OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 19 January 2017 (1)
Case C‑436/15
Lietuvos Respublikos aplinkos ministerijos Aplinkos projektų valdymo agentūra
v
UAB ‘Alytaus regiono atliekų tvarkymo centras’
(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme administrative court of Lithuania))
(Protection of the financial interests of the European Union — Irregularities in the case of payments from EU funds based on instruments for structural policies for pre-accession States — Article 3(1) of Regulation (EC, Euratom) No 2988/95 – Limitation period — Concept of ‘multiannual programme’ — Concept of continuing or repeated irregularities)
1.        This reference for a preliminary ruling concerns the interpretation of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 on the protection of the European Communities financial interests. (2) The referring court seeks guidance, in particular, as to the meaning of the expression ‘multiannual programme’ in the second subparagraph of Article 3(1) of that regulation. It wishes to ascertain whether the funding of a project to construct a waste management system for the Alytus Region falls within that concept and, if so, how the limitation period laid down in that provision is to operate.
2.        Pursuant to the rules governing assistance under the Cohesion Fund and the measures adopted to provide support to candidate countries, the European Commission adopted a decision approving financial support for that project prior to Lithuania’s accession to the European Union. The request for a preliminary ruling has been made in the course of proceedings between the Lietuvos Respublikos aplinkos ministerijos Aplinkos projektų valdymo agentūra (the Environmental Projects Management Agency; ‘the EPMA’) and the UAB ‘Alytaus regiono atliekų tvarkymo centras’, the private company established to operate the waste management centre (‘the company’).
Legal framework
Treaty on European Union
3.        One of the Commission’s tasks under Article 17(1) TEU is to execute the EU budget and manage programmes.
Treaty on the Functioning of the European Union
4.        Article 312(1) TFEU states, inter alia, that the annual EU budget must comply with the multiannual financial framework which lays down the maximum annual amounts (the ‘ceilings’) that may be spent for different policies (‘headings’) for each year of a given period (currently 2014 to 2020). The Cohesion Fund established under Article 177 TFEU provides financial contributions to projects in the sectors of the environment and trans-European networks in relation to transport infrastructure. (3)
The Charter of Fundamental Rights of the European Union
5.        Article 41 of the Charter of Fundamental Rights of the European Union, (4) inter alia, guarantees every person’s right to have their affairs handled within a reasonable time by the EU institutions.
Regulation No 2988/95
6.        The overarching objective of Regulation No 2988/95 is to protect the financial interests of the European Union as set out in the general EU budget administered by the Commission in accordance with the principle of sound financial management. (5) In that context, the recitals state that: (i) more than half of EU expenditure is paid to beneficiaries through the intermediary of the Member States; (ii) acts contrary to the European Union’s financial interests should be countered in all areas; and (iii) pursuant to EU law, the Commission and the Member States must check that EU budget resources are used for their intended purpose. (6)
7.        Article 1(1) states that for the purposes of protecting the European Union’s financial interests, the regulation introduces general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law. Article 1(2) defines ‘irregularity’ as ‘any infringement of a provision of [EU] law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the [European Union] or budgets managed by [it], either by reducing or losing revenue accruing from own resources collected directly on behalf of the [European Union], or by an unjustified item of expenditure’.
8.        Article 3(1) provides:
‘The limitation period for proceedings shall be four years as from the time when the irregularity referred to in Article 1(1) was committed. However, the sectoral rules may make provision for a shorter period which may not be less than three years.
In the case of continuous or repeated irregularities, the limitation period shall run from the day on which the irregularity ceases. In the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated.
The limitation period shall be interrupted by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity. The limitation period shall start again following each interrupting act.
However, limitation shall become effective at the latest on the day on which a period equal to twice the limitation period expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6 (1).’ (7)
9.        Article 3(3) allows Member States to retain the possibility of applying a limitation period that is longer than the four years referred to in Article 3(1).
The Cohesion Fund
10.      In December 2001, when the Commission adopted a decision approving financial support for a project establishing a waste management system for the Alytus Region, (8) the rules in Council Regulation (EC) No 1164/94 establishing a Cohesion Fund (9) were in force. Financial assistance for candidate countries was governed by Council Regulation (EC) No 1267/1999 establishing an Instrument for Structural Policies for Pre-accession. (10)
Regulation No 1164/94
11.      Regulation (EC) No 1164/94 aimed, inter alia, to ensure in the interests of the proper management of the Cohesion Fund (‘the Fund’) that provision should be made for effective methods of evaluating, monitoring and checking Community operations and laying down the action to be taken in response to irregularities or failure to comply with one of the conditions laid down when assistance from that Fund was approved. (11)
12.      Article 1(1) of that regulation established a Cohesion Fund. Article 1(3) allowed the Fund to contribute to financing projects, or stages of a project or groups of projects linked to a visible strategy forming part of a coherent whole. In accordance with Article 2(1), the Fund was to provide financial contributions to projects ‘… in the fields of the environment and trans-European infrastructure networks in Member States …’. Lithuania became eligible for assistance from the Fund from the date of its accession to the European Union (1 May 2004) until 31 December 2006 pursuant to Article 2(5). (12)
13.      Article 3 was entitled ‘Eligible measures’. Pursuant to Article 3(1), environmental projects that contributed to the Treaty’s objectives, in particular projects in line with the priorities conferred on Community environmental policy by the Fifth Programme of Policy and Action in relation to the Environment and Sustainable Development, constituted measures in respect of which the Cohesion Fund could provide assistance (‘Cohesion Fund measures’). Financial support could also be granted for preliminary studies related to eligible projects and for technical support measures, such as publicity and information campaigns under Article 3(2).
14.      Under Article 4, financial resources were to be allocated to the Fund for the period from 2000 to 2006. Projects were to be approved in accordance with the rules laid down in Article 10. Projects financed by the Fund were to be adopted by the Commission in agreement with the beneficiary Member State which submitted the application for assistance as laid down in Article 10(1) and (2). Commission decisions that approved, inter alia, projects determined the amount of financial support and laid down the financing plan together with all the provisions and conditions necessary for the implementation of those projects in accordance with Article 10(6). The key details of those decisions were published in the Official Journal of the European Communities pursuant to Article 10(7).
15.      Article 11(1) stated that the commitment appropriations (that is, legally binding promises to spend money which would not necessarily be paid out in the same year but could be disbursed over several financial years) entered in the budget were to be granted on the basis of the decisions approving the measures concerned in accordance with Article 10. Assistance relating to Cohesion Fund measures was as a general rule to be committed by annual instalments. However, the Commission could, in appropriate cases, commit the total amount of the assistance granted when it adopted the decision granting the assistance (Article 11(2)).
16.      The financial checks which the Member States were to conduct were laid down in Article 12(1). They included:
‘…
(d)      certifying that the declarations of expenditure presented to the Commission are accurate and guaranteeing that they result from accounting systems based on verifiable supporting documents;
(e)      preventing and detecting irregularities, …
(f)      presenting to the Commission, when each project, step of project or group of projects is wound up, a declaration drawn up by a person or department having a function independent of the designated authority. …
…’
17.      Article 16a(1) was inserted by the Act of Accession. It provided that: ‘Measures which, on the date of accession of … Lithuania … have been the subject of Commission decisions on assistance under [Regulation No 1267/1999] … and the implementation of which has not been completed by that date shall be considered to have been approved by the Commission under this Regulation. Unless stated otherwise in paragraphs 2 to 5, the provisions governing the implementation of measures approved pursuant to this Regulation shall apply to these measures’.
