delivered on 4 November 1986 (*1)

Mr President,

Members of the Court,

2. Under the fifth subparagraph of Article 3 (1), the Communities are to refund to each Member State 10% of the amounts paid pursuant to Article 3 (1) in order to cover expense incurred in collection. Article 6 provides that the Community resources are to be collected by the Member States in accordance with national provisions imposed by law, regulation or administrative action, and that the Member States are to make those resources available to the Commission. Article 6 (2) states that the Council is to adopt provisions relating to how the revenue is to be made available to the Commission and to how it is to be paid.

3. On 19 December 1977 on the basis of that provision and Article 209 of the EEC Treaty (as amended by the Treaty amending certain financial provisions), according to which the Council is to determine the methods and procedure whereby the budget revenue provided under the arrangements relating to the Communities' own resources is to be made available to the Commission, and to determine the measures to be applied, if need be, to meet cash requirements, Council Regulation No 2891/77 (Official Journal 1977, L 336, p. 1) was adopted.

4. Article 9 of Regulation No 2891/77 provides that the amount of own resources established is to be credited by each Member State to the account opened for that purpose in the name of the Commission with its Treasury or with the body it has appointed.

5. Under Article 10 (1) the amount is to be credited at the latest by the 20th day of the second month following the month during which the entitlement was established (Article 2 of the regulation provides that an entitlement is to be deemed to be established as soon as the corresponding claim has been duly determined by the appropriate department or agency of the Member State). Furthermore, Article 10 (2) provides as follows (I shall quote its actual wording since it is of particular relevance to these proceedings) : ‘If necessary, Member States may be invited by the Commission to bring forward by one month the entering of resources other than VAT resources on the basis of the information available to them on the 15th of the same month.’

6. Article 11 is also relevant; it provides that any delay in making the entry in the account referred to in Article 9 (1) is to give rise to the payment of interest by the Member State concerned at a rate equal to the highest rate of discount ruling in the Member States on the due date. Fundamental to the United Kingdom's arguments are Article 12 (2) and (3), which read as follows : If the cash resource requirements are in excess of the assets of the accounts, the Commission may draw in excess of the total of these assets. In this event, it shall inform the Member States in advance of any foreseeable excess requirements.

7. Recourse was made to Article 10 (2) — apparently for the first time — in April 1983. In view of the evolution of expenditure, the Member States were invited, by a telex message of 28 April 1983, to credit the Commission's account with the revenue determined in the month of April by 20 May instead of by 20 June. According to the Commission, all Member States complied except for the United Kingdom, which did not credit the relevant amounts until one month later (that is to say, at the time when they would normally have been due).

8. When the Commission became aware that the United Kingdom had not complied with that invitation, it invited the United Kingdom once again, in a letter dated 31 May 1983, to pay as soon as possible the amount mentioned in the telex, and stated that the relevant provisions concerning delayed implementation — meaning Article 11 of Regulation No 2891/77 —would have to be applied. The Commission specified the consequences in a letter dated 8 July 1983: since the amount of UKL 115089307.99 (being the sum which was duly determined at 20 June 1983) was credited 31 days late, the Commission calculated the interest payable thereon (on the basis of the discount rate of the Bank of Greece of 20.5%) to be UKL 2003815.21 and asked the United Kingdom authorities to credit that sum as soon as possible to the Commission's account.

9. In a letter dated 30 June 1983, written in response to the first letter from the Commission, the United Kingdom Permanent Representation stated that it had not been possible to credit the amount in question in advance as the Commission had requested, owing to the dissolution of the United Kingdom Parliament announced on 9 May. (It must be added that it has become clear in the course of the proceedings that the United Kingdom did not question the Commission's right to request advance payment of own resources. In any event, it did not — and does not — regard Article 10 (2) of Regulation No 2891/77 as imposing a clear obligation on the Member States and considered therefore that it could not make such voluntary additional payments directly under the European Communities Act 1972, as the approval of Parliament was required. However, since Parliament was dissolved on 13 May 1983, a bill could not be prepared in time.)

10. In a letter dated 16 September 1983, written in response to the Commission's second letter, the United Kingdom refused to pay interest on the ground that Article 11 of Regulation No 2891/77 was not applicable to advance payments in the absence of a legal obligation.

