62000CC0170_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1. In the present case the Finnish Government seeks the annulment of the Commission Decision of 1 March 2000 excluding from Community financing certain expenditure incurred by the Member States. The expenditure in question is the sum of FIM 7 270 885.97, which the Finnish authorities incurred in respect of meat premiums in the 1996 and 1997 financial years, and which it subsequently declared to the European Agricultural Guidance and Guarantee Fund (hereinafter EAGGF). The Commission contends that the action should be dismissed.
II - The legal framework
2. The financing of the common agricultural policy is governed by Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy. Article 3(1) thereof provides for the financing of measures by the EAGGF.
3. Article 5 of that Regulation, as amended by Council Regulation (EC) No 1287/95 of 22 May 1995, provides as follows:
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2. The Commission, after consulting the Fund Committee:
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(b) shall, before 30 April of the year following the financial year concerned, on the basis of the information referred to in point (b) of paragraph 1, clear the accounts of the paying agencies.
The accounts clearance decision shall cover the integrality, exactitude and veracity of the accounts submitted.
The decision shall not prejudice the adoption of a subsequent decision pursuant to point (c);
(c) shall decide on the expenditure to be excluded from the Community financing referred to in Articles 2 and 3 where it finds that expenditure has not been effected in compliance with Community rules.
Before a decision to refuse financing is taken, the results of the Commission's checks and the replies of the Member State concerned shall be notified in writing, after which the two parties shall endeavour to reach agreement on the action to be taken.
If no agreement is reached, the Member State may ask for a procedure to be initiated with a view to mediating between the respective positions within a period of four months, the results of which shall be set out in a report sent to and examined by the Commission, before a decision to refuse financing is taken.
The Commission shall evaluate the amounts to be excluded having regard in particular to the degree of non-compliance found. The Commission shall take into account the nature and gravity of the infringement and the financial loss suffered by the Community.
A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication of the results of those checks to the Member State concerned. However, this provision shall not apply to the financial consequences:
- of irregularities as referred to in Article 8(2);
- concerning national aids, or infringements, for which the procedures referred to in Articles 93 and 169 of the Treaty have been initiated.
3. Detailed rules for the application of this Article shall be adopted in accordance with the procedure laid down in Article 13. Those rules shall cover in particular the attestation of the accounts referred to in paragraph 1 and the procedures relating to the decisions referred to in paragraph 2.
4. Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section was introduced for the application of, inter alia, Article 5(3) of Regulation No 729/70. Article 8 provides as follows:
1. When, as a result of any enquiry, the Commission considers that expenditure was not effected according to Community rules, it shall communicate to the Member State concerned its findings, the corrective measures to be taken to ensure future compliance, and an evaluation of any expenditure which it may propose to exclude pursuant to Article 5(2)(c) of Regulation (EEC) No 729/70. The communication shall make reference to this Regulation. The Member State shall reply within two months, and the Commission may modify its position in consequence. In justified cases the Commission may agree to extend this period for reply.
After expiry of the period allowed for reply, the Commission shall initiate a bilateral discussion, and both parties shall endeavour to come to an agreement as to the measures to be taken. The Commission shall then formally communicate its conclusions to the Member State, referring to Commission Decision 94/442/EC.
2. The decisions referred to in Article 5(2)(c) of Regulation (EEC) No 729/70 shall be taken after an examination of any report drawn up by the Conciliation body according to the provisions laid down in Directive 94/442/EEC.
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III - Factual and procedural framework and delimitation of procedure
5. In April 1997 the Commission's services in Finland carried out an on-the-spot inspection in order to check the system of premiums for cows, bulls and ewes, and the application of Council Regulation (EC) No 1357/96 of 8 July 1996 providing for additional payments to be made in 1996 with the premiums referred to in Regulation (EEC) No 805/68 on the common organisation of the market in beef and veal and amending that Regulation.
6. On 20 May 1997 the Commission sent the Finnish authorities a document in Finnish drawing the Finnish Government's attention to deficiencies in the system of controls which it had identified during the on-the-spot checks. The Commission stated that it reserved the right to decide subsequently on the Community financing of expenditure relating to the premiums for bulls paid in 1995 and 1996. It asked for a reply within two months of receipt of the document. The document was sent in the form of a telex rather than a letter. The Finnish Government states that it also received the document by fax.
7. The Finnish Government replied to the document of 20 May 1997 in a letter of 21 July 1997, in which it stated that it would take account of the Commission's proposals and observations.
