# C_2017195EN.01004001.xml

| 19.6.2017 | EN | Official Journal of the European Union | C 195/40 |
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19.6.2017

EN

Official Journal of the European Union

C 195/40

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Action brought on 25 April 2017 — Germany v Commission

(Case T-239/17)

(2017/C 195/54)

Language of the case: German

Parties

Parties

Applicant: Federal Republic of Germany (represented by: D. Klebs and T. Henze)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

The applicant claims that the Court should:

| — | Annul Article 1 of and the annex to Commission Implementing Decision (EU) 2017/264 of 14 February 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as payments amounting to EUR 1 964 861,71 chargeable to the EAGF made by the Hauptzollamt Hamburg-Jonas paying agency of the Federal Republic of Germany are excluded from Union funding, and |
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Annul Article 1 of and the annex to Commission Implementing Decision (EU) 2017/264 of 14 February 2017 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) in so far as payments amounting to EUR 1 964 861,71 chargeable to the EAGF made by the Hauptzollamt Hamburg-Jonas paying agency of the Federal Republic of Germany are excluded from Union funding, and

| — | Order the defendant to pay the costs. |
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Order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.

| 1. | First plea in law: no wrongful calculation and presentation of interest, alleging
  an infringement of Article 31(1) in conjunction with Article 32(5) of Regulation (EC) No 1290/2005 (1) in conjunction with Article 6(h) of Regulation (EC) No 885/2006 (2) (alternatively, Article 52(1) in conjunction with Article 54(2) of Regulation (EU) No 1306/2013 (3) in conjunction with Article 29(f) of Implementing Regulation (EU) No 908/2014 (4)), in so far as the payments from the funding were excluded, although the German authorities had complied with all of the relevant rules in a timely manner, in particular they had calculated and presented interest in compliance with the applicable rules in Table III in accordance with Regulation (EC) No 885/2006 (in the version of Regulation (EC) No 1233/2007 (5)). |
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1.

First plea in law: no wrongful calculation and presentation of interest, alleging

an infringement of Article 31(1) in conjunction with Article 32(5) of Regulation (EC) No 1290/2005 (1) in conjunction with Article 6(h) of Regulation (EC) No 885/2006 (2) (alternatively, Article 52(1) in conjunction with Article 54(2) of Regulation (EU) No 1306/2013 (3) in conjunction with Article 29(f) of Implementing Regulation (EU) No 908/2014 (4)), in so far as the payments from the funding were excluded, although the German authorities had complied with all of the relevant rules in a timely manner, in particular they had calculated and presented interest in compliance with the applicable rules in Table III in accordance with Regulation (EC) No 885/2006 (in the version of Regulation (EC) No 1233/2007 (5)).

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| 2. | Second plea in law: failure to state reasons for the decision, alleging
  an infringement of Article 296(2) TFEU, since the Commission failed to sufficiently and coherently state the reasons why, in accordance with Article 31(1) in conjunction with Article 32(5) of Regulation (EC) No 1290/2005 in conjunction with Article 6(h) of Regulation (EC) No 885/2006 in the version of Regulation (EC) No 1233/2007, an obligation is imposed on the Member States to set out recoveries and corresponding interest in a single column and also prior to the determination of interest already relating to the period from 2006 to 2008 in the context of irregularities relating to export refunds in Table III in accordance with Regulation (EC) No 885/2006 in the version of Regulation (EC) No 1233/2007 (although the existence of a claim for interest per se is not disputed). In addition, the Commission failed to sufficiently and coherently state the reasons why there is an infringement of the obligation to carry out key controls. |
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2.

