61976CJ0018_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 18/76
GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY KONRAD REDEKER, ADVOCATE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE EMBASSY OF THE FEDERAL REPUBLIC OF GERMANY, 20-22 RUE DE L ' ARSENAL,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, P . GILSDORF, AND BY G . ZUR HAUSEN, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF COMMISSION DECISIONS 76/141/EEC AND 76/147/EEC OF 2 DECEMBER 1975 CONCERNING THE DISCHARGE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND ( EAGGF ), GUARANTEE SECTION, EXPENDITURE FOR 1971 AND 1972 ( OFFICIAL JOURNAL L 27 OF 2 FEBRUARY 1976, PAGES 3 AND 15 ), IN SO FAR AS THE COMMISSION FAILED TO RECOGNIZE AS CHARGEABLE TO THE EAGGF SUMS OF DM 26 094 195.99 FOR THE 1971 FINANCIAL YEAR AND DM 13 325 660.12 FOR THE 1972 FINANCIAL YEAR,
Grounds
1BY AN APPLICATION LODGED ON 16 FEBRUARY 1976 UNDER THE FIRST AND THIRD PARAGRAPHS OF ARTICLE 173 OF THE EEC TREATY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY SOUGHT THE PARTIAL ANNULMENT OF COMMISSION DECISIONS 76/141 AND 76/147 OF 2 DECEMBER 1975 CONCERNING THE DISCHARGE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1971 AND 1972 ( OFFICIAL JOURNAL L 27 OF 2 FEBRUARY 1976, P . 3 AND P . 15 ).
FOLLOWING THE PROCEDURE AND TAKING ACCOUNT OF THE AMENDMENTS MADE TO THOSE DECISIONS BY COMMISSION DECISION 78/710 OF 28 JULY 1978 ( OFFICIAL JOURNAL L 238 OF 30 AUGUST 1978, P . 25 ), THE APPLICATION WAS FORMULATED AS SEEKING THE ANNULMENT OF THE DECISIONS IN SO FAR AS EXPENDITURE INCURRED BY THE FEDERAL REPUBLIC OF GERMANY AMOUNTING TO DM 26 094 195.99 FOR THE 1971 FINANCIAL YEAR AND DM 13 325 660.12 FOR THE 1972 FINANCIAL YEAR WAS NOT RECOGNIZED AS CHARGEABLE TO THE EAGGF .
2THE SUMS IN QUESTION ARE COMPOSED OF SEVERAL ITEMS, EACH OF WHICH INCLUDES AMOUNTS PAID BY THE GERMAN AUTHORITIES IN CONNEXION WITH THE IMPLEMENTATION OF COMMUNITY REGULATIONS CONCERNING THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS .
3IN CONTESTING THE LEGALITY OF THE DECISIONS ADOPTED BY THE COMMISSION, THE APPLICANT GOVERNMENT CITES, APART FROM THE PROVISIONS OF THOSE SPECIFIC REGULATIONS, CERTAIN GENERAL RULES SET OUT IN REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ), IN PARTICULAR THE FIRST SUBPARAGRAPH OF ARTICLE 8 ( 2 ) WHICH IS WORDED AS FOLLOWS :
' ' IN THE ABSENCE OF TOTAL RECOVERY, THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE SHALL BE BORNE BY THE COMMUNITY, WITH THE EXCEPTION OF THE CONSEQUENCE OF IRREGULARITIES OR NEGLIGENCE ATTRIBUTABLE TO ADMINISTRATIVE AUTHORITIES OR OTHER BODIES OF THE MEMBER STATES . ' '
THE GOVERNMENT ARGUES THAT THAT PROVISION MUST BE INTERPRETED AS MEANING THAT THE FINANCIAL CONSEQUENCES OF AN INCORRECT APPLICATION OF A COMMUNITY PROVISION BY A NATIONAL AUTHORITY MUST BE BORNE BY THE COMMUNITY IN ALL CASES WHERE THE ERROR COMMITTED IS NOT THE FAULT OF THE ADMINISTRATIVE AUTHORITIES OR OTHER BODIES OF THE MEMBER STATE CONCERNED BUT IS THE RESULT OF AN INTERPRETATION WHICH, ALBEIT OBJECTIVELY INCORRECT, WAS ADOPTED IN GOOD FAITH .
IN FACT, IN THE OPINION OF THE APPLICANT GOVERNMENT, BY PROVIDING THAT THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE, WITH THE EXCEPTION OF IRREGULARITIES OR NEGLIGENCE ATTRIBUTABLE TO THE MEMBER STATES, SHALL BE BORNE BY THE COMMUNITY, ARTICLE 8 ( 2 ) SIGNIFIES THAT A MEMBER STATE IS OBLIGED TO BEAR THE FINANCIAL CONSEQUENCES ONLY IN CASES WHERE THE INCORRECT APPLICATION OF A COMMUNITY PROVISION IS THE RESULT OF WRONGFUL ACTION ON THE PART OF A NATIONAL DEPARTMENT OR BODY .
4THE COMMISSION, ON THE OTHER HAND, DENIES THAT ARTICLE 8 ( 2 ) IS RELEVANT TO THE SOLUTION OF THE PROBLEMS IN QUESTION, ARGUING THAT THAT PROVISION RELATES TO IRREGULARITIES AND NEGLIGENCE ATTRIBUTABLE TO INDIVIDUALS AS PERSONS IN RECEIPT OF EAGGF EXPENDITURE AND THAT IT RELATES TO NEGLIGENCE OR IRREGULARITIES WHICH ARE ATTRIBUTABLE TO THE MEMBER STATES ONLY IN THE EXCEPTIONAL CASE OF IRREGULARITIES OR NEGLIGENCE ON THE PART OF OFFICIALS IN THE PUBLIC SERVICE ACTING IN BREACH OF THEIR PROFESSIONAL DUTY .
