Judgment;Summary — ECLI:EU:C:2022:265
Date: 2022-04-07
Language of the case: Portuguese
Court formation: Fourth Chamber
Subject matter: Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary C-447/20 – 1 
Case C-447/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 September 2020 
Referring court:  
Supremo Tribunal Administrativo (Supreme Administrative Court, 
Portugal) 
Date of the decision to refer: 
1 July 2020 
Appellant: 
Instituto de Financiamento da Agricultura e Pescas IP (IFAP) 
Respondent: 
LM 
  
Subject matter of the main proceedings 
This request for a preliminary ruling arises in the course of proceedings between 
the Instituto de Financiamento da Agricultura e Pescas I.P. (Institute for the 
Financing of Agriculture and Fisheries I.P.) (‘IFAP’) and LM in which the former 
appeals against the judgment dismissing, on the ground of the expiry of the four-
year limitation period applicable, the [judicial] opposition to the proceedings 
instituted by the appellant against the respondent for the enforced recovery of 
debts arising from aid unduly received under the AGRO Operational Programme. 
Subject matter and legal basis of the request for a preliminary ruling 
This case calls for a determination of whether a [judicial] opposition in the course 
of enforced recovery proceedings is the appropriate procedural mechanism for 
obtaining a ruling on the limitation period applicable to proceedings for the 
repayment of unduly received economic aid and, if so, of what time limit is 
applicable and what the rules are for calculating it, account being taken of the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/20 
 
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provisions of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 
18 December on the protection of the European Communities financial interests. 
Questions referred for a preliminary ruling 
I. Does Article 3(1) of Regulation No 2988/95 preclude national legislation 
which imposes on the beneficiary of a subsidy the burden of bringing before the 
competent court an administrative action against a measure ordering the 
repayment of amounts received unduly by reason of the occurrence of an 
irregularity, failing which that measure will become final […] if it not appealed in 
time (that is to say, if the beneficiary does not avail himself in time of the means 
of defence available to him under national law) and, in consequence, the amount 
unduly received will be recoverable in accordance with the rules and time limits 
laid down by national law? 
II. Does Article 3(1) of Regulation No 2988/95 preclude national legislation 
according to which the beneficiary of a subsidy may not rely on the expiry of the 
four- or eight-year time limit in the course of judicial proceedings for enforcement 
which have been brought against him, since that issue can be assessed only in the 
context of an administrative-law action brought against the measure ordering 
repayment of the amounts received unduly by reason of the establishment of an 
irregularity? 
Provisions of EU law relied on  
Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the 
protection of the European Communities financial interests: Article 3. 
Provisions of national law relied on 
Decreto-Lei n. 163-A/2000, de 27 julho – Estabelece as regras gerais de aplicação 
do Programa Operacional de Agricultura e Desenvolvimento Rural 
(POADR/Programa), bem como da componente agrícola dos programas 
operacionais de âmbito regional do III Quadro Comunitário de Apoio (QCA III) 
[Decree-Law No 163-A/2000 of 27 July 2000 establishing the general rules for the 
implementation of the Operational Programme for Agriculture and Rural 
Development (OPARD/Programme) and of the agricultural component of the 
regional operational programmes under Community Support Framework III (CSF 
III)] 
‘Article 11 
Unilateral termination or amendment of the contract by IFADAP 
1. IFADAP may unilaterally terminate contracts if the beneficiary fails to 
comply with any of his obligations or if, for a reason attributable to the 
IFAP 
 
