Opinion of the Advocate General — ECLI:EU:C:2012:38
Date: 2012-01-26
Language of the case: German
Subject matter: Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: Germany

summary report on the recovery procedures undertaken in response to irregularities. This shall give a breakdown of the amounts not yet recovered, by administrative and/or judicial procedure and by year of the primary administrative or judicial finding of the irregularity. Member States shall make available to the Commission detailed particulars of the individual recovery procedures and of the individual sums not yet recovered. …’ 10 In accordance with Article 49 of Regulation No 1290/2005, Article 32 of that regulation applies to cases notified under Article 3 of Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organisation of an information system in this field and repealing Regulation (EEC) No 283/72 (OJ 1991 L 67, p. 11) for which full recovery has not taken place by 16 October 2006. National law 11 Pursuant to Paragraph 6(1) No 11 and the first sentence of Paragraph 14(1) of the Law on the implementation of the common organisation of the markets (Gesetz zur Durchführung der Gemeinsamen Marktorganisationen), as amended by the Law amending the legislation on administrative procedure (Gesetz zur Änderung verwaltungsverfahrensrechtlicher Vorschriften) of 2 May 1996 (BGBl. 1996 I, p. 656) (‘the Law on the organisation of the markets’), unless otherwise provided by a legal act of the Council of the European Union or the Commission, claims for the repayment of special advantages, such as the offsetting of storage costs, are to bear interest at the rate of 3% above the Deutsche Bundesbank discount rate from the date on which they arise. 12 According to the referring court, under Paragraphs 197 and 201 of the German Civil Code (Bürgerliches Gesetzbuch) (‘the BGB’), in the version applicable until 31 December 2001, the limitation period for a claim for arrears of interest was four years from the end of the year in which the claim for interest arose. Those dispositions applied mutatis mutandis to claims for interest under public law. 13 Since the entry into force on 1 January 2002 of the Law modernising the law of obligations (Gesetz zur Modernisierung des Schuldrechts) of 26 November 2001 (BGBl. 2001 I, p. 3138), Paragraph 195 of the BGB, in the version applicable from that date, provides that the standard limitation period for claims for arrears of interest is three years, whereas the four-year limitation period continues to apply to claims which arose before 1 January 2002. 14 Under Paragraph 217 of the BGB, in the version applicable until 31 December 2001, ‘[i]f the limitation period is interrupted, the time that has elapsed before the interruption is not taken into account; a new limitation period can start only once the interruption has ended’. 15 Under Paragraph 53(1) of the Law on administrative procedure (Verwaltungsverfahrensgesetz), in the version applicable until 31 December 2001, ‘[a]n administrative act that is adopted in order to implement a claim of a legal person governed by public law interrupts the limitation period in respect of that claim. The interruption lasts until the administrative act becomes final or until the administrative procedure under which it was adopted is otherwise concluded. Paragraphs 212 and 217 of [the BGB, in the version applicable until 31 December 2001,] apply mutatis mutandis’. 16 In the version applicable from 1 January 2002, Paragraph 53(1) provides that ‘[a]n administrative act that is adopted in order to establish or implement a claim on the part of a legal person governed by public law interrupts the limitation period in respect of that claim. The interruption ends when the administrative act becomes final or six months after it is otherwise concluded’. 17 Paragraph 80(1) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung) provides that ‘an objection and an action for annulment shall have suspensive effect’. The dispute in the main proceedings and the questions referred for a preliminary ruling 18 In the sugar marketing years 1994/1995, 1995/1996 and 1996/1997 Pfeifer & Langen received, upon application, reimbursements of storage costs, as provided for in Article 8(2) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1991 L 177, p. 4), for the storage of sugar within the framework of the common organisation of the markets. 19 By three decisions of 30 January 2003, the Bundesanstalt decided that the reimbursements of storage costs in question should be repaid because Pfeifer & Langen had overstated the quantities of sugar in its applications. Moreover, it was established in the decisions that the sums reclaimed should bear interest and that the precise amount of interest due would be fixed by later decisions. 20 Pfeifer & Langen objected to those decisions. By decisions of 10 October 2006, the Bundesanstalt reduced the amounts to be repaid, but dismissed the remainder of the objections. 21 Pfeifer & Langen brought actions for the partial annulment of the decisions on its objections, but those actions have not been ruled upon to date. 22 The decisions on the objections brought by Pfeifer & Langen became final as regards the amount of EUR 496 421.12 that was not challenged before the courts, which the applicant in the main proceedings paid on 15 November 2006. 23 By decision of 13 April 2007, the Bundesanstalt held that interest was due on that sum and therefore demanded that Pfeifer & Langen pay interest of EUR 298 650.93. 24 Pfeifer & Langen objected to that decision, arguing in particular that the claims for interest were in part time-barred. 