THE COMMISSION NEVERTHELESS RECOGNIZES THAT ACCORDING TO GENERAL LEGAL PRINCIPLES IT IS FOR THE COMMUNITY TO BEAR THE FINANCIAL CONSEQUENCES OF AN INCORRECT APPLICATION OF COMMUNITY LAW WHERE THAT APPLICATION IS ATTRIBUTABLE TO AN INSTITUTION OF THE COMMUNITY .
5THE TEXT OF ARTICLE 8 IN THE DIFFERENT LANGUAGE VERSIONS, CONSIDERED IN THE LIGHT OF THE ORIGINS OF THE PROVISION AND THE PREPARATORY DOCUMENTS, ON WHICH THE PARTIES HAVE BASED THEIR ARGUMENTS IN THE COURSE OF THE PROCEEDINGS, CONTAINS TOO MANY CONTRADICTORY AND AMBIGUOUS ELEMENTS TO PROVIDE AN ANSWER TO THE QUESTIONS AT ISSUE .
IN ORDER TO INTERPRET THAT PROVISION, THEREFORE, IT IS NECESSARY TO CONSIDER ITS CONTEXT AND THE OBJECTIVE OF THE RULES IN QUESTION .
6IN THIS RESPECT IT SHOULD BE NOTED, FIRST, THAT ARTICLE 8 DEFINES THE PRINCIPLES IN ACCORDANCE WITH WHICH THE COMMUNITY AND THE MEMBER STATES ARE TO ORGANIZE MEASURES TO COMBAT FRAUD AND OTHER IRREGULARITIES IN CONNEXION WITH THE OPERATIONS FINANCED BY THE EAGGF .
IT MAKES PROVISION BOTH FOR MEASURES FOR THE RECOVERY OF SUMS WRONGLY PAID AND FOR ADMINISTRATIVE AND JUDICIAL PROCEDURES AGAINST THE PERSONS RESPONSIBLE .
IN CASES WHERE, VIEWED OBJECTIVELY, COMMUNITY LAW HAS BEEN INCORRECTLY APPLIED ON THE BASIS OF AN INTERPRETATION ADOPTED IN GOOD FAITH BY THE NATIONAL AUTHORITIES IT IS NOT POSSIBLE AS A GENERAL RULE, EITHER UNDER COMMUNITY LAW OR UNDER MOST OF THE NATIONAL LEGAL SYSTEMS, TO RECOVER SUMS PAID IN ERROR FROM THE RECIPIENTS AND IT IS NOT POSSIBLE TO UNDERTAKE ADMINISTRATIVE OR JUDICIAL PROCEDURES AGAINST THOSE RESPONSIBLE .
7CONSEQUENTLY SUCH A SITUATION CANNOT FALL UNDER ARTICLE 8 BUT MUST, ON THE CONTRARY, BE EXAMINED IN THE LIGHT OF THE GENERAL PROVISIONS OF ARTICLES 2 AND 3 OF THE SAME REGULATION, ACCORDING TO WHICH REFUNDS GRANTED AND INTERVENTION UNDERTAKEN ' ' IN ACCORDANCE WITH THE COMMUNITY RULES ' '
WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ARE TO BE FINANCED BY THE EAGGF .
THOSE PROVISIONS PERMIT THE COMMISSION TO CHARGE TO THE EAGGF ONLY SUMS PAID IN ACCORDANCE WITH THE RULES LAID DOWN IN THE VARIOUS SECTORS OF AGRICULTUAL PRODUCTION WHILE LEAVING THE MEMBER STATES TO BEAR THE BURDEN OF ANY OTHER SUM PAID, AND IN PARTICULAR ANY AMOUNTS WHICH THE NATIONAL AUTHORITIES WRONGLY BELIEVED THEMSELVES AUTHORIZED TO PAY IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKETS .
8THAT STRICT INTERPRETATION OF THE CONDITIONS UNDER WHICH EXPENDITURE IS TO BE BORNE BY THE EAGGF IS NECESSARY, MOREOVER, IN VIEW OF THE OBJECTIVE OF REGULATION NO 729/70 .
IN FACT THE MANAGEMENT OF THE COMMON AGRICULTURAL POLICY IN CONDITIONS OF EQUALITY BETWEEN TRADERS IN THE MEMBER STATES REQUIRES THAT THE NATIONAL AUTHORITIES OF A MEMBER STATE SHOULD NOT, BY THE EXPEDIENT OF A WIDE INTERPRETATION OF A GIVEN PROVISION, FAVOUR TRADERS IN THAT STATE TO THE DETRIMENT OF THOSE IN OTHER STATES WHERE A STRICTER INTERPRETATION IS APPLIED .
IF SUCH DISTORTION OF COMPETITION BETWEEN MEMBER STATES ARISES DESPITE THE MEANS AVAILABLE TO ENSURE THE UNIFORM APPLICATION OF COMMUNITY LAW THROUGHOUT THE COMMUNITY IT CANNOT BE FINANCED BY THE EAGGF BUT MUST, IN ANY EVENT, BE BORNE BY THE MEMBER STATE CONCERNED .
9IT MUST THEREFORE BE CONCLUSED THAT THE PROVISIONS OF ARTICLE 8 OF REGULATION NO 729/70 ARE NOT APPLICABLE TO THE OPERATIONS IN QUESTION .
10THE APPLICANT GOVERNMENT FURTHER ARGUES THAT THE EXPENDITURE CANNOT BE CHARGED EITHER TO THE COMMUNITY OR TO A MEMBER STATE ON THE OCCASION OF THE DISCHARGE OF THE ACCOUNTS OF THE NATIONAL AUTHORITIES AND BODIES UNDER ARTICLE 5 ( 2 ) ( B ) OF REGULATION NO 729/70 BUT MUST BE ATTRIBUTED BY MEANS OF A SEPARATE PROCEDURE .