8. In a letter received by the Finnish permanent representation on 17 September 1998 the Commission informed the Finnish Government that it intended to exclude from Community financing part of the declared expenditure for the years 1996 and 1997. It based this decision on its findings that the relevant controls had not been carried out in accordance with the rules, as was also clear from the results of its checks, which the Commission had appended in an annex to its letter. In the final paragraph of the letter the Commission gave the Finnish Government two months in which to reply, after which, and after examining any reply received, it would organise a bilateral meeting before reaching any conclusions.
9. The annex to which the letter referred was not attached. Following a request from the Finnish Government the Commission forwarded the annex on 11 December 1998, together with a covering letter repeating the final paragraph of the letter of 17 September 1998.
10. The Commission also pointed during the proceedings to an English version of the letter of 17 September 1998, including annexes, sent on 10 July 1998 to the Finnish permanent representation, with a copy to the Ministry of Agriculture and Forestry.
11. The parties subsequently held several exchanges of views. The Finnish Government finally stated in a letter of 5 August 1999 that it would in no event accept the Commission's decision to exclude from financing expenditure incurred before 22 December 1996, that is to say 24 months before the date of receipt of the annex (22 December 1998). The disputed expenditure amounts to FIM 7 270 885.97.
12. Nevertheless, on 1 March 2000 the Commission adopted a decision excluding from Community financing expenditure in the amount of FIM 7 270 885.97.
13. The present application against that decision was lodged with the Court by the Finnish Government on 9 May 2000. The parties elucidated their views at a hearing on 4 July 2001.
14. The Finnish Government alleges before the Court that the Commission infringed Article 5(2)(c) of Regulation No 729/70. The period of 24 months referred to in that provision relates to the period preceding the Commission's written communication of the results of its checks to the Member State concerned. According to the Finnish Government, that written communication must satisfy the requirements set out in detail in Regulation No 1663/95. In the present case the requirements were not satisfied until the missing annexes with the covering letter were sent on 11 December 1998 and received on 22 December 1998.
15. The Commission does not concur with the Finnish Government's view that the 24-month period referred to in Article 5(2)(c) of Regulation No 729/70 ran until 22 December 1998. On the contrary, in the contested decision it correctly considered that the 24-month period ran until 20 May 1997, the date on which it sent the document in the form of a telex or fax. It was therefore entitled to exclude from financing expenditure incurred in the period from 20 May 1995 to 20 May 1997. It substantiates its position by asserting that the document of 20 May 1997 satisfies the requirements of Community law. In the alternative the Commission claims that the English version of the letter of 17 September 1998 is decisive. Finally, the Commission disputes that the letter of 11 December 1998 was not received by the Finnish Government until 22 December 1998.
16. In its application the Finnish Government provides a detailed calculation of the sums deducted. The Commission does not dispute those calculations. The sums are therefore not relevant to the proceedings before the Court.
IV - Assessment
A - Introduction
17. Neither the facts nor the calculation of the sums deducted are at issue in this case. The dispute is essentially confined to the question of the requirements to be met by the written communication referred to in Article 5(2)(c) of Regulation No 729/70.
18. The first question concerns the content of the communication: what requirements does the Regulation impose concerning the content, and more particularly what is the relationship between this communication and the communication referred to in Article 8 of Regulation No 1663/95? I shall then examine the significance of the formal requirements associated with Article 5(2)(c), before moving on to consider the requirement under Article 5(2)(c) for the communication to be in writing: does that mean that it must take the form of a letter, or is a telex or fax sufficient? That question is related to other more general questions concerning the legal force of faxes and other modern communications media, where they are used as a substitute for a letter. My opinion on whether the notice of 20 May 1997 is to be regarded as a written communication within the meaning of Article 5(2)(c) will be based on those elements.
19. In the alternative - should the Court take the view that the notice of 20 May 1997 does not meet the relevant requirements and that the Finnish Government's action cannot be dismissed - I shall consider whether Regulation No 729/70 allows the communication to be in English rather than in the language of the Member State. Also in the alternative, I shall consider the date of the communication: on which date is the communication deemed to have been received by the Member State? Is receipt by the permanent representation in Brussels sufficient?
20. However, before I examine those questions, I shall look more generally at cooperation between the Commission and the Member States in implementing the common agricultural policy.
B - Preliminary observations
21. The common agricultural policy is implemented by the Commission and the Member States, working closely together. Both parties must be guided by the principle of Community loyalty, as expressed in Article 10 EC. The Member States implement the common agricultural policy in their territory using funding provided by the Community. In doing so they are required to assist the Commission as much as possible in the performance of its task, particularly in so far as it involves monitoring the efficient use of the Community funding. Without the Member States' help it would be difficult, if not impossible, for the Commission to carry out that supervision. Article 9 of Regulation No 729/70 gives further details of what is expected of the Member State in the procedure for clearing the accounts of the EAGGF Guarantee Section.