18.      The implementing provisions for Regulation No 1164/94 were laid down in Annex II, which comprised a series of Articles designated as ‘A’ to ‘K’. A ‘project’ was defined in Article A(2)(a) of Annex II as: ‘an economically indivisible series of works fulfilling a precise technical function and with clearly identified aims from which to judge whether the project complies with the criterion laid down in the first indent of Article 10(5)’. (13)
19.      In accordance with Article C(1), budgetary commitments were to be made on the basis of Commission decisions approving the measures concerned. Commitments for environmental projects to be carried out over a period of two years or more were generally to be made in annual instalments. The commitments in respect of the first annual instalment were to be made when the decision granting Community assistance was adopted by the Commission. Commitments in respect of subsequent annual instalments were to be based on the initial or revised financing plan for the measure and were normally to be made at the beginning of each budget year (Article C(2)(a)). The arrangements for commitments were to be specified in the Commission decisions approving the measures concerned (Article C(4)).
20.      According to Article D(1): ‘payments of financial assistance shall be made in accordance with the corresponding budget commitments, to [the competent national authority]. Payments may take the form of payments on account, interim payments or payments of the final balance. Interim payments and payments of the balance shall relate to expenditure actually paid out, which must be supported by receipted invoices or accounting documents of equivalent probative value’. Pursuant to Article D(2)(d), the final balance of EU assistance calculated on the basis of expenditure certified and actually paid was to be paid to the competent national authority provided that certain conditions were met, including that a final report on the project had been submitted to the Commission within six months of its completion (under the third indent of Article D(2)(d)). If that report was not sent to the Commission within 18 months of the final date for completion of the works and payments as given in the decision granting assistance, the funds which represented the remaining balance of the project were to be cancelled under Article D(3). (14)
21.      Article D(5) allowed payment to be made to the authority or the body designated by the Member States, as a general rule not later than two months after receipt of an admissible application for payment. (15)
22.      Member States’ authorities were obliged under Article G(3) of Annex II to keep supporting documents for a period of three years following payment of the final balance by the Commission. Pursuant to Article H(1) of Annex II, the Commission was under a duty to apply financial corrections where it concluded that there had been an irregularity with regard to assistance from the Cohesion Fund.
Regulation No 1267/1999
23.      At the material time, an Instrument for Structural Policies for Pre-accession (‘ISPA’), in the shape of Regulation No 1267/1999, was part of the Community’s pre-accession strategy. It followed the approach of the Cohesion Fund. The following aims set out in the recitals of Regulation No 1267/1999 are particularly relevant. First, the pre-accession strategy included provision for an instrument directed towards aligning candidate countries on Community infrastructure standards and providing a financial contribution for ‘environmental measures and for transport infrastructure measures’. Second, Community assistance under the ISPA facilitated the implementation by those countries of the acquis communautaire in the relation to the environment and contributed to sustainable development. Third, in the interests of proper management of financial assistance under the ISPA, provision had to be made for effective methods of, inter alia, appraising, monitoring, evaluating and controlling operations and laying down the action to be taken in response to irregularities or failures to comply with one of the conditions laid down when assistance under the ISPA was granted. (16)
24.      Article 1(1) of Regulation No 1267/1999 established the ISPA.
25.      Article 2 was entitled ‘Eligible measures’. Article 2(1) provided that Community financial assistance under the ISPA included projects which are technically and financially independent in, for example, ‘… the field of the environment …’. Article 2(2)(a) allowed assistance under the ISPA to be provided to enable the beneficiary countries to comply with the requirements of Community environmental law and with the objectives of the Accession Partnerships. (17) Community assistance under the ISPA was granted from 2000 to 2006. (18)
26.      The Commission was able to adopt decisions on the measures to be financed under the ISPA pursuant to Article 7(1) in accordance with the procedure laid down in Article 14. (19)
27.      Article 8(1) provided that the Commission was to implement expenditure under the ISPA in accordance with the Financial Regulation (20) on the basis of the financial memorandum drawn up between itself and the beneficiary country. The provisions concerning commitments and payments in Article 8(1)(a) of Regulation No 1267/1999 reflected the provisions of Article C(2) of Annex II to Regulation No 1164/94.
28.      Under Article 9(1), the Commission was to require the beneficiary countries to verify that measures financed by Community funds had been properly carried out, to prevent irregularities and to recover amounts lost as a result of irregularity or negligence. (21) Pursuant to Article 9(5) the Commission was to ensure that the principles of sound financial management were adhered to, with particular reference to the elements set out in Annex III to Regulation No 1267/1999. Amongst those elements was the requirement to designate a central entity through which to channel Community funds granted under the ISPA. The responsible authorities had to keep all supporting documents regarding expenditure for a five-year period following the last payment in respect of a project. Finally, the financial memorandum between the Commission and each beneficiary country was to contain provisions for financial corrections with regard to irregularities. (22)
Decision 2002/89
29.      Accession partnerships define the framework of the accession process. They set out key priority areas in which candidate countries need to make progress together with details of the pre-accession assistance. (23) Each candidate country also draws up a national programme for the adoption of the EU acquis. The principles, priorities, intermediate objectives and conditions for Lithuania were set out in the Annex to Council Decision 2002/89/EC. (24) Point 4 of the Annex, entitled ‘Priorities and intermediate objectives’, stated as regards the environment that those objectives included a ‘complete transposition of the acquis’ and that there should be a ‘continu[ing] implementation of the acquis, in particular as regards … waste management …’
Regulation No 1386/2002
30.      Under Article 4 of Commission Regulation (EC) No 1386/2002 of 29 July 2002 laying down detailed rules for the implementation of Regulation No 1164/94 as regards the management and control systems for assistance granted from the Cohesion Fund and the procedure for making financial corrections, (25) the relevant control systems included procedures to verify the authenticity of the expenditure claimed and execution of the project concerned.
31.      Article 8(2)(b)(i) provided that before any statement of expenditure was certified (in accordance with Article 12(1)(d) of Regulation No 1164/94 and the fourth indent of Article D(2)(d) of Annex II thereto), the paying authority was to satisfy itself that, inter alia, the statement of expenditure included only expenditure that had been actually effected within the eligibility period laid down in the Commission decision granting assistance and that it was supported by receipted invoices or accounting documents of equivalent probative value.
Regulation No 16/2003
32.      Commission Regulation (EC) No 16/2003 (26) laid down common rules for determining the eligibility of expenditure of Cohesion Fund measures as set out in Article 1. The body responsible for implementation was the public or private body responsible for organising the tenders for a project as designated in the Commission decision granting Cohesion Fund assistance provided for by Article 2.
33.      Article 4 stated that all expenditure incurred by the body responsible for implementation was to be based on legally binding contracts or agreements and/or documents. Appropriate supporting documents were to be produced.
34.      Article 5(1) stated:
‘The expenditure to be taken into account for the payment of Community assistance must have actually been incurred during the period of eligibility as defined in the Commission decision [granting aid from the Cohesion Fund], in accordance with Article 8(2)(b) of [Regulation No 1386/2002], and must be directly related to the project. The expenditure must relate to payments certified by the Member State and actually made by it or on its behalf … and supported by receipted invoices or accounting documents of equivalent probative value.
“Accounting document of equivalent probative value” means any document submitted by the body responsible for implementation to prove that the book entry gives a true and fair view of the transactions actually made, in accordance with standard accounting practice.’
35.      Pursuant to Article 7(1) expenditure incurred was eligible for assistance from the date when the Commission received the complete application. Under Article 7(2) the Commission decision approving the project fixed the start of the period of eligibility. In accordance with Article 8, the final date for eligibility (which was fixed by the Commission’s decision) related to payments made by the body responsible for implementation. (27)
36.      Article 23(1) provided that expenditure on the purchase or construction of plant and equipment that was to be permanently installed and fixed in a project was eligible, provided that it was included in the inventory of durable equipment of the body responsible for implementation and that it was treated as capital expenditure in accordance with standard accounting conventions.
