OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 15 April 2010 ¹(1)

Case C‑334/08

European Commission

v

Italian Republic

(Proceedings for failure to fulfil an obligation – Own resources – Refusal to make duties deriving from the importation of goods available to the European Communities because of irregular authorisations by the customs authorities – Article 17 of Regulation (EC, Euratom) No 1150/2000 – Force majeure – Effects of entering the debt in the separate account)

I –  Introduction

1.        In the present proceedings for failure to fulfil Treaty obligations the Commission complains that the Italian Government has infringed Article 10 EC, Article 8 of Decision 2000/597/EC, Euratom, (2) as well as several provisions of Regulation (EC, Euratom) No 1150/2000, (3) because Italy has failed to make certain own resources available to the Commission. These own resources are customs duties on the importation of aluminium ingots for which the competent customs officials granted manifestly irregular exemption from customs duty.

2.        The case requires an examination of the concept of force majeure on which Italy relies as justification for its actions. It also raises the question of the date on which own resources entered in the B account have to be made available.

3.        As this latter issue has only been raised by the Federal Republic of Germany as intervener for the Italian Republic, it is also necessary to clarify whether an intervener is permitted to put forward pleas and defences in law that differ from those lodged by the main party.

II –  Legal framework

4.        Article 8 of Decision 2000/597 instructs the Member States to collect the own resources and make them available to the Commission.

5.        Under Article 2(1) of Regulation No 1150/2000 the Communities’ entitlement to the own resources is established ‘as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor’. Under paragraph 2 the date of the establishment referred to in paragraph 1 is the date of entry in the accounting ledgers provided for by the customs regulations.

6.        Article 6(3) of Regulation No 1150/2000 reads:

‘3. (a) Entitlements established in accordance with Article 2 shall, subject to point (b) of this paragraph, be entered in the accounts 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.

(b) Established entitlements not entered in the accounts referred to in point (a), because they have not yet been recovered and no security has been provided shall be shown in separate accounts within the period laid down in point (a). Member States may adopt this procedure where established entitlements for which security has been provided have been challenged and might, upon settlement of the disputes which have arisen, be subject to change.

… .’

7.        Article 10(1) of Regulation No 1150/2000 provides:

‘1. After deduction of 10% by way of collection costs in accordance with Article 2(3) of Decision 94/728/EC, Euratom, entry of the own resources referred to in Article 2(1)(a) and (b) of that Decision shall be made at the latest on the first working day following the 19th day of the second month following the month during which the entitlement was established in accordance with Article 2 of this Regulation.

However, for entitlements shown in separate accounts under Article 6(3)(b) the entry must be made at the latest on the first working day following the 19th day of the second month following the month in which the entitlements were recovered.’

8.        Article 17(1) and (2) of Regulation No 1150/2000 reads:

‘1. Member States shall take all requisite measures to ensure that the amount corresponding to the entitlements established under Article 2 are made available to the Commission as specified in this Regulation.

2. Member States shall be free from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements solely if, for reasons of force majeure, these amounts have not been collected. In addition, Member States may disregard this obligation to make such amounts available to the Commission in specific cases if, after thorough assessment of all the relevant circumstances of the individual case, it appears that recovery is impossible in the long term for reasons which cannot be attributed to them. … .’

9.        Regulation No 1150/2000 was amended by Council Regulation (EC, Euratom) No 2028/2004 of 16 November 2004. (4) Regulation No 2028/2004 entered into force on 28 November 2004. This substituted the following wording for Article 17(2) of Regulation No 1150/2000:

‘2. Member States shall be released from the obligation to place at the disposal of the Commission the amounts corresponding to established entitlements which prove irrecoverable either:

(a) for reasons of force majeure; or

(b) for other reasons which cannot be attributed to them.

Amounts of established entitlements shall be declared irrecoverable by a decision of the competent administrative authority finding that they cannot be recovered.

Amounts of established entitlements shall be deemed irrecoverable, at the latest, after a period of five years from the date on which the amount has been established in accordance with Article 2 or, in the event of an administrative or judicial appeal, the final decision has been given, notified or published. …

Amounts declared or deemed irrecoverable shall be definitively removed from the separate account referred to in Article 6(3)(b). They shall be shown in an annex to the quarterly statement referred to in Article 6(4)(b) and where applicable, in the quarterly statement referred to in Article 6(5).’