22. The close cooperation between the Commission and the Member State is characterised, among other things, by intensive communication between the two. Because of the frequency and rapidity with which communications need to be made, the formal requirements for such communications cannot be too demanding. That applies both to the means used - fax and e-mail will often be a more efficient way of exchanging information than a letter through official channels - and to the language of the communications, particularly where only a small number of the Commission's staff can speak the language of the Member State concerned.
23. The need for close cooperation between the Commission and the Member State means that their relationship is different from that between the Commission - or any other administrative authority - and an individual. An individual is more readily able than a Member State to rely on a formal error by the Commission in order to obtain a procedural advantage. What that means is not that the Commission can ignore the formal requirements laid down in Community legislation, but that if the Commission commits a procedural error, for whatever reason, the Member State may be expected to point it out to the Commission so as to minimise any resulting detrimental effects.
24. I take the view that the nature of the relationship between the Commission and a Member State changes as soon as the Commission takes legal steps against that Member State. In a case such as the present that is the point at which the Commission complains that the Member State is implementing the common agricultural policy incorrectly or incompletely, and indicates that this will have financial consequences. From that moment on cooperation no longer forms the focus of the relationship between the Commission and the Member State. An adversarial phase has begun in which the Commission and the Member State oppose each other as parties to a dispute. Their relationship has become a legal one; the Member State can and will then act primarily according to its procedural position, and can more readily rely on failure to comply with formal requirements or other procedural defects. The case-law of the Court also recognises that the procedure for clearing EAGGF accounts is adversarial in nature, so that the rights of the defence are guaranteed.
25. It is not absolutely clear from Regulation No 729/70 and its implementing provisions where the turning point comes in the relationship between the Commission and the Member State in a procedure for the clearance of the accounts of the EAGGF Guarantee Section. What is certain in any event is that cooperation is central to the checks themselves. The written communication referred to in Article 5(2)(c) need not in itself become a turning point, since - leaving aside the provisions of Article 8 of Regulation No 1663/95 - it may merely be a factual statement of the results of the checks, without any financial consequences necessarily being attached to it. The communication referred to in Article 8 of Regulation No 1663/95 does have financial consequences, since it contains an evaluation of the expenditure which the Commission may propose to exclude from Community financing.
26. After the communication referred to in Article 8 of Regulation No 1663/95, the relationship between the Commission and the Member State becomes, in my view, primarily adversarial in nature. From that point onwards no particular cooperation is expected from the Member State. It has become, to a greater or lesser degree, an ordinary party in an administrative procedure.
27. However, the significance of this finding for the present case should not be overstated. First of all, the administrative procedure after the communication referred to in Article 8 of Regulation No 1663/95 still involves certain elements of cooperation, in that the article requires both parties to endeavour to come to an agreement. Secondly, the written communication referred to in Article 5(2)(c) of Regulation No 729/70 - leaving aside the provisions of Article 8 of Regulation No 1663/95 - also has legal consequences, since it determines the end of the 24-month period. For those reasons that communication too has to satisfy certain requirements. Thirdly, a Member State will not always be successful in relying on failure to comply with formal requirements or on other procedural defects. Article 10 EC continues to play a certain role even in the adversarial phase. The Member State may, admittedly, act primarily on the basis of its procedural position during that phase, but that does not mean that it may thwart the course of the procedure.
28. It should be noted that the Finnish Government stressed at the hearing that it had cooperated with the Commission throughout the procedure, as was evident from the fact that it had always replied swiftly to the Commission's letters.
C - The dispute itself
The content of the communication
29. According to the Finnish Government the communication referred to in Article 8(1) of Regulation No 1663/95 and the written communication referred to in Article 5(2)(c) of Regulation No 729/70 are one and the same. To support this argument it also refers to Commission Regulation (EC) No 2245/1999 of 22 October 1999 amending Regulation No 1663/95, in which the French version of the amended Article 8(1) contains a specific reference to the results of the checks. The communication (or written communication) determines the end of the 24-month period. Article 8(1) of Regulation No 1663/95 provides that the communication must make reference to that Regulation and also, according to the Finnish Government, must mention the two-month period within which the Member State must reply. The Commission's communication of 20 May 1997 does not satisfy either of these requirements.