11. That prompted the Commission to initiate the procedure provided for in Article 169 of the EEC Treaty. In a letter dated 6 January 1984 it pointed out that Regulation No 2891/77 was directly applicable in the Member States, which meant that the dissolution of the Parliament of the United Kingdom was not relevant as regards the application of the provisions of the regulation. The letter went on to state that Article 11 did apply to Article 10 (2) as well, and accordingly the United Kingdom authorities were requested to enter the amount of interest calculated by the Commission into the latter's account within two months.

12. Since the United Kingdom authorities stood by their point of view, as can be seen from the letter dated 26 March 1984, the Commission delivered a reasoned opinion on 20 September 1984. In that opinion the Commission stated, inter alia, that the United Kingdom authorities had entered the amount of UKL 115089307.99 into the Commission's account one month too late, as a result of which interest in the amount of UKL 2003815.21 was due, and the United Kingdom authorities were requested to take the necessary steps within two months.

13. Since the United Kingdom authorities adhered to their view that the Commission was misinterpreting Regulation No 2891/77 (see their letter of 26 November 1984) the Commission brought the matter before the Court of Justice. The Commission claimed that the Court should declare that, by failing to comply with the invitation addressed to it pursuant to the first subparagraph of Article 10 (2) of Council Regulation No 2891/77 and by refusing to pay interest pursuant to Article 11 of that regulation, the United Kingdom had failed to fulfil its obligations under the EEC Treaty.

B —14. My views on this matter are as follows.

(1)To begin with, some clarification is necessary with regard to the obligation to pay interest. The United Kingdom has pointed out that, according to the estimate on the basis of the figures available on 5 May 1983, the sum to be credited by way of advance under Article 10 (2) of Regulation No 2891/77 came to only UKL 111476741.48. Accordingly, if interest was due at all, it was payable only on that amount — making interest of UKL 1940910.39 — rather than on the definitive amount of UKL 115089307.99 credited on 20 June 1983.

15. The Commission has not denied this but expressly stated that if the amount estimated on 15 May 1983 had been notified to it, it would have calculated the amount of interest on that basis. As a result, the figures given in the Commission's reasoned opinion and in the grounds of its application must be rectified accordingly.

16. However, there are no further consequences for these proceedings since no figures are given in the Commission's actual conclusions. In any event, the United Kingdom takes the view that it cannot be required to pay interest at all, since Article 10 (2) of Regulation No 2891/77 does not create an obligation, and the claim for interest would be unjustified even if the Commission's interpretation of Article 10 (2) were held to be correct, since that would be established only by the Court's judgment in this case.

(2)It is already plain that the main point at issue in these proceedings is whether an invitation made by the Commission pursuant to Article 10 (2) of Regulation No 2891/77 actually implies for the Member States an obligation, noncompliance with which constitutes a failure to fulfil an obligation under the Treaty within the meaning of Article 169 (2) of the EEC Treaty.

(a)The Commission considers that that view is supported by the very fact that the provision at issue is part of the new system of own resources which are directly available to the Community and in respect of which the Member States' role is limited to that of collecting agents. More specifically (I shall consider the detailed arguments advanced by the Commission later) the Commission relies on the opening words of Article 10 (2), ‘If necessary’, which, in its view, are more important for the interpretation of the provision than the verb ‘invite’, which is used to describe the action of the Commission. It submits that the aim and intention of the provision is to enable its budget and cash resources to be managed efficiently. It also refers to the general scheme of the provision, in which Article 10 (1) and Article 12 (2) play an important role, and submits that the ‘useful effect’ argument lends support to the interpretation advocated by it.

(b)In contrast, the United Kingdom expressly opposes the idea that Article 10 (2) imposes an absolute obligation on the Member States. In its view, Member States approached under Article 10 (2) are simply called upon — on the basis of Article 5 of the EEC Treaty — to cooperate with the Commission, that is to say, once they are satisfied that an invitation is justified they should ‘use their best endeavours to respond affirmatively to it’. The United Kingdom bases that assessment (which therefore does not suggest that the Member States have an entire discretion as to whether they comply with the Commission's invitation or not) in particular on the verb used in Article 10 (2) to denote the Commission's action. In its view, none of the verbs used in any of the language versions can be regarded as sufficiently mandatory, especially in so far as financial obligations are involved. It considers that its interpretation is confirmed by a comparison with the wording used in the second paragraph of Article 175 of the EEC Treaty and, in addition, by the fact that the corresponding provision governing advances on future resources in Article 11 (2) of Regulation No 2/71 of the Council of 2 January 1971 implementing the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources is couched in manifestly more mandatory terms; other paragraphs of Article 10 of Regulation No 2891/77 likewise use more mandatory language to denote manifest obligations.

