# C_2011080EN.01002901.xml

| 12.3.2011 | EN | Official Journal of the European Union | C 80/29 |
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12.3.2011

EN

Official Journal of the European Union

C 80/29

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Action brought on 17 January 2011 — Italy v Commission

(Case T-44/11)

2011/C 80/54

Language of the case: Italian

Parties

Parties

Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | Annul in part Commission Decision C(2010) 7555, notified on 5 November 2010, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and the European Agricultural Fund for Rural Development (EAFRD). |
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Annul in part Commission Decision C(2010) 7555, notified on 5 November 2010, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and the European Agricultural Fund for Rural Development (EAFRD).

Pleas in law and main arguments

Pleas in law and main arguments

The applicant relies on three grounds in support of its action.

| 1. | First ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; distortion of facts; infringement of the principle of proportionality; infringement of Article 24(2) of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).
  It is submitted in this connection that the Commission applied a number of financial corrections in the skimmed milk powder sector on the basis of the allegedly incorrect application of regulatory aid reductions and sanctions. In particular, on the basis of a strict interpretation of Article 24(2) of Regulation (EC) No 2799/0999, which was incorrect and inconsistent with the spirit of that provision, it found that the quarterly check, carried out the week following that in which the irregular sample was taken, was not the special enquiry provided for by Community legislation and could not therefore act as a substitute for it. Moreover, on the basis of a small number of specific cases, the Commission made generalisations concerning any failure — wholly hypothetical — on the part of the Italian authorities to impose penalties, which also led it to distort the facts. Lastly, since the amount which, it is claimed, has not yet been paid by way of penalties is considerably below the total amount of penalties which it was intended to impose on Italy, it is impossible to understand the reasons for the application of flat-rate corrections, which are in any event disproportionate and excessive. It therefore follows that, in addition to the clear failure to state reasons, there has also been infringement of the principle of proportionality. |
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1.

First ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; distortion of facts; infringement of the principle of proportionality; infringement of Article 24(2) of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).

It is submitted in this connection that the Commission applied a number of financial corrections in the skimmed milk powder sector on the basis of the allegedly incorrect application of regulatory aid reductions and sanctions. In particular, on the basis of a strict interpretation of Article 24(2) of Regulation (EC) No 2799/0999, which was incorrect and inconsistent with the spirit of that provision, it found that the quarterly check, carried out the week following that in which the irregular sample was taken, was not the special enquiry provided for by Community legislation and could not therefore act as a substitute for it. Moreover, on the basis of a small number of specific cases, the Commission made generalisations concerning any failure — wholly hypothetical — on the part of the Italian authorities to impose penalties, which also led it to distort the facts. Lastly, since the amount which, it is claimed, has not yet been paid by way of penalties is considerably below the total amount of penalties which it was intended to impose on Italy, it is impossible to understand the reasons for the application of flat-rate corrections, which are in any event disproportionate and excessive. It therefore follows that, in addition to the clear failure to state reasons, there has also been infringement of the principle of proportionality.