30. The Commission rebuts the Finnish Government's arguments concerning the link between Article 5(2)(c) of Regulation No 729/70 and Article 8 of Regulation No 1663/95. It argues that there is no link between the two provisions, since the legal basis of Regulation No 1663/95 is Article 5(3), not Article 5(2), of Regulation No 729/70. In its reply the Finnish Government states that the Commission's argument is irrelevant given that Article 5(3) specifically refers to decisions taken on the basis of Article 5(2)(c).
31. The answer to this first question is closely bound up with Finland's assertion that the written communication provided for in Regulation No 729/70 and the communication provided for in Regulation No 1663/95 are one and the same. In my view this assertion is incorrect, for the following reasons.
32. The decisive factor, in my opinion, is that the content of the communication referred to in the implementing regulation is not the same as the communication referred to in the basic regulation. The written communication referred to in Article 5 of the basic regulation contains the results of the checks carried out by the Commission and occurs shortly after the checks have been performed. In the present case the on-the-spot inspections which formed part of the checks were carried out in April 1997 and the Finnish Government was notified of the results in May 1997.
33. The communication referred to in the implementing regulation also relates to those results, but is only issued when, as a result of an enquiry, the Commission considers that expenditure was not effected according to Community rules. The communication also contains an evaluation of the expenditure which the Commission proposes to exclude from EAGGF financing. It may therefore be inferred that the communication referred to in Regulation No 1663/95 is issued at a later stage in the procedure.
34. This question should be viewed within the broader context of the financing of the common agricultural policy by the EAGGF and the procedure which applies in cases where the Commission finds grounds not to finance from Community funds all expenditure incurred by a Member State. In my view, there are two formal stages under Article 5(2)(c) of the basic Regulation No 729/70. The procedure begins with the written communication referred to earlier and concludes with a decision from the Commission. The period between these two stages is characterised by cooperation or, where appropriate, consultation between the Commission and the Member State concerned.
35. The length of that period is determined by Article 5(2)(c) of Regulation No 729/70 and Article 8(1) of Regulation No 1663/95. Those provisions relate to the exchange of various written documents and also provide for oral consultation and the involvement of a conciliation body set up under Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the EAGGF Guarantee Section. Against that background the Finnish Government also refers to the Commission Guidelines of 23 December 1997 for the calculation of financial consequences when preparing the decision regarding the clearance of EAGGF Guarantee Section accounts. The guidelines state that the Commission must take account of the procedural rules set out in Article 5(2)(c) of Regulation No 729/70.
36. In my opinion, the communication referred to in Article 8(1) of Regulation No 1663/95 forms part of the cooperation that takes place between the written communication pursuant to Article 5(2)(c) of Regulation No 729/70 and the Commission's decision. The Commission has by then carried out an enquiry and is able on that basis to specify which expenditure has not been effected according to Community rules and to propose corrective measures.
37. The wording of the two regulations also supports my view that the written communication pursuant to Article 5 of Regulation No 729/70 and the communication pursuant to Article 8 of Regulation No 1663/95 are not the same.
38. It should be noted that the two regulations use different terms in the Dutch language version. Regulation No 729/70 refers to a schriftelijke mededeling, while Regulation No 1663/95, which lays down implementing provisions for Regulation No 729/70, refers to a kennisgeving. The English version too uses two different terms, notify and communicate respectively, and the Finnish version also uses different terminology. However, I do not attach too much importance to this difference, since the French and Italian versions, among others, use the same term in both regulations.
39. I attach greater importance to the fact that Article 8 of Regulation No 1663/95 does not refer to the communication mentioned in Article 5 of Regulation No 729/70. Commission Regulation No 1663/95 lays down rules for the application of Regulation No 729/70, the basic regulation. If the basic regulation already provides for the Commission to send a particular communication, there is no need for the implementing regulation to repeat this requirement. But if the implementing regulation nevertheless provides for the Commission to send a communication, then it is evident - should there be any doubt as to whether the communication is the same one as in the basic regulation - that a different communication is intended.
40. In the present proceedings the Commission's letter of 17 September 1998 must be regarded as a communication under Article 8(1) of Regulation No 1663/95. The Commission states this in its defence and it is also evident from the content of the letter, in which the Commission refers to Article 8. It also requests the Finnish Government to reply within two months, in accordance with that article, and gives notice of the bilateral discussion referred to in that article.
41. That said, I consider the notice of 20 May 1997 to be the (written) communication of the results of the checks provided for in Article 5(2)(c) of Regulation No 729/70.