Guidelines on the Closure of Cohesion Fund and Ex-ISPA projects 2000 to 2006
37.      The Guidelines on the Closure of Cohesion Fund and Ex-ISPA projects 2000 to 2006 (‘the Closure Guidelines’) (28) apply to all Cohesion Fund and ex-ISPA projects adopted after 1 January 2000. The expression ‘closure of projects’ is defined as covering ‘the financial settlement of the outstanding [EU] commitment through payment of the balance to the appointed authority or the issue of a debit note and de-commitment of any final balance’. The document goes on to add that closure does not prejudice the obligation of the responsible body and of the national authorities to keep all supporting documents regarding expenditure and checks available for a period of three years following the Commission’s payment of the final balance.
Facts, procedure and questions referred
38.      The EPMA is the body responsible for implementing the development of a waste management system for the Alytus Region in Lithuania (‘the Project’ or ‘the construction project’). It is the defendant at first instance (the appellant before the referring court) and was the contracting authority for the purposes of awarding public procurement contracts in relation to the construction project. The company is the applicant at first instance (the respondent before the referring court) and the ultimate beneficiary of the assistance granted by the Commission.
39.      On 13 December 2001, the Commission adopted a decision to grant assistance for the construction project (‘the original ISPA decision’). It also signed the related financial memorandum (‘the Financial Memorandum’) on the same date. Lithuania signed that document on 14 March 2002. Under the Financial Memorandum, 31 December 2004 was set as the end date of the Project and payments made by the EPMA for implementation of the Project had to be completed no later than 31 December 2006. The State Auditor’s report which had to be submitted in order for the Commission to pay the final balance of the financial support was to be submitted by the Lithuanian authorities to the Commission no later than six months after that date.
40.      On 10 November 2004, the EPMA and the company signed the ISPA/Cohesion Programme Implementation Agreement concerning the allocation of tasks and responsibilities between the EPMA and the company relating to the administration of Cohesion Fund resources in implementing the construction project. On 27 December 2004, the Commission adopted a decision amending the Financial Memorandum by, inter alia, adding the following paragraph to Article 2: ‘5. Project-related expenditure shall be eligible until 31 December 2008’. Article 2 of the Financial Memorandum was accordingly amended as follows: ‘End date: 31 December 2008’.
41.      The application for Cohesion Fund assistance was submitted by the Ministry of Finance and the EPMA. In its capacity as the contracting authority, the EPMA organised a tendering process in relation to the Project. Between 22 April 2004 and 6 December 2006 the EPMA, the company and certain other private contractors signed public procurement contracts. (29)
42.      On 17 December 2009 the Lithuanian national audit office drew up the state audit report.
43.      On 28 March 2013, the EPMA issued four ‘conclusions’ concerning the eligibility of certain items of the Project’s expenditure under the public procurement contracts, based on the company’s failure to substantiate the acquisition of long-term and short-term assets under Articles 5(1) and 23 of Regulation No 16/2003 and Article 8(2)(b) of Regulation No 1386/2002 (‘the implementing regulations’). On 29 March 2013, the director of the EPMA adopted decisions (‘the contested decisions’) by which the company was required to repay the funds declared ineligible for assistance.
44.      On 31 May 2013, the Lithuanian Ministry of Finance submitted an updated Project final payment request to the Commission seeking the final balance of EUR 826 069.28. The Ministry of Finance informed the Commission that, due to ongoing legal proceedings related to the construction project, expenditure of EUR 40 276.31 that might possibly be ineligible had not been subtracted from the Project’s updated final payment request.
45.      On 5 November 2013, the company instituted proceedings seeking annulment of the contested decisions. That application was upheld at first instance on the ground that the four-year limitation period in the first subparagraph of Article 3(1) of Regulation No 2988/95 applied. Since the limitation period was considered to have begun on 31 December 2008 (the end date of the Project as set out in Article 2 of the revised Financial Memorandum), it followed that it had expired on 31 December 2012, before the contested decisions were adopted.
46.      The EPMA brought an appeal against that decision before the referring court on 28 May 2014. By letter of 14 July 2014, the Ministry of Finance presented to the Commission an update to the Project’s report (of 17 December 2009), together with the winding-up declaration (both documents were dated 25 June 2014). (30)
47.      In the appeal proceedings, the referring court issued an order inviting the EPMA and the company to supply information and data relating to the completion of the Project together with clarification and arguments relating to the application of Regulation No 2988/95. The referring court observed that, in particular, the following facts were unclear: (i) the date of project completion; (ii) the amount outstanding that was unpaid and when it was due to be paid; and (iii) the meaning of the words ‘programme’, ‘measure’ and ‘project’ which were used interchangeably in the document(s) before the referring court.
48.      In response to that order, the EPMA supplied the referring court with new factual material. In particular, the EPMA produced a letter of 30 April 2015 from the Ministry of Finance. That letter indicated that the balance due for the Project had not been received from the Commission.
49.      In the proceedings before the referring court, the EPMA submits that the Project has not yet been finalised and that the limitation period laid down in the first subparagraph of Article 3(1) of Regulation No 2988/95 has not begun to run. It also refers to the definition of ‘closure of projects’ set out in point 37 above.
50.      By letter dated 26 June 2015 the Commission closed the Project. It concluded that a total of EUR 106 225, 67 constituted ineligible expenditure. The Commission then stated: ‘… given the fact there is sufficient overbooking, the irregular expenditure will have no impact on the calculation of the final payment. As far as the budget of the European Union is concerned, the irregularity cases can consequently be closed. The balance of the [Cohesion Fund] commitments will be paid in full’. (31)
51.      The referring court decided that in order to resolve the dispute in the main proceedings it needed assistance as to whether the Community financial support for the construction project fell within the concept of a ‘multiannual programme’ for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95, whether the limitation period laid down in Article 3(1) of Regulation No 2988/95 applied in the main proceedings and, if so, whether it had expired. Accordingly, on 10 July 2015 it referred the following questions to the Court for a preliminary ruling:
‘(1)      What constitutes a “multiannual programme” within the meaning of Article 3(1) of [Regulation No 2988/95]?
(2)      Do projects such as [the Project] correspond to the concept of a “‘multiannual programme” set out in Article 3(1) of [Regulation No 2988/95]?
(3)      If the answer to the second question is “yes”: what point in time should be regarded as constituting the start of the limitation period for proceedings under Article 3(1) of [Regulation No 2988/95]?’
52.      Written observations have been submitted by the Greek and Lithuanian Governments and by the Commission, all of whom made oral submissions at the hearing on 7 September 2016.
Assessment
Preliminary remarks
53.      The original ISPA decision was adopted on 13 December 2001 and the Financial Memorandum was signed on 14 March 2002. The Project was accordingly established prior to Lithuania’s accession to the European Union on 1 May 2004. However, since the construction project had not been completed by that date, rules governing its closure and in particular the financial settlement – payment of the outstanding commitment from the EU budget of the balance to the EPMA – will be governed by the Cohesion Fund provisions in Regulation No 1164/94. (32)
54.      Next, in relation to the public procurement contracts, (33) the referring court states that it has found that the company failed to provide documentation proving that expenditure had actually been incurred (during the period of eligibility defined in the original ISPA decision) in accordance with Articles 5(1) and 23(1) of Regulation No 16/2003, together with Article 8(2)(b) of Regulation No 1386/2002. (34)
55.      The company is an economic operator for the purposes of Article 1(2) of Regulation No 2988/95. (35) A failure to certify expenditure as required by the implementing regulations constitutes an infringement of EU law that ‘… has, or would have, the effect of prejudicing the general [EU] budget …’
56.      Article 12(1)(d) of Regulation No 1164/94 requires the declaration of expenditure to be accurate and to guarantee that it can be substantiated by accounting systems based on verifiable supporting documents. Furthermore, as regards the closure of projects, Article D(2)(d) of Annex II to that regulation states that the final balance of EU assistance is to be calculated on the basis of certified expenditure that is actually paid.