IN THIS RESPECT THE GOVERNMENT REFERS TO A JOINT STATEMENT MADE BY THE COUNCIL AND COMMISSION AND RECORDED IN THE MINUTES OF THE COUNCIL MEETING HELD ON 8 DECEMBER 1971 .
IT APPEARS FROM THAT STATEMENT THAT IF THE COMMISSION TAKES THE VIEW, CONTRARY TO THAT OF THE MEMBER STATE CONCERNED, THAT THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE SHOULD NOT BE BORNE BY THE COMMUNITY IT MUST CONTACT THAT MEMBER STATE AND THEN INITIATIVE AN EXCHANGE OF VIEWS WITHIN THE FUND COMMITTEE REFERRED TO IN ARTICLE 11 OF REGULATION NO 729/70 .
IT FURTHER APPEARS FROM THE STATEMENT THAT THE COMMISSION IS TO MAKE A REPORT TO THE COUNCIL IN THE LIGHT OF KNOWLEDGE ACQUIRED IN THAT WAY AND, WHERE NECESSARY, IS TO PROPOSE SOLUTIONS TO BE ADOPTED BY THE COUNCIL IN ORDER TO RESOLVE DIFFERENCES OF THAT KIND .
11IT SHOULD BE NOTED THAT THAT STATEMENT WAS ISSUED WITH REGARD TO A REGULATION ( REGULATION NO 283/72 OF 7 FEBRUARY 1972, OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 90 ) WHICH WAS ADOPTED UNDER ARTICLE 8 OF REGULATION NO 729/70 AND THAT ITS SCOPE IS CONSEQUENTLY LIMITED TO THE FINANCIAL CONSEQUENCES OF IRREGULARITIES AND NEGLIGENCE REFERRED TO BY THAT ARTICLE, WHICH IS NOT RELEVANT HERE .
12IT IS MOREOVER ESTABLISHED THAT UP TO THE PRESENT NO SPECIFIC PROCEDURE FOR ATTRIBUTING LIABILITY HAS BEEN LAID DOWN BY COMMUNITY LAW FOR THE PURPOSE OF SETTLING DIFFERENCES BETWEEN THE COMMUNITY AND THE MEMBER STATES .
THE DISCHARGE OF THE ACCOUNTS BY THE COMMISSION THUS NECESSARILY ENTAILS THE ATTRIBUTION OF EXPENDITURE EITHER TO THE COMMISSION OR TO THE MEMBER STATE CONCERNED .
13IT IS CLEAR FROM ARTICLE 5 ( 2 ) OF REGULATION NO 729/70 THAT THE COMMISSION ' S DECISION IS TO BE ADOPTED ONLY AFTER THE CONSULTATION WITH THE FUND COMMITTEE REFERRED TO IN ARTICLE 11, BUT THAT THE SPECIAL PROCEDURE DEFINED IN ARTICLE 13 IS NOT APPLICABLE .
IT IS ESTABLISHED THAT THE FUND COMMITTEE WAS CONSULTED IN THE PRESENT INSTANCE AFTER THE APPLICANT GOVERNMENT HAD BEEN INFORMED OF THE ITEMS WHICH THE COMMISSION CONSIDERED ITSELF UNABLE TO CHARGE TO THE EAGGF AND AFTER IT HAD HAD THE OPPORTUNITY OF MAKING ITS POSITION ON THE MATTER CLEAR .
IT IS EVIDENT FROM THE FOREGOING THAT THE ARGUMENT BASED ON THE ALLEGED FAILURE TO COMPLY WITH THE PRESCRIBED PROCEDURE CANNOT BE UPHELD .
14IT IS THEREFORE NECESSARY TO EXAMINE WITH REGARD TO EACH OF THE ITEMS AT ISSUE WHETHER THE EXPENDITURE WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF WAS INCURRED IN ACCORDANCE WITH THE COMMUNITY PROVISIONS APPLICABLE IN THE SECTOR IN QUESTION .
AIDS FOR SKIMMED-MILK POWDER USED FOR ANIMAL FEEDING-STUFFS
15SOME OF THE AMOUNTS WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF CONSTITUTE EXPENDITURE INCURRED BY THE APPLICANT GOVERNMENT BY WAY OF AID FOR SKIMMED-MILK POWDER FOR USE AS FEED UNDER REGULATION NO 986/68 OF THE COUNCIL OF 15 JULY 1968 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 260 ).
16UNDER THAT REGULATION, AS AMENDED BY SUBSEQUENT COUNCIL REGULATIONS, AND UNDER COMMISSION REGULATIONS ON DETAILED RULES FOR THE GRANT OF THAT AID :
- THE AID WAS, IN PRINCIPLE, TO BE PAID BY THE INTERVENTION AGENCY OF THE MEMBER STATE WITHIN WHOSE TERRITORY WAS SITUATED THE CONCERN WHICH DENATURED THE SKIMMED-MILK POWDER OR USED IT IN THE MANUFACTURE OF COMPOUND FEEDINGSTUFFS ;
- AS A TEMPORARY MEASURE, VALID UNTIL 30 JUNE 1971, WHERE SKIMMED-MILK POWDER PRODUCED IN ONE MEMBER STATE WAS DENATURED OR USED IN ANOTHER MEMBER STATE, THE FORMER MEMBER STATE WAS AUTHORIZED TO PAY THE AID ;
- THE DECISIVE DATE FOR THE PAYMENT OF THE AID BY THE EXPORTING STATE WAS THE DAY WHEN EACH CONSIGNMENT OF THE PRODUCT WAS PLACED UNDER CONTROL IN THE TERRITORY OF THE IMPORTING MEMBER STATE ;
- PROOF THAT THE GOODS HAD BEEN PLACED UNDER CONTROL IN THE IMPORTING MEMBER STATE COULD BE ADDUCED ONLY BY PRODUCING THE CONTROL COPY OF THE COMMUNITY TRANSIT DOCUMENT, CERTAIN SECTIONS OF WHICH HAD TO BE COMPLETED IN A SPECIFIC MANNER .