III –  Facts

10.      It is apparent from an internal audit report by the Italian authorities that, on 27 February 1997 and 14 May 2002, the Direzione Compartimentale delle Dogane per le Regioni Puglia e Basilicata (the departmental head office of customs of the regions of Apulia and Basilicata) through the actions of the Taranto customs authority had granted two undertakings a number of authorisations to create two private Type C customs bonded warehouses and process aluminium ingots (tariff heading 7601 – 6% rate of duty) into waste aluminium (tariff heading 7602 – duty-free) under customs control.

11.      According to the audit report those authorisations by the administration were manifestly in breach of the Union customs rules (formerly: the Community customs rules) and led to corresponding duties not being established and collected in the years 1997 to 2002. The Commission concluded from information given by the Italian authorities that the loss of revenue amounted to EUR 22 730 818.35.

12.      On 4 December 2002 the competent authorities revoked the authorisations granted, which led to later establishment of the customs debt. The competent authorities entered the corresponding amounts in the B account in the months from March to July 2003. Criminal proceedings are pending against the officials of the undertakings and the customs authority officials who granted the authorisations. The customs debts have not yet been settled and Italy has not forwarded the corresponding own resources to the Union.

IV –  Pre-litigation procedure and the action brought

13.      In the duly conducted pre-litigation procedure the Commission complained that the Italian Republic had refused to make available to the Commission the own resources arising in connection with the above. As the defence argument put forward by the Italian Republic did not satisfy the Commission it brought the present action on 21 July 2008 seeking an order to

–        declare that the Italian Republic has failed to fulfil its obligations under Article 10 EC, Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources, and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources by refusing to make available to the Commission the own resources corresponding to the customs obligation deriving from the issue by the Direzione compartimentale delle dogane per le Regioni Puglia e Basilicata (departmental head office of customs of the Regions of Apulia and Basilicata), located in Bari, of irregular authorisations to create and operate Type C customs bonded warehouses in Taranto, followed by consecutive authorisations for processing under customs control and to use the inward processing procedure, until their revocation on 4 December 2002;

–        order the Italian Republic to pay the costs.

14.      The Italian Republic contends that the action should be dismissed.

15.      By order of 3 December 2008, the Federal Republic of Germany was granted leave to intervene in the proceedings in support of the form of order sought by the Italian Republic.

V –  Legal assessment

16.      It is common ground that the reliefs from customs duty were granted in breach of customs rules so that duty in the amount alleged by the Commission wrongfully failed to be collected. The subject-matter of the present proceedings is therefore just the issue of whether, and if so when, the Italian Republic is obliged to make these sums available to the Commission.

17.      Member States are required to establish the Union’s own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount thereof and determine the debtor. (5) The obligation to forward the corresponding own resources to the Union follows, in principle, pursuant to Article 10 of Regulation No 1150/2000.

18.      The Commission takes the view that the individual aluminium imports during the period between 1997 and 2002 should be taken as the basis in this context and that the Italian Republic should long since have paid the customs duty on them to the Union.

19.      The Italian Republic considers that it is not obliged to make the customs duty amounts available, however, as they have proved irrecoverable for reasons of force majeure. In support of its contention, it refers to Article 17 of Regulation No 1150/2000. (6)

A –    The force majeure argument

20.      Italy bases its contention of force majeure and the resultant exemption from an obligation to forward the own resources to the Union on two arguments. First, the competent customs officials had colluded with the importers and, secondly, the authorisations granted by the customs officials had exacerbated discovery of the irregularities so that it had been impossible for normal checks to detect them.

1.      The concept of force majeure

21.      The Court has not yet given a detailed interpretation of the concept of force majeure under Article 17 of Regulation No 1150/2000. There is case-law on the interpretation of this concept in connection with other legislation, however. The Court has repeatedly held that, since the concept of force majeure does not necessarily have the same scope in the various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate. (7) However, the Court selects as the starting point of any examination a general definition which is to apply apart from special cases in specific areas in which it is used. (8)

22.      I will first explain the case-law of the Court relating to other legal fields and then examine whether it is capable of application to Regulation No 1150/2000 without modification or whether adjustments are required.

