European Commission v Italian Republic.
Date: 2010-07-08
35. Under Article 17(1) and (2) of Regulation No 1150/2000, Member States are required to take all requisite measures to ensure that the amounts corresponding to the duties established under Article 2 thereof are made available to the Commission. Member States are to be free from that obligation solely if, for reasons of force majeure , those amounts could not be collected or if it appears that recovery is impossible in the long term for reasons which cannot be attributed to them (see, to that effect, Case C-392/02 Commission  v Denmark  [2005] ECR I‑9811, paragraph 66).
46. It follows from settled case-law that the concept of force majeure  must be understood, in general, in the sense of abnormal and unforeseeable circumstances, outside the control of the party relying thereupon, the consequences of which, in spite of the exercise of all due care, could not have been avoided (see, inter alia, Case 145/85 Denkavit België  [1987] ECR 565, paragraph 11; Case C-105/02 Commission  v Germany  [2006] ECR I-9659, paragraph 89; and Case C‑377/03 Commission  v Belgium  [2006] ECR I‑9733, paragraph 95).
50. Last, with regard to the Italian Republic’s obligation to make the amount corresponding to the established entitlements available to the Commission, it must be noted that, according to settled case-law, although an error committed by the customs authorities of a Member State leads to the non-recovery of the Union’s own resources, such an error does not affect that Member State’s obligation to pay the entitlements which have been established and default interest (see, to that effect, Case C-392/02 Commission  v Denmark , paragraph 63, and Case C-275/07 Commission  v Italy  [2009] ECR I‑2005, paragraph 100).
51. In those circumstances, a Member State which fails to establish the Union’s own resources and to make the corresponding amount available to the Commission, without any of the conditions laid down in Article 17(2) of Regulation No 1150/2000 being met, falls short of its obligations under European Union law, in particular Articles 2 and 8 of Decision 2000/597 (Case C-19/05 Commission  v Denmark  [2007] ECR I‑8597, paragraph 32).
53. Under the fourth paragraph of Article 40 of the Statute of the Court of Justice, an application to intervene is to be limited to supporting the form of order sought by one of the parties.
54. Similarly, Article 93(5) of the Rules of Procedure provides, inter alia, that the statement in intervention is to contain the pleas in law and arguments relied on by the intervener.
55. While arguing, like the Italian Republic, that the Commission’s action should be dismissed, the Federal Republic of Germany puts forward a ground of defence in its statement in intervention additional to those on which Italy based its arguments. Therefore, by proceeding in that way, the Federal Republic of Germany has not disregarded the abovementioned provisions of the Statute and of the Rules of Procedure of the Court of Justice (see, to that effect, Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg  v High Authority  [1961] ECR 1 and Case C-501/00 Spain  v Commission  [2004] ECR I‑6717, paragraphs 131 to 157).
60. According to settled case-law, procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (see, in particular, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others  [1981] ECR 2735, paragraph 9, and Joined Cases C‑361/02 and C-362/02 Tsapalos and Diamantakis  [2004] ECR I‑6405, paragraph 19).
61. Article 17(2) of the amended Regulation No 1150/2000 establishes a new procedure enabling a Member State’s administrative authorities either to declare certain amounts of established entitlements irrecoverable or to consider the amounts of established entitlements to be deemed irrecoverable at the latest after a period of five years from the date on which the amount has been established. Those amounts are finally withdrawn from the B account and, subject to the Commission’s rejection of the reasons relied upon by the Member States based on force majeure  or other reasons which cannot be attributed to them, the Member States are released from the obligation to place those amounts at the disposal of the Commission.
66. Article 6(1) of Regulation No 1150/2000 provides that each Member State is to keep an own resources account with its Treasury or with the body appointed by it. Under Article 6(3)(a) and (b) of that regulation, Member States are obliged to include in the A account the entitlements established in accordance with Article 2 of that regulation, at the latest on the first working day after the 19th day of the second month following the month during which the entitlement was established, without prejudice to the option of entering in the B account, within the same prescribed period, the established entitlements which have ‘not yet been recovered’ and for which ‘no security has been provided’, and also entitlements established and ‘for which security has been provided [and which] have been challenged and might, upon settlement of the disputes which have arisen, be subject to change’ (see, to that effect, Commission  v Germany , paragraph 74).
75. As to the infringement of Article 10 EC, also relied on by the Commission, it is sufficient to point out that there are no grounds for holding that there has been a failure to fulfil the general obligations contained in that article which is separate from the established failure to fulfil the more specific obligations by which the Italian Republic was bound under Article 8 of Decision No 2000/597 and Articles 2, 6, 10, 11 and 17 of Regulation No 1150/2000 (see, to that effect, Case C-19/05 Commission  v Denmark , paragraph 36).