17ONE ITEM IN DISPUTE RELATES TO AID PAID BY THE GERMAN AUTHORITIES FOR QUANTITIES OF SKIMMED-MILK POWDER EXPORTED TO ITALY DESPITE THE FACT THAT THE GOODS WERE PLACED UNDER CONTROL, ACCORDING TO THE INFORMATION ON THE CONTROL COPY, AT A DATE SUBSEQUENT TO 30 JUNE 1971 OR THAT COMPLIANCE WITH THAT DATE COULD NOT BE ESTABLISHED CLEARLY .
18THE GERMAN AUTHORITIES ACCOUNTED FOR PAYMENT OF THE AID IN THOSE CASES BY REFERRING TO A STATEMENT MADE BY THE COMPETENT ITALIAN BODY TO THE EFFECT THAT IT WAS LEGALLY IMPOSSIBLE, PURSUANT TO THE INSTRUCTIONS GIVEN TO THE ITALIAN AUTHORITIES BY THE MINISTRIES CONCERNED, THAT AID SHOULD HAVE PAID IN ITALY IN RESPECT OF CONSIGNMENTS FOR WHICH COMMUNITY AID HAD BEEN PAID IN GERMANY .
THE APPLICANT GOVERNMENT FURTHER REFERRED TO A COMMUNICATION WHICH IT RECEIVED FROM THE COMMISSION STATING THAT THE LATTER WOULD NOT OBJECT TO PAYMENT OF THE AID IN CASES WHERE, IN THE ABSENCE OF PROOF THAT THE GOODS HAD BEEN PLACED UNDER CONTROL IN ITALY BY 30 JUNE 1971 AT THE LATEST, THE COMPETENT ITALIAN AUTHORITIES HAD FINALLY REFUSED TO PAY THE AID .
19IN THIS REGARD THE COMMISSION STATES THAT WHILE IT IS PREPARED TO ACCEPT THAT THE CONTESTED EXPENDITURE MAY, BY WAY OF AN EXCEPTION, BE BORNE BY THE EAGGF IF THE EXPORTING STATE CAN PRODUCE IRREFUTABLE EVIDENCE THAT THE SAME EXPENDITURE HAS NOT BEEN PAID BY THE IMPORTING STATE, SUCH EVIDENCE, IN ORDER TO BE VALID, MUST REFER TO SPECIFIC, INDIVIDUAL CASES AND CANNOT MERELY CONSIST IN AN AFFIRMATION THAT DOUBLE PAYMENT WAS NOT POSSIBLE UNDER THE PROVISIONS IN FORCE .
20THE COMMUNITY RULES IN THIS FIELD ARE DRAWN UP IN TERMS WHICH DO NOT GIVE THE NATIONAL AUTHORITIES THE OPTION OF ACCEPTING ANY OTHER PROOF THAT THE GOODS HAVE BEEN PLACED UNDER CONTROL IN THE IMPORTING COUNTRY THAN THE FORMAL PROOF PROVIDED BY THE CONTROL COPY OF THE TRANSIT DOCUMENT CORRECTLY COMPLETED AND STAMPED .
AS THE OBJECTIVE OF THE REGULATORY PROVISIONS IN QUESTION IS TO EXCLUDE THE POSSIBILITY OF DOUBLE PAYMENT AND THE POSSIBILITY OF THE GOODS BEING RETURNED TO ORDINARY COMMERCIAL CHANNELS, THE FORMALITIES RELATING TO PROOF MUST BE STRICTLY ADHERED TO FOR THAT PURPOSE, AND IN PARTICULAR TO FORESTALL ANY FRAUDULENT PRACTICE INTENDED TO EVADE THE SUPERVISORY MEASURES .
TO ACCEPT, AS THE GERMAN AUTHORITIES DID IN THIS INSTANCE, PROOFS WHICH DO NOT RELATE CASE BY CASE TO SPECIFIC CONSIGNMENTS BUT WHICH MERELY CONSIST OF GENERAL STATEMENTS AS TO THE SCOPE OF INSTRUCTIONS GIVEN TO THE ADMINISTRATIVE AUTHORITIES IN THE IMPORTING STATE IS THEREFORE, IN ANY EVENT, INCOMPATIBLE WITH THE REQUIREMENTS OF THE COMMUNITY PROVISIONS IN THIS FIELD .
THE COMMISSION ' S REFUSAL TO CHARGE THE EXPENDITURE IN QUESTION TO THE EAGGF IS THEREFORE JUSTIFIED .
21ANOTHER DISPUTED ITEM RELATES TO AID PAID BY THE GERMAN AUTHORITIES IN RESPECT OF QUANTITIES OF SKIMMED-MILK POWDER EXPORTED TO ITALY IN CASES WHERE THE DATES WHEN THE GOODS WERE PLACED UNDER CONTROL IN THAT COUNTRY ARE NOT IN DISPUTE BUT WHERE PROOF THAT THE GOODS WERE PLACED UNDER CONTROL WAS NOT ADDUCED BY PRODUCTION OF THE CONTROL COPY OF THE COMMUNITY TRANSIT DOCUMENT DULY COMPLETED AND STAMPED BY THE ITALIAN AUTHORITIES .
