CELEX: C2000/122/14
Language: en
Date: 2000-04-29 00:00:00
Title: Case C-15/00: Action brought on 19 January 2000 by Commission of the European Communities against European Investment Bank

29.4.2000              EN                    Official Journal of the European Communities                                     C 122/9
Regulation (EC) No 1073/1999 is applicable to the ECB. The              19 January 2000 by Commission of the European Communi-
European Central Bank (ECB) was established by the EC Treaty            ties, represented by Christiaan Timmermans, Assistant Director
and, subject always to its special statute, constitutes a body of       General of the Legal Service, Hans Peter Hartvig and Ulrich
the Community. The independence claimed by the ECB is                   Wölker, Legal Advisers, acting as Agents, with an address for
merely functional and restricted to the accomplishment of its           service in Luxembourg at the office of Carlos Gómez de la
particular tasks under the Treaty and the Statute of the                Cruz, of its Legal Service, Wagner Centre, Kirchberg.
European System of Central Banks (ESCB). The protection of
the Community’s financial interests may have a wider scope
than the protection of the Community budget, since it extends           The applicant claims that the Court should:
to ‘budgets managed’ by the Communities, such as the
European Development Fund (EDF), and to the budgets of the
decentralised Community organisations which are separate                — annul the decision of the Management Committee of
from the general budget of the Communities and of which                      the European Investment Bank on cooperation with the
some are moreover increased by own revenue. Accordingly,                     European Anti-Fraud Office (OLAF) (1);
the fact that the ECB has its own budget and its own financial
resources does not preclude the application to the ECB of the
measures adopted under Article 280(4) of the EC Treaty, such            — order the European Investment Bank to pay the costs.
as Regulation (EC) No 1073/1999. Even if the distinction
between, on the one hand, the budget of the European
Communities and, on the other, the budget of the ECB and its
own resources were relevant, the ECB would still not fall
outside the scope of the aforementioned regulation, since it            Pleas in law and main arguments
also manages budgetary resources of the Communities. In
point of fact, it levies the Community tax on the salaries and
wages of its directors and staff, and it manages borrowing and          This action has been brought under Article 237(b) EC and, in
lending transactions undertaken by the Communities pursuant             the alternative, under Article 230 EC, and claims in substance
to medium term financial support.                                       that Regulation (EC) No 1073/1999 of the European Parlia-
                                                                        ment and of the Council and Council Regulation (Euratom)
                                                                        No 1074/1999 concerning investigations conducted by the
The contested decision infringes Article 4 of Regulation (EC)
                                                                        European Anti-Fraud Office (OLAF) have been infringed.
No 1073/1999 inasmuch as:
— Article 2 thereof renders entirely nugatory the OLAF’s
     ability to conduct internal inquiries within the ECB               Regulations (EC) No 1073/1999 and (Euratom) No 1074/
                                                                        1999 are applicable to the European Investment Bank (EIB).
                                                                        The EIB was established by the EC Treaty and, subject always
— while it makes no provision for the implementation of the             to its special statute, constitutes a body of the Community.
     obligations under Article 4(6) of the regulation, it imposes       The independence claimed by the EIB is merely functional and
     in particular a duty on the officials of the bank to report        restricted to the accomplishment of its particular tasks under
     any fraud to the Directorate for Internal Audit and to the         the Treaty and its Statute. To date, the EIB has not been able
     antifraud committee set up by the decision but not a duty          to show in what way legislation adopted by the Council in the
     to do so to the OLAF.                                              field of anti-fraud measures would be likely to prevent or
                                                                        obstruct in concreto the EIB in carrying out its task. The
                                                                        protection of the Community’s financial interests may have a
(1) ECB/1999/5, OJ L 291 of 13.11.1999, p. 36.                          wider scope than the protection of the Community budget,
                                                                        since it extends to ‘budgets managed’ by the Communities,
                                                                        such as the European Development Fund (EDF), and to the
                                                                        budgets of the decentralised Community organisations which
                                                                        are separate from the general budget of the Communities,
                                                                        some of which are moreover increased by own revenue.
                                                                        Accordingly, the fact that the EIB has its own budget and its
                                                                        own financial resources does not preclude the application to
                                                                        the EIB of the measures adopted under Article 280(4) of the
Action brought on 19 January 2000 by Commission of                      EC Treaty, such as Regulation (EC) No 1073/1999. Even if the
the European Communities against European Investment                    scope of Article 280(4) were limited to just the financial
                              Bank                                      interests linked to the Community budget, it cannot be denied
                                                                        that Regulation No 1073/1999 must also apply to the EIB
                                                                        inasmuch as it also manages Community budgetary resources.
                          (Case C-15/00)                                In point of fact, it levies the Community tax on the salaries
                                                                        and wages of members of its bodies and of its staff and it
                         (2000/C 122/14)                                also manages Community budgetary resources under specific
                                                                        mandates; another example is the EIB’s management, on behalf
                                                                        of the Community, of risk capital and of interest subsidy
An action against European Investment Bank was brought                  or rebate financed from the resources of the European
before the Court of Justice of the European Communities on              Development Fund (EDF).