3 
beneficiary, any of the conditions governing the grant of the aid is not or is no 
longer met.  
2. In the event of non-compliance, IFADAP may also unilaterally amend the 
contract, in particular the amount of the aid, where this is justified in the light of 
the conditions under which the project has actually been executed or in the event 
of the absence or inadequacy of the supporting documentation. 
Article 12 
Repayment of aid and expenditure 
1. In the event that the contract is terminated by IFADAP, the beneficiary shall 
repay the amounts received by way of aid, together with the statutory interest 
accrued since the date on which the aforementioned amounts were made available 
to him, without prejudice to the possible application of other penalties provided 
for by law. 
2. The repayment provided for in the foregoing paragraph shall be made within 
fifteen days of notification of termination of the contract, it being noted that the 
beneficiary must be expressly notified of any such termination. 
3. In the event that the beneficiary does not make the repayment within the 
time limit laid down in the foregoing paragraph, the amount owed shall bear 
default interest at a rate equal to 2% from the date on which the aforementioned 
time limit expired until the date on which repayment is actually made. 
4. In the situation provided for in the foregoing paragraph, the beneficiary must 
also pay to IFADAP the amounts corresponding to the costs connected with the 
extra-judicial recovery of the sums owed, which amount to 10% of the total value 
of the sums received by the beneficiary. 
5. The provisions contained in the foregoing paragraphs shall apply in the 
event of a unilateral contract termination triggering the obligation to repay the 
amounts received, together with the percentage of the amount to be repaid that is 
specified in paragraph 4. … 
Article 15 
Enforceable instruments 
Debt certificates issued by IFADAP are enforceable instruments. …’ 
Decreto-Lei n. 4/2015 de 7 de janeiro – Aprova o Código do Procedimento 
Administrativo (Legislative Decree No 4/2015 of 7 January 2015 approving the 
Code of Administrative Procedure) 
‘Article 163 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/20 
 
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Measures amenable to annulment and the rules governing amenability to 
annulment 
1. Measures amenable to annulment shall be those which have been adopted in 
breach of principles or rules of law for the infringement of which no other penalty 
is available.  
2. A measure amenable to annulment shall be one which produces legal effects 
that can be eliminated retroactively by an annulment order made by the 
administrative courts or by an annulment decision adopted by the administration 
itself. 
3. Measures amenable to annulment may be appealed to the administration 
itself or to the competent administrative courts within the time limits laid down by 
law. … 
Article 179 
Enforcement of financial obligations 
1. Where, under an administrative measure, a sum must be paid to or by order 
of a legal person governed by public law, any voluntary non-payment of that sum 
within the time limit prescribed shall trigger the proceedings for enforced 
recovery provided for in the legislation governing the taxation procedure. 
2. For the purposes of the provisions contained in the foregoing paragraph, the 
competent body shall, in accordance with the provisions laid down by law, issue a 
certificate having the value of an enforceable instrument which it shall submit to 
the competent department of the tax administration, together with the file relating 
to the administrative proceedings’. 
Decreto-Lei n. 214-G/2015, de 2 de outubro – Código do Processo nos Tribunais 
Administrativos (Decree-Law No 214-G/2015 of 2 October 2015 laying down the 
Code of procedure before the administrative courts) 
‘Article 58 
Time limits 
1. Unless otherwise provided for by law, the bringing of an administrative 
action against void measures shall not be subject to a time limit, whereas, in the 
case of measures amenable to annulment, such an action must be brought within 
the following time limits: 
a) one year, if it is brought by the Public Prosecutor’s Office; 
b) three months, in other cases. 
IFAP 
 
5 
2. Without prejudice to the provisions of Article 59(4), the time limits specified 
in the foregoing paragraph shall be calculated in accordance with the provisions of 
Article 279 of the Civil Code. 
3. On expiry of the time limit laid down in paragraph 1(b), an action shall be 
admissible: 
a) in the case where there is a justified impediment as provided for in civil 
procedural law; 
b) provided that it is brought within a period of three months as from the date 
on which the error ceased to exist, in the case where it is established, in 
accordance with the principle of adversarial procedure, that, in the particular case 
concerned, a normally diligent citizen could not have been expected to bring an 
action in time because he was misled by the conduct of the administration, or 
c) in the case where, not more than one year after the date on which the 
measure was adopted or published, if publication is compulsory, the delay must be 
regarded as justified in the light of the ambiguity of the legislative framework 
applicable or in the light of the difficulties connected, in the particular case, with 
identifying the challengeable measure or classifying it as an administrative 
measure or as a rule’. 
Decreto-Lei n. 433/99 de 26 de outubro – Aprova o Código de Procedimento e de 
Processo Tributário (Decree-Law No 433/99 of 26 October 1999 approving the 
Code of administrative and judicial procedure in matters of taxation) 
‘Article 148 
Scope of the enforced recovery procedure 
1. The enforced recovery procedure shall have as its purpose the enforced 
recovery of the following debts: […] 
2. The following may also be recovered by way of the enforced recovery 
procedure, in the circumstances and under the conditions provided for by law: 
a) other debts contracted with the State or with other legal persons governed by 
public law which must be paid under an administrative measure; 
b) reimbursements or refunds. 
Article 204 
Grounds for opposition to enforced recovery 
1. An opposition to enforced recovery may be based only on the following 
grounds:  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/20 
 