(c)Furthermore, it considers that the effectiveness of budgetary management is in no way threatened by its interpretation of Article 10 (2), for in any case, quite apart from the fact that it can count on the goodwill of the Member States — which was certainly not lacking in the United Kingdom in May 1983 — the Commission has an unlimited overdraft facility under Article 12 (2). Moreover, the amount and duration of its overdraft can be tailored precisely to requirements whereas Article 10 (2) only provides for amounts to be credited one month in advance and generally involves very substantial sums, which may not altogether be absolutely necessary.

21. (b) It must be observed first that the Commission is right to emphasize that the present system concerns not financial contributions, that is to say payments by the Member States, but revenue which belongs directly to the Community and which the Member States are merely empowered to collect (under Article 3 of the Decision of21 April 1970 they are to be paid certain amounts to cover the expense incurred in collection). That must always be borne in mind when interpreting the various provisions of Regulation No 2891/77. In principle, this certainly increases one's readiness to adopt a broad interpretation with regard to the Community's rights with respect to the manner in which its own resources are made available by the Member States.

22. In contrast, it must be said that the United Kingdom's basic approach to the issue involved in these proceedings seems questionable. Indeed, it is clearly incorrect to employ the term ‘additional payment’ in connection with Article 10 (2) of Regulation No 2891/77 (defence, page 5) and to invoke, with regard to such ‘financial obligations’ of the Member States, the constitutional principle of parliamentary approval for the use of public funds. Such an approach is manifestly not appropriate to the circumstances of this case and therefore cannot be taken into account in interpreting the relevant provisions.

23. (c) Since the United Kingdom's argument rests primarily on linguistic considerations in so far as it submits that the verb used in Article 10 (2) and the wording of that provision as a whole suggest that no absolute obligation is imposed on the Member States, we shall examine that aspect first.

24. (aa) Admittedly, it is certainly possible to conceive of plainer formulations to denote an obligation of the Member States than the expression actually employed in Article 10 (2), for example the straightforward statement of the type used in the French, Italian and Dutch versions of the corresponding provision in Article 11 (2) of Regulation No 2/71 (the French and Italian texts of which employ the more mandatory words ‘demande’ and ‘richiesta’ respectively) and in the provisions of Article 10 (1), (3) and (5) of Regulation No 2891/77 which are addressed directly to the Member States.

25. (bb) However, it must also be observed in this connection that, contrary to the view taken by the United Kingdom, not all the language versions of Article 10 (2) tend to militate against the idea of an obligation on the Member States. That is certainly true of the wording of the German version, since the term ‘ersuchen’ unquestionably covers an obligation on the part of the person to whom it is addressed (as can be seen, for instance, from paragraph 156 et seq. of the Gerichtsverfassungsgesetz [Law concerning the constitution of the courts] governing ‘Rechtshilfe ersuchen’ — letters rogatory. I am assured that the same also applies to the Greek version, in which the verb employed also expresses a mandatory instruction.

26. Furthermore, as far as the French and Danish versions are concerned, comparison with the wording used in Article 175 of the EEC Treaty is instructive (admittedly in another sense than that intended by the United Kingdom, which also relied on such a comparison for the purposes of its argument). Attention should be drawn to the fact that both of those language versions of the second paragraph of Article 175, which states that an institution must first be called upon to act before proceedings may be brought against it for failure to act, use the same verb as Article 10 (2) of Regulation No 2891/77. (1) That is significant, even though of course — as the United Kingdom has rightly stressed — to call upon an institution to act under the second paragraph of Article 175 does not create an obligation, because the idea behind Article 175 is that, in the view of the institution or Member State invoking that provision, the institution called upon to act must be under a duty to act. The fact that the terms which are used to explain that are also used in Article 10 (2) of Regulation No 2891/77 certainly lends support to the view that that article was also intended to express a legal obligation.