The significance of the formal requirements
42. The Court has a considerable body of case-law on failure to comply with formal requirements, in which a distinction is drawn between essential and non-essential requirements. With essential requirements failure to comply renders the measure concerned void. The Court takes a broad view of the term essential formal requirement.
43. The Court thus examined the Commission's obligation to send documents to the Member States in good time to allow the Standing Committee on Construction to issue an opinion, in circumstances where the vote in the committee had not been postponed - following the late forwarding of the documents - despite a formal request to do so from a Member State. I quote from paragraph 31 of the judgment in Germany v Commission: That requirement for the document to be sent separately to the offices of the Permanent Representatives of the Member States and to their representatives on the Committee, taken together with the fact that there is no possibility for shortening the period of notice, is a sufficient indication of the intention to ensure that Member States should have the time necessary to study these documents, which may be particularly complex and require considerable contact and discussion between different administrative authorities, or consultation of experts in various fields or of professional organisations. It is also relevant that English versions of the documents in that case had been sent in good time.
44. It is to be inferred from the passage cited from the judgment in Germany v Commission that the Court in that case considered the following factors relevant in determining whether a requirement was an essential procedural requirement:
- The explicit nature of the formal requirement. In the case in question no exceptions could be made to the requirement to meet the deadline for sending documents.
- The strictness of the requirement. The documents had to be sent to both the permanent representation and to the representatives on the Committee.
- The technically complex nature of the documents. That factor is also relevant to the question of whether an English version of the text is acceptable.
- The importance of the requirement: a minimum period is necessary for the consultation of various parties concerned.
45. In the present case the Court must decide to what extent the requirements imposed on the communication referred to in Article 5(2)(c) of Regulation No 729/70 are to be regarded as essential formal requirements. This relates first to the demand that the communication be in writing, which is stated in the article itself, but in addition I regard the demand that the communication be given in the language of the Member State as a formal requirement, whether or not it is essential.
46. The Finnish Government discusses - in its reply in particular - the formal requirements which Regulation No 729/70 (and Regulation No 1663/95) imposes on the written communication. It considers that a fax does not satisfy the formal requirements, nor does a letter in English. It contends that it derives entitlement to compliance with those procedural rules from the Community legislation, thereby classifying the requirements as essential formal requirements. The Commission, as I understand it, takes the opposite view. According to the Commission, it is not the formal presentation of the document that is decisive, but the purpose it serves as a warning. That purpose was served with the document of 20 May 1997. The Commission points out that an excessively formal application of the rules would allow the Member States to delay the collection of information by the Commission of their own accord, which would have a detrimental effect on the system.
47. Both parties also establish a connection with the principle of legal certainty. According to the Commission the 24-month rule results from a concern to protect legal certainty. The Commission, it argues, cannot impose corrections on the Member States several years after the financial year in question without prior warning. The Commission also makes reference to good faith. The Finnish Government associates the principle of legal certainty with its right to demand compliance with the formal requirements. In its view convenience must not take precedence over the principle of legal certainty.
48. In my opinion the classification of the formal requirements in the present proceedings is directly bound up with the particular nature of the written communication referred to in Article 5(2)(c) of Regulation No 729/70. On the one hand the communication has financial consequences the scale of which must be made clear to the Finnish Government. The Finnish Government may have an interest here, such as in setting aside funding to cover the financial loss. It may also contest the accuracy of the substance of the communication. On the other hand it is a communication of facts observed in the past. The Finnish Government cannot take steps to limit the scale of its financial loss given that the expenditure to which the communication relates has already been effected. Nor can the Finnish Government do anything to prevent the communication from having the legal effect of interrupting the 24-month period.
49. It appears decisive that this is a written communication of a factual nature and that there is no remedy against its legal consequences. That limits the importance of any formal requirements attached to the communication. The question, therefore - in view of the factors which the Court took into consideration in the judgment in Germany v Commission - is whether the requirements are essential formal requirements.
50. It has to have been made clear to the Finnish Government that the notice it received was the communication referred to in Article 5(2)(c). That flows from the principle of legal certainty, in my view. In the present case it means that the rules must have been made clear and their application foreseeable for the party concerned, in other words the Finnish Government. As the Court found in its judgment in Denmark v Commission, That requirement of legal certainty must be observed all the more strictly in the case of rules liable to entail financial consequences, in order that those concerned may know precisely the extent of the obligations which they impose on them. In the present case the requirement of clarity was met, as can be seen from the fact that the Finnish Government responded in its letter of 21 July 1997 to the substance of the document sent to it on 20 May 1997.
