Judgment_paragraph (2) · 2/71

(2)In its statement of defence the defendant asserts that although in principle the Member States are entitled under Article 125 of the Treaty to obtain a reimbursement of 50 % of their actual expenses in national currency, it is on the other hand impossible to apply this principle to cases of alterations in parity. In fact the application of this principle to such a situation would imply a community of risks between the Member States, a view which could only be admitted on the basis of an express provision to this effect. In this connexion the defendant points to provisions such as the third paragraph of Article 207 of the EEC Treaty, Article 7 of the Protocol on the Statute of the European Investment Bank and Article 22 of the Financial Regulation of 1961, which in its view are capable of providing support for its argument.With regard to the provisions of the Financial Regulation invoked by the applicant, the defendant observes that the calculation of the ‘total amount of the benefits charged to the European Social Fund for the quarter’, under subparagraph (b) of Article 16 necessarily supposes conversion to units of account of the sums to be reimbursed to the various Member States for the quarter in question. It is thus natural that the accounts drawn up in accordance with subparagraphs (b) and (c) of Article 16 of the Financial Regulation should be based on the monetary parities prevailing at the moment of conversion. Furthermore a subsequent adaptation of those accounts in view of the alterations in parities occurring later would imply a disregard of the nature of those accounts, a disregard which is not justified by any express provision. Thus it is clear from Article 17 of the Financial Regulation that the indispensable elements in the annual statement of accounts arise direotly from the quarterly accounts without any re-examination of the latter.In addition, the provisions of Articles 22 to 24 of the Financial Regulation show that the authors of the regulation were familiar with the problem of alterations in parties. Consequently, since there is no express reference to the effect of an alteration in parities on the calculations of the current financial year, it must be held that the fixing in units of account of the contributions and of the balances, laid down in Article 21 (2), refers to the rate of parity in force at the time of the quarterly calculation of the contributions.In relying on the judgment of the Court in Case 111/63 (Lemmerz — Werke GmbH v High Authority of the ECSC, [1965] ECR 677) the defendant observes that the Court did not solve the problems caused by an alteration in parities merely by referring to the principle of the nominal value of the national currency whose parity changed but took account of the special nature of the equalization scheme in question.The applicant replies that once a principle, such as the one stated in Article 125 of the EEC Treaty, is admitted, it may not be departed from save where express provision is made for this. There is no such provision in the present case. The provisions on which the defendant relies in this connexion are irrelevant since, unlike the situation created within the framework of the European Social Fund, they all relate to bilateral relationships in which the debtor in fact takes the risk of a revaluation. On the other hand, in a clearing system such as that of the European Social Fund which is closed off each year the statements of account can only be effected through a parity fixed for the entire period covered by those statements.Furthermore the applicant recalls mat in the judgment in Case 111/63 the Court approved of the fact that only the alterations in parity occurring before the expiry of the equalization scheme, and not subsequent alterations, were taken into consideration in drawing up in national currency the amounts expressed in units of account, and took the view that, in order to be able to make a uniform evaluation of the burdens and benefits only a uniform value of the unit of account could be taken as the base for a period covered by a statement of accounts. The applicant considers that this case tends to favour its argument.In its rejoinder, the defendant considers that the debtor/creditor relationship within the framework of the European Social Fund is also to be regarded legally as a bilateral relationship and that, in addition, the applicant has not weakened in any other way the argument based on the provisions cited by the defendant in this respect.With regard to the judgment of the Court in Case 111/63 the defendant remarks that although the Court was not then required to consider the problem of an alteration in parities occurring in the course of the accounting period, it was certainly confronted with the choice between the accounting period and the point when the accounts were reconciled as the point of reference for the purposes of the rate of parity, and chose the former alternative. From this the defendant concludes that it is entitled to rely on this case-law.