Judgment — ECLI:EU:C:2015:381
Date: 2015-06-11
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 11 June 2015 1. Own resources of the European Union — Regulation concerning the protection of the financial interests of the EU — Proceedings relating to irregularities — Limitation period — Applicability to both irregularities leading to the imposition of an administrative penalty and those which are the subject of an administrative measure (Council Regulation No 2988/95, Arts 3(1), 4 and 5) ( 2. Own resources of the European Union — Regulation on the protection of the financial interests of the EU — Proceedings relating to irregularities — Limitation period — Interrupting act — Act of the competent authority brought to the attention of the person in question and relating to investigation or legal proceedings concerning the irregularity — Concept (Council Regulation No 2988/95, Art. 3(1) and third para.) 3. Own resources of the European Union — Regulation concerning the protection of the financial interests of the EU — Continuous or repeated irregularity — Criteria for assessment (Council Regulation No 2988/95, Art. 3(1) and second para.; Commission Regulation No 1998/78, as amended by Regulation No 1714/88, Art. 13(1(a)) 4. Own resources of the European Union — Regulation concerning the protection of the financial interests of the EU — Proceedings relating to irregularities — Limitation period — Maximum period — Communication to the person in question of investigatory or prosecuting acts adopted by the competent authority — No effect on the elapsing of the maximum period (Council Regulation No 2988/95, Arts 3(1) and third para.3 and fourth para.) 5. Own resources of the European Union — Regulation concerning the protection of the financial interests of the EU — Proceedings relating to irregularities — Continuous or repeated irregularity — Limitation period — Point from which time starts to run (Council Regulation No 2988/95, Art. 3(1) and fourth para.) 1. The limitation period established by Article 3(1) of Regulation No 2988/95 on the protection of the financial interests of the European Union is applicable both to the irregularities leading to the imposition of an administrative penalty, within the meaning of Article 5 of that regulation, and to irregularities, such as those at issue in the main proceedings, which are penalised by an administrative measure consisting of the withdrawal of the advantage wrongly obtained, in accordance with Article 4 of that regulation. (see paras 21, 23) 2. Under the third subparagraph of Article 3(1) of Regulation No 2988/95 on the protection of the financial interests of the European Union, the limitation period is interrupted by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity. The concept of ‘competent authority’, within the meaning of that provision, is to be understood as designating the authority which has responsibility, under national law, for adopting acts relating to the investigation or legal proceedings in question, which authority may be different from that which is responsible for awarding or recovering sums wrongfully received to the detriment of the European Union’s financial interests. In that context, acts relating to investigation or legal proceedings concerning an irregularity are deemed to have been notified to the ‘person in question’, within the meaning of the third subparagraph of Article 3(1) of that regulation, where a set of facts lead to the conclusion that the person in question has effectively been made aware of those acts relating to investigation or legal proceedings. In the case of a legal person, that requirement is satisfied if the act in question has actually been brought to the attention of a person whose conduct may be ascribed, under national law, to that legal person, which it is for the referring court to ascertain. In addition, in order to be regarded as an act relating to investigation or legal proceedings, the act must set out with sufficient precision the transactions to which the suspicions of irregularities relate. That requirement for precision does not, however, require the act to state the possibility that a penalty or particular administrative measure may be imposed. (see paras 29, 33, 39, 47, operative part 1 to 3) 3. An irregularity is ‘continuous or repeated’, for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95 on the protection of the financial interests of the European Union, where it is committed by an operator who derives economic advantages from a body of similar transactions which infringe the same provision of EU law. In that regard, with regard to the fact that irregularities must be closely linked in time in order to be regarded as a ‘repeated irregularity’, within the meaning of that provision, it is required only that the period between each irregularity be shorter than the limitation period of four years provided for in the first subparagraph of Article 3(1). Irregularities such as those concerning the calculation of the quantities of sugar stored by the manufacturer, committed in different marketing years, leading to incorrect declarations of those quantities by that manufacturer and, accordingly, the wrongful payment of sums as reimbursements of storage costs under Regulation No 1998/78 laying down detailed rules for the offsetting of storage costs for sugar, constitute, in principle, a repeated irregularity within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95, which it is for the referring court to ascertain. As regards the concept of a continuous or repeated irregularity for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95, it is based on objective criteria, specific to that category of irregularities and independent of the conduct of the national authority towards the operator in question. Accordingly, the classification of a series of irregularities as a ‘continuous or repeated irregularity’, within the meaning of that provision, is not excluded where the competent authorities have not made regular and in-depth checks on the person in question. (see paras 49, 56, 60, 61, operative part 4 and 5) 4. It is apparent from both the wording and scheme of Article 3(1) of Regulation No 2988/95 on the protection of the financial interests of the European Union that, in its fourth subparagraph, that provision sets an absolute limit applying to the time-bar of legal proceedings in respect of an irregularity, that limitation becoming effective at the latest on the day on which a period equal to twice the limitation period laid down in the first subparagraph thereof expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6(1) of that regulation. It follows therefrom that, except in the latter case, the acts relating to investigation or legal proceedings adopted by the competent authority and notified to the person in question, in accordance with the third subparagraph of Article 3(1) of Regulation No 2988/95, do not have the effect of interrupting the limitation period laid down in the fourth subparagraph of Article 3(1) of that regulation. (see 63, 72, 74, operative part 7) 5. The fourth subparagraph of Article 3(1) of Regulation No 2988/95 on the protection of the financial interests of the European Union must be interpreted as meaning that the limitation period laid down in that subparagraph begins to run, in the case of a continuous or repeated irregularity, from the day on which that irregularity ceased, irrespective of the date on which the national administration became aware of that irregularity. In that regard, the date on which the national authorities became aware of an irregularity is irrelevant to the starting point of that limitation period. Apart from the fact that there is nothing in the wording of Article 3(1) of Regulation No 2988/95 enabling an inference to the contrary, it must be pointed out that the national administration has a general obligation of due diligence in the verification of payments which it makes from the EU budget. That obligation means that the national administration must take steps to rectify irregularities promptly. In those circumstances, to accept that the limitation period laid down in the fourth subparagraph of Article 3(1) of Regulation No 2988/95 does not begin to run until the administration has discovered those irregularities could encourage inertia on the part of the national authorities in bringing proceedings in respect of irregularities, whilst exposing operators, firstly, to a long period of legal uncertainty and, secondly, to the risk of no longer being in a position to prove at the end of such a period that the transactions in question were lawful. (see 67-69, operative part 6)