(a)      Case-law of the Court in other fields

23.      The majority of the case-law on force majeure concerns provisions on the common organisation of the market in the agricultural sector. However, the Court has also already had to interpret the concept in its judgments on Article 45 of its Statute.

24.      According to that case-law, in principle the Union law concepts of force majeure or fortuitous events cover only those events which are abnormal and unforeseeable, over which the party relying upon them had no control, and the consequences of which could not have been avoided even if all due care had been exercised. (9) It follows that force majeure is a concept which contains both an objective element and a subjective element, the former referring to abnormal circumstances outside the sphere of the party claiming force majeure and the latter connected with his obligation to guard against the consequences of abnormal events by taking appropriate steps without making unreasonable sacrifices. (10)

(b)      Application to the present case

25.      In the light of the foregoing this cannot be considered a case of force majeure. The Italian Republic cannot claim force majeure here simply because its own officials impeded the collecting of the duty by granting irregular authorisations and therefore the cause of failure to collect it is not extraneous to the Italian Republic. What is more, the Italian Republic could certainly have prevented the illegal practices by effective control procedures.

26.      The requirement that there be an extraneous origin of the event during which force majeure is supposed to have occurred is not satisfied here. It is accepted that the authorisations to create the private customs bonded warehouses and process aluminium ingots liable to duty into duty-free waste aluminium were granted by the authority competent to do so, that is to say by the Direzione Compartimentale delle Dogane per le Regioni Puglia e Basilicata.

27.      The customs officials were acting in the performance of their duties so that the legal consequences of their actions have to be imputed to the Italian Republic. As the cause of failure to collect the duties was not therefore extraneous to the Italian Republic Italy cannot plead force majeure.

28.      The defendant Member State is of the opinion that it is not obliged to bear the financial consequences of administrative actions by its officials whose acts constitute a criminal offence. Hence, the outcome of the criminal action and civil‑law recovery proceedings should be awaited so that the liability of the public servants can be clarified.

29.      A Member State cannot claim that the conduct of its officials is not imputable to it as an excuse in infringement proceedings. It must be made clear in this connection, first, that it has not yet been finally established that the officials concerned did commit an offence as the proceedings are still pending. However, even if it should be found that the officials committed a criminal offence this would not stop their actions being imputable to the State.

30.      Such accountability accords with the draft articles by the International Law Commission on responsibility of States for internationally wrongful acts; (11) the European Commission of Human Rights and the European Court of Human Rights have also held that the State has to accept accountability for infringements of the European Convention for the Protection of Human Rights and Fundamental Freedoms by its officials at any level, even where those public officials act without authorisation and even where they act without or indeed against instructions. (12)

31.      Finally, nor may the Italian Republic argue as grounds for force majeure that its normal controls did not lead to detection of the irregularities and that they were not discovered until a competing company lodged a complaint. As the cause of failure to collect duties in the present case fell within the sphere of responsibility of the Italian Republic the specific measures that might or might not have led to prevention of the illegal practices in this case are irrelevant.

32.      Furthermore, nor is it conceivable why the present case could not have been prevented, or at least promptly dealt with, by way of effective internal controls. It is immaterial in this context that it took an external complaint by another undertaking to lead to detection. This just gave rise here to enquiries that the State was obliged to conduct in any event in the context of its monitoring obligations stemming directly from Union law.

33.      The requirements of the general definition of force majeure applied by the Court are not therefore satisfied in the present case.

(c)      Modification of the definition for the purposes of the rule at issue in this case?

34.      Regulation No 1150/2000 does not contain any suggestion of a special rule on the concept of force majeure differing from the general definition. Quite the reverse: the spirit and purpose of the rules on collecting the Union’s own resources indicate that the aforementioned general definition should apply without modification.

35.      The stability of the Union’s financing system demands that the rules on the establishment, collection and availability of own resources should be strictly adhered to. A Member State that fails to abide by these rules damages the other Member States, which have to endeavour to make up the loss, and is in breach of its obligation to jointly finance the Union.

36.      General understanding of the term force majeure defines the necessary limits on the possibility of a Member State justifying failure to pay over duties, the purpose being to effectively guarantee the stability of the Union’s financing system. Hence, there is no scope here for consideration of a wider understanding of the concept.