57.      It is common ground that the limitation period for ex-ISPA or Cohesion Fund projects is not governed by specific sectoral rules. I therefore consider that the company’s failure to certify expenditure in relation to the public procurement contracts in accordance with the implementing regulations constitutes an irregularity within the meaning of Article 1(2) of Regulation No 2988/95. The rules which govern the operation of the limitation period laid down in Article 3(1) of that regulation therefore apply.
Questions 1 and 2
58.      By Question 1, the referring court asks for guidance regarding the interpretation of the term ‘multiannual programme’ within the second subparagraph of Article 3(1) of Regulation No 2988/95. Question 2 seeks to establish whether the Project is such a programme for the purposes of that provision. As the questions are closely linked I shall consider them together.
59.      I take the view that, in the absence of any definition of ‘multiannual programme’ in Regulation No 2988/95, it is necessary to start by considering that expression in the light of the context in which it is used and the aims of the regulation. (36)
60.      The term ‘multiannual programme’ is not colloquial. It strikes me rather as technical language that might be used for financial programming in a sphere such as the EU budget.
61.      Within that context the concept of a multiannual programme should be distinguished from the Multiannual financial framework (mentioned in Article 312 TFEU). (37) The general expression ‘multiannual programme’ refers to the wide range of EU policies that are implemented through funds which provide financial support to beneficiaries through the intermediary of the Member States. The Cohesion Fund and ex-ISPA projects are examples of such ‘programmes’. What of the qualifying adjective ‘multiannual’?
62.      The Commission submits that the word ‘multiannual’ refers to a period of more than one year.
63.      Whilst that must be true, it seems to me that, for the purposes of Article 3(1) of Regulation No 2988/95, the period at issue should be one of at least two years. First, a period of one year together with part of the year that follows fits less comfortably with the concept of being ‘multiannual’. Second, that view is reflected in the legislative scheme concerning the allocation of budgetary commitments. (38) Under Regulation No 1164/94, budgetary commitments for, inter alia, projects carried out over more than two or more years were as a general rule effected in annual instalments. The commitments in respect of the first instalment were made when the decision granting financial support was adopted by the Commission. Commitments for subsequent annual instalments were based on the financial memorandum for the project concerned. (39) That model for budgetary commitments is described in the Commission’s proposal for establishing an Instrument for Structural Policies for Pre-Accession as a ‘simpler and more efficient system’ which operates in relation to ‘multiannual projects’. (40)
64.      The word ‘programme’ is sufficiently broad in scope to cover both the EU policy sphere (the ISPA strategy and the Cohesion Fund) and the measures, such as the construction projects, put in place in the Member States to implement those policies.
65.      Are both types of programme envisaged by the second subparagraph of Article 3(1) of Regulation No 2988/95?
66.      In my view they are not.
67.      Article 1(2) of that regulation defines an irregularity as an infringement of EU law resulting from the act or omission of an economic operator which has or would have the effect of prejudicing the EU budget. That is a reference to measures that are introduced to implement EU policies within the Member States through granting assistance to beneficiaries. The company in the main proceedings is an example of the type of beneficiary that is envisaged.
68.      The first, second and third recitals of Regulation No 2988/95 reinforce the view that the concept of the ‘multiannual programme’ mentioned in the second subparagraph of Article 3(1) refers to projects established to implement EU policies. (41) It is in relation to such projects that the EU funds administered by the competent authorities of Member States are paid to beneficiaries.
69.      Regulation No 2988/95 bites at that level. It is not in my view aimed at the level where the Multiannual financial framework determines the spending for the range of EU policy programmes including the Cohesion Fund.
70.      The referring court asks in particular whether the words ‘measures’ and ‘project’ come within the meaning of multiannual programme in the second subparagraph of Article 3(1) of Regulation No 2988/95.
71.      In my view both words are covered by the concept of a ‘multiannual programme’.
72.      In relation to the Cohesion Fund, Article 1(3) of Regulation No 1164/94 confirms that assistance may be granted for projects, stages of projects or groups of projects. Article 3 sets out those measures which are eligible for assistance. It follows from Article 3(2) that support is available not only for projects, but also for ancillary measures, such as preliminary studies related to eligible projects and technical support measures, including publicity and information campaigns. (42)
73.      The word ‘measures’ thus has a wider meaning than ‘projects’ within the legislative scheme of Regulation No 1164/94. It covers projects, stages of projects and groups of projects, together with the ancillary measures listed in Article 3(2) of that regulation. (43)
74.      According to the referring court ‘measure’, ‘project’ and ‘programme’ have been used interchangeably in the original ISPA decision, the amending decision of 27 December 2004 and the Financial Memorandum. Consistency of terminology in those documents would have aided clarity of understanding. That said, it follows from the legislation that both ‘measure’ and ‘project’ fall within the concept of ‘programme’ for the purposes of Article 3(1) of Regulation No 2988/95.
75.      As to whether the construction project at issue in the main proceedings comes within the concept of a ‘multiannual programme’ within the meaning of that provision, it seems to me that it does for the following reasons.
76.      First, it is an environmental project for the purposes of Articles 2(1) and 3(1) of Regulation No 1164/94 (see also Article A(2)(a) of Annex II). The nature of the project at issue – putting into place a waste management system for the Alytus Region – is consistent with the requirements of Article 2(2)) of Regulation No 1267/1999, in so far as it enabled Lithuania to comply with the EU environmental acquis, in particular as regards waste management, and with the objectives of its Accession Partnership. (44)
77.      Second, the Project was established in accordance with Articles 7(1) and 8(1) of Regulation No 1267/1999. In the original ISPA decision of 13 December 2001, the end date of the construction project was estimated as 31 December 2004. Thus, it was to be completed over a three‑year period (plus an additional two years during which payments were to be completed). However, the Commission adopted a decision on 27 December 2004 which amended the Financial Memorandum by indicating that the estimated end date of the construction project was 31 December 2008. Pursuant to Article 8(1)(a) of Regulation No 1267/1999, commitments would have been effected over the period from that decision to the end date in annual instalments. There were thus commitments over a period which extended from the original ISPA decision of 13 December 2001 to 31 December 2008. That is clearly a multiannual period.
78.      Finally, in order to be eligible for EU support under Regulation No 1267/1999, the construction project had to be of a sufficient scale to have a significant impact as regards environmental protection. (45) That, together with the period set out in the Commission decisions approving assistance and the Financial Memorandum (as amended), confirms that the construction project comes within the concept of a multiannual programme.
79.      In my opinion, where Community financial assistance has been provided under Regulation No 1267/1999 for a project which: (i) constitutes an eligible measure for the purposes of Article 2(2) of that regulation; (ii) was established pursuant to a Commission decision and a Financial Memorandum which were agreed between the Commission and the competent authorities of the Member State concerned; and (iii) was carried out over a period of at least two years, such a project falls within the concept of a multiannual programme for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95. Accordingly, subject to verification by the referring court that a project such as the development of a waste management system for the Alytus Region, Lithuania, meets those conditions, a project of that type is capable of constituting a multiannual programme under Regulation No 2988/95.
Question 3
General remarks
80.      If the development of a waste management system for the Alytus Region does fall within the concept of a multiannual programme for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95, the referring court asks in Question 3 what point in time constitutes the start of the limitation period under that provision?
81.      In the division of jurisdiction between the Courts of the European Union and the national courts under Article 267 TFEU, it is in principle for the latter to determine whether the factual conditions triggering the application of a rule of EU law are satisfied in the case pending before it, while the Court, when giving a preliminary ruling, may, where appropriate, provide clarification to guide the national court in its interpretation. (46) Thus, it is for this Court to provide the national court with an answer which will be of use and to enable it to determine the case at issue. In that light, the Court may have to reformulate the questions referred to it. (47) It is for the national court to ascertain the facts which have given rise to the dispute before it and to establish the consequences which they have for the judgment which it is required to deliver.