51. I have therefore concluded on this point that it has not been established that the requirements imposed on the communication referred to in Article 5(2)(c) of Regulation No 729/70 are to be regarded as essential formal requirements breach of which renders the communication void. The requirement of clarity must, however, be met, which is the case here.
52. However, even if the requirements in question were to be regarded as essential formal requirements, that does not mean that the Member State could rely on them whatever the circumstances.
53. The Finnish Government refers to this in its reply, asserting that the Finnish authorities may generally have replied to the informal contacts from the Commission as a matter of courtesy, but that action does not deprive the Finnish Government of its right to demand compliance with procedural rules in connection with the calculation of an important legal time-limit. In essence the Finnish Government thus contends that the fact that it did not always insist on compliance with the requirement does not mean that it forfeited its right to rely on it.
54. In the judgment in Germany v Commission the Court attached importance to the fact that the German Government had formally applied for the vote to be postponed on account of the late arrival of the documents. It thereby lodged an early objection to the failure to satisfy an essential formal requirement, which might have had the effect of limiting the damage caused by that breach.
55. Both the Finnish Government's contention and the judgment in Germany v Commission raise the question of whether a Member State needs to object to a breach of a formal requirement. Can a Member State rely on a breach of a formal requirement in proceedings before the Court when it earlier (tacitly) acquiesced in it?
56. I take the view that a Member State cannot rely before the Court on a breach of an essential formal requirement by the Commission, having earlier acquiesced in non-compliance with that requirement. Reliance on such a plea is contrary to Article 10 EC.
57. In the present case it has been established that the Finnish Government responded in its letter of 21 July 1997 to the substance of the document sent to it on 20 May 1997 without objecting to the fact that the document had not been sent in the form of a letter. It follows from this that the Finnish Government regarded the document as the written communication referred to in Article 5(2)(c) of Regulation No 729/70. It cannot then subsequently object before the Court to the form in which it received the document. In addition, it may be inferred from the fact that the Finnish Government replied two months later that it had not suffered damage as a result of the failure to comply with the formal requirement.
58. It should be pointed out that - in proceedings such as these - any other view might have the undesirable effect of enabling a Member State to gain an advantage from concealing a formal defect. By way of illustration, if the Finnish Government had informed the Commission shortly after 20 May 1997 that it had, incorrectly, not received the communication in the form of a letter, the Commission could have rectified that omission, with the consequence in law that the period referred to in Article 5(2)(c) could also have been interrupted shortly after 20 May 1997.
59. Finally, I do not think it necessary, for the purpose of the present proceedings, to examine in detail the operation of the principle of legal certainty. In view of the particular nature of the written communication referred to in Article 5(2)(c) of Regulation No 729/70, which communicates facts as to matters which have occurred in the past, that principle plays a very limited role. Nevertheless, it does flow from that principle - as I described in point 50 - that it had to be clear with certainty to the Finnish Government that the notice it had received was the communication referred to in Article 5(2)(c).
The requirement for the communication to be in writing
60. For the sake of completeness - in view of the conclusion set out above - I will examine the substance of the formal requirement which the Finnish Government contends has been breached.
61. The Finnish Government takes the view that there is no obligation to accept a fax. The Commission responds to this in its rejoinder, stating that Community law does not require a Member State to receive an original letter in addition to a fax. In particular the term written communication within the meaning of Article 5(2)(c) of Regulation No 729/70 is not confined to a letter, while Article 8 of Regulation No 1663/95 does not mention any formal requirement at all.
62. The answer to this question depends first of all on the interpretation of the term written. The issue is whether that term means not oral, or whether it implies a letter or some other paper document. In my view, what is decisive here again is the interest that the Community legislature intended to protect in imposing the requirement that the communication be in writing.
63. Before I answer the question, I would draw attention to the increased importance, and acceptance, in legal correspondence of the use of alternative means of communication instead of a letter. I would simply point out that when the relevant text of Article 5(2)(c) of Regulation No 729/70 was adopted in 1995, e-mail was not yet a widely used phenomenon to which legal effect was given.
64. Community law - in the directives on electronic signatures and electronic commerce - now recognises electronic communication in a number of fields as equivalent to traditional paper communication.
65. Electronic communication is also becoming increasingly important in legal correspondence between the Commission and the Member States. In procedures such as the present, at any event, it is now usual to send an advance copy, the Commission preceding a formal letter with a fax or e-mail with the same content, thus giving the Member State more time to reply. Fax and e-mail are also used for the frequent communications that form part of the cooperation between the Member States and the Commission during the procedure for the clearance of the accounts of the EAGGF Guarantee Section.
