Opinion of the Advocate General — ECLI:EU:C:2019:415
Date: 2019-05-15
Language of the case: German
Subject matter: Agriculture and Fisheries;Financial provisions;Agricultural structures;Own resources
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, the conditions for applying to Article 49(6) of Regulation No 2419/2001 the retroactive effect of the limitation period in Article 49(5) of that regulation, read in conjunction with Article 52a thereof, have not been met. V. Conclusion 74. In the light of the foregoing arguments, I propose that the Court of Justice reply as follows to the questions referred for a preliminary ruling by the Bundesverwaltungsgericht (Federal Administrative Court, Germany): In a situation like that at issue in the main proceedings, in which a penalty was imposed on a farmer who submitted aid applications for an area declared to be larger than that subsequently determined by the competent authority, Article 49 of Commission Regulation (EC) No 2419/2001 of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 must be interpreted as meaning that: – Under Article 49(5) of that regulation, the obligation to repay amounts wrongly received can be regarded as being extinguished due to limitation, provided that the competent authority has not adopted any act to demand repayment of those amounts, either merely because 10 years have elapsed since the date on which the payment was made or, if the applicant acted in good faith, because four years have elapsed since that date. It is for the referring court to determine whether the applicant acted in good faith when he lodged the applications at issue in these proceedings. – Article 49(6) is not applicable to the situation at issue. – The limitation rules applicable to aid applications relating to marketing years and premium periods which started before 1 January 2002, as expressed in Article 52a of Regulation No 2419/2001, are not ‘provisions which impose administrative penalties’ within the meaning of Article 2(2) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests. – The conditions relating to the limitation period in Article 49(5) are different from those on which the limitation period in Article 49(6) are based, and therefore the retroactive effect of Article 49(5), read in conjunction with Article 52a of Regulation No 2419/2001, cannot be applied, by analogy, to Article 49(6). 1 Original language: Spanish. 2 Council Regulation of 17 May 1999 establishing a support system for producers of certain arable crops (OJ 1999 L 160, p. 1). 3 Commission Regulation of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36), as amended by Commission Regulation (EC) No 2801/1999 of 21 December 1999 (OJ 1999 L 340, p. 29). 4 Commission Regulation of 11 December 2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2001 L 327, p. 11). 5 That article sets the basis for calculating the amount of aid. 6 Commission Regulation of 23 January 2004 amending Regulation (EC) No 2419/2001 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes established by Council Regulation (EEC) No 3508/92 (OJ 2004 L 17, p. 7). 7 Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 18). 8 Commission Regulation of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65). 9 Commission Delegated Regulation (EU) No 640/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to the integrated administration and control system and conditions for refusal or withdrawal of payments and administrative penalties applicable to direct payments, rural development support and cross compliance (OJ 2014 L 181, p. 48). 10 Council Regulation of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1). 11 The case-file forwarded by the referring court includes the Chamber of Agriculture’s decision of 23 July 2007, to which I shall refer below, and in which, however, it states that the applications were lodged in March 2000 and March 2001. 12 It may be inferred from the Chamber of Agriculture’s decision that the grants of aid were notified on 30 November 2000 and 30 November 2001. 13 Order for reference, paragraph 2. 14 Ibid., paragraph 3. 15 Ibid., paragraph 4. 16 The referring court does not question the classification as a repeated irregularity. 17 The referring court cites the judgment of 1 July 2004, Gerken, C‑295/02, EU:C:2004:400, paragraphs 53 to 58. 18 The referring court cites, in that connection, the judgment of 11 March 2008, Jager, C‑420/06, EU:C:2008:152, paragraphs 68 and 73. 19 Laid down in Paragraph 2(3) of the Strafgesetzbuch (German Criminal Code; ‘StGB’). 20 The provision which replaced Article 9 of Regulation No 3887/92. 