25 By decision of 22 October 2007 on that objection, the Bundesanstalt upheld the objection in part in so far as it was directed against the claims for interest for the years 1997 and 1998. The Bundesanstalt considered that the limitation period of four years, laid down by national law, applied to those claims, so that they had been time-barred when the decisions ordering recovery of the reimbursements of storage costs were adopted on 30 January 2003. However, as regards the claims for interest after 31 December 1998, amounting to EUR 237 644.17, the Bundesanstalt considered that the claims for interest arising in subsequent years were not time-barred, in particular because the decisions of 30 January 2003 had interrupted the limitation period. The objection brought by Pfeifer & Langen was therefore dismissed in respect of those claims for interest. 26 On 14 November 2007, Pfeifer & Langen brought an action before the Verwaltungsgericht Köln (Administrative Court, Cologne) for the partial annulment of the decision of 22 October 2007 on its objection in so far as it concerns the claims for interest for the period from 1 January 1999 to 31 December 2002, which amount to EUR 119 984.27. The applicant has paid the interest for the subsequent years. 27 By judgment of 25 November 2009, the Verwaltungsgericht Köln annulled the decision of 22 October 2007 to the extent challenged. The court held that, pursuant to Paragraph 14 of the Law on the organisation of the markets, claims for the refunding of special advantages bear interest from the date on which they arise. However, according to the Verwaltungsgericht, the claim for default interest in question did not arise until the decisions of 30 January 2003 were notified, on 31 January 2003, so that there was no liability to pay interest for earlier periods. 28 The Bundesanstalt appealed on a point of law to the Bundesverwaltungsgericht (Federal Administrative Court) in order to have Pfeifer & Langen’s action dismissed. 29 The Bundesverwaltungsgericht agrees with the Verwaltungsgericht Köln that, in the main proceedings, the obligation to pay default interest on the amounts corresponding to the advantages wrongly received from the European Union budget is governed by national law, in this instance by Paragraph 14 of the Law on the organisation of the markets, since no European Union legislation applicable to the sugar sector lays down such an obligation. 30 However, the Bundesverwaltungsgericht considers that the Verwaltungsgericht Köln misinterpreted Paragraph 14. According to the Bundesverwaltungsgericht, claims for the repayment of advantages that are wrongly received do indeed bear interest from when they arise. In those circumstances, that court considers that, since the decisions of 30 January 2003 are intended to withdraw the undue advantage retrospectively, interest is in fact chargeable on the periods preceding those decisions. 31 The Bundesverwaltungsgericht concludes that the claims for interest at issue are not time-barred, since, pursuant to Paragraph 53(1) of the Law on administrative procedure, in the version applicable from 1 January 2002, the limitation period was interrupted by the repayment decisions of 30 January 2003. However, it takes the view that the possible application of the limitation rules laid down by Article 3 of Regulation No 2988/95, including those relating to the start and interruption of the limitation period, may affect the ruling that it will give on the appeal. 32 The court’s doubts as to whether Article 3 of Regulation No 2988/95 applies in circumstances such as those at issue in the main proceedings are in particular due to the fact that the Bundesfinanzhof (Federal Finance Court) held, in a case concerning export refunds, that Article 3 applied to the limitation period for interest linked to the refunding of advantages that are wrongly received within the meaning of Article 4(2) of that regulation. 33 However, the referring court is of the view that such an interpretation is not conclusive and that, since Article 4(2) does not preclude the existence in national law of an obligation to charge interest where European Union legislation has not yet laid down such an obligation, it is logical that claims for interest that are laid down by national law are also governed by national law as regards the applicable limitation period. Moreover, the court points out that, were the rules in Article 3 of Regulation No 2988/95 to apply to such claims for interest, there would be some difficulty in applying the principle that the limitation period runs from the ‘irregularity’ within the meaning of Article 1 of that regulation, given that the claims for interest arise not as soon as the irregularity is committed, but successively as time elapses following that irregularity. 34 In those circumstances, the Bundesverwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Does Article 3 of [Regulation No 2988/95] apply also to the limitation period for claims in respect of interest due under national law in addition to the repayment of the advantage wrongly obtained on the basis of an irregularity? If the answer to question 1 is in the affirmative: 2. Is the length of the limitation period alone to be taken into account in the comparison of limitation periods provided for in Article 3(3) of [Regulation No 2988/95], or is it also necessary to take into account national legislation that postpones commencement of the limitation period to the end of the calendar year in which a claim arises (in this case, a claim in respect of interest), without any other circumstances being required? 