B –    The effects of established entitlements being recorded in the separate account

37.      The Federal Republic of Germany, as intervener for the Italian Republic, takes the view that at the time of relevance to the present infringement proceedings (the period stated in the reasoned opinion) in any event the Commission was not (yet) entitled to have the own resources made available to it. The Italian Republic has not pleaded this defence itself, however.

38.      In the opinion of the German Government Article 17 of Regulation No 1150/2000, as amended by Regulation No 2028/2004, permits Italy to retain the amounts at issue recorded in the year 2003 in the ‘B account’ for the duration of the five-year period stated, that is to say, until at least June 2008. The Commission’s entitlement did not therefore fall due until that period ended in the year 2008. As the period laid down in the reasoned opinion for correcting the Treaty infringement had already ended by December 2007 (13) there had been no infringement on the critical date.

39.      This plea raised by the intervener necessitates an initial examination of two questions: first, whether an intervener can introduce a legal point in the arguments presented to the Court if the main party that it is supporting has not itself pleaded that argument; and, secondly, whether Regulation No 2028/2004 also applies to customs debts recorded before it entered into force.

1.      Permissible scope of intervention

40.      It is appropriate, first, to determine to what extent an intervener in its statement in intervention may divert the focus to new aspects of a case.

41.      Under the fourth paragraph of Article 40 of the Statute of the Court of Justice submissions in intervention must support the form of order sought by one of the parties. An intervener cannot therefore file submissions that differ from the submissions of the main party supported. In the present case both the Federal Republic of Germany and the Italian Republic are claiming that the action should be dismissed, so that the main party and the intervener are asking for the same form of order.

42.      An intervener may undoubtedly use new arguments that differ from those used by the party it supports, provided the intervener seeks to support that party’s submissions. (14) If an intervener were only to be permitted to reiterate the main party’s arguments without adding its own to them the intervention procedure, apart from representing a mere measure of solidarity, would be rendered completely nugatory.

43.      In its submission, however, the Federal Republic of Germany has not only introduced new arguments into the proceedings but has also submitted a new defence. Germany has made reference to the new version of Regulation No 1150/2000, as amended by Regulation No 2028/2004, which has not yet been the subject of these proceedings and from which it concludes that the Commission’s entitlement had not fallen due by the critical date, namely the end of the period laid down in the reasoned opinion. Unlike the Italian Republic, the German Government does not concern itself with the question whether there is any entitlement at all but raises for the first time the issue of the date on which it falls due.

44.      Unlike the position where new arguments are presented, case-law has not yet clarified the extent to which an intervener can put forward pleas in law not already raised by the main party that it supports. On the other hand, there are judgments where the submission of new pleas in law by the intervener has been considered admissible. (15) In other judgments the Court has held that such a submission by an intervener is inadmissible. (16) However, these decisions primarily related to the particular situation where the intervener raised a plea of inadmissibility for the first time.

45.      It is immediately apparent from Article 93(5) of the Rules of Procedure of the Court that an intervener may, in principle, put forward its own pleas in law and is not restricted to pure arguments. This provision states that the intervener must include its pleas in law in its statement in intervention. This provision would be meaningless if it were to be limited to the ambit of the pleas in law put forward by the main party that it supports.

46.      The duration of the period in which the intervener can raise pleas in law that have not also been put forward by the main party that it supports is also questionable, however.

47.      Articles 42(2) and 93(4) of the Rules of Procedure of the Court form the starting point for this issue.

48.      Under Article 93(4) of the Rules of Procedure of the Court the intervener must accept the case as he finds it at the time of his intervention.

49.      It follows from Article 42(2) of the Rules of Procedure of the Court that the main party may not introduce new pleas in law in the course of proceedings; they have to be definitively established, in principle, in the application or defence pleading.

50.      It might be concluded from this that an intervener is precluded from submitting pleas in law that are barred to the main party that it supports. (17)

51.      If an intervener’s independent pleas in law were to be admissible this would necessarily mean that, by using an intervener, new aspects could be introduced into proceedings before the Court which the main party that it supported had already been precluded from pleading at that date: in particular, as intervention in support of an applicant can never take place until after proceedings have been instituted intervention must necessarily happen at a time when the main party can no longer raise any new pleas in law.