THE GERMAN AUTHORITIES, HOWEVER, STATE THAT AS THE CONTROL COPIES HAD BEEN LOST, PROOF THAT THE GOODS HAS BEEN PLACED UNDER CONTROL IN ITALY WAS FURNISHED BY OTHER MEANS, SUCH AS THE SUBMISSION OF ACCOMPANYING DOCUMENTS, CUSTOMS CLEARANCE DECLARATIONS AND DECLARATIONS BY UNDERTAKINGS WHICH HAD APPLIED FOR AID, AND THEY STATE THAT THE RISK OF DOUBLE PAYMENT HAD, MOREOVER, BEEN EXCLUDED BY VIRTUE OF THE INSTRUCTIONS GIVEN TO THE COMPETENT ITALIAN AUTHORITIES BY THE MINISTRIES CONCERNED .
22AS HAS ALREADY BEEN STATED ABOVE THE OBJECTIVE OF THE RULES IN QUESTION REQUIRES THAT THE FORMALITIES RELATING TO PROOF MUST BE STRICTLY ADHERED TO IN ORDER FOR TRADERS TO RECEIVE THE FINANCIAL BENEFITS GRANTED WITHIN THE FRAMEWORK OF THE COMMON AGRICULTURAL POLICY .
CONSEQUENTLY, THE REGULATORY PROVISIONS IN QUESTION DO NOT ALLOW THE PROOFS REQUIRED BY THEM TO BE FURNISHED BY OTHER MEANS .
AS THEREFORE THE EXPENDITURE IN QUESTION WAS NOT INCURRED IN ACCORDANCE WITH COMMUNITY LAW THE COMMISSION ' S REFUSAL TO CHARGE IT TO THE EAGGF IS JUSTIFIED .
AID FOR THE PURCHASE OF BUTTER BY PERSONS IN RECEIPT OF SOCIAL ASSISTANCE
23THE COMMISSION REFUSED TO CHARGE TO THE EAGGF THE SUMS OF DM 17 930 880.40 FOR THE 1971 FINANCIAL YEAR AND DM 12 051 258.00 FOR THE 1972 FINANCIAL YEAR WHICH WERE PAID BY THE AUTHORITIES IN THE FEDERAL REPUBLIC OF GERMANY BY WAY OF AID FOR THE PURCHASE OF BUTTER BY PERSONS IN RECEIPT OF SOCIAL ASSISTANCE .
24ARTICLE 1 OF REGULATION NO 414/70 OF THE COUNCIL OF 3 MARCH 1970 LAYING DOWN GENERAL RULES RELATING TO MEASURES INTENDED TO INCREASE THE USE OF BUTTER BY CERTAIN CATEGORIES OF CONSUMERS ( JOURNAL OFFICIEL L 52 OF 6 MARCH 1970, P . 2 ) AUTHORIZED THE COMMISSION TO DECIDE THAT MEMBER STATES MAY GRANT AID TO PERMIT THE PURCHASE OF BUTTER AT REDUCED PRICES BY, INTER ALIA, PERSONS IN RECEIPT OF SOCIAL ASSISTANCE .
PURSUANT TO THAT PROVISION THE COMMISSION ADOPTED DECISION 70/228 OF 24 MARCH 1970 ( JOURNAL OFFICIEL L 77 OF 7 APRIL 1970, P . 15 ) AUTHORIZING THE MEMBER STATES TO GRANT AID TO ENABLE PERSONS IN RECEIPT OF SOCIAL ASSISTANCE TO PURCHASE, IN EXCHANGE FOR INDIVIDUALIZED VOUCHERS, 0.5 KG OF BUTTER PER MONTH AT A REDUCED PRICE .
THE PERIOD OF VALIDITY OF REGULATION NO 414/70, WHICH WAS INITIALLY CONFINED TO 1970, WAS EXTENDED UNTIL 31 DECEMBER 1971 BY REGULATION NO 2550/70 OF THE COUNCIL OF 15 DECEMBER 1970 ( JOURNAL OFFICIEL L 275 OF 19 DECEMBER 1970, P . 1 ).
COMMISSION DECISION 70/228, THE PERIOD OF VALIDITY OF WHICH WAS NOT RESTRICTED BY ANY EXPRESS PROVISION, REMAINED APPLICABLE UNTIL IT WAS REPEALED, WITH EFFECT FROM 1 MAY 1971, BY COMMISSION DECISION 71/166 OF 30 MARCH 1971 ( JOURNAL OFFICIEL L 88 OF 20 APRIL 1971, P . 14 ).
25THE APPLICANT GOVERNMENT, IN IMPLEMENTATION OF THAT MEASURE, DISTRIBUTED THROUGH THE LOCAL SOCIAL SECURITY AUTHORITIES IN A SINGLE OPERATION AT THE BEGINNING OF 1970 AND OF 1971 VOUCHERS VALID FOR EACH MONTH OF THE WHOLE YEAR, THUS SEEKING TO AVOID THE DISPROPORTIONATE INCREASE IN ITS ALREADY CONSIDERABLE ADMINISTRATIVE COSTS WHICH WOULD HAVE ACCOMPANIED THE ISSUING OF VOUCHERS VALID FOR SHORTER PERIODS .
THE APPLICANT GOVERNMENT NOTIFIED ITS CHOICE OF THIS PROCEDURE TO THE COMMISSION WHICH DID NOT RISE ANY OBJECTIONS .
26THE COMMISSION CLAIMS THAT THE GERMAN GOVERNMENT, BY CONTINUING TO PAY AID IN RESPECT OF SALES AFTER 30 APRIL 1971, OVERSTEPPED THE LIMITS LAID DOWN BY THE PROVISIONS IN QUESTION .
THE GOVERNMENT, FOR ITS PART, CLAIMS THAT THE SYSTEM OF DISTRIBUTING VOUCHERS ADOPTED BY IT HAD THE EFFECT OF CREATING, FOR PERSONS HOLDING THOSE VOUCHERS, A LEGAL POSITION WHICH WAS CERTAIN AND WHICH THE GOVERNMENT COULD NOT TERMINATE PREMATURELY .