27. (cc) However, in so far as other language versions tend to suggest an interpretation which does not extend to a legal obligation on the part of the Member States, the fundamental point must be reiterated that philological arguments of this kind are necessarily of only limited value in determining the meaning of Community instruments, which cannot be drafted in the same way as national codifying provisions owing to the ever-growing number of languages employed (1951: 1; 1957: 4; 1972: 6; 1979: 7; 1985: 9) — a factor involved in the preparation of the regulation under consideration in this case. Instead, it is the meaning and intention of the provision and consideration of its general scheme that are of primary importance.

28. If that approach points to a particular interpretation (the present case will be examined from that point of view shortly), then the only question to be asked with regard to the linguistic aspect is whether that interpretation is also compatible with the wording, that is to say whether it is covered by the wording or conflicts with it. However, I am informed that it is most unlikely that the conclusion that there is a legal obligation on the Member States would conflict with the wording of any of the language versions; indeed none of the expressions used in the various language versions preclude from the outset the idea of a legal obligation on the Member States.

29. (d) If one then considers in detail the meaning and intention of the provision and its general scheme, it must be acknowledged, in my view, that the Commission's arguments are more persuasive.

30. (aa) It is important to remember that, under Community law, the Commission is responsible for the management of the Community budget and cash resources. If in a given situation the Commission considers that it is necessary to bring forward the entering of the Community's own resources in order to cover an urgent need (as referred to in the opening words of Article 10 (2), ‘If necessary’) and it informs the Member States that that is the case, it seems, in my opinion, simply unreasonable to allow the Member States, which have a less reliable insight into those matters, to lodge objections and to give them substantial rights to take part in the decision-making process regarding funds which are the property not of the Member States but of the Community.

31.

One immediate question is: What is a national parliament to consider in this context when it manifestly no longer has powers with regard to the Communities' own resources? Nor am I convinced by the argument that the Member States should at least have the opportunity to point out that the large sums involved under Article 10 (2) are not necessary and that, instead, a given situation might be tackled by recourse to Article 12 (2) (of which I shall have more to say later). In point of fact, it can certainly be assumed that the Commission will itself take this into consideration when considering what is required, and will not have recourse to Article 10 (2) in the event of relatively minor financial shortfalls.

32.(bb)

The immediate context of the provision is also relevant in so far as Article 10 (2) should be seen in conjunction with Article 10 (1) (according to which the amount of own resources established is to be credited automatically at the latest by the 20th day of the second month following the month during which the entitlement was established). Article 10 (2) can therefore be seen as being — as the Commission regards it — ancillary to Article 10 (1), and accordingly it can be assumed (since Member States have no right to take part in the decision-making process under Article 10 (1) either) that the powers of the Commission under Article 10 (2) must also be regarded as mandatory and not qualified and weakened as the United Kingdom suggests.

33.(cc)

Article 12 (2) of Regulation No 2891/77, which has just been mentioned and was quoted at the start of this opinion, is clearly of particular importance to the proper understanding of the provisions at issue. Unquestionably it gives the Commission an unconditional and unlimited facility to overdraw, where necessary, on its accounts with the central banks of the Member States, as even the United Kingdom acknowledges. In view of that extensive power — which, moreover, relates not to the Communities' own resources but constitutes recourse to national funds, as it were — it is not consistent or logical to maintain that only limited powers are conferred on the Commission by Article 10 (2), which deals simply with the advance entry of the Community's own resources, which already belong to it, and hence has less far-reaching implications.

