61986J0070

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COMMUNITY LAW - PRINCIPLES - FORCE MAJEURE - CONCEPT

APART FROM SPECIAL FEATURES OF SPECIFIC AREAS IN WHICH IT IS USED, THE CONCEPT OF FORCE MAJEURE ESSENTIALLY COVERS EXTRANEOUS CIRCUMSTANCES WHICH MAKE IT IMPOSSIBLE FOR THE RELEVANT ACTION TO BE CARRIED OUT . EVEN THOUGH IT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY IT NEVERTHELESS REQUIRES ABNORMAL DIFFICULTIES WHICH ARE INDEPENDENT OF THE WILL OF THE PERSON CONCERNED AND APPEAR INEVITABLE EVEN IF ALL DUE CARE IS TAKEN .

IN CASE 70/86

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, DIMITRIOS GOULOUSSIS, AND BY JOHN FORMAN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

APPLICANT,

V

HELLENIC REPUBLIC, REPRESENTED BY GIANNOS KRANIDIOTIS, SPECIAL SECRETARY AT THE MINISTRY OF FOREIGN AFFAIRS, ACTING AS AGENT, ASSISTED BY STELIOS PERRAKIS, LEGAL ADVISER AT THE MINISTRY OF FOREIGN AFFAIRS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE GREEK EMBASSY,

DEFENDANT,

APPLICATION FOR A DECLARATION THAT, BY FAILING TO ENTER THE FINANCIAL RESOURCES BASED ON GNP FOR JUNE 1983 ON THE FIRST WORKING DAY OF THAT MONTH, NAMELY 1 JUNE, IN ACCORDANCE WITH THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 3 ) OF COUNCIL REGULATION ( EEC, EURATOM, ECSC ) 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 ( OFFICIAL JOURNAL 1977, L*336, P.*1 ), AND BY SUBSEQUENTLY REFUSING TO PAY THE INTEREST PROVIDED FOR BY ARTICLE 11 OF THAT REGULATION, THE HELLENIC REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY,

THE COURT

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, C . KAKOURIS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, U . EVERLING, R . JOLIET, J . C . MOITINHO DE ALMEIDA AND G . C . RODRIGUEZ IGLESIAS, JUDGES,

ADVOCATE GENERAL : C . O . LENZ

REGISTRAR : B . PASTOR, ADMINISTRATOR

HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 10 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 2 JUNE 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 11 MARCH 1986 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY FAILING TO ENTER IN THE COMMISSION' S ACCOUNT IN DUE TIME THE FINANCIAL CONTRIBUTIONS FOR JUNE 1983 AND BY REFUSING TO PAY THE INTEREST PROVIDED FOR IN THE EVENT OF SUCH LATE ENTRY, THE HELLENIC REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

2 THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 3 ) 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 COMMUNITY' S OWN RESOURCES ( OFFICIAL JOURNAL 1977, L*336, P.*1 ) PROVIDES THAT "THE VAT RESOURCES OR, WHERE APPROPRIATE, THE FINANCIAL CONTRIBUTIONS BASED ON GNP, SHALL BE ENTERED ON THE FIRST WORKING DAY OF EACH MONTH, THE AMOUNT BEING ONE-TWELFTH OF THE TOTAL RESULTING FROM THE BUDGET IN THIS CONNECTION ".

3 ARTICLE 11 OF THE REGULATION STATES THAT "ANY DELAY IN MAKING THE ENTRY IN THE ACCOUNT REFERRED TO IN ARTICLE 9 ( 1 ) SHALL 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 . THAT RATE SHALL BE INCREASED BY 0.25 OF A PERCENTAGE POINT FOR EACH MONTH OF DELAY . THE INCREASED RATE SHALL BE APPLIED TO THE ENTIRE PERIOD OF DELAY ".

4 THE DIRECTORATE-GENERAL FOR BUDGETS AT THE COMMISSION FOUND THAT THE FINANCIAL CONTRIBUTIONS OF THE HELLENIC REPUBLIC FOR THE MONTH OF JUNE 1983 HAD NOT BEEN ENTERED IN THE COMMISSION' S ACCOUNT ON THE FIRST WORKING DAY OF THAT MONTH ( 1 JUNE ) BUT TWO DAYS LATER, ON 3 JUNE; IT THEREFORE ASKED THE HELLENIC REPUBLIC TO CREDIT ACCOUNT NO 242174 "COMMISSION OF THE EUROPEAN COMMUNITIES - GAO" AT THE BANK OF GREECE WITH THE INTEREST DUE PURSUANT TO ARTICLE 11 OF THE REGULATION ( DR*1*265*542.18 ).