82.      It is apparent from the order for reference that the referring court wishes to establish how the limitation period laid down in Article 3(1) applies to the matter at issue in the main proceedings. It follows from my conclusion in point 79 above that I am of the view that the construction project is indeed a multiannual programme within the meaning of that provision. The second subparagraph of Article 3(1) of Regulation No 2988/95 states: ‘In the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated.’ It is therefore necessary to interpret the expression ‘definitively terminated’ in order to establish how that limitation period applies here. Moreover, the wording of that provision identifies the end of the limitation period as being the crucial event in the case of multiannual programmes, rather than the beginning of that period.
83.      A reply to the referring court’s question as to what point in time should be regarded as constituting the start of the limitation period cannot therefore determine whether the director of the EMPA adopted the contested decisions before the expiry of the limitation period in the case of a multiannual programme within the second subparagraph of Article 3(1) of Regulation No 2988/95. It is necessary to take a broader approach to Question 3 by establishing how the limitation period in Article 3(1) of Regulation No 2988/95 applies to the irregularity at issue in the main proceedings. Furthermore, in order to provide the referring court with a more complete response, I shall also consider how the irregularity or irregularities at issue in the main proceedings are to be classified and how the limitation period under Article 3(1) might apply in the particular circumstances of the case (see points 86 to 95 below).
84.       Next, it is apparent from the order for reference that the factual background to the dispute before the referring court remains unclear. The dates and the sequence of events that led to the closure of the Project at issue have been established. However, it is unclear from the order for reference whether the Lithuanian authorities made arrangements with the Commission with regard to the closure of the Project to the effect that late submission of the statutory documents would be acceptable and whether (if so) such an arrangement complied with the rules laid down in Regulation No 1164/94 and the Closure Guidelines is not established in the order for reference. (48)
85.      I shall examine the application of the limitation period laid down in Article 3(1) of Regulation No 2988/95 in the light of those factors.
Article 3(1) of Regulation No 2988/95
86.      According to the Court’s settled case-law, Regulation No 2988/95 introduces: ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to [EU] law’ and, to ‘[counter] acts detrimental to the [EU’s] financial interests … in all areas’. (49)
87.      The limitation period referred to in Article 3(1) of Regulation No 2988/95 seeks to ensure legal certainty for economic operators. (50) That principle requires in particular that the rights and obligations of the economic operator vis‑à‑vis the national authorities are not open to challenge indefinitely; there must be a limitation period which concerns the irregularity at issue; that period must be fixed in advance; and any rules must be sufficiently foreseeable by the economic operator concerned. (51)
88.      Article 3(1) of Regulation No 2988/95 sets a four-year limitation period for proceedings from the time when the irregularity was committed for what I shall call ‘separate irregularities’. For continuous or repeated irregularities, the limitation period runs for four years from the day on which the irregularity ceases. (52) An irregularity is ‘continuous’ where the omission occasioning the breach of the provision of EU law persists. (53) An irregularity is ‘repeated’ within the meaning of that provision where it is committed by an operator who derives economic advantages from a body of similar transactions which infringe the same provision of EU law. (54) Separate irregularities must be sufficiently linked in time in order to be considered to be repeated irregularities. There is such a link in time where the period between each irregularity is shorter than the general four-year limitation period. (55) Within the scheme of Article 3(1) the general limitation period is four years. That said, it seems to me that, (even if the irregularity (or irregularities) at issue in the main proceedings do not fall within the concept of a multiannual programme) in the absence of the necessary factual details, the Court is unable to offer more guidance as to whether the present matter gives rise to continuous or repeated irregularities.
89.      A particular limitation period is provided for multiannual programmes. Here, where the period runs until the programme is ‘definitively terminated’. Thus, the words ‘the limitation period’ in the second subparagraph of Article 3(1) of Regulation No 2988/95 can be read as meaning that the limitation period for multiannual programmes is generally four years, but that it shall in any case run until the programme at issue is definitively terminated where such a programme extends beyond a four year period. Given that Regulation No 2988/95 provides general rules that apply (to multiannual programmes) across a range of sectors, it is not surprising that the legislature did not specify a precise number of years.
90.      That interpretation seems to me to correspond with the particular aim of the rule in the second subparagraph of Article 3(1) of Regulation No 2988/95 concerning multiannual programmes. For such programmes, the operation of the limitation period is not determined by the point at which the irregularity is committed or when it ceases. Nor is the limitation period restricted to a four-year period. Unlike the situation regarding separate irregularities and continuous or repeated irregularities, the limitation period for multiannual programmes hinges on the definitive termination of the programme at issue. In consequence, it may run for longer than the general four-year period.
91.      The Court has held, as regards the concept of an ‘act relating to investigation or legal proceedings’ within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95, that limitation periods would not fulfil the function of ensuring legal certainty and that such a function would not be wholly fulfilled if that limitation period could be interrupted by any act relating to a general check by the national authorities which bears no relation to any suspicion concerning the existence of irregularities regarding sufficiently precisely circumscribed transactions. (56) Thus, the third subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that an act must set out with sufficient precision the transactions to which the suspicions of irregularities relate in order to constitute an interrupting act within the meaning of that provision. (57)
92.      In my view, the state audit report of 17 December 2009 is too general in nature to constitute such an act.
93.      The fourth subparagraph of Article 3(1) of Regulation No 2988/95 sets an absolute limit to legal proceedings in respect of an irregularity. That limitation period becomes effective at the latest on the day on which a period equal to twice the limitation period of four years laid down in the first subparagraph thereof expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6(1). (58) The fourth subparagraph of Article 3(1) of Regulation No 2988/95 thus helps to reinforce legal certainty for economic operators by preventing the limitation period from being extended indefinitely by repeated interrupting acts. (59)
94.      As the referring court has not indicated that the facts of the case before it give rise to continuous or repeated irregularities or that this case involves repeated interrupting acts, the fourth subparagraph of Article 3(1) of Regulation No 2988/95 is not relevant here.
95.      The Court has also in the past examined whether limitation periods are proportionate, in particular when assessing the timescale for taking proceedings under national rules within the context of Article 3(3) of Regulation No 2988/95. It has ruled that any limitation period ‘… must, inter alia, not go clearly beyond what is necessary to achieve the objective of protecting the European Union’s financial interests …’. (60)
Multiannual programmes
96.      I consider that the construction project here at issue is a multiannual programme. The limitation period is therefore to be established according to the second subparagraph of Article 3(1) of Regulation No 2988/95.
97.      What do the words ‘the limitation period shall in any case run until the programme is definitively terminated’ mean?
98.      The Lithuanian Government submitted in its written observations that all 53 projects in the environment and transport sectors initially supported by -ISPA (and subsequently governed by the Cohesion Fund) are multiannual programmes. The Project at issue is part of that group of measures. Therefore, it submitted the limitation period in the second subparagraph of Article 3(1) of Regulation No 2988/95 runs until all 53 projects are completed. As certain of those projects are not yet finished the limitation period continues to run. I shall refer to this as ‘option 1’.
99.      Lithuania changed its position during the oral phase of the proceedings. It accepted that it would not be necessary to show that all 53 projects had closed in order for the limitation period in Article 3(1), second subparagraph to be regarded as definitively terminated.
100. I consider Lithuania was right to modify its position, because option 1 is not consistent with the use of the word ‘programme’ in that provision to refer to the project or measure at issue rather than the broader EU policy of providing pre-accession assistance for major infrastructure projects. It is also not consistent with providing legal certainty for economic operators, a principle which underpins the operation of the limitation period in Article 3(1). Economic operators involved in such projects must be able to know which of their transactions are definitive and which might be the subject of legal proceedings. A limitation period which ends when infrastructure projects in which the economic operator is not a participant and on which he can have no influence are completed cannot in my view be compatible with legal certainty.
