Keywords
Summary

Keywords

1 . PROCEDURE - FORMS OF ACTION PROVIDED BY THE EEC TREATY AGAINST AN INSTITUTION ' S REFUSAL TO PAY - ACTION FOR PAYMENT - INADMISSIBILITY - REMEDY AT LAW OF PERSONS CONCERNED - ACTION FOR A DECLARATION OF NULLITY OR FOR FAILURE TO ACT - CONDITIONS

( EEC TREATY , ARTS 164 , 173 , 175 AND 176 )

2 . ACTION FOR A DECLARATION OF NULLITY - ACTS WHICH MAY BE THE SUBJECT OF AN ACTION - REFUSAL TO PAY - ACT DEFINING UNEQUIVOCALLY AND DEFINITIVELY THE INSTITUTION ' S POSITION

( EEC TREATY , ART . 173 )

3 . SOCIAL POLICY - EUROPEAN SOCIAL FUND - ADMINISTRATION AND CONTROL - POWERS OF THE COMMISSION - SCOPE - DETERMINATION OF TIME-LIMITS FOR CLEARANCE OF FUND ' S ACCOUNTS - FAILURE TO OBSERVE - PENALTIES - PERMISSIBILITY

( EEC TREATY , ART . 124 ; REGULATION NO 2396/71 OF THE COUNCIL , ARTS 11 AND 13 )

4 . COMMUNITY LAW - PRINCIPLES - LEGAL CERTAINTY - PRECLUSIVE PERIODS - WHEN APPLICABLE - CONDITIONS - CLEAR AND PRECISE DETERMINATION - DECISION 78/706 , ART . 4 ( 1 ) - CONDITIONS UNFULFILLED

( COMMISSION DECISION 78/706 , ART . 4 ( 1 ))

Summary

1 . WHILST IT IS TRUE THAT THERE IS NO PROVISION IN THE EEC TREATY ENTITLING A PERSON IN FAVOUR OF WHOM AN INSTITUTION HAS ENTERED UNILATERALLY INTO A FINANCIAL COMMITMENT TO BRING BEFORE THE COURT AN ACTION FOR PAYMENT AGAINST THAT INSTITUTION , THAT OF ITSELF DOES NOT MEAN THAT THE PERSON CONCERNED HAS NO REMEDY WHERE THAT INSTITUTION REFUSES TO HONOUR ITS COMMITMENTS . INDEED , IN SO FAR AS THE INSTITUTION , BY REFUSING PAYMENT , DISPUTES A PRIOR COMMITMENT OR DENIES ITS EXISTENCE , IT COMMITS AN ACT WHICH IN VIEW OF ITS LEGAL EFFECTS MAY GIVE RISE TO AN ACTION FOR A DECLARATION OF NULLITY UNDER ARTICLE 173 OF THE TREATY . IF AS A RESULT OF THE ACTION THE REFUSAL TO MAKE THE PAYMENT IS DECLARED VOID , THE APPLICANT ' S RIGHT WILL BE ESTABLISHED AND IT WILL BE FOR THE INSTITUTION CONCERNED , PURSUANT TO ARTICLE 176 OF THE TREATY , TO ENSURE THAT THE PAYMENT WHICH HAS BEEN UNLAWFULLY REFUSED IS MADE . MOREOVER , IF AN INSTITUTION FAILS TO REPLY TO A REQUEST FOR PAYMENT , THE SAME RESULT MAY BE OBTAINED BY MEANS OF ARTICLE 175 .

2 . IN THE EVENT OF A REFUSAL BY AN INSTITUTION TO MAKE A PAYMENT , A LETTER FROM THE INSTITUTION DEFINING UNEQUIVOCALLY AND DEFINITIVELY ITS ATTITUDE WITH REGARD TO THE REQUEST FOR PAYMENT SUBMITTED TO IT CONSTITUTES AN ACT WHICH MAY BE THE SUBJECT OF AN ACTION FOR A DECLARATION OF NULLITY UNDER ARTICLE 173 OF THE TREATY . THESE CONDITIONS ARE NOT FULFILLED BY A COMMUNICATION FROM AN INSTITUTION WHOSE CONTENT THE INSTITUTION SUBSEQUENTLY STATES THAT IT IS READY TO DISCUSS AND RECONSIDER .

3 . THE DUTY OF ADMINISTRATION AND CONTROL WITH WHICH THE COMMISSION IS ENTRUSTED AS REGARDS THE EUROPEAN SOCIAL FUND BY ARTICLE 124 OF THE EEC TREATY AND ARTICLES 11 AND 13 OF REGULATION NO 2396/71 OF THE COUNCIL AS WELL AS BY THE REQUIREMENTS RELATING TO THE SOUND AD MINISTRATION OF COMMUNITY FINANCES NECESSARILY IMPLY THAT THE ACCOUNTS OF THE SOCIAL FUND MUST BE CLEARED WITHIN A REASONABLE PERIOD AND THAT THE COMMISSION IS EMPOWERED TO DETERMINE THAT PERIOD AND TO ATTACH TO IT PENALTIES WHICH WILL ENSURE ITS OBSERVANCE . IN VIEW OF THE IMPORTANCE OF THAT PERIOD FOR THE SOUND ADMINISTRATION OF THE SOCIAL FUND , IT IS IMPOSSIBLE TO RULE OUT THE POSSIBILITY THAT THE PENALTIES PROVIDED FOR MAY EXTEND TO THE LOSS OF THE RIGHT TO PAYMENT AS A RESULT OF THE FIXING OF A PRECLUSIVE PERIOD .

4 . THE PRINCIPLE OF LEGAL CERTAINTY REQUIRES THAT A PROVISION LAYING DOWN A PRECLUSIVE PERIOD , PARTICULARLY ONE WHICH MAY HAVE THE EFFECT OF DEPRIVING A MEMBER STATE OF THE PAYMENT OF FINANCIAL AID ITS APPLICATION FOR WHICH HAS BEEN APPROVED AND ON THE BASIS OF WHICH IT HAS ALREADY INCURRED CONSIDERABLE EXPENDITURE , SHOULD BE CLEARLY AND PRECISELY DRAFTED SO THAT THE MEMBER STATES MAY BE MADE FULLY AWARE OF THE IMPORTANCE OF THEIR COMPLYING WITH THE TIME-LIMIT .

ARTICLE 4 OF COMMISSION DECISION 78/706 CANNOT BE REGARDED AS LAYING DOWN A TIME-LIMIT FAILURE TO COMPLY WITH WHICH INVOLVES THE LOSS BY THE STATE CONCERNED OF THE RIGHT TO THE PAYMENT OF THE BALANCE OF THE ASSISTANCE FROM THE EUROPEAN SOCIAL FUND WHICH HAS BEEN APPROVED .