66. The Court also recognises - albeit to a limited extent - the use of fax and e-mail in its procedures. Parties can agree to have procedural documents served by fax or e-mail, though they are still lodged only through the normal post.
67. On the other hand in its decisions the Court is sometimes reluctant to accept that faxes are equivalent to original paper documents. Only recently the Court, in its judgment in Netherlands v Commission, rejected the use of faxes for lodging payment declarations relating to subsidies to be financed by the EAGGF because of the risk of fraud: The Netherlands authorities' practice of accepting a fax is clearly not compatible with that provision. It created a risk of unlawful payment of subsidies making it possible, after an inaccuracy had been found during a customs check made on the basis of a fax, for the trader to lodge another declaration containing the correct information. In my opinion the Court's reluctance here is connected to the prevention of fraud which is the specific purpose of the requirement for a communication in writing, and does not constitute a rejection of electronic media in general.
68. I shall now move on to the answer itself, which must therefore be placed in the context of the greatly increased and widely accepted use in legal correspondence of electronic means of communication such as fax and e-mail.
69. A communication is usually required to be in writing because it has to provide certain safeguards for those concerned. The obligation to reduce a matter to writing is intended to protect parties by providing certainty about the authenticity of a document, its contents and the date when it was produced. At other times, although not in the present case, the requirement for a communication in writing serves a broader purpose, such as the prevention of fraud, the protection of an economically weaker party to an agreement or the protection of third parties. On this last point, it should be pointed out that in the present case the correspondence between the Commission and the Member State is not public and third parties cannot therefore derive rights from it. In the present case the requirement that the communication be in writing has merely a probative function in relations between the Commission and the Member State.
70. The question is whether that function could be performed equally well by a document sent electronically. I see no reason why that should not be the case. The authenticity of the document, its contents and the date on which it was produced can also usually be determined in the case of an electronic document. An electronic document admittedly cannot provide absolute certainty on these points, but the same also applies to a letter.
71. In light of the foregoing considerations, I take the view that the written communication referred to in Article 5(2)(c) of Regulation No 729/70 may be sent in electronic form.
Assessment
72. I am of the opinion that the document received by the Finnish Government on 20 May 1997 by telex and/or fax must be regarded as a written communication within the meaning of Article 5(2)(c) of Regulation No 729/70. In my view the written communication is not the same document as the communication referred to in Article 8(1) of Regulation No 1663/95. The Finnish Government cannot rely before the Court on the fact that the communication was not sent by letter even if the transmission by telex and/or fax was indeed a breach of an essential formal requirement, since the Finnish Government raised no earlier objection to this form of transmission. Furthermore, a written communication can be sent electronically. The action must therefore be dismissed.
D - In the alternative
The language
73. If the Court does not agree with my opinion and takes the view that the notice of 20 May 1997 does not satisfy the requirements imposed, the question then is whether Regulation No 729/70 allows the communication to be drawn up in English, rather than in the language of the Member State.
74. The Finnish Government refers to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community, as amended on the accession of Austria, Finland and Sweden. Article 3 of that Regulation states that [d]ocuments which an institution sends to a Member State or to a person subject to the jurisdiction of a Member State shall be drafted in the language of such State.
75. The Commission, on the other hand, states in its defence in the alternative that account must be taken of the English version of the letter of 17 September 1998 and the English annexes, dated 10 July 1998. The Commission recognises that the Finnish Government was officially entitled to demand the annexes in Finnish. However, it had become administrative practice for the Commission - in its contacts with the Finnish Ministry of Agriculture and Forestry - to send a document in English first, followed by a Finnish translation later when it was available. The Finnish authorities always accepted this procedure. At the hearing the Commission relied on the principle of good faith.
76. In the judgment in Germany v Commission the Court interpreted Article 3 of Regulation No 1 strictly, deeming it inadequate for the Commission to send the German authorities documents in English. The documents in question, as I indicated in point 44 of this Opinion, were technical ones on which the Standing Committee on Construction had to base a decision.
77. In my view the Court's strict interpretation must be seen in the light of the special nature of the documents concerned, which were technical documents that had to be able to serve as the basis for a decision. Advocate General Ruiz-Jarabo Colomer stated in that regard: While the Commission may assume that officials from the Permanent Representation of Germany have good knowledge of English, I think that it would be going too far to presume the same for the two representatives of that country on the Committee, or indeed for the experts. In any event, the Member State's authorities had to be able to discuss the documents with those concerned in their own country, both public bodies and individuals. In order to do so they needed documents to be available in German in good time.