101. The Commission submits that the date when its services close a project is the definitive termination of a multiannual programme. In the present matter that closure was effected by letter of 26 June 2015. I shall refer to this as ‘option 2’.
102. I disagree with the Commission’s view.
103. It seems to me that option 2 would allow the Commission a significant margin of discretion in determining the definitive closure of a project within the meaning of the second subparagraph of Article 3(1) of Regulation No 2988/95. Such an interpretation would be inconsistent with the degree of legal certainty required to safeguard the interests of economic operators. It could expose them to a long period of uncertainty and risk placing them in a position where they were unable to prove that the transactions in question were lawful. (61) It could also perhaps be thought to encourage (or in any event not to discourage) dilatory practice within the Commission’s administration. That would be inconsistent with the principle of proportionality, because the limitation period would not be determined by the necessity of protecting the financial interests of the European Union, but rather by the pace of administrative activity. That would also be contrary to Article 41 of the Charter, which guarantees that a person’s affairs will be handled within a reasonable time, as well as with the aims of the closure rules in Regulation No 1164/94 and the Closure Guidelines.
104. I therefore reject option 2.
105. It is difficult to give a precise point when a construction project ends, as a number of different stages and processes lead to completion. (62) Nonetheless, the Court must provide an interpretation that fits with the wording and the objectives of Regulation No 2988/95 and that is at the same time consistent with Regulation No 1164/94 (since the construction project is governed by the latter’s specific rules).
106. Thus, it is necessary to interpret the rules governing in particular payment of the final balance of financial assistance in Annex II to Regulation No 1164/94 (and the Closure Guidelines) together with the expression ‘the programme is definitively terminated’ in the second subparagraph of Article 3(1) of Regulation No 2988/95 in a coherent and consistent manner.
107. The Commission decision approving financial assistance set out the amount of support, the financing plan and all of the conditions together with the estimated end date of a project, which was also the final date for eligibility of expenditure under Regulation No 1164/94. (63) The key details of that decision were to be published in the Official Journal. (64) The Cohesion Fund rules provided for checks (Article 12(1)) and required that the statutory documents be transmitted to the Commission. The general scheme laid down in Article D(2)(d) of Annex II to Regulation No 1164/94 suggests that the final report should be transmitted to the Commission within six months of the deadline for completion of the work and for expenditure (the third indent of Article D(2)(d)) or at the latest within 18 months of the final date for completion of the works and payments as given in the decision granting assistance (Article D(3)). Two months after an admissible application for payment was received, the Commission was meant to make a final payment to the competent national authority (Article D(5)). The national authorities were then required to keep all supporting documents available for the Commission for three years (Article G(3)).
108. Those rules do not make it possible to identify a precise timetable for the closure of projects. The position will vary according to the circumstances of the case. It nonetheless seems to me that the link between the closure process under Regulation No 1164/94 and the definitive termination of a project for the purposes of the second subparagraph of Article 3(1) of Regulation No 2988/95 makes it possible to identify a further option, which I shall refer to as ‘option 3’.
109. In order to establish whether a Cohesion Fund (or an ex-ISPA) project will be considered to be definitively terminated, it is first necessary to determine whether the competent national authorities made an admissible application for payment to the Commission in relation to the project concerned. Second, the Commission decision approving assistance and the end date set out in the financial memorandum should be taken into account. Third, it is necessary to establish whether the final report has been transmitted to the Commission in accordance with the second indent of Article D(2)(d) or Article D(3) of Annex II to Regulation 1164/94. Fourth, the Commission has as a general rule two months after receipt of an admissible application in which to pay the final balance. Fifth, unless specified otherwise, the documents relating to the project must be kept for three years to allow the Commission to carry out any financial checks. (65) At the end of that period, the project should be considered to be definitively terminated.
110. Option 3 seems to me to mark the end or, in the language of Regulation No 2988/95, the ‘termination’ of a project. Such an approach is consistent with the Commission’s general obligations under Article 17(1) TEU to execute the budget and manage programmes and in particular its duty under Regulation No 1164/94 to carry out checks and to implement financial corrections (Articles G and H of Annex II to that regulation). Option 3 also allows the Member States to meet their obligations. Those include carrying out the necessary financial checks, such as the detection of irregularities, demonstrating that the project has been properly implemented and obtaining payment of the final balance under that regulation. (66)
111. Whilst it is undoubtedly true that it is easier for economic operators to be aware of a limitation period that is expressed as extending over a set timespan (such as four years) triggered by a specified event, that model does not readily lend itself to a concept such as a multiannual programme which has an inherent fluidity. The end date for such a programme can only be estimated at its outset. I consider that option 3 does in fact provide sufficient legal certainty. It guarantees that economic operators’ rights are not open to indefinite challenge. The limitation period is established by reference to Regulation No 1164/94 and its parameters are therefore fixed in advance and sufficiently foreseeable by the economic operator concerned. Multiannual programmes are large scale ventures. They are likely to concern correspondingly large and sophisticated economic operators who can be expected to have some knowledge of, or access to the relevant rules and procedures. Option 3 may even have the advantage of encouraging economic operators to ensure that they furnish the competent Member State authorities in good time with the material necessary to compile the closure documents under the statutory rules.
112. In my view, option 3 is proportionate in so far as it follows the rules laid down in Regulation No 1164/94 which ensure that the Member States and the Commission fulfil their respective duties under that regulation. A limitation period which takes account of the end date of the project at issue, submission of the final report and an admissible application for payment together with the period of two months for the Commission to make payment, plus a period of three years in which financial corrections might be made corresponds to the rules that the legislator introduced to protect the financial interests of the European Union and does not go beyond what is necessary for that purpose.
113. What happens where an admissible application is not made by the Member State to the Commission (for example, where the final report is transmitted to the Commission after the period of 18 months laid down in Article D(3) of Annex II to Regulation No 1164/94 (as may have been the case here) or is not sent at all)? (67) I consider that in such circumstances, it is then necessary to take account of the end date of the project in the Financial Memorandum and the Commission decision approving the project. The period of 18 months from the deadline for the final date for completion of the works and the payments to be made by the competent national body under Article D(3) of Annex II to Regulation No 1164/94 should then be used as a substitute for actual submission of the final report. In such a case pursuant to that provision payment of the final balance should in any event be cancelled and the Commission should establish whether it is appropriate to apply a financial correction. There appears to be a lacuna in the legislative provision in as much as Member States are subject to an obligation to keep documents for three years following final payment, but no corresponding timescale is specified where that payment is not made. It would be inconsistent with the principle of legal certainty, however, for the Commission to have an indefinite period in which to verify the position. It would be equally odd if the appropriate period were less than the three years specified in Article G(3) of Annex II to Regulation No 1164/94. I therefore consider that that period of three years should also be included where an admissible application was not transmitted to the Commission by the Member State concerned.
114. The completion of the building works would appear to mark the natural end of a construction project. Is that possible option 4 better than option 3?
115. In my view, the answer is ‘no’.
116. First, the Cohesion Fund rules make detailed provision for the closure of projects, (68) but there are no similar rules establishing when a construction project is complete. The absence of such provisions suggests that there would be a lack of transparency and also legal certainty if the completion of the construction project were to be regarded as the definitive termination.
117. Second, it is more consistent with the general aims of Regulation No 2988/95 for the closure of the project rather than the point at which the building works are completed to constitute ‘termination’. Whilst an objective of Regulation No 2988/95 is to provide legal certainty for economic operators, its primary aim is to protect the financial interests of the European Union through the pursuit of irregularities across the full range of EU policies. (69) Thus, as regards the operation of the limitation period, the relevant question is when EU funds leave the budget.