52.      It is apparent from the above considerations that Article 93(4) must not be too narrowly interpreted. The ‘case as he find it’ at the time of his intervention does not limit the intervener’s pleas in law to those already submitted by the main party at the time of his intervention. Otherwise, the intervener would always be restricted to the pleas in law already submitted by the main party, which could not then be termed ‘his’ pleas in law for the purposes of Article 93(5) of the Rules of Procedure of the Court. The submission of new pleas in law by the intervener should therefore also be admissible. (18)

53.      This interpretation does not render meaningless the limits on intervention deriving from Article 93(4) of the Rules of Procedure of the Court. The fact that an intervener is bound to accept the case as he finds it at the time of his intervention means that the form of order then sought by the parties, and hence the resultant subject-matter beyond which the intervener cannot step, are fixed. What is more, this procedural provision ensures that intervention does not lead to delay in the proceedings since binding acceptance of the case as he finds it precludes the possibility of a stage in the procedure having to be repeated because of the intervention. There is certainly no risk of a delay in the proceedings in a case such as the present one.

54.      It follows that I cannot see any reason that might prevent the Court from examining the merits of the submissions put forward by the Federal Republic of Germany.

2.      Applicability ratione temporis of Regulation No 2028/2004

55.      The Federal Republic of Germany takes the view that the present infringement action should be dismissed because the Commission did not wait until the end of the five-year period introduced into Article 17(2) of Regulation No 1150/2000 by Regulation No 2028/2004.

56.      It should therefore be examined below, first, whether the Regulation No 2028/2004 invoked by Germany applies ratione temporis. The customs duty entitlements at issue arose during the period from 1997 to 2002 and were recorded in the B account in July 2003, whereas the new regulation did not enter into force until 2004.

57.      According to the new version of Article 17(2) introduced by Regulation No 2028/2004 amounts kept in B accounts are deemed irrecoverable, at the latest, after a period of five years.

58.      In my opinion the application of this provision to amounts allocated to the B account before the date on which it entered into force does not represent genuine retroactivity since allocation to the B account did not lead to a finalised situation that was to be amended a posteriori. The amended provision pursues and develops the consequences that follow from entering an amount in a B account.

59.      Even if application of the new regulation could be considered retroactivity this would not be admissible here.

60.      According to settled case-law, the possibility of retroactive application essentially depends upon whether the provision is a rule of procedure or a substantive rule. Procedural rules generally 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. (19) However, provisions with a substantive content may, exceptionally, be interpreted as applying to situations existing before their entry into force ‘in so far as it clearly follows from their terms, objectives or general scheme that such effect must be given to them’. (20) The decisive factor in this context is that no harm is done to the principles of legal certainty and the protection of legitimate expectations, on which the prohibition of the retroactive application of substantive provisions is ultimately based.

61.      Even if the above amendment were to be considered a rule of substantive law and not merely a procedural provision it should still be applicable.

62.      It is in accordance with the objective of the amending regulation to apply it to circumstances that commenced before it entered into force.

63.      As stated in the sixth recital in the preamble to Regulation No 2028/2004, the original ‘system has only partly met its objectives regarding the mechanism used to discharge items from the separate account. Checks by the European Court of Auditors and the Commission have highlighted recurrent anomalies in the keeping of the separate account, which prevent the account from reflecting the real situation as regards recovery. The separate account should be cleansed of those amounts where recovery is unlikely at the end of a given period and the retention of which gives an inaccurate balance. In addition, from the cost‑effectiveness angle, Member States will no longer incur the administrative costs involved in monitoring these amounts’.

64.      The purpose of introducing a five-year period was therefore to remedy the shortcomings of the old system. It is only possible to fully achieve this objective if the new rule on deadlines is also applied to sums that were posted to the B account before the amending regulation entered into force.

65.      Nor is the application of new Article 17(2) of Regulation No 1150/2000 to circumstances already appertaining before it entered into force contrary to a Member State’s legitimate expectation that the provision formerly applicable will continue to do so. Finally, as is apparent from the sixth recital in the preamble, the intention was only to redress anomalies and release Member States from the costs associated with monitoring amounts contained in the B account ad infinitum.

66.      In principle, therefore, application of the new version of Article 17(2) of Regulation No 1150/2000 to the present case is possible.

