62010CJ0131_EN
Parties
Grounds
Operative part
Parties
In Case C‑131/10,
REFERENCE for a preliminary ruling under Article 267 TFEU from the tribunal de première instance de Bruxelles (Belgium), made by decision of 26 February 2010, received at the Court on 12 March 2010, in the proceedings
Corman SA
v
Bureau d’intervention et de restitution belge (BIRB),
THE COURT (Fourth Chamber),
composed of J.‑C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen, C. Toader (Rapporteur) and E. Jarašiūnas, Judges,
Advocate General: E. Sharpston,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Corman SA, by L. Defalque, avocat,
– the Belgian Government, by J.‑C. Halleux, acting as Agent,
– the Austrian Government, by E. Riedl, acting as Agent,
– the European Commission, by F. Clotuche-Duvieusart, acting as Agent,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
Grounds
1. This reference for a preliminary ruling concerns the interpretation of Article 3(1) and (3) of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1), in conjunction with Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs (OJ 1997 L 350, p. 3), as amended by Commission Regulation (EC) No 1550/98 of 17 July 1998 (OJ 1998 L 202, p. 27) (‘Regulation No 2571/97’).
2. The reference was made in proceedings between Corman SA (‘Corman’) and the Bureau d’intervention et de restitution belge (BIRB) (Belgian Intervention and Refund Board) concerning the latter’s refusal to repay a number of securities provided by Corman in tendering procedures under Regulation No 2571/97.
Legal context
European Union legislation
Regulation No 2988/95
3. The third recital in the preamble to Regulation No 2988/95 states that ‘acts detrimental to the Communities’ financial interests must … be countered in all areas’.
4. The fifth recital in the preamble to that regulation states that ‘irregular conduct, and the administrative measures and penalties relating thereto, are provided for in sectoral rules in accordance with this Regulation’.
5. Article 1 of Regulation No 2988/95 provides as follows:
‘1. For the purposes of protecting the European Communities’ financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law.
2. “Irregularity” shall mean any infringement of a provision of Community 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 Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure.’
6. Article 3(1) and (3) of Regulation No 2988/95 provides as follows:
‘1. 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. …
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.
…
3. Member States shall retain the possibility of applying a period which is longer than that provided for in paragraph 1 …’
7. Article 4 of Regulation No 2988/95 is worded as follows:
‘1. As a general rule, any irregularity shall involve withdrawal of the wrongly obtained advantage:
…
– by the total or partial loss of the security provided in support of the request for an advantage granted or at the time of the receipt of an advance.
…
4. The measures provided for in this Article shall not be regarded as penalties.’
Legislation relating to the common organisation of the market in milk and milk products
– Regulation (EEC) No 804/68
8. Article 6 of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organisation of the market in milk and milk products (OJ, English Special Edition 1968 (I), p. 176), as amended by Council Regulation (EC) No 2807/94 of 14 November 1994 (OJ 1994 L 298, p. 1), provides as follows:
‘1. Throughout the milk year and under conditions to be determined, the intervention agency designated by each Member State shall buy in at the intervention price butter produced directly and exclusively from pasteurized cream in an approved undertaking in the Community …
…
3. Butter bought in by the intervention agencies shall be disposed of at a minimum price and under conditions to be determined so as to avoid disturbing the balance on the market and to ensure purchasers equal treatment and access to the butter to be sold. …
…
…
6. Detailed rules for the application of this Article and in particular the aid granted for private storage shall be adopted in accordance with the procedure laid down in Article 30.’
– Regulation No 2571/97
9. Article 1(1) of Regulation No 2571/97 provides as follows:
‘This Regulation shall govern:
(a) the sale of intervention butter bought in under Article 6(1) of Regulation … No 804/68 and taken into storage before a date to be determined;
(b) the aid granted for using butter, concentrated butter and cream, as defined in paragraph 2.’
10. Article 2 of Regulation No 2571/97 provides that ‘[t]he intervention butter shall be sold and the aid shall be granted for the products referred to in Article 1(2) by means of a standing invitation to tender organized by each intervention agency’.
