Opinion of the Advocate General — ECLI:EU:C:2002:757
Date: 2002-12-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;European Agricultural Guidance and Guarantee Fund (EAGGF);Milk products
Procedure: Action for annulment - successful
Origin: Greece

summary fashion. This is a decision containing a series of corrections to various parts of the common agricultural policy which is addressed to a large number of Member States. The recitals refer in general to Regulation No 729/70 and the decision also lists a series of specific provisions which are intended to serve as a basis for its adoption. Article 8(2) of Regulation No 729/70 is not mentioned in the recitals. The same applies in relation to Article 5(2) of Regulation No 536/93. That omission does not in itself constitute a failure to state reasons. Indeed, the Court of Justice accepts that a Member State may find out by other means the reasons why the Commission took the view that a particular amount could not be charged to the EAGGF. 82. The minutes of the meeting between the Hellenic Republic and the Commission indicate that the Commission was basing its decision on Article 5(2) of Regulation No 536/93. The report mentions Article 8(2) of Regulation No 729/70 but, in the Commission's view, that is clearly not the basis for the penalties. Nor can it be inferred from other documents that the Commission was, in part, taking Article 8(2) of Regulation No 729/70 as a basis. Moreover, the Commission expressly states to the Court of Justice that Article 8(2) does not form the basis for the penalty. 83. To sum up, the statement of reasons indicates that the decision, in so far as it imposes default interest on the Hellenic Republic, is based on Article 5(2) of Regulation No 536/93. That particular provision cannot form the legal basis for the decision, as I indicated earlier. 84. In the light of the foregoing, I suggest that the Court of Justice should partially annul the contested decision on the ground that the statement of reasons is inadequate. In reaching this opinion, I consider it important that the default interest imposed by the Commission is a penalty which does not accord with normal practice and that its right to impose the penalty is not self-evident. Therefore, the Greek Government could not reasonably have been aware of the correct legal basis either. VII - Conclusion 85. On the basis of the above considerations, I suggest that the Court of Justice should: (1) annul the Commission Decision of 5 February 2001 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund, in so far as it refers to the default interest imposed on the Hellenic Republic in respect of expenditure in the milk and milk products sector from February 1997; (2) order the Commission to pay the costs; (3) declare that the Federal Republic of Germany and the Kingdom of Spain are to pay their own costs. 1: - Original language: Dutch. 2: - Decision 2001/137/EC (OJ 2001 L 50, p. 9). 3: - OJ 1984 L 90, p. 10. 4: - OJ, English Special Edition, 1968 (I), p. 176. 5: - The regulation gives an individual reference quantity. 6: - Council Regulation (EC) No 1256/1999 of 17 May 1999 amending Regulation (EEC) No 3950/92 establishing an additional levy in the milk and milk products sector (OJ 1999 L 160, p. 73) extended that system until 1 April 2008. 7: - Commission Regulation of 9 March 1993 laying down detailed rules on the application of the additional levy in the milk and milk products sector (OJ 1993 L 57, p. 12). 8: - Regulation of 16 February 1996 on data to be forwarded by the Member States and the monthly booking of expenditure financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF) and repealing Regulation (EEC) No 2776/88 (OJ 1996 L 39, p. 5). 9: - Council Decision of 31 October 1994 on budgetary discipline (OJ 1994 L 293, p. 14). 10: - As amended by Council Regulation (EC) No 1287/95 of 22 May 1995 amending Regulation (EEC) No 729/70 on the financing of the common agricultural policy. 11: - Commission Decision of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the European Agricultural Guidance and Guarantee Fund Guarantee Section (OJ 1994 L 182, p. 45). 12: - GRD 92 592 972 is equivalent to EUR 272 412.39. 13: - Pursuant to Article 5(2) of Regulation No 536/93. 14: - Case C-277/98 [2001] ECR I-8453, paragraphs 37, 38 and 43. 15: - Case C-130/99 [2002] ECR I-3005. 16: - See point 30 above. 17: - See points 30 and 32 above. 18: - See in more detail point 20 above. 19: - With regard to direct payment, see Article 4(4) of Regulation No 536/93. 20: - Cited in footnote 14 above, paragraph 101. 21: - Commission Regulation of 3 June 1988 laying down detailed rules on the application of the additional levy referred to in Article 5(c) of Regulation (EEC) No 804/68 (OJ 1988 L 139, p.12). 22: - Cited in footnote 14 above, paragraph 37. 23: - See France v Commission, cited in footnote 14 above, paragraph 40, and Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 177. 24: - See, inter alia, France v Commission cited above in footnote 14, paragraph 41. 25: - See, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 74, and Case C-244/95 Moskof [1997] ECR I-6441, paragraph 57. 26: - See, inter alia, Case C-27/94 Netherlands v Commission [1998] ECR I-5581. paragraph 36. 27: - See point 18 above. 28: - See, in this connection, point 41 of my opinion in Case C-228/99 Silos [2001] ECR I-8401.