Opinion of the Advocate General — ECLI:EU:C:2010:440
Date: 2010-07-15
Language of the case: Dutch
Subject matter: Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Own resources of the European Union – Regulation on the protection of the Union’s financial interests – Administrative penalties – Conditions on which applicable – Not possible to impose such penalties purely on the basis of Articles 5 and 7 of that regulation (Council Regulation No 2988/95, Arts 5 and 7) 2. Own resources of the European Union – Regulation on the protection of the Union’s financial interests – Administrative penalties – Conditions on which applicable – International control and supervisory agency having issued false certificates (Council Regulation No 2988/95, Art. 7) 3. Own resources of the European Union – Regulation on the protection of the Union’s financial interests – Proceedings concerning irregularities – Limitation period (Council Regulation No 2988/95, Arts 1(2), and 3(1), third subpara.) 1. Articles 5 and 7 of Regulation No 2988/95 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, for, in connection with the protection of the financial interests of the Union, it is a necessary precondition for the application of an administrative penalty to a category of persons that, before the irregularity in question was committed, either the Union legislature should have adopted sectoral rules laying down such a penalty and the conditions for its application to that category of persons or, if such rules have not yet been adopted at Union level, the law of the Member State in which the irregularity was committed should have provided for the imposition of an administrative penalty on that category of persons. Although, by virtue of the very nature of regulations and of their function in the system of sources of Union law, the provisions of regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application or without its being necessary for the Union legislature to adopt supplementary legislation, some of the provisions of a regulation may, in order to be given effect, require implementing measures to be adopted, either by the Member States or by the Union legislature itself. That is the case, in relation to the protection of the financial interests of the Union, with regard to administrative penalties imposed on the various categories of operators identified in Regulation No 2988/95. Such is the case, in particular, of the penalties mentioned in Articles 5 and 7 of that regulation since those provisions merely lay down general rules for supervision and penalties for the purpose of safeguarding the financial interests of the Union and, in particular, do not specify which of the penalties listed in Article 5 of Regulation No 2988/95 ought to be applied in the case of an irregularity detrimental to the financial interests of the Union or the category of operators on whom such penalties are to be imposed in such cases. (see paras 32-34, 36, 43, operative part 1) 2. In circumstances in which EU 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 issued false certificates, Article 7 of Regulation No 2988/95 on the protection of the European Communities’ financial interests 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 falling to be determined by the national court. (see para. 62, operative part 2) 3. 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 on the protection of the European Communities financial interests constitute sufficiently specific acts, notified to the person in question and relating to investigation or legal proceedings concerning the irregularity, that consequently interrupt the limitation period for proceedings within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95. (see para. 70, operative part 3)