11. Article 3 of Regulation No 2571/97 is worded as follows:
‘Tenders shall be accepted only if the tenderer gives a written undertaking to incorporate the butter or concentrated butter, or cause it to be incorporated, exclusively and notwithstanding the intermediate products referred to in Article 8, into final products as referred to in Article 4 or, in the case of cream, directly and exclusively into final products as referred to in Article 4 (1), formula B …
…’
12. Article 10(1) of Regulation No 2571/97 provides that ‘[t]he manufacture of concentrated butter as referred to in Article 1(2)(b), the processing of butter into concentrated butter as referred to in Article 5, the addition of tracers as referred to in Article 6, the repackaging of concentrated butter as referred to in the second subparagraph of Article 7(1), the incorporation into intermediate products as referred to in Article 8 and, where Article 3(b) applies, the incorporation of butter, concentrated butter, intermediate products and cream into final products shall be carried out in approved establishments.’
13. In its original version, Article 11 of Regulation No 2571/97 provided that the products referred to in Article 1 thereof were to be processed and incorporated into final products in the Community within a period of six months following the month of the closing date for the submission of tenders in response to the individual invitation to tender as fixed in accordance with Article 14(2). Following a number of amendments to that article, in particular those introduced by Commission Regulation (EC) No 494/1999 of 5 March 1999 (OJ 1999 L 59, p. 17), that period was reduced to four months.
14. Article 12 of Regulation No 2571/97 provides as follows:
‘1. Successful tenderers shall:
(a) carry out or cause to be carried out on their behalf and at their expense the operations relating to the manufacture of concentrated butter and the addition of tracers;
(b) keep accounts showing, for each delivery, the names and addresses of the purchasers and the corresponding quantities, specifying their intended use (formula A or formula B) and either the deadline for incorporation referred to in Article 11 or the number of the tendering procedure, which may be in code. Where the successful tenderer processes different products attracting aid or price reductions under different Community schemes, separate accounts must be kept for each scheme;
(c) include in each sales contract:
(i) in the case of manufacture of intermediate products, an obligation to comply with Articles 8 and 9;
(ii) 	an obligation to comply, where appropriate, with the undertaking referred to in Article 3(b);
(iii) 	an obligation of incorporation into final products, specifying the intended use (formula A or formula B), within the period referred to in Article 11;
(iv) 	where applicable, an obligation to keep accounts as referred to in point (b);
(v) an obligation to comply with Article 10;
(vi) 	an obligation to keep records as referred to in Article 10(2)(c) where products containing tracers are incorporated into final products;
(vii) 	an obligation on the contractor to forward to the competent body the data concerning them as referred to in Annexes IX to XIII, in accordance with detailed rules to be laid down by each Member State;
(viii) 	where applicable, an obligation to provide the manufacturing programme.
2. Successful tenderers who manufacture the final products must keep records as referred to in Article 10(2)(c) and forward their manufacturing programmes in accordance with Article 10(2)(d).’
15. Article 13 of Regulation No 2571/97 is worded as follows:
‘1 Notice of a standing invitation to tender shall be published in the Official Journal of the European Communities
at least eight days before the first closing date for submission of tenders.
2. The competent intervention agency shall issue each notice of invitation to tender, indicating in particular the closing date and address for the submission of tenders.
…’
16. Article 14 of Regulation No 2571/97 provides as follows:
‘1. During the period of validity of the standing invitation to tender, intervention agencies shall issue individual invitations to tender.
2. The period for the submission of tenders in response to each individual invitation shall expire at 12 noon (Brussels time) each second and fourth Tuesday of the month …’
17. Article 17 of Regulation No 2571/97 is worded as follows:
‘1. Maintenance of the tender after the closing date for the submission of tenders and, where appropriate,
(a) for intervention butter, the lodging of a processing security as referred to in Article 18(2) and payment of the price within the period set in Article 20(2);
(b) for the products referred to in Article 1(2), where Article 3(a) applies, the lodging of a processing security as referred to in Article 18(2) or, where the second subparagraph of Article 22(3) applies, incorporation into final products;
(c) for the products referred to in Article 1(2), where Article 3(b) applies, incorporation into final products,
shall constitute primary requirements, against performance of which a tendering security of ECU 350 per tonne shall be lodged.