3. Does the limitation period for claims in respect of interest begin to run when an irregularity is committed or when a continuous or repeated irregularity ceases even if the claims in respect of interest relate to later periods and therefore do not arise until a later date? In the case of continuous or repeated irregularities, is commencement of the limitation period postponed under the second subparagraph of Article 3(1) of [Regulation No 2988/95] until the day on which the irregularity ceases in the case of claims in respect of interest as well? 4. When does the interrupting effect of a decision by a competent authority come to an end under the second sentence of the third subparagraph of Article 3(1) of [Regulation No 2988/95] where that decision essentially establishes the claim in question (in this case, a claim in respect of interest)?’ Consideration of the questions referred The first question 35 By its first question, the referring court asks, in essence, whether Article 3 of Regulation No 2988/95 must be interpreted as meaning that the limitation period that it lays down applies not only to the principal claim, relating to the recovery of an advantage wrongly received from the European Union budget, but also to the recovery of interest arising from that claim, even though that interest is not due under European Union law, but exclusively under an obligation of national law. 36 It should be recalled that Article 1(1) of Regulation No 2988/95 lays down ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is made clear from the third recital of the regulation, to counter ‘acts detrimental to the Communities’ financial interests … in all areas’. 37 By adopting Regulation No 2988/95, and in particular the first subparagraph of Article 3(1) thereof, the European Union legislature intended to establish a general rule on limitation which was applicable in that area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of recovering sums wrongly received from the European Union budget after the expiry of a four-year period after the irregularity affecting the payments at issue was committed (Case C‑131/10 Corman [2010] ECR I‑14199, paragraph 39; Joined Cases C‑201/10 and C‑202/10 Ze Fu Fleischhandel and Vion Trading [2011] ECR I‑3545, paragraph 24; and Case C‑465/10 Chambre de commerce et d’industrie de l’Indre [2011] ECR I‑14081, paragraph 52). 38 As regards reimbursements of storage costs wrongly obtained by the recipient, such as those in question in the main proceedings, it should be noted that Article 8 of Regulation No 1258/1999 provides that Member States are, in the context of the common agricultural policy, to take the measures necessary to ensure an effective protection of the European Union’s financial interests and, in particular, to recover sums lost as a result of irregularities or negligence. 39 The four-year limitation rule laid down by the first subparagraph of Article 3(1) of Regulation No 2988/95 is, in the absence of sectoral rules providing otherwise, applicable to the irregularities referred to in Article 4 of that regulation which are detrimental to the European Union’s financial interests (see Case C‑278/02 Handlbauer [2004] ECR I‑6171, paragraph 34, and Joined Cases C‑278/07 to C‑280/07 Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others [2009] ECR I‑457, paragraph 22). 40 Therefore, in the absence, both in Regulation No 1258/1999 and Regulation No 1785/81, of a provision on the relevant limitation period, the recovery of reimbursements of storage costs that were wrongly obtained is liable, pursuant to the first subparagraph of Article 3(1) of Regulation No 2988/95, and in the absence of a suspensory act, to be time-barred after a period of four years from when the irregularity was committed, provided that the Member State in which the irregularities were committed has not made use of the possibility offered to it under Article 3(3) of Regulation No 2988/95 of providing for a longer limitation period (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraph 36, and Corman, paragraph 48). 41 Article 4(2) of Regulation No 2988/95 also provides for interest to be added to the withdrawal of the wrongly obtained advantage, where so provided for, to be determined on a flat-rate basis. 42 The collection of such interest together with the principal claim for the advantage wrongly received from the European Union budget may be provided for by European Union sectoral rules. Such was the case, for example, in Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11), or Regulation (EEC) No 1957/69 of the Commission of 30 September 1969 on additional detailed rules for granting export refunds on products subject to a single price system (OJ, English Special Edition 1969 (II), p. 417). 43 However, as regards the reimbursements of storage costs that are wrongly received, such as those at issue in the main proceedings, neither Regulation No 1258/1999 nor Regulation No 1785/81 provides that the recovery of those reimbursements, where they have been wrongly received, must be accompanied by the collection of interest. 44 It is true that Article 8 of Regulation No 1258/1999 and Article 32(1) of Regulation No 1290/2005 provide that the interest on sums recovered following an irregularity or negligence is to be made over to the paying agency and booked by it as revenue assigned to the EAGGF or EAGF, respectively, in the month in which the money is actually received. However, those provisions, which merely contain rules for the budgetary allocation of such revenue, do not place an obligation on the Member States to charge interest on the sums recovered where they concern reimbursements of storage costs. 