Opinion of the Advocate General — ECLI:EU:C:1999:264
Date: 1999-05-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: European Social Fund (ESF)
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary of the Judgment 
1. Social policy — European Social Fund — Financial assistance for vocational training 
schemes — Improper use of funds — Nature of disciplinary measures under 
Community law — Not criminal penalties 
(Council Regulation No 2950/83, Art. 6) 
2. Member States — Obligations — Obligation to penalise infringements of Community 
law — Scope 
(EC Treaty, Art. 5 (now Art. 10 EC)) 
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SUMMARY — CASE C-186/98 
1. Community legislation does not clas­
sify the improper use of assistance from 
the European Social Fund (ESF) as a 
criminal offence. 
It is clear from Article 6 of Regulation 
No 2950/83 on the implementation of 
Decision 83/516 on the tasks of the ESF 
that the consequences of using ESF 
assistance in breach of the conditions 
set out in the decision of approval are 
not in the nature of criminal penalties. 
2. Article 5 of the Treaty (now Article 10 
EC) requires the Member States to take 
all measures necessary to guarantee the 
application and effectiveness of Com­
munity law and, accordingly, to take all 
effective measures to penalise conduct 
harmful to the financial interests of the 
Community where Community legisla­
tion does not specifically provide any 
penalty for infringement or refers for 
that purpose to national laws, regula­
tions and administrative provisions. 
The same reasoning applies where 
Community legislation lays down par­
ticular penalties for infringement, but 
does not exhaustively list the penalties 
that the Member States may impose. In 
such cases, national measures may 
include criminal penalties even where 
the Community legislation only pro­
vides for civil sanctions to be imposed. 
The penalty provided for by the 
national authorities must be analogous 
to that applicable to infringements of 
national law of similar nature and 
importance, and must be effective, 
proportionate and dissuasive. 
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