3.      Admissibility of entering the amounts in the B account

67.      Before subjecting Article 17(2) of the regulation to interpretation, however, it is first necessary to examine whether Italy was correct in entering the amounts at issue in the B account. The Commission submits that Italy wrongly posted them to that account.

68.      Only amounts correctly entered in the B account trigger the application of Article 17(2) of Regulation No 1150/2000 (21) and raise the question whether or not own resources not actually recovered are to be credited to the Union.

69.      The Italian Republic contends that it correctly entered the own resources at issue in the B account because it has not yet recovered the entitlements established in 2003, nor has any security been provided for them.

70.      Under Article 2(1) of Regulation No 1150/2000 the Union’s entitlement to the own resources is established as soon as the conditions provided for by the customs regulations have been met concerning the entry of the entitlement in the accounts and the notification of the debtor.

71.      Article 6 of Regulation No 1150/2000 then contains provisions on accounts for own resources and draws a distinction in Article 6(3) between two accounts: Entitlements established in accordance with Article 2 basically have to be entered in the A account, whereas only established entitlements that have not yet been recovered and for which no security has been provided are entered in a separate B account.

72.      The distinction drawn between these two accounts has particular ramifications with regard to the date by which the Member State has to make own resources available to the Union. Whilst under Article 10 of Regulation No 1150/2000 the own resources entered in the A account have to be credited to the Union within a specified period after their establishment, the own resources entered in the B account do not have to be credited until a specified period after their recovery.

73.      No purely formal link can be forged in this case, however. This would be to overlook the fact that the Italian Republic had failed to comply with its obligation to establish the Union’s entitlement even earlier, from 1997 to 2002, and would thus be contrary to the underlying rationale of the legislation.

74.      Member States are required to establish the Communities’ own resources as soon as their own customs authorities have the necessary particulars and, therefore, are in a position to calculate the amount of duties arising from a customs debt and determine the debtor. (22)

75.      Where a Member State wrongfully fails to establish the Union’s entitlement to own resources and therefore does not even make it possible for the corresponding amount to be collected and then made available to the Commission the posting of that amount to the B account is a priori precluded.

76.      Entry in the B account is out of the question where it is the Member State itself that has created the conditions for entry in the B account. This reflects the legal concept that a person may not benefit from his own wrongdoing. The Court has already ruled accordingly in relation to failure to establish a customs debt because of error by the customs authorities. (23) This must especially apply where the customs authorities unlawfully and intentionally omit to enter the customs duties in the account.

77.      This means here that the Italian Republic must, on the one hand, accept that it should be treated for the 1997 to 2002 period as if it had established the entitlements – leading to a notional entry in the A account. On the other hand, however, it cannot rely on the conditions governing entry in the B account. By not establishing the entitlements it has itself brought about the conditions under Article 6(3)(b) of Regulation No 1150/2000, that is to say, that the entitlements could not be collected and that no security has been provided.

78.      In conclusion, the Italian Republic was not permitted to enter the amounts at issue in the B account. As part of the A account these amounts therefore had to be made directly available to the Union under Article 10 irrespective of their actual recovery.

4.      Interpretation of Article 17(2) of Regulation No 1150/2000 (as amended by Regulation No 2028/2004)

79.      The application of Article 17 of Regulation No 1150/2000 is not triggered where the entitlements at issue are not validly included in the B account. The questions whether a Member State is released from any obligation to make own resources available where they are irrecoverable or what relevance is to be attributed to the five-year period introduced into Article 17(2) by Regulation No 2028/2004 do not therefore arise. The reliance upon that five-year period invoked by the Federal Republic of Germany as intervener is therefore irrelevant.

80.      In the alternative, as will be seen below, even if the application of Article 17(2) of Regulation No 1150/2000 were to be triggered, in principle, the Italian Republic could not ultimately rely on that five-year period.

81.      This provision contains an exception to the obligation to make amounts available for irrecoverable amounts and, in short, relates to the final stage of the customs procedure, namely payment of established amounts to the Union.