45 Therefore, in the main proceedings, it must be determined whether, in the absence of sectoral rules providing for the recovery of interest, European Union law, in particular Article 4(2) of Regulation No 2988/95, precludes a Member State from giving effect to an obligation of its national law requiring such interest to be recovered in addition to the advantage wrongly received from the European Union budget and, if not, whether the recovery of such interest must be subject to the limitation period laid down in Article 3 of that regulation or whether it remains governed by the national law of that Member State. 46 As regards, first, the very principle of the collection of interest being provided for by national law in a situation where European Union law did not provide for the collection of such interest, the Court has held that it was compatible with European Union law, when recovering an advantage wrongly received from the European Union budget, for a Member State to recover, in accordance with its national law, interest which, in the absence at that time of rules requiring it to be paid to the Community, accrued to its own budget (see Case 54/81 Fromme [1982] ECR 1449, paragraph 8). 47 The same must be true where that interest, the collection of which is not required by European Union law, is, in the context of measures financed by the EAGGF, refunded to the European Union budget. Therefore, in such a situation, as in the main proceedings, European Union law, in particular Article 4(2) of Regulation No 2988/95, does not preclude the Member States from providing in their national law for the recovery of default and/or compensatory interest, in addition to recovering advantages wrongly received from the European Union budget, which is, in the context of measures financed by the EAGGF, refunded to the European Union budget. 48 As regards, secondly, the methods and conditions of collecting such interest, in a situation where, as in the main proceedings, it is on the basis of the national law of a Member State that there is a claim for interest in addition to the recovery of the financial advantage wrongly received from the European Union budget, it is for the national law of that Member State to lay down the methods and conditions applicable to the recovery of that interest, incidental to the recovery of sums wrongly received (see Case 26/74 Roquette frères v Commission [1976] ECR 677, paragraph 12). 49 Therefore, in the absence of a relevant sectoral rule, it is also for that Member State to define and give effect to the limitation rule applicable to the recovery of such interest, which is laid down by its national law and considered by that law to be an autonomous claim, separate from the advantage wrongly received from the European Union budget, the recovery of which remains subject to the limitation rules and derogations laid down by Article 3 of Regulation No 2988/95. 50 In that regard, while the recovery of an advantage wrongly received from the European Union budget is subject to the limitation rules laid down by Article 3 of Regulation No 2988/95, it is not however apparent from the wording of that provision or the scheme of the regulation that those rules are intended to govern the recovery of interest where, as is the case in the main proceedings, the recovery of that interest is required, in any event, not by sectoral rules but by national law. 51 However, having regard to the incidental nature of the claim for interest, it cannot be recovered where, under Article 3 of Regulation No 2988/95 or a sectoral European Union rule, the principal claim, that is to say the advantage wrongly received from the European Union budget, is itself time-barred. 52 Moreover, since, under Article 325 TFEU, Member States are required to take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests, they are required, in the absence of European Union legislation and where their national law provides for the collection of interest when recovering advantages of the same type wrongly received from their own budget, to collect interest in the same way when recovering advantages wrongly received from the European Union budget, in particular where, in contrast to Fromme, the sums collected as interest, the recovery of which is required by national law, are ultimately refunded to the European Union budget. 53 In the light of the foregoing, the answer to the first question is that Article 3 of Regulation No 2988/95 must be interpreted as meaning that the limitation period that it lays down for the principal claim, relating to the recovery of an advantage wrongly received from the European Union budget, does not apply to the recovery of interest arising from that claim, where that interest is not due under European Union law, but exclusively under an obligation of national law. The second to fourth questions 54 The second to fourth questions were asked in the alternative, in the event that the first question was answered in the affirmative. 55 Therefore, in view of the answer given to the first question, it is not necessary to answer the second to fourth questions. Costs 56 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fourth Chamber) hereby rules: Article 3 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests must be interpreted as meaning that the limitation period that it lays down for the principal claim, relating to the recovery of an advantage wrongly received from the European Union budget, does not apply to the recovery of interest arising from that claim, where that interest is not due under European Union law, but exclusively under an obligation of national law. [Signatures] * Language of the case: German.