Riccardo Nencini v European Parliament.
Date: 2014-11-13
43. In that regard, it must be borne in mind that Article 73a of the Financial Regulation lays down a general rule providing for a limitation period for claims by the European Union of five years and referring, for the fixing of the date to be used to calculate that period, to the detailed implementing rules which, by virtue of Article 183 of that regulation, it is for the Commission to establish.
44. It follows from those provisions, firstly, that Article 73a of the Financial Regulation cannot be relied on alone, without its implementing rules, to establish that recovery of a debt owed to the European Union is time-barred.
45. Secondly, in so laying down a general rule providing for a limitation period of five years, the EU legislature took the view that such a period was sufficient to protect the debtor’s interests in the light of the requirements of the principles of legal certainty and legitimate expectations, and to enable the EU bodies to obtain reimbursement of sums unduly paid. As the Advocate General noted in point 50 of his Opinion, Article 73a of the Financial Regulation is intended in particular to limit in time the possibility of recovering EU entitlements against third parties, in order to comply with the principle of sound financial management. The implementing rules thus laid down for Article 73a can be adopted only in compliance with those objectives.
46. In that regard, Article 85b of the Implementing Regulation sets the starting point for the limitation period as the deadline notified to the debtor in the debit note, that is to say, in the act by which the determination of the debt by the authorising officer is brought to the notice of the debtor and by which he is informed of the final date for payment, in accordance with Article 78 of the Implementing Regulation.
47. As the General Court pointed out in paragraph 45 of the judgment under appeal, it must nevertheless be noted that neither the Financial Regulation nor the Implementing Regulations specifies the period within which a debit note must be sent following the date of the origin of the debt in question.
48. That being the case, as was recalled in paragraph 44 of the judgment under appeal, where the applicable texts are silent, the principle of legal certainty requires the institution concerned to make that communication within a reasonable time. Failing that, the authorising officer, to whom falls the task of determining, in the debit note, the final date for payment which, pursuant to the very terms of Article 85b of the Implementing Regulation, constitutes the point from which time starts to run, would be able freely to set the date of that starting point without any connection to the point at which the debt in question arose, which, clearly, would run counter to the principle of legal certainty and the objective of Article 73a of the Financial Regulation.
49. In that regard, it must be accepted, having regard to Article 73a of the Financial Regulation, that the period in which a debit note is communicated must be presumed to be unreasonable where that communication takes place outside a period of five years from the point at which the institution was, in normal circumstances, in a position to claim its debt. Such a presumption cannot be overturned unless the institution in question establishes that, despite the efforts which it has made, the delay in acting was caused by the debtor’s conduct, particularly time-wasting manoeuvres or bad faith. In the absence of such proof, it must therefore be held that the institution has failed to fulfil the obligations on it under the reasonable period principle.