82.      Article 17(2) provides that Member States are released from the obligation to credit amounts which prove irrecoverable either (a) for reasons of force majeure or (b) for other reasons which cannot be attributed to them. Amounts of established entitlements can be declared irrecoverable by a decision of the competent administrative authority. Subparagraph 3 of Article 17(2) also provides that amounts of established entitlements are deemed irrecoverable, at the latest, after a period of five years (calculated from the date on which the amount has been established). (24)

83.      Contrary to the contention of the German Government, however, a five‑year deferment does not always follow from Article 17(2). Reliance cannot be placed on the five-year period in cases where it is manifestly obvious that the substantive requirements of Article 17(2) are not satisfied so that there is no force majeure or other reasons which cannot be attributed to them and it is therefore clear that the Member State is ultimately obliged to credit the Community with those amounts.

84.      This is apparent from the spirit and purpose of the provision. The five-year period saves Member States and the Commission, in the interests of procedural efficiency, from having to determine the very complex and difficult issue of whether there is force majeure or other reasons which cannot be attributed to the Member State before it has been made clear – through judicial proceedings, for instance – whether and on what grounds an entitlement might prove at all irrecoverable. If it were possible for the entitlement to be recovered within the five-year period it would have to be forwarded to the Commission in any event and any determination already carried out would subsequently prove superfluous. However, if it is obvious from the start that a Member State cannot rely on the exceptions laid down in Article 17(2) that very principle of procedural efficiency would militate against further deferment. Why should a Member State be permitted to hang on to an amount due to the Community for another five years even though the obligation to pay it over is incontrovertibly established in both principle and quantum?

85.      If, as in the present case, it is obvious (25) before five years have passed that there is no force majeure and that the reasons for failure to agree can be attributed to the Member State, that State is no longer afforded the protection of the period stated in Article 17(2) and has to make the own resources directly available to the Commission. I am therefore of the opinion that Article 17(2) of Regulation No 1150/2000, as amended by Regulation No 2028/2004, does not prevent the infringement action against Italy from being upheld in this case.

C –    Interim Conclusion

86.      The Italian Republic has therefore failed to fulfil its obligations under Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000.

87.      As to Article 10 EC, also relied on by the Commission, 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 Union obligations. (26)

VI –  Costs

88.      Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings; since the Commission has been successful and has applied for costs, the Italian Republic must be ordered to pay the costs.

89.      Under Article 69(4), Member States which have intervened in the proceedings are to bear their own costs.

VII –  Conclusion

90.      In the light of the foregoing, I propose that the Court should:

(1)      declare that the Italian Republic has failed to fulfil its obligations under Article 8 of Council Decision 2000/597/EC, Euratom of 29 September 2000 on the system of the European Communities’ own resources and Articles 2, 6, 10, 11 and 17 of Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources by refusing to make available to the Commission the own resources corresponding to the customs obligation deriving from the importation of aluminium ingots;

(2)      order the Italian Republic to pay the costs;

(3)      order the Federal Republic of Germany to bear its own costs.

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1 – Original language: German.

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2 – Council Decision of 29 September 2000 on the system of the European Communities’ own resources (OJ L 253, p. 42).

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3 – Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources (OJ L 130, p. 1).

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4 – Council Regulation (EC, Euratom) No 2028/2004 of 16 November 2004 amending Regulation (EC, Euratom) No 1150/2000 implementing Decision 94/728/EC, Euratom on the system of the Communities’ own resources, OJ L 352, p. 1.

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5 – Case C‑19/05 Commission v Denmark [2007] ECR I‑8597.

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6 – In both its original version and the version introduced by Regulation No 2028/2004 this provision releases Member States from the obligation to make available the amounts corresponding to established entitlements if they prove irrecoverable for reasons of force majeure or ‘for reasons which cannot be attributed to them’ (the original wording) or ‘for other reasons which cannot be attributed to [the Member States]’ (according to the German wording of Regulation No 2028/2004).

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7 – Case C‑12/92 Huygen and Others [1993] ECR I‑6381, paragraph 30, and Case C‑263/97 First City Trading and Others [1998] ECR I‑5537, paragraph 41.

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8 – Order of 5 March 1993 in Case C‑102/92 Ferriere Acciaierie Sarde v Commission [1993] ECR I‑801, paragraph 20.

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9 – See the Court’s settled case-law, for example Case C‑145/85 Denkavit [1987] ECR 565, paragraph 11; Case C‑12/92 Huygen [1993] ECR I‑6381, paragraph 31; 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.