5 THE COMMISSION DID NOT ACCEPT THE ARGUMENT OF THE GREEK AUTHORITIES TO THE EFFECT THAT THE INTEREST IN QUESTION WAS NOT DUE INASMUCH AS THE DELAYED ENTRY WAS CAUSED BY A GENERAL STRIKE OF BANK EMPLOYEES ON 1 AND 2 JUNE WHICH MUST BE REGARDED AS FORCE MAJEURE; IT SENT THE GREEK GOVERNMENT A LETTER FORMALLY REQUESTING IT TO TAKE THE NECESSARY ACTION AND, SUBSEQUENTLY, A REASONED OPINION . THE GREEK GOVERNMENT STATED THAT IT MAINTAINED ITS POSITION, AND THE COMMISSION THEREFORE BROUGHT THESE PROCEEDINGS BEFORE THE COURT .

6 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE FACTS AND THE ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

7 THE COMMISSION ACCEPTS THAT IN THE EVENT OF FORCE MAJEURE A DELAY IN THE ENTRY OF FINANCIAL CONTRIBUTIONS DOES NOT HAVE THE EFFECT THAT THE MEMBER STATE CONCERNED IS OBLIGED TO PAY INTEREST FOR LATE PAYMENT PURSUANT TO ARTICLE 11 OF REGULATION NO 2891/77 . IN THIS CASE, HOWEVER, THE STRIKE RELIED ON AS AN EXCUSE BY THE GREEK GOVERNMENT WAS NOT AN EVENT EXTRANEOUS TO IT AND THE CONSEQUENCES OF THAT STRIKE WERE NOT INEVITABLE SINCE IT WAS KNOWN IN ADVANCE OR WAS AT LEAST FORESEEABLE THAT A STRIKE WOULD BE CALLED .

8 AS THE COURT HAS CONSISTENTLY HELD, APART FROM SPECIAL FEATURES OF SPECIFIC AREAS IN WHICH IT IS USED, THE CONCEPT OF FORCE MAJEURE ESSENTIALLY COVERS EXTRANEOUS CIRCUMSTANCES WHICH MAKE IT IMPOSSIBLE FOR THE RELEVANT ACTION TO BE CARRIED OUT . EVEN THOUGH IT DOES NOT PRESUPPOSE ABSOLUTE IMPOSSIBILITY IT NEVERTHELESS REQUIRES ABNORMAL DIFFICULTIES WHICH ARE INDEPENDENT OF THE WILL OF THE PERSON CONCERNED AND APPEAR INEVITABLE EVEN IF ALL DUE CARE IS TAKEN ( SEE MOST RECENTLY THE JUDGMENT OF 12 JULY 1984 IN CASE 209/83 VALSABBIA V COMMISSION (( 1984 )) ECR 3089 ).

9 THOSE CONDITIONS ARE NOT MET IN THIS CASE . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT AT LEAST SINCE 25 MAY THE PRESS HAD WARNED OF STRIKES AFFECTING SEVERAL OCCUPATIONS, INCLUDING BANK EMPLOYEES, FOR 26 AND 27 MAY . ON 29 MAY, THE PRESS WARNED OF FURTHER INDUSTRIAL ACTION AND STATED THAT THE UNIONS HAD CALLED A STRIKE FOR 1 AND 2 JUNE . THE STRIKE WHICH IN FACT TOOK PLACE ON THOSE DATES WAS THEREFORE FORESEEABLE AND THE DELAY IN THE ENTRY OF THE FINANCIAL CONTRIBUTIONS IN QUESTION COULD HAVE BEEN AVOIDED .

10 IT IS NOT NECESSARY TO CONSIDER THE QUESTION WHETHER OR NOT, IN THE EVENT OF FORCE MAJEURE, THE MEMBER STATES ARE OBLIGED TO PAY INTEREST PURSUANT TO ARTICLE 11 OF REGULATION NO 2891/77 . THE STRIKE RELIED ON AS AN EXCUSE BY THE GREEK GOVERNMENT CANNOT BE REGARDED AS A CASE OF FORCE MAJEURE .

11 CONSEQUENTLY, BY FAILING TO ENTER THE FINANCIAL CONTRIBUTIONS FOR THE MONTH OF JUNE 1983 IN THE COMMISSION' S ACCOUNT IN DUE TIME AND BY REFUSING TO PAY INTEREST PURSUANT TO ARTICLE 11 OF REGULATION NO 2891/77 IN RESPECT OF THE LATE ENTRY, THE HELLENIC REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .

COSTS

12 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE HELLENIC REPUBLIC HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

On those grounds,

THE COURT

hereby :

( 1 ) Declares that, by failing to enter the financial contributions for the month of June 1983 in the Commission' s account in due time and by refusing to pay interest in respect of that late entry pursuant to Article 11 of Regulation No 2891/77, the Hellenic Republic has failed to fulfil its obligations under the Treaty;

( 2 ) Orders the Hellenic Republic to pay the costs .