118. I therefore take the view that the completion of the building works does not constitute a plausible fourth option.
119. The rules in Regulation No 1164/94 establish a degree of legal certainty. However, the manner in which they operate will vary according to the circumstances of the case.
120. Here, the referring court has provided some details relating to the original ISPA decision. (70) However, the Court has almost no information about what happened after the revision to the Financial Memorandum made by the Commission’s decision of 27 December 2004, apart from the fact that the revised end date of the construction project became 31 December 2008. Pursuant to Article D(3) of Annex II to Regulation No 1164/94, the final report should have been transmitted to the Commission by 30 June 2010 at the latest (within the deadline of 18 months specified by Article D(3) of Annex II to Regulation No 1164/94). It is for the referring court to verify when payments made by the EPMA had to be completed. There is nothing in the order for reference on that point. Nor does the Court know whether an admissible application for payment was made – if not, the period of two months which would take matters to 31 August 2010 would not apply. The three-year period in Article G(3) of Annex II to that regulation then needs to be added to the calculation, in order to allow the Commission to fulfil its duty to carry out checks and establish whether financial corrections should be imposed.
121. It follows the limitation period would end at the earliest on 31 August 2013 if an admissible application for payment was made. It would end on 30 June 2013 if no such application was made. In any event, even if the date by which the EPMA had to complete payments did not extend beyond 31 December 2008 the contested decisions of 29 March 2013 would fall within the limitation period.
122. It is unclear whether the Lithuanian authorities and the Commission had made some arrangement which permitted the statutory documents to be submitted significantly later than the end date of 31 December 2008 set out in the amended Financial Memorandum. (71) It is also unclear whether, if so, such an arrangement would have been consistent with Regulation No 1164/94. The Commission did not cancel payment of the final balance for failure to submit the final report in accordance with Article D(3) of Annex II to that regulation. Nor did it trigger the financial correction mechanism. It is for the referring court to establish and verify the arrangements between the Commission and the Lithuanian authorities regarding closure of the Project at issue.
123. I therefore consider that, subject to verification by the referring court of the factual circumstances, 30 June 2013 should be regarded as the earliest date by which the Project could have been definitively terminated and that the contested decisions were thus adopted within the limitation period laid down in the second subparagraph of Article 3(1) of Regulation No 2988/95.
124. In order to determine the operation of the limitation period for the purposes of Article 3(1) of Regulation No 2988/95 in the case of a multiannual programme which concerns an ex-ISPA project governed by the provisions of Annex II to Regulation No 1164/94, it is therefore necessary to establish: (i) whether an admissible application for payment within Article D(5) has been made by the competent national authorities of the Member State concerned to the Commission; (ii) the final date for completion of the works and payments as given in the Commission decision granting assistance and the accompanying Financial Memorandum; (iii) whether the final report required by Article D(2)(d) has been transmitted to the Commission; (iv) whether the period of two months laid down in Article D(5) has expired; and (v) whether a period of three years (unless otherwise decided under Article G(3)) following the payment by the Commission of the final balance in respect of a project has expired. Accordingly, in relation to a project such as the development of a waste management system for the Alytus Region in Lithuania, it is for the referring court to establish those elements and in the light of its findings to determine whether the multiannual programme relating to that project definitively terminated on 30 June 2013 or on a later date.
Conclusion
125. In the light of all the foregoing considerations, I am of the opinion that the Court should answer the questions raised by the Lietuvos vyriausiasis administracinis teismas (Supreme administrative court of Lithuania) as follows:
(1)      Where Community financial assistance has been provided under Council Regulation (EC) No 1267/1999 of 21 June 1999 establishing an Instrument for Structural Policies for Pre-accession for a project which:
–        constitutes an eligible measure for the purposes of Article 2(2) of that regulation;
–        was established pursuant to a Commission decision and a Financial Memorandum which were agreed between the Commission and the competent authorities of the Member State concerned; and
–        was carried out over a period of at least two years,
such a project falls within the concept of a multiannual programme for the purposes of the second subparagraph of Article 3(1) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests. Accordingly, subject to verification by the referring court that a project such as the development of a waste management system for the Alytus Region, Lithuania, meets those conditions, a project of that type is capable of constituting a multiannual programme under Regulation No 2988/95.
(2)      In order to determine the operation of the limitation period for the purposes of Article 3(1) of Regulation No 2988/95 in the case of a multiannual programme which concerns an ex-ISPA project governed by the provisions of Annex II to Council Regulation (EC) No 1164/94 establishing a Cohesion Fund of 16 May 1994, the referring court must ascertain:
–        whether an admissible application for payment within Article D(5) has been made by the competent national authorities of the Member State concerned to the Commission;
–        the final date for completion of the works and payments as given in the Commission decision granting assistance and the accompanying Financial Memorandum;
–        whether the final report required by Article D(2)(d) has been transmitted to the Commission;
–        whether the period of two months laid down in Article D(5) has expired; and
–        whether a period of three years (unless otherwise decided under Article G(3)) following the payment by the Commission of the final balance in respect of a project has expired.
Thus, in relation to a project such as the development of a waste management system for the Alytus Region in Lithuania, it is for the referring court to establish those elements and in the light of its findings to determine whether the multiannual programme relating to that project definitively terminated on 30 June 2013 or on a later date.
1 – Original language: English.
2 – Regulation of 18 December 1995 (OJ 1995 L 312, p. 1).
3 – In essence EU policy on economic and social cohesion aims in particular to reduce disparities between the levels of development across the territory of the European Union and to address ‘the backwardness of the least favoured regions’. See, in that regard, Article 174 TFEU.
4 – OJ 2010 C 83, p. 389 (‘the Charter’).
5 – See the first recital of Regulation No 2988/95.
6 – See the second, third, and thirteenth recitals of Regulation No 2988/95.
7 –      Under Article 6(1), the imposition of financial penalties such as administrative fines may be suspended by decision of the competent national authority if criminal proceedings have been initiated against the person concerned in connection with the same facts. A suspension of the administrative proceedings has the effect of suspending the limitation period provided for in Article 3.
8 – In this Opinion, I shall call this ‘the material time’.
9 – Council Regulation of 16 May 1994 (OJ 1994 L 130, p. 1). That regulation as amended by Council Regulations (EC) No 1264/1999 (OJ 1999 L 161, p. 57) and (EC) No 1265/1999 (OJ 1999 L 161, p. 62) applied to projects that were implemented in Member States at the material time. Regulation No 1164/94 was repealed by Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 of 11 July 2006 (OJ 2006 L 210, p. 25). For the sake of good order, I should point out that Regulation No 1260/1999 laid down general provisions on the Structural Funds, namely the European Regional Development Fund, the European Social Fund, the European Agricultural Guidance and Guarantee Fund, Guidance Section, and the Financial Instrument for Fisheries Guidance, as set out in Article 2(1) of that regulation. Financial assistance under the Structural Funds is not at issue in the present matter. The transitional rules in Article 105 of Regulation No 1083/2006 stated that it did not affect the continuation or modification of projects co-financed by the Cohesion Fund approved by the Commission on the basis of Regulation No 1164/94.
10 – Regulation of 21 June 1999 (OJ 1999 L 161, p. 73) as amended by Council Regulations (EC) No 2382/2001 of 4 December 2001 (OJ 2001 L 323, p. 1) and (EC) No 2500/2001 of 17 December 2001 (OJ 2001 L 342, p. 1) applied at the material time. Regulation No 1267/1999 was subsequently repealed by Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA) (OJ 2006 L 210, p. 82). See further points 23 to 28 below.
11 – See the twenty-seventh recital of Regulation No 1164/94.