| 2. | Second ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; infringement of the principle of proportionality; infringement of Article 6(3) TEU, on the basis of infringement of the fundamental principles of the protection of legitimate expectations, legal certainty and the principle of non-retroactivity of substantive rules; infringement of Article 32(5) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1): infringement of the principle of ne bis in idem.
  The applicant submits in this connection that, following an investigation initiated in 2003, the Commission applied a correction to the Member State for the 2009 financial year, regarding the organisation of the recovery system of the paying agencies, which took account of the value of the cases which, as they had not yet been decided on by the Commission in accordance with the Community rules in force at the material time, it is claimed are covered by the new rules, thus making them subject to what is known as the fifty-fifty rule introduced by Regulation (EC) No 1290/2005. The financial adjustment in question is unlawful in that it made the Member State automatically liable for 50 per cent of the sums in question, in accordance with the provision in Article 32(5) of Regulation No 1290/2005, which was unlawfully applied retroactively in connection with an investigation into debt management concerning, essentially, ‘the situation as observed in 2002/2003’, as expressly acknowledged by the Commission itself. Moreover, in respect of the same cases in which checks were carried out, a financial correction of 50 % has already been applied to the Italian State under Article 32 of Regulation 1290/2005 by Commission C(2007) 1901 of 27 April 2007. By the contested decision, the Commission is applying, in respect of the same cases and on the basis of the same findings, a further specific financial correction amounting to 100 % of the claims that have not been recovered. It is therefore unlawful and wholly disproportionate to require payment of the additional 50 % by way of penalties after so many years and essentially amounts to a flagrant breach of the principle of ne bis in idem.
  Third ground, alleging that the Commission’s power to impose penalties is time-barred; the reasonable period for concluding the investigations at issue was exceeded; infringement of Article 32(5) of Regulation 1290/2005; infringement of the principle of ne bis in idem.
  In the alternative to the second ground, if, which is denied, Article 32(5) of Regulation 1290/2005, applied retroactively by the Commission to the investigations at issue, should be regarded as a procedural provision, it is submitted that the correction in question is unlawful, since it was applied after the four-year limitation period within which the Commission can exercise its powers to impose penalties. In the further alternative, it is submitted that the corrections at issue are unlawful, on the ground that the reasonable period for concluding the investigations in question was exceeded. As a result of the failure to conclude the investigations within a reasonable period (eight years after the investigations commenced), the national budget has already suffered a significant loss of revenue due to Commission Decision C(2007) 1901 to apply a 50 % flat-rate correction with regard to the same cases which are also the subject of the contested decision, amounting essentially to a flagrant breach of the principle of ne bis in idem. |
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2.

Second ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; infringement of the principle of proportionality; infringement of Article 6(3) TEU, on the basis of infringement of the fundamental principles of the protection of legitimate expectations, legal certainty and the principle of non-retroactivity of substantive rules; infringement of Article 32(5) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1): infringement of the principle of ne bis in idem.

The applicant submits in this connection that, following an investigation initiated in 2003, the Commission applied a correction to the Member State for the 2009 financial year, regarding the organisation of the recovery system of the paying agencies, which took account of the value of the cases which, as they had not yet been decided on by the Commission in accordance with the Community rules in force at the material time, it is claimed are covered by the new rules, thus making them subject to what is known as the fifty-fifty rule introduced by Regulation (EC) No 1290/2005. The financial adjustment in question is unlawful in that it made the Member State automatically liable for 50 per cent of the sums in question, in accordance with the provision in Article 32(5) of Regulation No 1290/2005, which was unlawfully applied retroactively in connection with an investigation into debt management concerning, essentially, ‘the situation as observed in 2002/2003’, as expressly acknowledged by the Commission itself. Moreover, in respect of the same cases in which checks were carried out, a financial correction of 50 % has already been applied to the Italian State under Article 32 of Regulation 1290/2005 by Commission C(2007) 1901 of 27 April 2007. By the contested decision, the Commission is applying, in respect of the same cases and on the basis of the same findings, a further specific financial correction amounting to 100 % of the claims that have not been recovered. It is therefore unlawful and wholly disproportionate to require payment of the additional 50 % by way of penalties after so many years and essentially amounts to a flagrant breach of the principle of ne bis in idem.

Third ground, alleging that the Commission’s power to impose penalties is time-barred; the reasonable period for concluding the investigations at issue was exceeded; infringement of Article 32(5) of Regulation 1290/2005; infringement of the principle of ne bis in idem.

In the alternative to the second ground, if, which is denied, Article 32(5) of Regulation 1290/2005, applied retroactively by the Commission to the investigations at issue, should be regarded as a procedural provision, it is submitted that the correction in question is unlawful, since it was applied after the four-year limitation period within which the Commission can exercise its powers to impose penalties. In the further alternative, it is submitted that the corrections at issue are unlawful, on the ground that the reasonable period for concluding the investigations in question was exceeded. As a result of the failure to conclude the investigations within a reasonable period (eight years after the investigations commenced), the national budget has already suffered a significant loss of revenue due to Commission Decision C(2007) 1901 to apply a 50 % flat-rate correction with regard to the same cases which are also the subject of the contested decision, amounting essentially to a flagrant breach of the principle of ne bis in idem.

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