Opinion of the Advocate General — ECLI:EU:C:2006:373
Date: 2006-06-07
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Financial provisions;Milk products;Monetary measures in the field of agriculture;Own resources
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Agriculture – Common organisation of the markets – Export refunds – Variable refund (Commission Regulation No 3665/87) 2. Own resources of the European Communities – Regulation on the protection of the European Communities’ financial interests (Council Regulation No 2988/95, Art. 3(1), second para.) 1. In proceedings for the withdrawal and recovery of differentiated export refunds which have been definitively paid on the basis of Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, a finding that those refunds have been wrongly paid must be substantiated by evidence of abuse on the part of the exporter, furnished in accordance with the rules of national law. That evidence involves, first, a combination of objective circumstances from which it is apparent that, despite formal observance of the conditions laid down by the Community rules, the purpose of those rules has not been achieved, and, second, a subjective element consisting in the intention to obtain an advantage from the Community rules by creating artificially the conditions laid down for obtaining it. The existence of that subjective element can be established, inter alia, by evidence of collusion between the exporter receiving the refunds and the importer of the goods in a non-member country other than the country of importation. It is for the national court to verify whether the factors constituting such an abuse are present in the case before it in accordance with the rules of evidence of national law, provided that the effectiveness of Community law is not undermined. (see paras 33-34, 38, operative part 1) 2. For the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95 on the protection of the European Communities’ financial interests, an irregularity is continuous or repeated where it committed by a Community operator who derives economic advantages from a body of similar transactions which infringe the same provision of Community law. The fact that the irregularity relates to a relatively small proportion of all the transactions carried out in a given period and that the transactions in which the irregularity has been detected always concern different consignments is immaterial in that respect. (see paras 41-42, 44, operative part 2)