . The purpose of those proceedings is to determine the criminal liability of the accused for the alleged unlawful conduct; they therefore entail specific requirements and are based on premises very different from those connected with establishing the existence of an irregularity in connection with the procedure for clearing the EAGGF accounts .

67 . As regards the latter procedure, the Commission has information communicated to it by the Italian administrative authorities which includes a reference to the fact that those alleged to be responsible were being held in preventive detention .

68 . In addition, the Commission alleges that its officials found it impossible to obtain from Domar, in the course of an inspection, further information, which could not be disclosed while the matter was sub judice .

69 . The Commission also pointed out that it was unlikely that Domar had fulfilled all the obligations which are imposed on producers' organizations, in which case, according to the case-law of this Court,*(22 ) its expenditure could not be financed by the EAGGF . I need not devote much time to that argument, which in my view was not adequately enlarged on in the course of the proceedings; I will say, however, that the irregularities attributed to Domar' s management are of a kind which it is difficult to reconcile with the obligations imposed by Community law as a condition for recognition of producers' organizations in accordance with Council Regulation No 105/76 of 19 January 1976 ( 23 ) and Regulation No 2062/80 of 31 July 1980 .

70 . In the case of San Marco, a subsidiary of Domar, an inspection carried out by staff of the EAGGF in July 1984 ( Annex VI to the defence ) revealed that it did not operate as a genuine producers' organization, being restricted, at most, to making market withdrawals . Consequently, the Commission refused to finance the expenditure declared by San Marco .

71 . In my view its decision cannot be challenged . It is abundantly clear from the report made by the officials who inspected San Marco that it was more or less a phantom organization having virtually none of the functions attributed to producers' organizations under the common agricultural policy by Article 5 of Regulation No 100/76 of 19 January 1976, ( 24 ) subsequently replaced by Regulation No 3796/81 of 29 December 1981, ( 25 ) and by Article 5 of Regulation No 2062/80 . In particular, members of the Commission' s staff ascertained that San Marco had no staff, no offices and no warehouses or any other facilities necessary for the normal running of a producers' organization .

72 . That is sufficient, given the terms of Article 3*(1 ) of Regulation No 729/70, to exclude EAGGF financing for any expenditure incurred by that organization ( see the judgments cited above, paragraph 21 ).

73 . In addition, Article 8 of Regulation No 2062/80 provides, as I have said, that the Italian State has a duty to effect permanent checks on the functioning of producers' organizations, something which in this case it is abundantly clear it never did, particularly as the checks were required to be carried out by the same committee whose members were incarcerated on discovery of the irregularities found to exist in connection with Domar .

74 . The Italian Government refers to a report produced by the Ministry of the Mercantile Marine ( Annex 9 to the application ) confirming the existence of irregularities, but asserting that they could be dealt with quickly; but that is not a sufficient ground for re-examining the question .

75 . San Marco could only be converted into a genuine producers' organization ex nunc, which would not be sufficient to wipe out irregularities committed in the past or to compensate for the absence of checks already established . There can therefore be no question of financing being provided by the EAGGF for the expenditure declared by San Marco for the period in question, 1981 .

76 . I conclude that the application must be dismissed in that regard .

D - The monetary compensatory amounts relating to intra-Community trade

77 . In Case 343/85 ( concerning 1981 ) the Italian Government also seeks to have the decision it challenged amended "at this stage in the proceedings", or at least suspended pending judgment in Cases 244 and 245/85, in so far as it charges to Italy the monetary compensatory amounts in intra-Community trade not covered by the EAGGF in connection with certain import and export transactions involving durum wheat and wheatmeal .

78 . Those cases concern applications brought by the two Italian undertakings who engaged in those transactions challenging a Commission decision of 22 March 1985 rejecting a request by the Italian authorities for a reduction in the monetary compensatory amounts concerned in this case pursuant to Article 13*(1 ) of Council Regulation No 1430/79 of 2 July 1979 . ( 26 )

79 . I concur with the Commission' s view that this part of the application is without purpose, since the last paragraph in the preamble to the decision regarding the clearance of accounts challenged in this action ( Annex 2 to the application ) already contains a general reservation to the effect that the decision will not prejudice the consequences which may be attached to judgments of the Court of Justice in the cases which are pending on the subject-matter in question .

