Opinion of Advocate General Lenz delivered on 22 October 1991

1 Original language: German.

2 OJ 1978 L 158, p. 3.

3 Krück, in: von der Groeben/Theising/Ehlermann, Kommentar zum EWG-Veitrag, 4th edition, Baden-Baden, 1991, Article 181, point 18, with further references.

4 The Court also appears to have adopted this approach in Pellegrini (on Article 153 of the EAEC Treaty): see Case 23/76 Pellegrini v Commission [1976] ECR 1807, paragraph 9 et seq.

5 Case 426/85 Commission v Zoubek [1986] ECR 4057.

6 Zoubek judgment, paragraph 11, referring to Article 6(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.

7 See Clause 3 of the contract in conjunction with Annex I, Part B(l) and (2).

8 Although in the text of the contract the Community appears as the party with which the defendant is contracting, Clause 8 provides that the sums mentioned there are to be repaid to the Commission. The Commission can therefore bring the claim to repayment in its own name. The problems which might arise therefrom in connection with claims which go beyond the text of Clause 8, or in connection with claims set off by the defendant, are of no relevance here; as explained below, only the claims by the Commission based on the wording of Clause 8 are justified.

9 Law of 25 May 1976 (Bundesgesetzblatt (Federal Gazette) I, p. 1253), as amended.

10 See Stelkens/Bonk/Leonhardt, Verwaltungsverfahrensgesetz, Kommentar, 3rd edition, Munich, 1990, Paragraph 62, point 12.

11 Palandt, Bürgerliches Gesetzbuch, Kommentar, 50th edition, Munich, 1991, Paragraph 306, point 3 (by Heinrichs)

12 See the first sentence of Clause 8 of the contract: ... the Commission may rescind this contract

13 This obviously refers to rescission, as maintained by the Commission, rather than termination under Clause 9 of the contract.

14 The case where the Community (negatively) fails to fulfil its own obligations or (positively) prevents or delays performance of the contract is not relevant here and may be left aside.

15 See points 22, 23 and 24 above.

16 See Annex I to the contract, Sections B 1 and 2, and the description of item 2.1.2 in Table 1 to Annex 1.

17 As previous footnote, but item 2.1.3.

18 The interest rate of the European Investment Bank in force at the time of the Commission's decision to grant financial support for the project.

19 It is not disputed that this reached the defendant on 17 December 1986.

20 See note 4 above.

21 Of 19 August 1969 (Bundesgesetzblatt I, p. 1284).

22 Sec note 4 above.

23 Cf. paragraph 3 of the Report for the Hearing, [1986] ECR 4058, and the Opinion of Advocate General Sir Gordon Slynn, loc. cit., p. 4062, at p. 4064.

24 On provisions relating to interest in certain special laws and regulations, see Die Rückforderung fehlgeschlagener Subventionen — Zugleich ein Beitrag zur Problematik vorläufiger Subventionsbewilligungen, Göttingen, 1987, p. 202 f.

25 The further issue of what effects the terras of a subsidy contract would have with respect to such a principle thereby becomes otiose.

26 Cf. with reference to Paragraphs 48 and 49 of the Verwaltungsverfahrensgesetz, in relation to which Paragraph 44a of the Bundeshaushaltsordnung merely contains special provisions in the field of voluntary subsidies, Stelkens/Bonk/Leonhardt, op. cit., Paragraph 62, point 6 and Paragraph 48, point 28.

27 Subject to mandatory private law rules, which the contract will refer to if necessary.

28 Stelkens/Bonk/Leonhardt, op. cit., Paragraph 44, points 7 ff, with further references to the case-law.

29 This is especially clear if one considers the formulation used by the Bundesverwaltungsgericht that the revocation removes for the future, the legal basis for being allowed to keep the payment (judgment of 11 February 1983 in Case 7 C 70/80, Neue Zeitschrift für Vcrwahungsrecht, 1984, p. 36, at p. 38).

30 See the first sentence of Paragraph 44a(3) of the Bundeshaushaltsordnung.

31 See points 22, 23 and 24 above.