Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. As is generally known, from 1 January 1971 the revenue from agricultural levies and from Common Customs Tariff duties became the own resources of the Communities which the Member States are to collect and make available to the Commission (Articles 3 and 6 of Council Decision No 70/243/ECSC, EEC, Euratom of 21 April 1970, Official Journal, English Special Edition 1970 (I), p. 224). By an action brought on 21 December 1984 under Article 169 of the EEC Treaty, the Commission is seeking to ensure the compliance of the Federal Republic of Germany with the provisions governing the way in which those resources are determined. In particular, it complains that the German Government has failed to observe the prescribed periods for determining and crediting to the Commission's account the sugar production levies provided for by Regulation (EEC) No 700/73 of the Commission of 12 March 1973 (Official Journal 1973, L 67, p. 12).
2. I would like first to examine the material legislation. By virtue of Article 5 of Regulation No 700/73, the national authorities are to collect before 15 January the production levy from sugar producers who have exceeded their quotas. The reasoning behind that deadline is simple: as is noted in the antepenultimate recital in the preamble, the sugar marketing year runs from 1 July to 30 June, and because sugar is largely disposed of during the marketing year in which it is produced, it is appropriate for payment of the production levy to begin during the same marketing year. To that end Article 5 (3) provides that Member States shall determine the amount to be paid ... not later than 15 days before the due date mentioned above, that is to say before 31 December of the preceding year.
3. The facts of the case arose in the 1980-81 sugar year. As a result of an administrative oversight, the German authorities did not determine the amount of the levies — about DM 466000 — until 1 February 1982, which was a month after the due date (31 December) laid down in Article 5 of Regulation No 700/73.
4. The German Government stresses above all that it has already admitted in the prelitigation stage of the proceedings that the sugar production levies were not determined in due time. It argues that in view of that admission and its undertaking to observe the prescribed periods in future, the Commission no longer has an interest in seeking a declaration relating to a failure to observe a time-limit which has already expired and is quite incapable of being complied with after the event. The Court should therefore confine itself to establishing whether Germany must pay the interest on arrears.
5. The array of arguments put forward by the German Government is also formidable. Its principal case is that even in the context of Community law the specific nature of taxation requires the legislature to adopt provisions which are imperative and as precise as possible in order to ensure legal certainty and the equal treatment of those who are subject to those provisions. Those aims would be defeated if the administration could interpret and apply the provisions on the basis of its own general considerations or practical requirements. Accordingly the distinction which the Commission draws between normal and exceptional cases for determining the time-limit for the crediting of resources is inconsistent both with the wording of Article 10, which refers only to the date on which the entitlement was established, and with its purpose, which is to define as clearly as possible the dates on which the period commences and expires.
6. I must say at once that neither of those arguments satisfies me entirely, for all the energy with which they were put forward. In fact I find that, as often happens, the weaknesses of the one correspond to the strengths of the other. For instance, the Commission's arguments fly in the face of the wording of Article 11 (any delay in making the entry ... shall give rise to the payment of interest), which is one of the main pillars of the German Government's case. The German Government, on the other hand, is reduced to blaming the authors of the legislation for the illogical results to which its own arguments lead, while the Commission, which is at its most effective when it condemns those illogical results, lacks conviction when its search for a remedy leads it to the equally absurd opposite extreme, which is to impose the penalty laid down by Article 11 on a Member State which fails to determine the relevant amounts before 31 December even though it credits them within one month and 20 days from that date. Those inconsistencies prompt me to look elsewhere for the solution to the point at issue.
7. On the basis of the foregoing considerations, I propose that the Court should uphold the application lodged on 21 December 1984 by the Commission of the European Communities against the Federal Republic of Germany and declare that by refusing to pay the interest provided for by Article 11 of Regulation No 2891/77, that Member State has failed to fulfil its obligations under the EEC Treaty.
1 Translated from the Iulian.