21 On the way in which Regulation No 2988/95 informs the sectoral provisions, such as those governing agriculture, see the judgment of 13 December 2012, FranceAgriMer, C‑670/11, EU:C:2012:807, paragraph 43. 22 See, for example, judgments of 4 October 2007, Kruck, C‑192/06, EU:C:2007:579, paragraph 35, and of 14 September 2000, Fisher, C‑369/98, EU:C:2000:443, paragraphs 43 to 47. 23 The need to include paragraph 6 of Article 49 of Regulation No 2419/2001, as lex specialis, is derived from the increase to four years for which it provides in respect of the period in the first subparagraph of Article 3(2) of Regulation No 2988/95 (three years). There is a regulatory parallel between Article 3(1) and (2) of the latter regulation and Article 49(5) and (6) of Regulation No 2419/2001. 24 Furthermore, the decision of 23 July 2007 has been contested and it seems reasonable to assume that any limitation period which may be applicable to it has been interrupted by subsequent actions. 25 In that connection, see judgment of 28 October 2010, SGS Belgium and Others, C‑367/09, EU:C:2010:648, paragraph 66. 26 It should be recalled at this juncture that, in my Opinion in Glencore Céréales France (C‑584/15, EU:C:2016:655), point 24, I stated that the use of the phrase ‘limitation period for proceedings’ in Article 3 of Regulation No 2988/95 may be misleading because, strictly speaking, this is not a limitation period for proceedings but rather a time limit for the exercise by the administrative authorities of the right to recover sums wrongly paid to recipients of aid. 27 Unless the competent authority had notified the beneficiary of the wrongful nature of the payment before 1 February 2004. 28 See, in that respect, judgment of 29 January 2009, Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, C‑278/07 to C‑280/07, EU:C:2009:38, paragraphs 30 and 31. 29 Judgments of 8 September 2015, Taricco and Others, C‑105/14, EU:C:2015:555, paragraph 57, and of 2 March 2017, Glencore Céréales France, C‑584/15, EU:C:2017:160, paragraphs 69, 70 and 72. 30 As required by the case-law cited in the previous footnote. 31 Judgment of 2 March 2017, Glencore Céréales France, C‑584/15, EU:C:2017:160, paragraph 74 and case-law cited. 32 See judgments of 6 October 2015, Firma Ernst Kollmer Fleischimport und –export, C‑59/14, EU:C:2015:660, paragraph 24, and of 29 January 2009, Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, C‑278/07 to C‑280/07, EU:C:2009:38, paragraph 27. 33 See footnote 16 of this Opinion. 34 See, in particular, Articles 6, 7 and 8 of that regulation. 35 Judgment of 2 March 2017, Glencore Céréales France, C‑584/15, EU:C:2017:160, paragraph 47 and case-law cited. 36 The first paragraph of page 4 of the Chamber of Agriculture’s decision of 23 June 2007 states that Mr Westphal could not rely on good faith because he should have realised in time his error in the calculation of the areas in respect of which he applied for aid. From another perspective, it may be inferred from the judgment on appeal, contained in the case-file forwarded by the referring court, that Mr Westphal used the land tax values of those areas. That factor may be relevant, subject always to the referring court’s assessment of other factual matters. 37 See, in relation to Article 2(2) of Regulation No 2988/95, the judgment of 11 March 2008, Jager, C‑420/06, EU:C:2008:152, paragraph 60: ‘That principle [of retroactive application of the more lenient penalty] is expressed more specifically in the second sentence of Article 2(2) of Regulation No 2988/95, pursuant to which the competent authorities are required to apply retroactively to conduct constituting an irregularity within the meaning of Article 2(1), subsequent amendments made by provisions contained in Community sectoral rules introducing less severe administrative penalties ...’ 38 Judgment of 8 September 2015, C‑105/14, EU:C:2015:555. 39 Judgment of 5 December 2017, C‑42/17, EU:C:2017:936. 40 Ibid., paragraph 27. 41 Ibid., paragraph 58. 42 Paragraph 20 of the order for reference. 43 In points 44 to 46 of this Opinion. 44 Judgment of 2 March 2017, C‑584/15, EU:C:2017:160, paragraph 73. 45 Judgment of 11 March 2008, Jager, C‑420/06, EU:C:2008:152, paragraph 70. 46 Judgment of 4 May 2006, Haug, C‑286/05, EU:C:2006:296, paragraph 23: ‘the second sentence of Article 2(2) of Regulation No 2988/95 would tend to apply if, a difference of more than 20% of the determined area within the meaning of Article 9(2) of Regulation No 3887/92 having been found, full repayment of the Community aid initially awarded, together with interest, is sought whereas a provision of Community law introducing a subsequent amendment to the penalty under Article 9(2) of Regulation No 3887/92 provides for a lesser amount to be repaid’ (no italics in the original).