In particular I find the United Kingdom's view of the context unconvincing; it also uses Article 12 (2) in its arguments, contending that in the event of the Member States resisting the application of Article 10 (2), Article 12 (2) would serve to avoid any financial problems for the Commission and that Article 10 (2) thus constitutes merely a secondary possibility. The very use of the expression ‘if necessary’ in Article 10 (2) militates against the relationship between the two provisions propounded by the United Kingdom and in favour of their being independent of each other, for it is hard to imagine a case of necessity in which the application of Article 12 (2) would be given priority if the Communities' finances were under strain. Furthermore, it is scarcely conceivable that the Community legislature intended to create a system in which recourse to overdrafts, which are problematical for the Community, was the norm and to give it precedence over bringing forward the payment of the Community's own resources. It is therefore much more logical to assume that each of the provisions has its own independent meaning — a view which is also supported by the fact that they form part of different titles of the regulation — that is to say, recourse to Article 10 (2) would, generally speaking, be contemplated in the case of a temporary deficit, whereas Article 12 (2) is designed to resolve relatively long-term structural problems, since it requires the Member States to be informed in advance and, moreover, does not provide for adjustment at a later date as in the case of the second subparagraph of Article 10 (2). That militates against one of the provisions (Article 10 (2)) being restrictively interpreted by reference to the other (Article 12 (2)), and suggests that, on the contrary, it would be appropriate for the two provisions to be given a parallel interpretation with regard to the scope of the Commission's powers.

35.(dd)

Finally, further support for the Commission's view may be derived from its arguments which concern the ‘useful effect’ (‘effet utile’) of the provision in question and demonstrate that the view put forward by the United Kingdom would lead to problems and difficulties which can scarcely have been intended or accepted by the legislature.

For instance, one objection to the United Kingdom's view that the Commission has to convince the Member States of the necessity of implementing Article 10 (2) and the Member States are then bound to use their best endeavours to respond affirmatively is that often when a need arises within the meaning of Article 10 (2) there is not much time for drawn-out discussions with the Member States with a view to convincing them (quite apart from the fact that, among other things, the national parliaments would have to be involved, which might lead to additional difficulties in the event of their being temporarily unable to act).

It is also relevant that no coordination procedure is laid down to ensure that the Member States adopt a common position. Consequently, the Commission's attempts to convince the Member States might lead to differing attitudes being taken. However, it would certainly not be desirable for the application of Article 10 (2) to have differing effects in the various Member States; for instance, if some Member States complied with the Commission's invitation, thus providing the funds required, with the result that it was not necessary to have recourse to Article 12 (2) as well, the Member States which had not responded to the Commission's invitation would enjoy an unfair advantage.

Another significant factor is that considerable problems would arise in the event that Member States' reactions differed and it was also necessary to invoke Article 12 (2). One reason is that Article 12 (2) stipulates that the Member States must be informed in advance, and there might not be sufficient time for that following the Commission's unsuccessful endeavours under Article 10 (2). Another reason is that since Article 12 contains no provision concerning the necessary adjustments in such situations, whilst Article 12 (3) — which, according to the Commission, is in any event very difficult to apply in practice — is manifestly designed for situations where a uniform approach can be taken to all Member States, it is difficult to see how proper account could be taken of advance crediting of own resources under that provision.

39.(e)

All the foregoing leads me to conclude that Article 10 (2) of Regulation No 2891/77 can be properly interpreted only as meaning that an invitation made by the Commission pursuant thereto entails an unconditional obligation on the Member States. As a result, it is clear that, since it failed to comply with the Commission's invitation of April 1983, the United Kingdom has infringed Community law within the meaning of Article 169 of the EEC Treaty by failing to comply with a directly applicable Community regulation.

40.(3)

The Commission also claims that the Court should declare that the United Kingdom wrongfully refused to pay interest under Article 11 of Regulation No 2891/77.

41.(a)

On the face of it, no problems appear to arise in connection with the necessary interpretation of the provision of Community law. The sole precondition is failure to effect the credit in due time (as was also emphasized in the Court's judgment in Case 303/84 (2)). If the Commission's invitation to bring forward the crediting of resources under Article 10 (2) creates an unconditional obligation for the Member States, noncompliance therewith is certainly covered by Article 11.

In any event, the objection raised by the United Kingdom to the effect that problems might arise because Article 11 does not stipulate a definite figure and the Commission calculated the interest in this case initially on the amount which the United Kingdom was finally obliged to pay cannot be accepted. Article 10 (2) concerns solely amounts estimated in advance. They can always be determined (although in this case the amount was not notified to the Commission until during the Court proceedings; it was then immediately acknowledged) and to calculate the interest thereon on the basis of Article 11 certainly entails no problems.

