Commission of the European Communities v Italian Republic.
Date: 2003-06-12
21.  In that connection, the Court has held that, in the context of proceedings under Article 226 EC, the existence of an infringement must be assessed in the light of the Community legislation in force at the close of the period prescribed by the Commission for the Member State concerned to comply with its reasoned opinion (Case C-61/94   Commission   v   Germany   [1996] ECR I-3989, paragraph 42, and Case C-365/97   Commission   v   Italy   [1999] ECR I-7773, paragraph 32).
22.  Thus, although the claims as stated in the application cannot in principle be extended beyond the infringements alleged in the operative part of the reasoned opinion and in the letter of formal notice, it is none the less true that, where Community law is amended during the course of the pre-litigation procedure, the Commission has standing to seek a declaration that a Member State has failed to fulfil obligations which were created in the initial version of a Community measure, subsequently amended or repealed, and which were maintained in force under the new provisions.  Conversely, the subject-matter of the dispute cannot be extended to obligations arising under new provisions which do not correspond to those arising under the initial version of the measure concerned, as otherwise it would constitute a breach of the essential procedural requirements of infringement proceedings (see   Commission   v   Italy  , cited above, paragraphs 36 and 39).
23.  In the present case, it is not disputed that the obligations arising under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1150/2000 were already applicable under Article 9(1), the first subparagraph of Article 10(3) and Article 11 of Regulation No 1552/89.
42.  It is clear from Article 9(1) and the first subparagraph of Article 10(3) of Regulation No 1150/2000 that the own resources owed must be credited to the account opened for that purpose in the name of the Commission at the latest by the first working day of each month and therefore be directly and actually available to the Commission from that date, which was not the case here.
43.  Accordingly, it must be pointed out that the Court has consistently held (see, in particular, Case 68/88   Commission   v   Greece   [1989] ECR 2965, paragraph 17, and Case C-96/89   Commission   v   Netherlands   [1991] ECR I-2461, paragraph 38) that there is an inseparable link between the obligation to establish the Communities' own resources, the obligation to credit them to the Commission's account within the prescribed time-limit and the obligation to pay default interest.
44.  The default interest provided for by Article 11 of Regulation No 1150/2000 is payable in respect of   "any delay"  , regardless of the reason for the delay in making the entry in the Commission's account (see, in particular,   Commission   v   Italy  , paragraph 12, and Case C-359/97   Commission   v   United Kingdom   [2000] ECR I-6355, paragraph 78).
45.  Contrary to the Italian Government's contention, it follows, on the one hand, that no distinction may be made between where delay is due to a clerical error and where it is due to an error in law and, on the other, that the unintentional nature of the delay in making the entry cannot eliminate the obligation to pay default interest (see, to that effect, Case 93/85   Commission   v   United Kingdom   [1986] ECR 4011, paragraphs 34 and 37).
46.  Similarly, the fact that the outstanding amount was entered with a value date of 30 May 1996 when crediting account No 414/23200 is of no relevance in that regard.  As the Commission rightly pointed out, such retroactive rectifications not only serve no purpose in a financial context characterised by the use of non-interest bearing accounts, but to accept them would moreover deprive the obligation to pay default interest of all practical effectiveness.
47.  As to the Italian Government's argument that the Commission was not adversely affected, it need merely be pointed out that failure by a Member State to fulfil an obligation imposed by a rule of Community law is sufficient to constitute a breach of Treaty obligations and the fact that the failure had no adverse effects is irrelevant (see Case C-150/97   Commission   v   Portugal   [1999] ECR I-259, paragraph 22, and Case C-348/97   Commission   v   Germany   [2000] ECR I-4429, paragraph 62), as is the view that it gave the Member State concerned no advantage.