2. Tendering secur ities shall be lodged in the Member State in which the tender is submitted.
…’
18. Article 18 of Regulation No 2571/97 provides as follows:
‘1. A minimum selling price shall be fixed for intervention butter and maximum aid shall be fixed for cream, butter or concentrated butter in the light of the tenders received in response to each individual invitation to tender and in accordance with the procedure laid down in Article 30 of Regulation … No 804/68. …
2. At the same time as the minimum selling price(s) or maximum amount(s) of aid is/are fixed and under the procedure defined in Article 30 of Regulation … No 804/68, the amount(s) of the processing security shall be fixed per 100 kilograms by reference either to the difference between the intervention price of butter and the minimum prices fixed or to the amounts of aid.
The purpose of the processing security shall be to ensure performance of the primary requirements concerning either:
(a) for intervention butter:
(i) the processing of the butter into concentrated butter in accordance with Article 5 and the addition of tracers, where appropriate, or the addition of tracers to the butter,
and
(ii) 	the incorporation of the butter or concentrated butter, to which tracers have or have not been added, into final products; or,
(b) for products as referred to in Article 1(2), where Article 3(a) applies, incorporation into final products.
3. The proof required for the purposes of release of the processing security referred to in paragraph 2 shall be produced for the competent agency designated by the Member State within 12 months of the expiry of the period laid down in Article 11.
Where the time limits laid down in Article 11 are exceeded by less than a total of 60 days, the processing security shall be forfeited at the rate of ECU 6 per tonne per day. At the end of this period, Article 23 of Commission Regulation (EEC) No 2220/85 [of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (OJ 1985 L 205, p.5)] shall apply to the amount remaining.
4. Where the primary requirements referred to in paragraph 2(a) are not complied with within the time limits laid down in Article 11 because the intervention butter is found to be unfit for consumption, any processing securities shall nevertheless be released, with the agreement of the Commission, once appropriate action has been taken under the supervision of the authorities of the Member State concerned.’
19. It is apparent from Article 19(1) and (2) of Regulation No 2571/97 that successful tenderers for intervention butter are those offering the highest price, provided that the price offered is not lower than the minimum price and the amount of aid proposed does not exceed the maximum amount of aid fixed.
20. Article 19(4) of Regulation No 2571/97 provides that ‘[r[ights and obligations arising in connection with the invitation to tender shall not be transferable’.
21. Article 27 of Regulation No 2571/97 provides as follows:
‘Regulation … No 2220/85 shall apply, except where otherwise explicitly provided. The penalty for failure to comply with a subordinate obligation provided for in this Regulation shall preclude the penalties provided for by Regulation … No 2220/85.’
Regulation No 2220/85
22. Article 29 of Regulation No 2220/85, as amended by Commission Regulation (EC) No 3403/93 of 10 December 1993 (OJ 1993 L 310, p. 4)(‘Regulation No 2220’) is worded as follows:
‘Once the competent authority is aware of circumstances giving rise to forfeiture of the security, in whole or in part, it shall without delay demand that the party required to meet the obligation pay the sum forfeited, allowing up to 30 days from the day of receipt of demand for payment.
Where payment has not been made at the end of this period, the competent authority shall:
(a) without delay clear any security of the type described in Article 8(1)(a) to the appropriate account;
(b) without delay require the guarantor described in Article 8(1)(b) to pay, allowing up to 30 days from the day of receipt of demand for payment;
(c) without delay take steps to,
(i) convert the securities described in Article 8(2)(a), (c), (d) and (e) into money sufficient to recover the sum due,
(ii) 	clear pledged cash deposits to its own account.
The competent authority may without delay clear any security of the type described in Article 8(1)(a) to the appropriate account without first requiring the person concerned to effect payment.
…’
Regulation (EEC) No 4045/89
23. Article 4 of Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund and repealing Directive 77/435/EEC (OJ 1989 L 388, p. 18) provides, first, that undertakings are to keep some of their commercial documents, such as books, registers, vouchers and supporting documents, for at least three years, starting from the end of the year in which they were drawn up and, second, that Member States may prescribe a longer period for the retention of those documents.