12 – Article 2(5) was inserted into Regulation No 1164/94 by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (‘the Act of Accession’) (OJ 2003 L 236, p. 33).
13 – The first indent of Article 10(5) laid down the criterion to be applied in order to ensure that projects that obtained the benefit of financial assistance were of a high quality.
14 – The documents that were to be submitted to the Commission in accordance with Article D(2)(d) of Annex II were: (i) an application for payment (the second indent); (ii) a final report (the third indent); (iii) a certified statement of expenditure(the fourth indent); and (iv) a winding up declaration which includes the winding up report (the fifth indent read together with Article 12(1)(f)). In this Opinion I shall refer to those documents together as ‘the statutory documents’.
15 – I understand the expression ‘an admissible application for payment’ referred to in Article D(5) as meaning an application duly accompanied by the statutory documents, in particular those mentioned in point 20 and footnote 14 above.
16 – Recitals 4, 7 and 14.
17 – See point 29 below.
18 – See Article 3.
19 – Article 14 provided for the Commission to be assisted by a committee composed of representatives of the Member States and chaired by the Commission.
20 – The Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (OJ 1977 L 356, p. 1) was in force when the Commission adopted the original ISPA decision.
21 – Article 9(1)(b), (c) and (d).
22 – See paragraphs 1, 4 and 5 of Annex III to Regulation No 1267/1999.
23 – See points 14 and 15 of the Presidency’s Conclusions in relation to the Luxembourg European Council of 12 and 13 December 1997.
24 – Council Decision of 28 January 2002 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Lithuania (OJ 2002 L 44, p. 54), see Article 1.
25 – OJ 2002 L 201, p. 5. That regulation was repealed by Commission Regulation (EC) No 1828/2006 of 8 December 2006 setting out rules for the implementation of Council Regulation (EC) No 1083/2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and of Regulation (EC) No 1080/2006 of the European Parliament and of the Council on the European Regional Development Fund (OJ 2006 L 371, p. 1).
26 – Regulation of 6 January 2003 laying down special detailed rules for implementing Council Regulation (EC) No 1164/94 as regards eligibility for expenditure in the context of measures part-financed by the Cohesion Fund (OJ 2003 L 2, p. 7). That regulation was repealed by Regulation No 1828/2006 from16 January 2007.
27 – For further details relating to the Commission decision approving projects see points 14 and 26 above.
28 – Communication to the Commission from Ms Hübner SEC(2007), final version of 23 April 2008.
29 – The private contractors are UAB ‘Alkesta’, UAB ‘Skirnuva’ with UAB ‘Parama’ and UAB ‘Dzūkijos statyba’. I shall refer to the contracts that were agreed as ‘the public procurement contracts’.
30 – Following submission of that further information, the EPMA carried out a fresh investigation into irregularities concerning the Project expenditure declared to the Commission, and two sets of legal proceedings concerning it were still pending at the time when the referring court decided to make this order for reference for a preliminary ruling. The order for reference indicates, however, that those other proceedings do not concern the matters at issue in the main proceedings.
31 – I understand the term ‘overbooking’ as used in the Commission’s letter of 26 June 2015 to refer to expenditure that is incurred in excess of eligible limits.
32 – See Article 16a of Regulation No 1164/94. As regards the closure of projects, see the Closure guidelines mentioned in point 37 above. Whilst the original ISPA decision was adopted under Regulation No 1267/1999 I shall refer to the provisions of Regulation No 1164/94 in my analysis as it is the latter’s rules, in particular the implementing provisions laid down in Annex II that govern the closure of the Project at issue in the main proceedings. I shall therefore refer to the provisions of Regulation No 1267/1999 only where it is necessary to be specific.
33 – See point 41 and footnote 29 above.
34 – See the conclusions referred to in point 43 above.
35 – As a recipient of funds from the EU budget the company can be considered to be an economic operator for the purposes of Regulation No 2988/95. See, for example, judgment of 21 December 2011, Chambre de commerce et d’industrie de l’Indre, C‑465/10, EU:C:2011:867, paragraph 45.
36 – See judgment of 16 July 2015, Maïstrellis, C‑222/14, EU:C:2015:473, paragraph 30 and the case-law cited.
37 – Article 312(1) TFEU states that the multiannual financial framework: (i) is to ensure that EU expenditure develops in an orderly manner and within the limits of its own resources; (ii) must be established for a period of at least five years; and (iii) must be complied with by the EU annual budget. It is not the budget. The concept of the multiannual financial framework was introduced into the Treaties on 1 December 2009 by the Treaty of Lisbon. Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1) introduced complementary provisions in order to align the Financial Regulation with the changes wrought by the Treaty of Lisbon (see the Commission’s proposal for a regulation of the European Parliament and of the Council on the financial rules applicable to the annual budget of the Union COM(2010) 815 final). My understanding is that the multiannual financial framework is a tool for financial programming and budgetary discipline which aims to ensure that EU expenditure is predictable and stays within the agreed limits.
38 – Legally binding promises to spend money which will not necessarily be paid out in the same year but may be disbursed over several financial years, See Article 11 of Regulation No 1164/94 mentioned in point 15 above.
39 – See Article C(2)(a) of Annex II to Regulation No 1164/94.
40 – Commission Proposal for a Regulation (EC) establishing an instrument for structural policies of 18 March 1998 COM(1998) 138 final at page 7.
41 – See point 6 above.
42 – See Regulation No 1164/94, Article 3(2), first and second indents. See further the definition of ‘project’ in Article A(2) of Annex II to that regulation.
43 – See for example, Article C(1) of Annex II to Regulation No 1164/94 concerning budgetary commitments.
44 – See point 4 of the Annex to Decision 2002/89 which indicates under the heading ‘Environment’ that complete transposition of the EU acquis relating to the environment, in particular implementation as regards waste management, was amongst the priorities and intermediate objectives that were identified in the Accession Partnership for Lithuania .
45 – See Article 2(2) of Regulation No 1267/1999.
46 – See judgment of 11 November 2010, Danosa, C‑232/09, EU:C:2010:674, paragraphs 33 and 34 and the case-law cited.
47 – See, inter alia, judgment of 17 January 2013, Hewlett-Packard Europe, C‑361/ 11, EU:C:2013:18, paragraph 35.
48 – See point 47 above.
49 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 20 and the case-law cited. See also the third recital of Regulation No 2988/95.
50 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 24.
51 – See judgment of 5 May 2011, Ze Fu Fleischhandel and Vion Trading, C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 32 and the case law cited.
52 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 21.
53 – See judgment of 2 December 2004, José Peix v Commission, C‑226/03 P, EU:C:2004:768, paragraph 17.
54 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 49 and the case-law cited.
55 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 52.
56 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 41 to 43. Emphasis added.
57 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 47.
58 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 63.
59 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 64.
60 – See judgment of 5 May 2011, Ze Fu Fleischhandel and Vion Trading, C‑201/10 and C‑202/10, EU:C:2011:282, paragraph 38 and the case-law cited.
61 – See judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 68.
62 – See Special Report 12 of 2008 by the European Court of Auditors – The instrument for structural policies for pre-accession (ISPA) 2000 – 06, point 27.
63 – See Article 10(6) of Regulation No 1164/94 and Article 8 of Regulation No 16/2003.
64 – Article 10(7) of Regulation 1164/94.
65 – See point 113 below.
66 – See, for example Article 12(1)(e) and (f) of Regulation No 1164/94. It also enables Member States to fulfil their role under Article 1(1) of Regulation No 2988/95.
67 – See Annex 3 to the Closure Guidelines.
68 – See point 37 above.
69 – See point 6 above.
70 – See points 42 to 44.
71 – The referring court states in its order for reference that on 14 July 2014, the Ministry of Finance presented to the Commission an updated state audit report together with an updated winding-up declaration.