27THE QUESTION ARISES, THEREFORE, WHETHER THE PROVISIONS IN QUESTION MUST BE INTERPRETED AS MEANING THAT THEY PERMITTED THE MEMBER STATES TO ADOPT A DISTRIBUTION SYSTEM SUCH AS THAT CHOSEN BY THE APPLICANT GOVERNMENT .
IT MAY BE NOTED IN THIS RESPECT THAT BOTH REGULATION NO 414/70 AND DECISION 70/228 LEAVE THE MEMBER STATES GREAT FREEDOM TO CHOOSE THE METHODS AND ADMINISTRATIVE PROCEDURES FOR THE IMPLEMENTATION OF THE MEASURE IN QUESTION .
WHILE CERTAIN PROVISIONS SEEK TO PREVENT ABUSES AND TO GUARANTEE THAT THE AID WILL BE GRANTED ONLY FOR DELIVERIES FOR WHICH IT WAS PROVIDED, NO PROVISION IS MADE FOR THE POSSIBILITY OF TERMINATING THE AID BEFORE THE EXPIRY OF THE PERIOD DURING WHICH REGULATION NO 414/70 WAS APPLICABLE .
28SINCE DECISION 70/228 REQUIRES THE MEMBER STATES TO USE A SYSTEM OF INDIVIDUAL VOUCHERS FOR DISTRIBUTING THE AID, SINCE THE APPLICANT GOVERNMENT ADOPTED SUCH A SYSTEM, IN THE FIRST INSTANCE UNTIL THE END OF 1970, AND SINCE THE COMMISSION DECISION REMAINED IN FORCE WITHOUT ANY AMENDMENT FOR AN INDETERMINATE PERIOD AFTER THE ENABLING REGULATION WAS EXTENDED TO THE END OF 1971, IT CANNOT BE SAID THAT THE APPLICANT GOVERNMENT, BY MAINTAINING THE SYSTEM INITIALLY ADOPTED WITHOUT MAKING PROVISION FOR THE POSSIBILITY OF TERMINATING THE OPERATION IN THE COURSE OF THE YEAR AND TAKING INTO ACCOUNT ALSO THE SPECIAL NATURE OF THE MEASURE IN QUESTION, EXCEEDED WHAT IT WAS LAWFULLY ENTITLED TO DO TO IMPLEMENT THE COMMISSION ' S DECISION WITHIN ITS NATIONAL TERRITORY .
THE CONTESTED DECISIONS SHOULD THEREFORE BE ANNULLED IN SO FAR AS THE COMMISSION REFUSED TO CHARGE TO THE EAGGF THE DISPUTED AMOUNTS PAID BY THE APPLICANT GOVERNMENT BY WAY OF AID FOR THE PURCHASE OF BUTTER BY PERSONS IN RECEIPT OF SOCIAL ASSISTANCE .
SALE AT REDUCED PRICES OF BUTTER FROM PUBLIC STOCKS FOR EXPORT
29CERTAIN OF THE AMOUNTS WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF CONSTITUTE EXPENDITURE INCURRED BY THE APPLICANT GOVERNMENT IN RESPECT OF THE SALE OF BUTTER FROM PUBLIC STOCKS AT REDUCED PRICES UNDER REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 ( JOURNAL OFFICIEL L 214 OF 29 AUGUST 1968, P . 10 ).
30UNDER ARTICLE 3 OF THAT REGULATION BUTTER COVERED BY THAT OPERATION WAS TO BE EXPORTED WITHIN 30 DAYS ' ' AFTER SALE ' '
BY THE INTERVENTION AGENCY, AND COMPLIANCE WITH THAT CONDITION WAS GUARANTEED BY THE LODGING OF A SECURITY UNDER ARTICLE 4 .
REGULATION NO 1308/68 WAS REPEALED BY ARTICLE 5 OF REGULATION NO 1893/70 OF THE COMMISSION OF 18 SEPTEMBER 1970 ON THE SALE OF BUTTER FROM PUBLIC STOCKS ( JOURNAL OFFICIEL L 208 OF 19 SEPTEMBER 1970, P . 13 ) BUT IT REMAINED APPLICABLE TO BUTTER SOLD UNDER THE REGULATION WHICH HAD BEEN REPEALED .
31THE APPLICANT GOVERNMENT CONTENDS THAT THE REDUCED PRICE IS APPLICABLE AND THE CONDITION LAID DOWN IN ARTICLE 3 IS SATISFIED IN CASES WHERE THE CONTRACT OF SALE WAS CONCLUDED PURSUANT TO THE REGULATION WHICH WAS REPEALED AND WHERE THE BUTTER WAS EXPORTED WITHIN 30 DAYS OF ITS REMOVAL FROM STORAGE, EVEN IF THAT TOOK PLACE AFTER 22 SEPTEMBER 1970, THE DATE ON WHICH REGULATION NO 1893/70 ENTERED INTO FORCE .
THE COMMISSION, ON THE OTHER HAND, TAKES THE VIEW THAT THE PERIOD OF 30 DAYS REFERRED TO IN ARTICLE 3 MUST BE CALCULATED FROM THE DATE OF THE CONCLUSION OF THE CONTRACT OF SALE AND NOT FROM THAT OF THE REMOVAL OF THE BUTTER FROM STORAGE .
IN SUPPORT OF THE INTERPRETATION ADVOCATED BY THE APPLICANT GOVERNMENT IT IS ARGUED IN PARTICULAR, ON THE ONE HAND, THAT ONLY THAT INTERPRETATION ENABLES FORWARD SALES AND SALES EFFECTED OVER RELATIVELY LONG PERIODS TO BENEFIT FROM THE REDUCED PRICES AND, ON THE OTHER, THAT IT DOES NOT OPEN THE WAY TO ABUSES, SINCE UNAUTHORIZED USE OF THE BUTTER IS EXCLUDED WHILE THE BUTTER IS STILL IN THE INTERVENTION AGENCY ' S STORE .