National law
24. Article 2262a of the Belgian Civil Code, which was introduced by Article 5 of the law of 10 June 1998 amending certain provisions relating to limitation periods ( Moniteur belge
of 17 July 1998, p. 23544) provides as follows:
‘1. The limitation period for all personal actions shall be ten years.
By way of derogation from the first subparagraph, the limitation period for any action seeking compensation for damage based on non-contractual liability shall be five years from the day following that on which the person harmed became aware of the damage or its aggravation and the identity of the person responsible for the damage.
In any event, the limitation period for actions of the type referred to in the second subparagraph shall be 20 years from the day following that on which the event giving rise to the damage occurred.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
25. During the period 1998 to 2000, Corman, an approved establishment within the meaning of Article 10 of Regulation No 2571/97, participated in a number of individual invitations to tender organised by the BIRB, an intervention agency within the meaning of Article 6(1) of Regulation No 804/68, and its tenders were accepted.
26. Corman was required, as successful tenderer, to provide various securities as a means of ensuring that it would comply with the requirements of Regulation No 2571/97. Those securities covered both the implementation of operations relating to the manufacture of concentrated butter and the addition of tracers by Corman and the correct use of butter, concentrated butter or cream as well as their incorporation into final products such as pastries, ice-cream, biscuits or chocolate by the end users to whom Corman sold its products.
27. Having ascertained that those end-users were mixing concentrated butter covered by the intervention system with market butter or cream, the BIRB expressed doubts as to whether such practices were permissible under Regulation No 2571/97 and officially notified Corman of those doubts on 26 April 2000.
28. On two occasions, during March and August 2002, that question was referred by the BIRB to the Commission, which provided explanations in its replies made in June 2002 and in 2006, following which the BIRB released certain processing securities provided by Corman.
29. However, as regards certain other operations involving incorporation, the BIRB took the view that it was necessary to forfeit the securities provided by Corman on account of the fact that the four-month time-limit for incorporating butter into final products had been exceeded or on account of end uses that did not comply with Regulation No 2571/97 or, lastly, on account of defects in the production of certain quantities awarded. Accordingly, during 2006 and 2007, the BIRB sent to Corman debit notes forfeiting those securities in the sum of EUR 202 999.58. Those notes were formalised in a decision of 17 January 2007.
30. By an action brought on 22 May 2007, Corman contested that decision before the tribunal de première instance de Bruxelles, seeking recovery of the processing securities in question in the sum of EUR 173 361.88. In support of its claim, Corman submitted that, in view of the four‑year limitation period laid down in the first subparagraph of Article 3(1) of Regulation No 2988/95, the forfeiture of the securities in question was unlawful in that it was time‑barred. Moreover, Corman argued that even if that limitation period were not applicable, since Regulation No 2571/97 constituted sectoral rules within the meaning of the second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95, it precluded application of a longer national limitation period on the basis of Article 3(3) of the regulation.
31. The BIRB took the view that the forfeiture in question cannot be time-barred because, in accordance with Article 3(3) of Regulation No 2988/95, the Member States retain the option of applying longer limitation periods resulting from general provisions of law, such as the 30‑year period applicable in Belgium prior to 1998 and the ten‑year period that is now applicable.
32. In those circumstances, the tribunal de première instance de Bruxelles decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Can the provisions of Regulation No 2571/97 … be regarded as constituting Community sectoral rules derogating from Article 3(1) of Regulation No 2988/95 … and preventing the application of national provisions on limitation?
(2) Must Article 3(3) of Regulation No 2988/95 … be construed as only applying to instances where the irregularity is committed by the recipient of the subsidy, whilst the general rule of limitation after four years applies in all cases of irregularities committed by persons with whom the recipient has entered into contracts, in view of the maximum period of four years applicable to the rules governing [the liability of] contracting parties under the common organisation of the market in milk and milk products?’