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10 – Case C‑195/91 Bayer v Commission [1994] ECR I‑5619, paragraph 32, Order of 18 January 2005 in Case C‑325/03 P Zuazaga Meabe [2005] ECR I‑403, paragraph 25.

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11 – See Article 7 (Excess of authority or contravention of instructions) of the draft articles by the International Law Commission on responsibility of States for internationally wrongful acts: ‘The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.’

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12 – The European Court of Human Rights followed the European Commission of Human Rights in substance (see judgment of 18 January 1978 in application No 5310/71, Ireland v United Kingdom, Series A, No 25, paragraph 159) and, in 1999, expressly upheld the position already taken by the European Commission of Human Rights (see judgment of 28 October 1999 in application No 28396/95, Wille v Liechtenstein, Reports of Judgments and Decisions 1999-VII, paragraph 46).

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13 – According to settled case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion; the Court cannot take account of any subsequent changes: See, among many others, Case C‑69/99 Commission v United Kingdom [2000] ECR I‑10979, paragraph 22; Case C‑152/05 Commission v Germany [2008] ECR I‑39, paragraph 15; and Case C‑286/08 Commission v Greece, not published in the ECR, paragraph 45.

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14 – Case C‑200/92 P ICI v Commission [1999] ECR I‑4399, paragraph 31 et seq.; Case C‑245/92 P Chemie Linz v Commission [1999] ECR I‑4643, paragraph 32; and Case C‑150/94 United Kingdom v Council [1998] ECR I‑7235, paragraph 36.

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15 – Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1, 41, in a case in which in support of the main party’s submissions the intervener even put forward pleas that contradicted the main party’s submissions and were expressly rejected by it, and Case C‑501/00 Spain v Commission [2004] ECR I‑6717, paragraph 131 et seq.

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16 – Case C‑313/90 CIRFS and Others v Commission [1993] ECR I‑1125, paragraph 21 et seq., and Case C‑225/91 Matra v Commission [1993] ECR I‑3203, paragraph 11 et seq. See also Case C‑301/06 Ireland v Parliament and Council [2009] ECR I‑593, paragraph 57, in which a new plea in law put forward by the intervener was not considered to be the subject-matter of the proceedings, although without touching upon the question of the admissible scope of intervention.

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17 – As stated by Advocate General Darmon in his Opinion in Case 233/85 Bonino v Commission [1987] ECR 739, point 7.

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18 – As also stated by Advocate General Slynn in his Opinion in Case 253/84 GAEC de la Ségaude v Council and Commission [1987] ECR 123, and Advocate General Gulmann in his Opinion in Joined Cases C‑241/91 P and C‑242/91 P RTE and ITP v Commission [1995] ECR I‑743, point 23, in which reference is made in the German version of the Opinion to just raising ‘new arguments’ whilst in the French and Danish versions the term ‘pleas in law’ is used.

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19 – See Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others (also known as ‘Salumi II’) [1981] ECR 2735, paragraph 9; Joined Cases C‑121/91 and C‑122/91 CT Control (Rotterdam) and JCT Benelux v Commission [1993] ECR I‑3873, paragraph 22; Case C‑61/98 De Haan [1999] ECR I‑5003, paragraph 13; Case C‑251/00 Ilumitrónica [2002] ECR I‑10433, paragraph 29; and Joined Cases C‑361/02 and C‑362/02 Tsapalos and Diamantakis [2004] ECR I‑6405, paragraph 19.

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20 – Case C‑34/92 GruSa Fleisch [1993] ECR I‑4147, paragraph 22; Joined Cases C‑74/00 P and C‑75/00 P Falck and Others v Commission [2002] ECR I‑7869, paragraph 119; and Salumi II, cited in footnote 19, paragraph 9.

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21 – See, to that effect, Case C‑378/03 Commission v Belgium [2006] ECR I‑9805, paragraph 44.

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22 – Case C‑19/05 Commission v Denmark [2007] ECR I‑8597, paragraph 32.

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23 – Commission v Denmark (cited in footnote 22, paragraph 33 et seq.).

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24 – Or, in the event of an administrative or judicial appeal, from the date on which the final decision has been given, notified or published.

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25 – For instance, by a court or final administrative decision, as mentioned in Article 17(2).

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26 – See Case C‑19/05 Commission v Denmark [2007] ECR I‑8597, paragraph 36.