80 . In any event, the Court delivered its judgment in Cases 244 and 245/85 on 12 March 1987 .

81 . Not only did it reject the applicants' argument based on the alleged unlawfulness of an earlier Commission decision ( not challenged ) which held that Article 20 of Regulation No 1371/81 did not apply and therefore that they were liable to pay the monetary compensatory amounts on the transactions in question, but it dismissed the application on the ground that the conditions referred to in Article 13*(1 ) of Regulation No 1430/79 for a reduction in those amounts were not satisfied .

82 . Since the undertakings in question were liable to pay those amounts, the Italian Government' s request, which was in any case a provisional one, is unfounded, and in any case it did not challenge any of the earlier decisions of the Commission on which, naturally, the decision regarding clearance of accounts was based .

83 . The Italian Government stated at the hearing that an action against the Italian administration lodged by the undertakings in question was pending before the courts in Naples; but that in no way affects the outcome I have envisaged for the application made in these proceedings . The action is an independent one which cannot influence, at least at this stage, the procedure for clearing the EAGGF accounts for 1981; it may at most affect the clearance of accounts for subsequent financial years .

84 . III - I shall now comment briefly on some of the arguments vaguely referred to by Italy in the headings of its various claims . They include references to excess of powers, inadequate statement of reasons and breach of Article 8 of Regulation No 1723/72 of 26 July 1972 .

85 . There was not the slightest attempt to expand on them or to adduce proof in support of them throughout the procedure, and they must accordingly be regarded as manifestly unfounded .

86 . IV - On those grounds I am of the opinion that in Cases 342 and 343/85 the Court should declare void Commission Decision 85/459/EEC of 28 August 1985 in so far as it refuses to charge to the EAGGF the sum of LIT*655*570, and Commission Decision 85/460/EEC of the same date in so far as it refuses to charge to the EAGGF LIT*677*198*690, which sums represent expenditure incurred by way of aid for skimmed-milk powder to be used as animal feed .

87 . The remainder of both applications should be declared unfounded .

88 . Since each of the parties has partly failed in its submissions they must bear their own costs in accordance with Article 69*(3 ) of the Rules of Procedure .

(*) Translated from the Portuguese .

( 1 ) Official Journal, L 267, 9.10.1985, pp . 33 and 35 .

( 2 ) Official Journal, L 204, 28.7.1978, p.*8 .

( 3 ) Official Journal, L 58, 1.3.1980, p.*51 .

( 4 ) Official Journal, L 345, 20.12.1980, p.*12 .

( 5 ) Official Journal, English Special Edition 1968 ( I ), p.*176 .

( 6 ) Official Journal, English Special Edition 1968 ( I ), p.*260 .

( 7 ) Official Journal, L 199, 7.8.1979, p.*1 .

( 8 ) Official Journal, L 115, 17.5.1972, p.*1 .

( 9 ) Official Journal, L 180, 6.7.1976, p.*9 .

( 10 ) Official Journal, L 117, 8.5.1980, p.*18 .

( 11 ) Official Journal, L 249, 11.9.1976, p.*6 .

( 12 ) Official Journal, L 13, 18.1.1980, p.*15 .

( 13 ) Official Journal, L 339, 8.12.1976, p.*18 .

( 14 ) Official Journal, L 52, 24.2.1977, p.*19 .

( 15 ) Official Journal, L 58, 3.3.1977, p.*16 .

( 16 ) Official Journal, English Special Edition 1972 ( I ), p.*90 .

( 17 ) Official Journal, L 369, 29.12.1978, p.*12 .

( 18 ) Official Journal, L 73, 24.3.1979, p.*13 .

( 19 ) Official Journal, L 331, 9.12.1980, p.*27 .

( 20 ) Official Journal, English Special Edition 1970 ( I ), p.*218 .

( 21 ) Official Journal, L 200, 1.8.1980, p.*82 .

( 22 ) Judgments of 28 January 1986 in Cases 129 and 130/84 Italian Republic v Commission (( 1986 )) ECR 309, at p.*343 .

( 23 ) Official Journal, L 20, 28.1.1976, p.*39 .

( 24 ) Official Journal, L 20, 28.1.1976, p.*1 .

( 25 ) Official Journal, L 379, 31.12.1981, p.*1 .

( 26 ) Official Journal, L 175, 12.7.1979, p.*1 .