CELEX: 62011CJ0669
Protection of the financial interests of the European Union
Regulation (EC, Euratom) No 2988/95
Scope ratione materiae
Meaning of 'detriment to the financial interests of the European Union'
Individual invitation to tender for the export of vinous alcohol held by intervention agencies
Export of quantities of alcohol outside the European Union after the expiry of the prescribed time-limit
Retention of the performance guarantee
Administrative measures
Administrative penalties
Regulation (EC) No 360/95
Regulation (EC) No 1623/2000
Retroactive application of less severe penalty

Reference for a preliminary ruling – Conseil d’État – Interpretation of Article 5(5) of Commission Regulation (EC) No 360/95
of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention
agencies (OJ 1995 L 41, p. 14), of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed
rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine, with regard to market
mechanisms (OJ 2000 L 194, p. 45), of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the
protection of the European Communities financial interests (OJ 1995 L 312, p. 1), and of the provisions of Commission Regulation
(EEC) No 377/93 of 12 February 1993 laying down detailed rules for the disposal of alcohol obtained from the distillation
operations referred to in Articles 35, 36 and 39 of Council Regulation (EEC) No 822/87 and held by intervention agencies (OJ
1993 L 43, p. 6) and of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application
of the system of securities for agricultural products (OJ 1985 L 205, p. 5) – Individual sales by invitation to tender for
the export of vinous alcohol held by intervention agencies for the purpose of an end use as motor fuel – Time-limit for export
exceeded by the successful tenderer – Administrative penalties or other measures – Failure likely to prejudice the budget
of the European Union.
Operative part
1.
The failure of an operator to comply with the time-limit for export imposed in respect of quantities of alcohol obtained in
an invitation to tender procedure organised by the European Commission, as governed by Commission Regulation (EC) No 360/95
of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention
agencies, constitutes an ‘irregularity’ within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of
18 December 1995 on the protection of the European Communities financial interests.
2.
The loss in whole or in part of a performance guarantee, such as that provided for in Article 5(5) of Regulation No 360/95,
or of a security to ensure export within the time allowed, such as that provided for in Article 91(12) of Commission Regulation
(EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation
of the market in wine, with regard to market mechanisms, is covered by the concept of ‘administrative penalty’ within the
meaning of Article 5 of Regulation No 2988/95.
3.
In circumstances such as those of the main proceedings, Article 5(5) of Regulation No 360/95 constitutes the necessary legal
basis for the imposition of a penalty consisting of the loss in whole or in part of a performance guarantee.
4.
In circumstances such as those of the main proceedings, Article 2(2) of Regulation No 2988/95 must be interpreted as meaning
that, in order to penalise a failure to comply with the time-limit allowed for the export to Brazil of quantities of alcohol
obtained by invitation to tender under the provisions of Regulation No 360/95, the national authorities must apply the penalty
laid down in Article 5(5) of the latter regulation, and not that laid down in Article 91(12) of Regulation No 1623/2000.