The questions referred
Question 1
33. By its first question, the tribunal de première instance de Bruxelles asks, in essence, whether Regulation No 2571/97 can be regarded as constituting sectoral rules laying down a limitation period within the meaning of the second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95. If that question is answered in the affirmative, that court asks whether the existence of such sectoral rules leaves intact the possibility available to Member States under Article 3(3) of that regulation of applying a longer limitation period than that provided for in the first subparagraph of Article 3(1).
34. Corman submits essentially that, by adopting Regulation No 2571/97 and notwithstanding the fact that it does not prescribe a specific limitation period applicable to clearance to the appropriate account of tendering and/or processing securities, the European Union legislature intended to make the four‑year limitation rule generally provided for in the first sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95 applicable to tendering procedures governed by Regulation No 2571/97. Accordingly, Regulation No 2571/97 constitutes sectoral rules precluding any possibility for Member States of applying in that sector, on the basis of Article 3(3) of Regulation No 2988/95, limitation periods longer than four years.
35. Conversely, the Belgian and Austrian Governments and the Commission are of the view that Regulation No 2571/97 does not constitute sectoral rules providing for a shorter limitation period within the meaning of the second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95. Moreover, they argue that, even assuming that Regulation No 2571/97 introduces a limitation period of less than four years for the purpose of that provision, the existence of such a period cannot affect the possibility retained by Member States under Article 3(3) of Regulation No 2988/95 of providing for longer limitation periods.
36. First, it should be borne in mind that Article 1(1) of Regulation No 2988/95 introduces ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is clear from the third recital in the preamble to the regulation, to combat ‘fraud against the Communities’ financial interests … for all areas …’ (Case C‑278/02 Handlbauer
[2004] ECR I‑6171, paragraph 31).
37. As is apparent from Article 4(1) of that regulation, such administrative measures may consist, as in the case in the main proceedings, in the withdrawal of the wrongly obtained advantage by the total or partial loss of the security provided in support of the request for the advantage.
38. As far as legal proceedings are concerned, the first subparagraph of Article 3(1) of Regulation No 2988/95 fixes a limitation period which is applicable, inter alia, to such administrative measures and which runs from the time when the irregularity was committed, such irregularity, according to Article 1(2) of that regulation, being ‘any infringement of a provision of Community 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 Communities …’ (see Handlbauer
, paragraphs 32 and 33, and Joined Cases C‑278/07 to C‑280/07 Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others
[2009] ECR I‑457, paragraphs 21 and 22).
39. By adopting Regulation No 2988/95, in particular the first subparagraph of Article 3(1) thereof, the European Union legislature decided to establish a general rule on limitation which was applicable in that area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of bringing proceedings concerning an irregularity that is detrimental to the European Union’s financial interests after the expiry of a four-year period after the irregularity was committed (see Josef Vosding Schlacht‑, Kühl- und Zerlegebetrieb and Others, paragraph 27).
40. It follows that, as from the date on which Regulation No 2988/95 entered into force, as a rule and apart from in the sectors for which the European Union legislature has prescribed a shorter period, proceedings may be brought concerning any irregularity that is detrimental to the European Union’s financial interests by the competent authorities of the Member States within a period of four years (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraph 28).
41. The second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95 deals with sectoral rules adopted at European Union level, as the fifth recital in the preamble to that regulation confirms, and not national sectoral rules ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraph 44).
42. Moreover, the rule providing for a four‑year limitation period established in the first sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95, which is directly applicable in the Member States, can be disregarded where there exist sectoral rules within the meaning of the second sentence of the first subparagraph of Article 3(1) only if those sectoral rules provide for a shorter period, which may not be less than three years (see, to that effect, Handlbauer, paragraph 35).
43. It is true that Regulation No 2571/97 provides for specific periods that are applicable, as the case may be, to the tenderer and the successful tenderer under the intervention system for butter. Accordingly, under Article 11 of that regulation, the products referred to in Article 1 of the regulation must be processed and incorporated within a period of four months following the month of the closing date for the submission of tenders and, under Article 18(3), the successful tenderer must produce the proof required for the purposes of release of processing securities within 12 months of the expiry of the period laid down in Article 11.