32HOWEVER, IN THE CONTEXT OF THE REGULATION IN QUESTION THERE IS NO REASON WHY THE TERM ' ' SALE ' '
USED IN ARTICLE 3 SHOULD BE GIVEN A MEANING DIFFERENT TO THAT WHICH IT HAS IN ORDINARY LEGAL LANGUAGE AND WHICH CORRESPONDS, MOREOVER, TO THAT ASSIGNED TO IT IN OTHER PROVISIONS OF THE REGULATION .
THE PERIOD OF 30 DAYS LAID DOWN IN ARTICLE 3 MUST THEREFORE BE CALCULATED FROM THE DATE OF THE CONCLUSION OF THE CONTRACT OF SALE AND NOT FROM THE DATE WHEN THE BUTTER LEFT THE STORE .
AS THE EXPENDITURE CONSIDERED IN THIS CONNEXION WAS THEREFORE NOT INCURRED IN ACCORDANCE WITH COMMUNITY LAW THE COMMISSION ' S REFUSAL TO CHARGE IT TO THE EAGGF IS JUSTIFIED .
REPURCHASE OF BUTTER SOLD AT REDUCED PRICES AND INTENDED FOR PROCESSING INTO CONCENTRATED BUTTER
33CERTAIN OF THE AMOUNTS WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF CONSTITUTE EXPENDITURE INCURRED BY THE APPLICANT GOVERNMENT IN RESPECT OF THE REPURCHASE OF BUTTER FROM PUBLIC STORAGE SOLD AT REDUCED PRICES UNDER A DECISION ADOPTED BY THE COMMISSION ON 17 DECEMBER 1968 .
34ARTICLE 6 ( 3 ) OF REGULATION NO 804/68 OF THE COUNCIL OF 27 JUNE 1968 ON THE COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1968 ( I ), P . 176 ) PROVIDES THAT SPECIAL MEASURES MAY BE TAKEN FOR THE DISPOSAL OF BUTTER HELD IN PUBLIC STORAGE WHICH CANNOT BE MARKETED ON NORMAL TERMS .
PURSUANT TO THAT PROVISION, BY DECISION OF 17 DECEMBER 1968, THE COMMISSION AUTHORIZED THE FEDERAL REPUBLIC OF GERMANY TO SELL MELTED AND PREPARED INTERVENTION BUTTER AT REDUCED PRICES SUBJECT TO THE CONDITION, INTER ALIA, THAT THE GERMAN AUTHORITIES SHOULD TAKE ANY STEPS NECESSARY TO ENSURE THAT THE PRODUCT WOULD EXCLUSIVELY BE USED WITHIN THE NATIONAL TERRITORY FOR DIRECT CONSUMPTION WITHOUT PRELIMINARY PROCESSING .
35AS THE GERMAN GOVERNMENT INFORMED THE COMMISSION THAT IT WAS NO LONGER IN A POSITION TO GUARANTEE COMPLETE COMPLIANCE WITH THAT CONDITION IN RESPECT OF CERTAIN QUANTITIES OF BUTTER SOLD IN 1970 WHICH HAD NOT REACHED THE STAGE OF RETAIL SALE IT WAS AUTHORIZED BY A COMMISSION DECISION OF 19 AUGUST 1971 TO REACH AGREEMENT WITH THE PURCHASERS REGARDING CANCELLATION OF THE SALES CONTRACTS .
IN EXCHANGE FOR THE RETURN OF THE BUTTER THE INTERVENTION AGENCY WAS TO REPAY TO THE PURCHASER THE PURCHASE PRICE, TOGETHER WITH A FIXED AMOUNT TO COVER THE STORAGE COSTS WHICH HAD BEEN INCURRED .
THE GERMAN INTERVENTION AGENCY, HOWEVER, REPURCHASED THE BUTTER AT A PRICE HIGHER THAN THE INITIAL PRICE AND, IN ADDITION, REIMBURSED CERTAIN EXPENDITURE FOR WHICH NO PROVISION WAS MADE IN THE DECISION OF THE COMMISSION, NAMELY LOSS OF INTEREST SUFFERED BY THE PURCHASERS .
36THE APPLICANT GOVERNMENT CLAIMS THAT THE COMMISSION MUST CHARGE TO THE EAGGF ALL EXPENDITURE INCURRED TOGETHER WITH THE ACTUAL COSTS OF THE PROCESSING OF THE BUTTER SOLD, IRRESPECTIVE OF THE LIMITS OF THE FIXED AMOUNTS WHICH, IN RESPECT OF THE STORAGE COSTS AND THE PROCESSING COSTS INCURRED BY THE INTERVENTION AGENCY AS A RESULT OF THE MEASURES TAKEN UNDER ARTICLE 6 ( 3 ) OF REGULATION NO 804/68, WERE LAID DOWN BY ARTICLE 4 ( 1 ) ( F ) AND ( H ) OF REGULATION NO 2306/70 OF THE COUNCIL OF 10 NOVEMBER 1970 ON THE FINANCING OF INTERVENTION EXPENDITURE IN RESPECT OF THE DOMESTIC MARKET IN MILK AND MILK PRODUCTS ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1966-1972, P . 44 ).
THE GOVERNMENT ARGUES, IN FACT, THAT HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE, IT MUST BE REGARDED AS HAVING ACTED IN THE INTERESTS OF THE COMMUNITY IN ACCORDANCE WITH PRINCIPLES RELATING TO MANAGEMENT WITHOUT MANDATE AND THAT FURTHERMORE THE COMMISSION, BEFORE LAYING DOWN THE FIXED AMOUNTS AT A LEVEL WHICH FAILED TO TAKE ACCOUNT OF THE ACTUAL COSTS OF THE OPERATION, WAS AWARE OF THE PROCEDURE FOLLOWED BY THE INTERVENTION AGENCY .