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… 
d) time barring of the debt forming the subject of the enforced recovery’. 
Brief presentation of the facts and main proceedings 
1 On 13 February 2002, IFADAP [(predecessor to IFAP)] and LM concluded a 
contract for the grant of aid under the programme entitled AGRO/Measure 5 
Prevention and Restoration of Agricultural Production Potential, co-financed by 
the EAGGF. 
2 On 15 February 2002, ABISTRAL – Construções e Terraplanagens, L.da and LM 
concluded an agreement in writing. 
3 On 26 February 2006, LM was notified by registered letter with acknowledgement 
of receipt that, following a series of inspections, a failure to comply with the 
applicable legislation had been identified and, consequently, certain sums relating 
to certain items were considered not be eligible for subsidy: labour costs 
associated with LM’s husband; costs of recovering materials from demolition, in 
the absence of supporting documentation; and payments to ABISTRAL, on the 
ground that, since LM had failed to submit bank documentation showing that the 
cheques had actually been processed, there was no proof that payment had 
actually been made. In accordance with the law, LM had 10 days in which to 
respond, following which the subsidy would be adjusted. 
4 LM signed the aforementioned acknowledgement of receipt on 1 March 2006. 
5 On 17 March 2006, IFADAP received LM’s reply. 
6 IFAP sent LM a notification worded as follows: ‘… Following completion of the 
administrative procedure …, a final decision must now be adopted, … on the 
terms and grounds set out below: The application [for aid] under the 
aforementioned project was approved on 20 December 2001 … and the contract 
for the grant of aid having an investment value of EUR 145 080.36, corresponding 
to a subsidy of EUR 108 810.27, was concluded on 7 March 2002. Following an 
audit conducted in relation to that project, [LM] was informed by notification … 
of 23 February 2006 … of the failures to comply with the legislation applicable to 
measure 5 of the AGRO programme which had been identified in the course of 
physical and accounting checks, and, consequently, of the impossibility of 
endorsing the expenditure referred to in the aforementioned notification. On 
17 March 2006, we received your letter of reply …’. 
7 On 23 June 2011, IFAP sent LM a letter of voluntary payment of the amount 
referred to in the preceding paragraph. 
8 On 8 August 2012, the Serviço de Finanças do Porto 1 (Tax Office, Porto 1) 
began proceedings for the enforced recovery of debts arising from aid unduly 
IFAP 
 
