Opinion of the Advocate General — ECLI:EU:C:2016:655
Date: 2016-09-08
Language of the case: French
Subject matter: Agriculture and Fisheries;Financial provisions;Own resources
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 2 March 2017 1. Own resources of the European Union — Regulation on protection of the financial interests of the Union — Proceedings relating to irregularities — Limitation period –Whether applicable to the recovery of claims for interest relating to amounts wrongly received (Council Regulation No 2988/95, Arts 3(1) and 4(1) and (2); Commission Regulations No 3665/87, as amended by Regulation No 495/97, Art. 11(3), and No 3002/92, as amended by Regulation No 770/96, Art. 5a) 2. Own resources of the European Union — Regulation on protection of the financial interests of the Union — Continuous or repeated irregularity — Concept — Fact that an operator is liable for claims for interest relating to amounts wrongly received — Not included (Council Regulation No 2988/95, Art. 1(2); Commission Regulations No 3665/87, as amended by Regulation No 495/97, Art. 11(3), and No 3002/92, as amended by Regulation No 770/96, Art. 5a) 3. Own resources of the European Union — Regulation on protection of the financial interests of the Union — Proceedings relating to irregularities — Limitation period –Whether applicable to the recovery of claims for interest relating to amounts wrongly received — Point from which time begins to run — Date on which the irregularity was committed (Council Regulation No 2988/95, Arts 1(2) and 3(1), first subpara.) 4. Own resources of the European Union — Regulation on protection of the financial interests of the Union — Proceedings relating to irregularities — Limitation period — Maximum limit — Whether applicable to the recovery of claims for interest relating to amounts wrongly received — Failure by the competent authority to adopt a decision regarding the recovery of those claims within the period applicable, despite having sought within that period recovery of the amounts wrongly received — Claim barred by lapse of time (Council Regulation No 2988/95, Arts 3(1), fourth subpara., and 6(1)) 5. Own resources of the European Union — Regulation on protection of the financial interests of the Union — Proceedings relating to irregularities — Limitation period –Whether longer national limitation periods applicable — Condition — Observance of the principles of legal certainty and proportionality — Five-year period — Whether permissible (Council Regulation No 2988/95, Art. 3(1) and (3)) 1. Article 3(1) 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 laid down in that provision is applicable to the recovery of claims for interest, such as those at issue in the main proceedings, due on the basis of Article 11(3) of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 495/97 of 18 March 1997, and Article 5a of Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention, as amended by Commission Regulation (EC) No 770/96 of 26 April 1996. In the present case, it is not disputed that the orders for payment at issue in the main proceedings, issued by the competent administrative authority with a view to recovering the aid and amounts wrongly received by Glencore on account of the irregularities committed by it, were adopted on the basis of Article 11(3) of Regulation No 3665/87, as regards the barley for malting in bulk, and Article 5a of Regulation No 3002/92, as regards the intervention wheat. It is also apparent from the documents before the Court that the order for payment relating to the recovery of interest in addition to that aid and those amounts was also adopted on the basis of those provisions. In that regard, it is to be noted that those articles expressly provide that the reimbursement of the aid and amounts unduly received by the operator concerned is to be supplemented by interest, calculated on the basis of that aid and those amounts, according to the time elapsed between their receipt and reimbursement. The second subparagraph of Article 5a(1) of Regulation No 3002/92 states, in that regard, that the receipt by the competent authority of the amount thus calculated is to constitute the recovery of the economic advantage unduly granted to the operator concerned. Consequently, the orders for payment at issue in the main proceedings must be classified as ‘administrative measures’, within the meaning of Article 4(1) and (2) of Regulation No 2988/95, both in so far as they relate to the principal and the interest, since those orders contribute jointly to the withdrawal of the advantage wrongly obtained by the operator concerned. It follows that the limitation period laid down in Article 3(1) of that regulation is applicable in circumstances such as those in the main proceedings. (see paras 28-31, 33, operative part 1) 2. The second subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that the fact that an operator is liable for claims for interest, such as those at issue in the main proceedings, does not constitute a ‘continuous or repeated irregularity’ within the meaning of that provision. Such claims must be regarded as resulting from the same irregularity, within the meaning of Article 1(1) of Regulation No 2988/95, as that giving rise to the recovery of the aid and amounts wrongly received, constituting the principal claims. It must be borne in mind that the commission of an irregularity, within the meaning of Article 1(2) of Regulation No 2988/95, requires two conditions to be satisfied, namely an economic operator’s act or omission that infringed EU law and a prejudice, or potential prejudice, caused to the budget of the European Union (see, to that effect, judgment of 6 October 2015, Firma Ernst Kollmer Fleischimport und -export, C‑59/14, EU:C:2015:660, paragraph 24). As regards the condition relating to the existence of an infringement of EU law, it follows from Article 11(3) of Regulation No 3665/87 and Article 5a of Regulation No 3002/92 that the same infringement of a provision of EU law gives rise both to the recovery of the sums wrongly received on account of that infringement and the receipt of interest in addition to those sums, which jointly contribute to the recovery of the economic advantage unduly granted to the operator concerned. As regards the condition relating the existence of prejudice, or potential prejudice, caused to the budget of the European Union, it must be stated that, as the Advocate General observed, in