44. However, it is clear, as pointed out by the Belgian and Austrian Governments and the Commission, that that regulation does not lay down any limitation rule for bringing proceedings which applies to the national intervention agency where, following the discovery of an irregularity, it clears securities provided by the successful tenderer to an appropriate account.
45. That conclusion cannot be affected by the fact that Article 29 of Regulation No 2220/85, which applies to the intervention system in the butter market by virtue of Article 27 of Regulation No 2571/97, provides that, once the competent authority is aware of circumstances giving rise to forfeiture of the security, in whole or in part, it must without delay demand that the party required to meet the obligation pay the sum forfeited and that payment must then be made within 30 days from the day of receipt of the demand for payment.
46. Assuming Article 29 of Regulation No 2220/85 to be applicable to the dispute in the main proceedings, the fact that, under that provision, the competent authority must act ‘without delay’ does not allow the conclusion to be drawn that it would be required to act within a specific period, contrary to what is claimed by Corman.
47. Consequently, it must be found that, in tendering procedures such as those in the main proceedings, the rules applicable to the intervention system in the butter market, even though they may constitute sectoral rules within the meaning of Regulation No 2988/95, did not provide for a limitation period of less than four years within the meaning of the second sentence of the first subparagraph of Article 3(1) of the regulation. There is therefore no need to determine in the present proceedings whether the existence of such a period would preclude the application of longer limitation periods by Member States under Article 3(3) of the regulation.
48. In the main proceedings, clearance of the securities to the appropriate account was thus liable, in the absence of a suspensory act, to be time-barred after a period of four years from the date on which the irregularity was committed, provided that the Member State in which the irregularities were committed has not made use of the possibility offered to it under Article 3(3) of Regulation No 2988/95 of providing for a longer limitation period (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraph 36).
49. Under that provision, Member States may, first, continue to apply longer limitation periods which existed at the date when that regulation was adopted and, secondly, introduce new rules on limitation providing for such periods after that date. Moreover, Article 3(3) of Regulation No 2988/95 cannot be interpreted as meaning that, in the context of that provision, the Member States are required, when providing for longer limitation periods, to do so in specific and/or sectoral rules, and accordingly such periods may result from general provisions of law (see, to that effect, Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraphs 42, 46 and 47).
50. In the light of the foregoing, the answer to the first question referred is that, since it does not lay down a limitation rule for bringing proceedings applicable to the clearing to an appropriate account of securities provided in tendering procedures in the butter, concentrated butter and cream market, Regulation No 2571/97 does not constitute sectoral rules providing for a ‘shorter period’ within the meaning of the second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95. The four‑year limitation period established in the first sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95 therefore applies to the clearing to an appropriate account of such securities, subject, however, to the possibility retained by the Member States, under Article 3(3) of that regulation, of providing for longer limitation periods.
Question 2
51. By its second question, the tribunal de première instance de Bruxelles asks whether the longer limitation periods which Member States retain the possibility of applying under Article 3(3) of Regulation No 2988/95 affect only situations in which the irregularity is committed by the recipient of an advantage improperly obtained to the detriment of the budget of the European Union.
52. In other words, that court seeks to ascertain whether, if the rules provided for a certain limitation period applicable to actions brought by the recipient of aid under an intervention system against persons with whom the recipient has entered into contracts, the Member States still retain the possibility of fixing longer limitation periods, within the meaning of Article 3(3) of Regulation No 2988/95, in situations in which the irregularities were committed by such persons.
53. Corman submits that, since the applicable rules lay down periods for the forwarding of evidence required for the release of certain securities, the BIRB should have been prompted to deal in good time with downstream irregularities committed by the persons with whom that company had entered into contracts. However, by acting over four years after those irregularities had been committed, the BIRB made it impossible for Corman to pass on to the persons with whom it had entered into contracts the amounts of the securities forfeited, because such an action would be caught by the five‑year limitation period laid down under Belgian law for non‑contractual liability. Moreover, since Article 4 of Regulation No 4045/89 requires undertakings participating in activities financed by the European Agricultural Guidance and Guarantee Fund (EAGGF) to keep their commercial documents only for a period of three years, the national authorities should not be permitted bring proceedings in respect of such irregularities beyond such a period.