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collected under the POAGRO operational programme in the amount of 
EUR 29 917.67. 
Essential arguments of the parties to the main proceedings 
1 IFAP submits that, as regards the enforced recovery proceedings at issue, it did 
not adopt the administrative measure under which LM (opponent) was obliged to 
pay it EUR 29 917,67 (difference between the initial value of the aid and the value 
obtained after excluding the expenditure not eligible for subsidy) until 30 April 
2010, with the result that the limitation period may start to run only from that date. 
2 It also submits that the Tribunal Administrativo e Fiscal do Porto (Administrative 
and Tax Court, Oporto) lacked jurisdiction on account of the subject matter, in 
respect of which jurisdiction lies with the administrative-law section of the 
Tribunal Administrativo e Fiscal, given that the time-barring affects the 
examination, assessment and determination of the facts in relation to the 
lawfulness of the creation, modification or extinguishment of IFAP’s claim. 
3 It takes the view that, in its judgment, the Tribunal Administrativo e Fiscal do 
Porto committed an error in confusing, for the purposes of the application of 
Article 3 of Regulation No 2988/95, the limitation period applicable to the 
proceedings (which is provided for in that article) and the limitation period 
applicable to the claim/debt (which is not governed by that article). 
4 The Tribunal Administrativo e Fiscal do Porto erred in its assessment of the 
evidence inasmuch as it omitted in the judgment under appeal to examine, assess 
and determine the facts relevant to limitation, in particular in relation to the date 
on which LM should have proved in the administrative proceedings that he had 
made the alleged payment by way of ‘recovery of materials’, and inasmuch as, in 
that judgment, it established the date on which the contract for the supply of goods 
and services between LM and ABISTRAL L.da was concluded (15 February 2002) 
as the date for calculating the limitation period applicable to the ‘debt under 
enforcement’, corresponding to the claim in favour of IFAP, which, on that date, 
had not legally come into being (that claim not having come into being until the 
administrative measure forming the subject of enforcement was adopted on 
30 April 2010).  
5 LM takes the view that the court had jurisdiction in respect of the subject matter 
and that, in accordance with the case-law of the Court of Justice of the European 
Union (‘the Court of Justice’) relating to the provisions of Council Regulation 
(EC, Euratom) No 2988/95, the limitation period applicable to the debt under 
enforcement is dictated by the limitation period applicable to the proceedings, 
which is to say four years as from the date on which the irregularity was 
committed, that period ending no later than on the date of expiry of a period of 
time equal to twice the limitation period during which the competent authority has 
not imposed a penalty. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/20 
 
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6 That time limit is applicable because both the Court of Justice and the Supremo 
Tribunal Administrativo (Supreme Administrative Court) consider that, since 
national law does not provide for a specific time limit for that purpose, the time 
limit applicable is that provided for in Article 3(1) of the aforementioned 
Regulation. 
7 The infringement was committed on 15 February 2002 but was not notified to LM 
until 1 March 2006, and a final decision in the administrative proceedings was not 
adopted until 30 April 2010. 
Brief presentation of the grounds of the request for a preliminary ruling 
1 In the first place, IFAP raises the question of whether, in the course of an 
opposition to enforced recovery proceedings, the tax courts may rule on the 
limitation period applicable to the repayment proceedings provided for in 
Article 3(1) of Regulation (EC, Euratom) No 2988/95. In its opinion, the debt in 
question here is an administrative rather than a tax debt, with the result that, in 
order to ascertain whether the tax court has jurisdiction, it is necessary to 
determine, first of all, whether the procedural mechanism of opposition to 
enforced recovery is appropriate for the purposes of ensuring judicial protection in 
the present case. 
2 LM requested that the Tribunal Administrativo e Fiscal do Porto give a ruling on 
the lawfulness of the recovery proceedings instituted against him, and based the 
alleged unlawfulness of the recovery on the ground that it was time-barred: the 
measure seeking repayment of the aid (and, therefore, constituting the 
enforceable instrument) was adopted on 23 June 2011, that is to say, more than 
eight years after the date on which the irregularities are alleged to have been 
committed in the course of performance of the contract, 15 February 2002. What 
is more, IFAP did not notify the aforementioned irregularity until 1 March 2006, 
that is to say, more than four years after the irregularity had been committed. 
3 Even if it is accepted that a person against whom enforcement is sought, who has 
not appealed the decision requiring him to repay aid on the ground of the 
commission of irregularities, was able to rely on limitation in the course of the 
opposition to the enforced recovery proceedings, the issue arises as to what time 
limit must be applied: whether it should be the period of four years from the 
commission of the irregularity (first subparagraph of Article 3(1), of Regulation 
No 2988/95); whether, given that that period is not absolute and the court hearing 
the opposition does not have jurisdiction to rule on the administrative matter, it is 
then necessary to apply the period of eight years from commission of the 
irregularity (third subparagraph of Article 3(1) of Regulation No 2988/95), or 
whether, given that what is involved is the enforcement of an administrative 
decision requiring the repayment of sums unduly paid (enforcement of the 
administrative measure), it is necessary to add to the period of eight years 
prescribed for the application of the measure the period of three years which the 
IFAP 
 