37HOWEVER, NONE OF THE ARGUMENTS PUT FORWARD BY THE APPLICANT GOVERNMENT CAN JUSTIFY A DEROGATION FROM THE EXHAUSTIVE PROVISIONS OF ARTICLE 4 ( 1 ) ( F ) AND ( H ) OF REGULATION NO 2306/70, PURSUANT TO WHICH ONLY THE FIXED AMOUNTS MAY BE CHARGED TO THE EAGGF, NOT THE ACTUAL COSTS WHICH MAY BE GREATER .
AS THE EXPENDITURE CONSIDERED IN THIS CONNEXION WAS THEREFORE NOT INCURRED IN ACCORDANCE WITH COMMUNITY LAW THE COMMISSION ' S REFUSAL TO CHARGE IT TO THE EAGGF IS JUSTIFIED .
COSTS OF CRUSHING AND RECONDITIONING SUGAR
38CERTAIN OF THE AMOUNTS WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF CONSTITUTE EXPENDITURE INCURRED BY THE APPLICANT GOVERNMENT IN RESPECT OF THE CRUSHING AND RECONDITIONING OF SUGAR SOLD PURSUANT TO REGULATION NO 822/70 OF THE COMMISSION OF 4 MAY 1970 CONCERNING A STANDING INVITATION TO TENDER FOR THE SALE OF WHITE SUGAR INTENDED FOR ANIMAL FEEDING-STUFFS HELD BY THE GERMAN INTERVENTION AGENCY ( JOURNAL OFFICIEL L 98 OF 5 MAY 1970, P . 7 ).
39THE CRUSHING OF CERTAIN QUANTITIES OF SUGAR WHICH HAD HARDENED IN STORE WAS UNDERTAKEN BY THE GERMAN AUTHORITIES IN ORDER TO SATISFY THE CONDITION CONTAINED IN ARTICLE 6 OF THE REGULATION THAT THE SUGAR PUT OUT TO TENDER SHOULD BE FREE-RUNNING .
THE COSTS OF THAT OPERATION WERE DEDUCTED BY THE APPLICANT GOVERNMENT FROM THE TOTAL RECEIPTS FROM THE SALES WHICH, UNDER ARTICLE 4 ( 2 ) ( A ) OF REGULATION NO 2334/69 OF THE COUNCIL OF 25 NOVEMBER 1969 ON THE FINANCING OF INTERVENTION EXPENDITURE IN RESPECT OF THE DOMESTIC MARKET IN SUGAR ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1966-1972, P . 27 ), ARE TO BE CREDITED TO THE ACCOUNT DRAWN UP BY THE INTERVENTION AGENCY IN ORDER TO CALCULATE THE NET LOSSES CHARGEABLE TO THE EAGGF UNDER ARTICLE 2 OF THE REGULATION .
40ARTICLE 4 ( 1 ) LISTS THE ITEMS TO BE DEBITED TO THAT ACCOUNT AND ARTICLE 4 ( 2 ) LISTS THOSE WHICH ARE TO BE CREDITED TO IT .
THE ITEM DEFINED IN ARTICLE 4 ( 2 ) AS ' ' THE TOTAL AMOUNT OF THE RECEIPTS FROM SALES EFFECTED . . . ' '
MUST BE UNDERSTOOD AS BEING THE GROSS AMOUNT WITHOUT DEDUCTION OF THE SALES COSTS .
THE ITEMS WITH WHICH THE ACCOUNT MAY BE DEBITED UNDER ARTICLE 4 ( 1 ) DO NOT INCLUDE COSTS SUCH AS THOSE IN QUESTION .
THE LIST OF THE ITEMS WHICH CAN THUS BE CHARGED TO THE EAGGF MUST BE REGARDED AS EXHAUSTIVE .
41IN THOSE CIRCUMSTANCES IT IS NOT NECESSARY TO EXAMINE WHETHER THE SOLIDIFYING OF THE SUGAR WHICH MADE THE CRUSHING NECESSARY WAS DUE TO DEFECTIVE STORAGE, AS THE COMMISSION CLAIMS, OR WHETHER THE COMMUNITY RULES WERE DEFECTIVE IN THAT THEY MADE NO EXPRESS PROVISION FOR THE COSTS IN QUESTION, AS THE APPLICANT GOVERNMENT CLAIMS .
42IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION ' S REFUSAL TO CHARGE TO THE EAGGF THE EXPENDITURE CONSIDERED IN THIS CONNEXION IS JUSTIFIED .
COSTS
43ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING .
UNDER ARTICLE 69 ( 3 ), WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .
44THE COMMISSION FAILED ON ONE HEAD WHILE THE APPLICANT GOVERNMENT FAILED ON THE OTHER HEADS .
THE APPLICANT GOVERNMENT SHOULD THEREFORE PAY ITS OWN COSTS AND THREE QUARTERS OF THOSE OF THE COMMISSION .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . ANNULS COMMISSION DECISIONS 76/141 AND 76/147 CONCERNING THE DISCHARGE OF THE ACCOUNTS PRESENTED BY THE FEDERAL REPUBLIC OF GERMANY IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND, GUARANTEE SECTION, EXPENDITURE FOR 1971 AND 1972 IN SO FAR AS THE AMOUNTS OF DM 17 930 880.40 AND DM 12 051 258.00 RESPECTIVELY WERE NOT CHARGED TO THE FUND .
2.DISMISSES THE APPLICATION AS REGARDS THE OTHER HEADS OF CLAIM .
3.ORDERS THE APPLICANT GOVERNMENT TO PAY ITS OWN COSTS AND THREE QUARTERS OF THOSE OF THE COMMISSION .