78. There is support for a more restricted interpretation of Regulation No 1 in the Court of First Instance's recent judgment in Kik v OHIM, where the Court states that the choice of language may - in some cases - be limited to a language which is more widely known within the European Union. The case in question concerned the language regime in the Office for Harmonisation in the Internal Market (Trade Marks and Designs). Under that regime communications are partly in German, English, French, Spanish or Italian. The Court of First Instance thus dismisses a complaint of discrimination from a national of a country where a different Community language is spoken.
79. I take the view that sending documents in English does not always render them void on the ground of failure to comply with an essential procedural requirement. However, the Member State concerned is entitled to receive documents in its own language. In order to assert that right it must, where appropriate, inform the Commission that it is not satisfied with a document in English. In my opinion it is not compatible with the cooperation that takes place between the Commission and a Member State for that Member State to invoke the absence of a version in the correct language only before the Court. As is apparent from point 56 of my Opinion, I regard such conduct by a Member State as, at the very least, inconsistent with Article 10 EC.
80. The situation in the present case is a very specific one. The parties agree, if I understand the Commission's position correctly, that the date of 10 July 1998, when the document in English was sent, is not decisive. That document was an advance copy of the letter of 17 September 1998. Therefore, the Commission contends, the letter in Finnish of 17 September 1998 is material, because even though the annexes were missing, they had been sent to the Finnish Government earlier in English. The Finnish Government, however, regards it as crucial that there were no annexes in Finnish. It informed the Commission of this, and the Commission subsequently sent the annexes on 11 December 1998. Those annexes were accompanied by a letter in which the Commission reproduced the final paragraph of the earlier letter and once again mentioned the period referred to in Article 8(1) of Regulation No 729/70.
81. I conclude that in the present - specific - circumstances neither the letter of 10 July 1998, which was in English, nor the letter in Finnish of 17 September 1998 may be regarded as the written communication referred to in Article 5(2)(c) of Regulation No 729/70. I base this conclusion on the Commission's position and/or actions, in that:
- the Commission itself regards the letter in English of 10 July 1998 as merely an advance copy of the letter in Finnish;
- by reproducing, in the covering letter of 11 December 1998 sent with the annexes, the last paragraph of the letter of 17 September 1998, the Commission deprives the latter of any legal effect.
The date of the communication
82. Should the Court support my view that neither the letter in English of 10 July 1998 nor the letter in Finnish of 17 September 1998 may be regarded as the written communication referred to in Article 5(2)(c) of Regulation No 729/70, I shall briefly consider the date of receipt of the letter of 11 December 1998.
83. The Commission contends, with regard to the letter of 11 December 1998, that 14 December must be taken as the date of receipt, since that was the date when it arrived at the permanent representation, rather than 22 December, which was when it was received by the Ministry in Helsinki. It refers to its usual practice of always sending the original of a notification to the permanent representation. Other copies sent to the national authorities are merely for confirmation. At the hearing the Commission stated that both documents have equal value and that the letter to the permanent representation should not be regarded as a copy.
84. The Finnish Government recognises that the permanent representation received a copy on 14 December 1998. However, the original was addressed to the Ministry of Agriculture and Forestry in Helsinki and arrived there on 22 December 1998. The Finnish Government regards the date of receipt of the original as decisive.
85. It should be pointed out that it is usual practice for official correspondence between the Commission and a Member State to be sent via the permanent representation in Brussels. The time when the permanent representation receives a document is therefore decisive. From then onwards it is an internal matter for the Member State how the relevant authorities in the capital are informed. The fact that the Commission also, in the present case, sent a copy to the Ministry of Agriculture and Forestry in Helsinki is in the spirit of the cooperation that takes place between the Commission and the Member State in the clearance of the accounts of the EAGGF Guarantee Section. However, it has no consequence for the date to be taken into account as part of the procedure for clearing the accounts.
86. Should the Court support the Finnish Government's view that the date of receipt by the Ministry in Helsinki is decisive, rather than receipt by the permanent representation, the effect might be that the Commission will subsequently refrain from sending copies directly to the relevant authorities in the capital city, which would adversely affect cooperation.
87. The letter of 11 December 1998 must therefore be deemed to have been received by the Finnish Government on 14 December 1998.
Assessment in the alternative
88. My alternative assessment is therefore that should the Court not support my view that the communication of 20 May 1997 satisfies the requirements imposed, it should declare the action well-founded, subject to the proviso that the date on which the 24-month period expires is 14 December 1998.
V - Conclusion
89. In light of the foregoing I propose that the Court dismiss the action and order the Republic of Finland to pay the costs under Article 69(2) of the Rules of Procedure.