54. First of all, it is clear that, under the derogation provided for in Article 3(3) of Regulation No 2988/95, Member States retain wide discretion in fixing longer limitation periods which they intend to apply in cases involving an irregularity that is detrimental to the European Union’s financial interests.
55. Regulation No 2988/95 does not provide for any information or notification process relating to the use made by Member States of their possibility of providing for longer limitation periods, in accordance with Article 3(3) thereof. Thus, no form of monitoring has been provided for at European Union level as regards either the limitation periods applied by way of exception by Member States under that provision or the sectors in which Member States have decided to apply those periods ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others, paragraph 45).
56. Next, contrary to what is claimed by Corman, Article 4 of Regulation No 4045/89 cannot invalidate that conclusion. First, while providing that undertakings must keep certain commercial documents for at least three years, that provision also states that Member States may require that such documents be kept for a longer period. Second, there is nothing to prevent a diligent undertaking from keeping its commercial documents longer than is required under those rules.
57. Lastly, since Article 19(4) of Regulation No 2571/97 provides that ‘rights and obligations arising in connection with the invitation to tender shall not be transferable’, the successful tenderer remains responsible for the use to which the butter is finally put and must answer for the conduct of the persons with whom he enters into contracts as well as that of subsequent buyers (see, by analogy, Case 124/83 Corman
[1985] ECR 3777, paragraph 19).
58. Accordingly, under Article 12(1)(c) of Regulation No 2571/97, the successful tenderer must include in each sales contract an obligation of incorporation into final products and an obligation to comply, inter alia,
with Article 10 of the regulation and with the undertaking referred to in Article 3(b) of the regulation.
59. The Court has already pointed out that there are several means a prudent tenderer may use, such as requiring a security or inserting an indemnity clause in the works contract or the sales contract, to prevent subsequent persons with whom it enters into contracts from disregarding their obligations. Moreover, the Court has already held that a clause entered into the sale contract by the successful tenderer, as a precaution, does not exhaust all the possible measures for guarding against the possibility that subsequent buyers might not comply with their obligations (see, by analogy, Case 125/83 Corman
[1985] ECR 3039, paragraphs 29 and 30).
60. In any event, the checks which the successful tenderer may then carry out to ascertain whether those obligations have been complied with are in his interests alone and do not affect his liability towards the selling agency (see, by analogy, Case C‑124/83 Corman, paragraph 20).
61. Consequently, the fact that, by using the possibility available to it under Article 3(3) of Regulation No 2988/95, a Member State fixes a longer limitation period than that provided for in Article 3(1) thereof and may thus make it more difficult for a successful tenderer such as Corman to pass on to the persons with whom it has entered into contracts the financial consequences of irregularities committed by those persons cannot, in any event, limit that possibility.
62. In the light of the foregoing, the answer to the second question is that, when bringing proceedings concerning an irregularity within the meaning of Article 1 of Regulation No 2988/95, Member States retain the possibility of applying longer limitation periods within the meaning of Article 3(3) of that regulation, which extends, in the context of Regulation No 2571/97, to situations in which the irregularities for which the successful tenderer is liable were committed by the persons with whom the tenderer has entered into contracts.
Costs
63. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules:
1. Since it does not lay down a limitation rule for bringing proceedings applicable to the clearing to an appropriate account of securities provided in tendering procedures in the butter, concentrated butter and cream market, Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs does not constitute sectoral rules providing for a ‘shorter period’ within the meaning of the second sentence of the first 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. The four year limitation period established in the first sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95 therefore applies to the clearing to an appropriate account of such securities, subject, however, to the possibility retained by the Member States, under Article 3(3) of the regulation, of providing for longer limitation periods.
2. When bringing proceedings concerning an irregularity within the meaning of Article 1 of Regulation No 2988/95, Member States retain the possibility of applying longer limitation periods within the meaning of Article 3(3) of that regulation, which extends, in the context of Regulation No 2571/97, to situations in which the irregularities for which the successful tenderer is liable were committed by the persons with whom the tenderer has entered into contracts.