# C_2012373EN.01000201.xml

| 1.12.2012 | EN | Official Journal of the European Union | C 373/2 |
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1.12.2012

EN

Official Journal of the European Union

C 373/2

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Appeal brought on 13 September 2012 by the Kingdom of Denmark against the judgment delivered on 3 July 2012 in Case T-212/09 Kingdom of Denmark v European Commission

(Case C-417/12 P)

2012/C 373/02

Language of the case: Danish

Parties

Parties

Appellant: Kingdom of Denmark (represented by: V. Pasternak Jørgensen, Agent and P. Biering and J. Pinborg, advokater)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

Main head of claim:

| — | Set aside the judgment of the General Court in whole or in part; |
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Set aside the judgment of the General Court in whole or in part;

| — | Find in favour of the appellant in respect of the arguments which were put forward before the General Court; |
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Find in favour of the appellant in respect of the arguments which were put forward before the General Court;

In the alternative:

| — | Refer the case back to the General Court for a fresh hearing and judgment. |
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Refer the case back to the General Court for a fresh hearing and judgment.

Pleas in law and main arguments

Pleas in law and main arguments

| 1. | The General Court’s judgment concerned the review of the Commission’s Decision of 19 March 2009 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 under the European Agricultural Guarantee Fund (EAGF), in so far as it excludes from Community financing expenditure incurred in the amount of DKK 749 million by the Kingdom of Denmark in respect of the setting aside of land. |
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1.

The General Court’s judgment concerned the review of the Commission’s Decision of 19 March 2009 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 under the European Agricultural Guarantee Fund (EAGF), in so far as it excludes from Community financing expenditure incurred in the amount of DKK 749 million by the Kingdom of Denmark in respect of the setting aside of land.

| 2. | Firstly, in Denmark’s submission, the General Court erred in law in its assessment of whether the Danish remote-sensing control was sufficiently effective, as the Court proceeded on the assumption that the effectiveness of the remote-sensing control could be assessed by comparing it with GPS control conducted by the Commission’s representatives in connection with an inspection in Denmark. |
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2.

Firstly, in Denmark’s submission, the General Court erred in law in its assessment of whether the Danish remote-sensing control was sufficiently effective, as the Court proceeded on the assumption that the effectiveness of the remote-sensing control could be assessed by comparing it with GPS control conducted by the Commission’s representatives in connection with an inspection in Denmark.

| 3. | Secondly, the General Court’s interpretation of the relevant legal basis is, in Denmark’s submission, incorrect on a number of points, including in relation to the question whether a Commission decision can be maintained even though it is based on an incorrect interpretation of a rule which is completely central to the decision, namely the interpretation of the maintenance requirement in the first sentence of Article 19(4) of Regulation No 2316/1999. |
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3.

Secondly, the General Court’s interpretation of the relevant legal basis is, in Denmark’s submission, incorrect on a number of points, including in relation to the question whether a Commission decision can be maintained even though it is based on an incorrect interpretation of a rule which is completely central to the decision, namely the interpretation of the maintenance requirement in the first sentence of Article 19(4) of Regulation No 2316/1999.

| 4. | Thirdly, in Denmark’s submission, the General Court erred in law in relation to the applied burden of proof and standard of proof for the Commission and the Member States respectively, as the General Court states that the Commission, which conducted the inspections after the expiry of the set-aside period, can discharge its burden of proof by basing its presumptions on the circumstance that the established facts were also present during the set-aside period, and as the General Court states that Denmark’s burden of proof under the EAGGF implies that proof must be made out for all set-aside areas in Denmark, not just the areas inspected by the Commission. In so doing the General Court introduced a new, generally-formulated standard of proof for the Member States which departs from the Court of Justice’s previous case-law and which imposes a standard of proof on the Member States which is impossible to discharge in practice. |
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4.

Thirdly, in Denmark’s submission, the General Court erred in law in relation to the applied burden of proof and standard of proof for the Commission and the Member States respectively, as the General Court states that the Commission, which conducted the inspections after the expiry of the set-aside period, can discharge its burden of proof by basing its presumptions on the circumstance that the established facts were also present during the set-aside period, and as the General Court states that Denmark’s burden of proof under the EAGGF implies that proof must be made out for all set-aside areas in Denmark, not just the areas inspected by the Commission. In so doing the General Court introduced a new, generally-formulated standard of proof for the Member States which departs from the Court of Justice’s previous case-law and which imposes a standard of proof on the Member States which is impossible to discharge in practice.

| 5. | Fourthly, the General Court, in relation to the question whether the application of financial corrections failed to make an assessment of whether the relevant conditions were satisfied, including whether there was an infringement of explicit EU rules, which Denmark had explicitly disputed at the hearing before the General Court. |
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5.

Fourthly, the General Court, in relation to the question whether the application of financial corrections failed to make an assessment of whether the relevant conditions were satisfied, including whether there was an infringement of explicit EU rules, which Denmark had explicitly disputed at the hearing before the General Court.

| 6. | Fifthly, the General Court, in its judgment, substituted its own reasons for the Commission’s original reasons. The General Court’s reasons for upholding the decision were thus based on other — quantitative and qualitative — entirely irrelevant circumstances than those to which the Commission had accorded decisive weight for the decision. In Denmark’s submission, the General Court’s judgment is contrary to the proportionality principle. |
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6.

Fifthly, the General Court, in its judgment, substituted its own reasons for the Commission’s original reasons. The General Court’s reasons for upholding the decision were thus based on other — quantitative and qualitative — entirely irrelevant circumstances than those to which the Commission had accorded decisive weight for the decision. In Denmark’s submission, the General Court’s judgment is contrary to the proportionality principle.

| 7. | Lastly and sixthly, the General Court failed to rule on a number of the Government’s key submissions and the evidence adduced; on a number of points Denmark’s arguments and factual submissions were reproduced incorrectly, with the result that the judgment’s premises and result rests on an incorrect factual and legal basis. |
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7.

Lastly and sixthly, the General Court failed to rule on a number of the Government’s key submissions and the evidence adduced; on a number of points Denmark’s arguments and factual submissions were reproduced incorrectly, with the result that the judgment’s premises and result rests on an incorrect factual and legal basis.

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