 ---pagebreak--- C 122/10                EN                   Official Journal of the European Communities                                          29.4.2000
The contested decision infringes Article 4 of Regulations               (c) For the purposes of applying Article 1(1)(2)(c) in conjunc-
1073/1999 and 1074/1999 inasmuch as:                                         tion with the second subparagraph of Article 2(1) of
                                                                             Council Regulation (EEC) No 1697/79 of 24 July 1979,
— it renders entirely nugatory the OLAF’s ability to conduct                 may a first act determining the amount of levies payable
     internal inquiries within the EIB and, furthermore, the                 be regarded as the end of the limitation period for
     application of Regulations 1073/1999 and 1074/1999 to                   post-clearance recovery proceedings or, on the contrary, is
     the EIB. Moreover, access by OLAF to the information held               the end of that period marked by the issue of a second act
     by the EIB must be authorised case by case by the President             revoking and replacing the first, giving a new amount for
     of the EIB who also decides the type of access to be                    the levies due?
     granted;
                                                                        (d) What meaning must be attributed to Article 254 of the
— by providing for no more than ‘assistance’ to OLAF in                      Treaty of Accession (2) where it imposes on the Portuguese
     anti-fraud efforts with regard to transactions carried out in           Republic the obligation to eliminate surplus stocks of
     relation to the EIB’s own resources it is creating a                    products and, in particular, to do so ‘at the expense of the
     distinction between the various sources of financing which              Portuguese Republic’?
     is incompatible with the protection of the ‘financial
     interests’ of the European Community;
                                                                        (e) Is the requirement imposed by the Portuguese Customs
                                                                             Authorities on holders of surplus sugar that they pay
— it does not constitute at all a sufficient measure                         the levies provided for in Regulation (EEC) No 579/86
     implementing the obligations under Article 4(6) of the                  (Article7(1)) in circumstances where the Portuguese Repub-
     abovementioned regulations.                                             lic had failed to take the measures necessary for the export
                                                                             thereof outside the Community compatible with the
                                                                             obligation laid down by Article 254 of the Treaty of
(1) Not published, communicated to the Commission by letter of
    16.11.1999.                                                              Accession, of which further details are given in the
                                                                             implementing regulations — Council Regulation (EEC)
                                                                             No 3771/85 of 20 December 1985 (3) (Article 8) and
                                                                             Commission Regulation (EEC) No 579/86 of 28 February
                                                                             1986 (4) (Articles 4 and 8)?
                                                                        (f) For the purposes of Article 5(2) of Council Regulation
                                                                             (EEC) No 1697/79 of 24 June 1979, must an incorrect
                                                                             estimate of sugar requirements for public supply of the
Reference for a preliminary ruling by the Supremo                            Autonomous Region of Madeira, which was based on an
Tribunal Administrativo, Second Chamber, by judgment                         import licence in which exemption from customs duties
of that court of 12 January 2000, in the case of William                     was granted in full awareness of Article 254 of the Treaty
           Hinton & Sons, Lda and Fazenda Pública                           of Accession and Council Regulation (EEC) No 3771/85,
                                                                             be regarded as a significant error?
                          (Case C-30/00)
                                                                        (g) For the purposes of Article 5(2) of Regulation (EEC)
                         (2000/C 122/15)                                     No 1697/79, must the successive errors of fact and of
                                                                             law committed by the competent Customs Authority in
                                                                             determining the amount payable be regarded as significant?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Second Chamber
of the Supremo Tribunal Administrativo (Supreme Adminis-                (h) If the previous two questions are answered in the affirm-
trative Court) of 12 January 2000, which was received at the                 ative, could the debtor reasonably detect such errors on
Court Registry on 4 February 2000, for a preliminary ruling in               the part of the competent customs authorities?
the case of William Hinton & Sons, Lda and Fazenda Pública,
on the following questions:
                                                                        (1) Council Regulation (EEC) No 1697/79 of 24 July 1979 on the
(a) Should it be inferred from Article 1(2)(c) of Council                   post-clearance recovery of import duties or export duties which
     Regulation (EEC) No 1697/79 of 24 July 1979(1) that,                   have not been required of the person liable for payment on goods
     when the legal act known as entry in the accounts has                  entered for a customs procedure involving the obligation to pay
     been carried out, that act must necessarily precede the                such duties — OJ 1979 L 197, p. 1.
     notification regarding recovery and actual recovery?               (2) OJ 1985 L 302.
                                                                        (3) Council Regulation (EEC) No 3771/85 of 20 December 1985 on
                                                                            stocks of agricultural products in Portugal (OJ 1985 L 362, p. 21).
(b) Should there be deemed to be a lack of any entry in the             (4) Commission Regulation (EEC) No 579/86 of 28 February 1986
     accounts, for the purposes of the second subparagraph of               laying down detailed rules relating to stocks of products in the
     Article 2(1) of Council Regulation (EEC) No 1697/79 of                 sugar sector in Spain and Portugal on 1 March 1986 (OJ 1986
     24 July 1979, when the purpose of the first measure by                 L 57 of 1.3.1986).
     which the Customs Authority enters the amount of levies
     in accounting records or the equivalent thereof is to record
     the recovery of those levies?