Furthermore, reservations cannot be entertained with regard to the application of Article 11 on the ground that the amount estimated pursuant to Article 10 (2) may in some cases prove to be higher than the definitive figure and that no interest is credited to the Member States in such cases, or on the ground that if the provisionally estimated amount is less than the definitive sum no interest is payable on the difference. Admittedly those circumstances may lead in individual cases to results which are not altogether fair. But that certainly cannot mean that there is no obligation to pay interest on sums provided for in Article 10 (2) and that consequently there is no means of exerting pressure on the Member States. In fact, in the long run rough equilibrium will be struck as the provision is applied in differing circumstances.

The United Kingdom further points to the lack of any right to interest where the provisional estimates for the advance credits were too high. However, such an imbalance with regard to the payment of interest is commonplace in the sphere of public finance.

45.(b)

Since therefore there is no objection in principle to the application of Article 11 in respect of amounts to be credited pursuant to Article 10 (2), it is then necessary to consider whether there are grounds for not applying that provision in the present case (which is the first case on the application of Article 10 (2)). According to the United Kingdom, Article 11 should not be applied on the ground that it acted in good faith and the legal position was not wholly clear; it refers to the judgment in Case 2/84, (3) where the Court ruled, in proceedings under Article 169 of the EEC Treaty, that the defendant Member State had failed to fulfil its Treaty obligations but ordered each party to pay its own costs in view of the uncertainty as to the scope of the Community provisions concerned.

Even though the presence of subjective elements (intention, fault) is not expressed to be a precondition for the application of Article 11, it is not possible to reject out of hand the United Kingdom's argument (broadly analogous to the criminal-law concept of mistake of law), since Article 11 is perhaps not designed merely to deny the Member State the gain which accrued to it as a result of its delay in crediting the amount due but may constitute something more, in view of the fact that the interest rate is equal to the highest discount rate ruling in the Member States. However, I consider that ultimately that argument cannot prevail. There are no good reasons for suggesting that there is a genuine ambiguity in Article 10 (2) of Regulation No 2891/77 which can only be removed by a judgment of the Court. If one considers first the meaning and intention and the general scheme of the provision as derived from all the language versions — that being the most appropriate method for interpreting Community legislation — no serious doubts could have existed and there were no reasonable grounds to support the view taken by the United Kingdom (which was based, mainly on the verb ‘to invite’). It is quite significant, after all, that no other Member State failed to comply with the Commission's invitation. It must also be remembered that in the United Kingdom it was only the idea of obtaining national parliamentary approval, which was completely unreasonable in this context of the advance payment of the Community's own resources, which led to the failure to comply with the Commission's invitation.

47.(c)

But even if the United Kingdom's view is accepted and the legal situation is regarded as not being completely clear (contrary to the view expressed in this Opinion), that would still not have led to the result envisaged by the defendant. It disregarded the Commission's view of the legal position — of which it was fully aware — and thus not only took the chance of winning but also accepted the risk of losing. Since it has been unsuccessful in its arguments, it must accept the legal consequences of this action. Those consequences include the interest payable on the amount which was due. There is no basis whatsoever for construing the prescribed rate of interest as a sanction. It is designed to ensure that Community obligations are unconditionally fulfilled and, in that aim, it has been successful, with only this one exception. The interest rate was known to the defendant. Despite that it accepted the risk of judicial proceedings and it is not unjust and unfair for it now to bear the consequences.

48.(d)

It must therefore be held that the Commission is also justified in its claim that the United Kingdom wrongfully refused to pay interest on the amount to be credited in advance on 15 May 1983 (the United Kingdom's attention was drawn to the matter of the interest as early as 31 May 1983).

In the light of all the foregoing I cannot but propose that the Commission's application should be allowed. Accordingly, the Court should declare that, by failing to comply with the invitation addressed to it pursuant to the first subparagraph of Article 10 (2) of Council Regulation No 2891/77 of 19 December 1977 implementing the Decision of 21 April 1970 on the replacement of financial contributions from Member States by the Communities' own resources and by refusing to pay interest under Article 11 of that regulation, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under the EEC Treaty. Consequently, the United Kingdom should also be ordered to pay the costs.

(1) Translated from the German.

(1) French version: ‘inviter’; Danish version: ‘opfordre’.

(2) Judgment of 20 March 1986 in Case 303/84 Commission v Federal Republic oj'Germany [1986] ECR 1171.

(3) Judgment of 28 March 1985 in Case 2/84 Commission v Italian Republic [1985] ECR 1127.