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administration has to enforce the decision, with the result that, in order for the 
obligation to become fully time-barred, a period of 11 years from the 
commission of the irregularity (Article 3(2) of Regulation No 2988/95) must 
have passed. 
4 The Court of Justice has repeatedly held that Article 3(1) applies both to 
administrative measures and to administrative penalties [see, to that effect, the 
judgments in Handlbauer, C-278/02, EU:C:2004:388; Josef Vosding Schlacht-, 
Kühl- und Zerlegebetrieb and Others, C-278/07 to C-280/07, EU:C:2009:38; 
Cruz & Companhia, C-341/13, EU:C:2014:2230; Pfeifer & Langen, C-52/14, 
EU:C:2015:381; Corman, C-131/10, EU:C:2010:825; Glencore Céréales France, 
C-584/15, EU:C:2017:160; Firma Ernst Kollmer Fleischimport und export, 
C-59/14, EU:C:2015:660; Établissement national des produits de l’agriculture et 
de la mer (FranceAgriMer), C-383/14, EU:C:2015:541, etc.]. It is also settled 
case-law of the Supremo Tribunal Administrativo (Supreme Administrative 
Court) that the limitation period for proceedings provided for in Article 3(1) of 
Regulation (EC, Euratom) No 2988/95, which applies to the imposition of 
penalties and to the repayment of EU aid irregularly received under the Common 
Agricultural Policy, is four years as from the point of occurrence of both the act or 
omission constituting an infringement of EU law and of the harm to the EU 
budget. The limitation period begins to run in any event on the date on which the 
last act took place and may be extended up to a period of eight years. States have a 
further three years, after the adoption of the measure requiring repayment of the 
aid items or imposing the penalty, to enforce that measure. Thus, the State appears 
to have a period of up to 11 years to obtain the enforced recovery of the amount 
unduly paid, provided that it gives proper notice of the measure requiring 
repayment, at the latest within eight years of the occurrence of the irregularity. 
5 In the light of Portuguese law, the limitation period for proceedings referred to in 
Article 3(1) of the aforementioned Regulation No 2988/95 is an issue which LM 
should have invoked by bringing the corresponding administrative action against 
the measure in which the proceedings culminate, since it is possible to examine in 
the course of an opposition to an enforced recovery the lawfulness of the 
enforceable instrument because the proceedings for establishing the occurrence of 
the irregularity, which concluded with the adoption of the measure requiring 
repayment of the subsidy, are time-barred. 
6 The issue arises because the difference between the limitation period for 
proceedings and the limitation period for the debt is, in practice, irrelevant for the 
purposes of EU law, which prescribes for the repayment of irregularly granted aid 
a time limit the expiry of which appears to preclude the enforceability of its 
repayment. 
7 Consequently, it falls to be determined whether the nationals rules, which appear 
to form the foundation not only of the administrative court’s lack of jurisdiction to 
rule on the limitation period laid down in the EU Regulation but also of the non-
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-447/20 
 
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existence of a basis for opposing enforced recovery, are in conformity with EU 
law and, in particular, whether they infringe Article 3 of Regulation No 2988/95. 
[In the event that the aforementioned questions referred for a preliminary ruling (I 
and II) are answered in the negative, the referring court raises a further two 
questions (III and IV) which do not appear in the operative part of its order: 
III. Must the three-year limitation period provided for in Article 3(2) of 
Regulation No 2988/95 be regarded as a limitation period for the debt that is 
created by the measure requiring repayment of amounts unduly received by reason 
of the occurrence of irregularities in the financing? Does that period start to run 
from the date on which that measure was adopted? 
IV. Does Article 3 of Regulation No 2988/95 [preclude] national legislation 
according to which the three-year limitation period for the debt that is created by 
the measure requiring repayment of amounts unduly received by reason of the 
occurrence of irregularities in the financing must start to run from the date on 
which that measure was adopted and must be interrupted by a notification of the 
institution of proceedings for the enforced recovery of those amounts, remaining 
suspended until such time as those proceedings culminate in a definitive or final 
decision in cases involving a complaint, a challenge, an appeal or an opposition, 
where these suspend recovery of the debt?]