# C_2010346EN.01001801.xml

| 18.12.2010 | EN | Official Journal of the European Union | C 346/18 |
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18.12.2010

EN

Official Journal of the European Union

C 346/18

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Judgment of the Court (Fourth Chamber) of 28 October 2010 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Belgisch Interventie- en Restitutiebureau v SGS Belgium NV, Firme Derwa NV, Centraal Beheer Achmea NV

(Case C-367/09) (1)

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(Preliminary ruling - Act detrimental to the financial interests of the European Union - Regulation (EC, Euratom) No 2988/95 - Article 1, Article 3(1), third subparagraph, and Articles 5 and 7 - Regulation (EEC) No 3665/87 - Articles 11 and 18(2)(c) - Meaning of ‘economic operator’ - Persons who have taken part in the irregularity - Persons under a duty to take responsibility for the irregularity or to ensure that it is not committed - Administrative penalty - Direct effect - Limitation period for proceedings - Interruption)

2010/C 346/29

Language of the case: Dutch

Referring court

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Parties to the main proceedings

Applicant: Belgisch Interventie- en Restitutiebureau

Applicant:

Defendants: SGS Belgium NV, Firme Derwa NV, Centraal Beheer Achmea NV

Defendants:

Re:

Re:

Reference for a preliminary ruling — Hof van beroep te Antwerpen — Interpretation of Article 1, Article 3(1), third subparagraph, and Articles 5 and 7 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; corrigendum in OJ 1998 L 36, p. 16) and of Article 18(1)(c) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1) — Meaning of ‘economic operator’ — Persons who have taken part in the irregularity and persons who are under a duty to take responsibility for the irregularity or to ensure that it is not committed — Limitation period for legal proceedings — Interruption

Operative part of the judgment

Operative part of the judgment

| 1. | Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests do not apply in such a way that an administrative penalty may be imposed on the basis of those provisions alone since, if, in connection with the protection of the European Union’s financial interests, an administrative penalty is to be applied to a category of persons, a necessary precondition is that, prior to commission of the irregularity in question, either the European Union legislature has adopted sectoral rules laying down such a penalty and the conditions for its application to that category of persons or, where such rules have not yet been adopted at European Union level, the law of the Member State where the irregularity was committed has provided for the imposition of an administrative penalty on that category of persons. |
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1.

Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests do not apply in such a way that an administrative penalty may be imposed on the basis of those provisions alone since, if, in connection with the protection of the European Union’s financial interests, an administrative penalty is to be applied to a category of persons, a necessary precondition is that, prior to commission of the irregularity in question, either the European Union legislature has adopted sectoral rules laying down such a penalty and the conditions for its application to that category of persons or, where such rules have not yet been adopted at European Union level, the law of the Member State where the irregularity was committed has provided for the imposition of an administrative penalty on that category of persons.

| 2. | In circumstances such as those in issue in the main proceedings, in which European Union sectoral rules did not yet require Member States to provide for effective penalties in cases in which an international control and supervisory agency approved by a Member State has issued false certificates, Article 7 of Regulation No 2988/95 does not prevent Member States from applying a penalty to that agency in its capacity as a person who has ‘taken part in the irregularity’ or as a person who is ‘under a duty to take responsibility’ for the irregularity within the meaning of Article 7, provided, however, that the application of such a penalty rests on a clear and unambiguous legal basis, a matter which falls to be determined by the referring court. |
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2.

In circumstances such as those in issue in the main proceedings, in which European Union sectoral rules did not yet require Member States to provide for effective penalties in cases in which an international control and supervisory agency approved by a Member State has issued false certificates, Article 7 of Regulation No 2988/95 does not prevent Member States from applying a penalty to that agency in its capacity as a person who has ‘taken part in the irregularity’ or as a person who is ‘under a duty to take responsibility’ for the irregularity within the meaning of Article 7, provided, however, that the application of such a penalty rests on a clear and unambiguous legal basis, a matter which falls to be determined by the referring court.

| 3. | In circumstances such as those in issue in the main proceedings, the communication, to an international control and supervisory agency which has issued a certificate for release for consumption in respect of a specific export operation, of an investigative report drawing attention to an irregularity in connection with that operation, the presentation to that agency of a request to produce additional documents for the purpose of checking whether the release for consumption actually took place and the sending of a registered letter imposing a penalty on that agency for having taken part in an irregularity within the meaning of Article 1(2) of Regulation No 2988/95 constitute acts, notified to the person in question and relating to investigation or legal proceedings concerning the irregularity, which are sufficiently specific to interrupt the limitation period for proceedings within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95. |
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3.

In circumstances such as those in issue in the main proceedings, the communication, to an international control and supervisory agency which has issued a certificate for release for consumption in respect of a specific export operation, of an investigative report drawing attention to an irregularity in connection with that operation, the presentation to that agency of a request to produce additional documents for the purpose of checking whether the release for consumption actually took place and the sending of a registered letter imposing a penalty on that agency for having taken part in an irregularity within the meaning of Article 1(2) of Regulation No 2988/95 constitute acts, notified to the person in question and relating to investigation or legal proceedings concerning the irregularity, which are sufficiently specific to interrupt the limitation period for proceedings within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95.

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(1)  OJ C 297, 5.12.2009.

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