Second plea in law: failure to state reasons for the decision, alleging

an infringement of Article 296(2) TFEU, since the Commission failed to sufficiently and coherently state the reasons why, in accordance with Article 31(1) in conjunction with Article 32(5) of Regulation (EC) No 1290/2005 in conjunction with Article 6(h) of Regulation (EC) No 885/2006 in the version of Regulation (EC) No 1233/2007, an obligation is imposed on the Member States to set out recoveries and corresponding interest in a single column and also prior to the determination of interest already relating to the period from 2006 to 2008 in the context of irregularities relating to export refunds in Table III in accordance with Regulation (EC) No 885/2006 in the version of Regulation (EC) No 1233/2007 (although the existence of a claim for interest per se is not disputed). In addition, the Commission failed to sufficiently and coherently state the reasons why there is an infringement of the obligation to carry out key controls.

| 3. | Third plea in law: deadline under Article 31(4)(a) of Regulation (EC) No 1290/2005, alleging
  an infringement of Article 31(4)(a) of Regulation (EC) No 1290/2005 and Article 52(4)(a) of Regulation (EU) No 1306/2013 in so far as the Commission failed effectively to communicate the complaints (calculation and presentation of interest as well as absence of key controls), on which it based the exclusion of the expenditure, in writing, within 24 months following the date when the expenditure was incurred. |
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3.

Third plea in law: deadline under Article 31(4)(a) of Regulation (EC) No 1290/2005, alleging

an infringement of Article 31(4)(a) of Regulation (EC) No 1290/2005 and Article 52(4)(a) of Regulation (EU) No 1306/2013 in so far as the Commission failed effectively to communicate the complaints (calculation and presentation of interest as well as absence of key controls), on which it based the exclusion of the expenditure, in writing, within 24 months following the date when the expenditure was incurred.

| 4. | Fourth plea in law: excessive duration of proceedings, alleging
  an infringement of Article 31 of Regulation (EC) No 1290/2005, Article 11 of Regulation (EC) No 885/2006, Article 52 of Regulation (EC) No 1306/2013 and Article 34 of Implementing Regulation (EU) No 908/2014 in conjunction with the general legal principle that administrative proceedings should be conducted within a reasonable time, and infringement of the rights of the defence, since the proceedings before the Commission lasted too long. |
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Fourth plea in law: excessive duration of proceedings, alleging

an infringement of Article 31 of Regulation (EC) No 1290/2005, Article 11 of Regulation (EC) No 885/2006, Article 52 of Regulation (EC) No 1306/2013 and Article 34 of Implementing Regulation (EU) No 908/2014 in conjunction with the general legal principle that administrative proceedings should be conducted within a reasonable time, and infringement of the rights of the defence, since the proceedings before the Commission lasted too long.

| 5. | Fifth plea in law: infringement of the principle of proportionality, alleging
  an infringement of Article 31(2) of Regulation (EC) No 1290/2005 and Article 52(2) of Regulation (EU) No 1306/2013 as well as of the principle of proportionality, since the Commission, by imposing a flat-rate correction of 5 %, the Commission failed to take appropriate account of the nature and the scope of the supposed infringement and ignored the fact that not only was no financial damage actually caused to the Union, but that there was never even a real danger that such damage would occur and the applicant committed only a minor fault (if any). In addition, the Commission infringed the principle of proportionality, in so far as it made a correction to the annual balance for 2010 without any apparent relation to the fiscal years 2006 to 2008 at issue. |
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Fifth plea in law: infringement of the principle of proportionality, alleging

an infringement of Article 31(2) of Regulation (EC) No 1290/2005 and Article 52(2) of Regulation (EU) No 1306/2013 as well as of the principle of proportionality, since the Commission, by imposing a flat-rate correction of 5 %, the Commission failed to take appropriate account of the nature and the scope of the supposed infringement and ignored the fact that not only was no financial damage actually caused to the Union, but that there was never even a real danger that such damage would occur and the applicant committed only a minor fault (if any). In addition, the Commission infringed the principle of proportionality, in so far as it made a correction to the annual balance for 2010 without any apparent relation to the fiscal years 2006 to 2008 at issue.

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(1)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 201, p. 1).

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(2)  Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2006 L 171, p. 90).

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(3)  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549).

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(4)  Commission Implementing Regulation (EU) No 908/2014 of 6 August 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to paying agencies and other bodies, financial management, clearance of accounts, rules on checks, securities and transparency (OJ 2014 L 255, p. 59).

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(5)  Commission Regulation (EC) No 1233/2007 of 22 October 2007 amending Regulation (EC) No 885/2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2007 L 279, p. 10).

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