essence, in points 51 and 60 of his Opinion, the interest provided for in Article 11(3) of Regulation No 3665/87 and Article 5a of Regulation No 3002/92 amounts to compensatory interest intended to reflect the current value of the ‘prejudice’, within the meaning of Article 1(2) of Regulation No 2988/95, between the date on which the prejudice was caused and the date on which the actual amount of the prejudice is reimbursed by the operator concerned. It follows that — contrary to the French Government’s contentions, as regards an infringement of the provisions of Regulations No 3665/87 and 3002/92 — an irregularity within the meaning of Article 1(2) of Regulation No 2988/95 gives rise to the recovery of the economic advantage unduly granted to the operator concerned, which, in accordance with Article 11(3) of Regulation No 3665/87 and Article 5a of Regulation No 3002/92, is composed of the aid or amounts wrongly received by that operator plus the interest provided for in those articles. (see paras 38-42, operative part 2) 3. The first subparagraph of Article 3(1) of Regulation 2988/95 must be understood as meaning that, as regards proceedings resulting in the adoption of administrative measures for the recovery of claims for interest, such as those at issue in the main proceedings, the limitation period laid down in the first subparagraph of Article 3(1) starts to run from the date on which the irregularity which gives rise to the recovery of the aid and amounts not due, on the basis of which that interest is calculated, was committed, that is, on the date of the factor constituting that irregularity, namely, either the date of the act or omission or the date of the prejudice, which occurs last. It is, in any event, for the national court, which has full knowledge of the events at issue in the main proceedings, to determine whether, in the present case, the advantage concerned was definitively granted before the act or omission constituting an infringement of EU law. If that is the case, the limitation period for proceedings for the recovery of the claims constituted by the interest at issue starts to run as from that act or omission. If, conversely, it is apparent that that advantage was granted after that act or omission, the dies a quo is the date on which that advantage is granted and, therefore, the day corresponding to the starting point for the calculation of such interest. (see paras 50, 51, operative part 3) 4. The fourth subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that, as regards proceedings resulting in the adoption of administrative measures for the recovery of interest, such as those at issue in the main proceedings, limitation becomes effective on the expiry of the period laid down in the fourth subparagraph of Article 3(1), when within that period the competent authority, while having sought recovery of the aid or amounts wrongly received by the operator concerned, has not adopted a decision regarding that interest. Consequently, except where the administrative procedure has been suspended in accordance with Article 6(1) of Regulation No 2988/95, 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 that regulation, do not have the effect of interrupting the limitation period laid down in the fourth subparagraph of Article 3(1) of that regulation (see, to that effect, judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 72). It follows that, as regards irregularities, such as those at issue in the main proceedings, the competent authority is required to adopt the administrative measures for the recovery of the economic advantage unduly granted in any event within the period laid down in the fourth subparagraph of Article 3(1) of Regulation No 2988/95. Consequently, in a situation, such as that at issue in the main proceedings, in which the competent authority sought, initially, the reimbursement of the principal claims, before subsequently seeking the reimbursement of the interest, even if acts interrupting the limitation period have been adopted in respect of that interest, that authority was required to adopt its decision relating to the reimbursement of that interest within the period laid down in the fourth subparagraph of Article 3(1) of Regulation No 2988/95. (see paras 56, 57, 59, 61, operative part 4) 5. Article 3(3) of Regulation No 2988/95 must be interpreted as meaning that a limitation period laid down under national law, which is longer than that laid down in Article 3(1) of that regulation, may be applied, in a situation such as that at issue in the main proceedings, as regards the recovery of claims arising before the date on which that period entered into force, not yet time-barred under Article 3(1). In addition, although, as is apparent from paragraph 64 of the present judgment, the Member States retain a broad discretion as regards setting longer limitation periods, those Member States must, however, observe the general principles of EU law, in particular the principles of legal certainty and proportionality. As regards the principle of legal certainty, as is apparent from the Court’s case-law in criminal matters, it is as a rule open to the Member States to extend limitation periods where the relevant offences have never become subject to limitation (see, to that effect, judgment of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 57). As regards the principle of proportionality, it is to be noted that the application of a longer national limitation period, such as is referred to in Article 3(3) of Regulation No 2988/95, with a view to bringing proceedings in respect of irregularities, within the meaning of that regulation, must not go clearly beyond what is necessary to achieve the objective of protecting the European Union’s financial interests (see, to that effect, judgment of 17 September 2014, Cruz & Companhia, C‑341/13, EU:C:2014:2230, paragraph 59 and the case-law cited). As regards a five-year limitation period, such as that laid down in Article 2224 of the Civil Code, in the version resulting from Law No 2008-561, it must be pointed out that that period is only one year longer than the period laid down in Article 3(1) of Regulation No 2988/95. Consequently, such a period does not go beyond what is necessary to enable the national authorities to bring proceedings in respect of irregularities prejudicing the European Union’s budget and complies with the requirement for proportionality. (see paras 72-74, 76, operative part 5)