62021CO0728
ORDER OF THE COURT (Ninth Chamber)
28 June 2022 (
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)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Regulation (EC, Euratom) No 2988/95 – Protection of the European Union’s financial interests – Irregularities with regard to EU law – Proceedings – Limitation period – Interruption – Act relating to investigation or legal proceedings concerning an irregularity – Concept – Control report identifying the existence of an irregularity)
In Case C‑728/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), made by decision of 4 November 2021, received at the Court on 30 November 2021, in the proceedings
OF
v
Instituto de Financiamento da Agricultura e Pescas IP (IFAP),
THE COURT (Ninth Chamber),
composed of S. Rodin, President of the Chamber, J.‑C. Bonichot (Rapporteur) and L.S. Rossi, Judges,
Advocate General: N. Emiliou,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1
This request for a preliminary ruling concerns the interpretation of (i) the third 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 (OJ 1995 L 312, p. 1) and (ii) Article 54 of Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for in that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector (OJ 2009 L 316, p. 65).
2
The request has been made in proceedings between OF, who carries on an agricultural activity, and the Instituto de Financiamento da Agricultura e Pescas IP (IFAP) (Institute for the Financing of Agriculture and Fisheries, Portugal), concerning the recovery of a sheep and goat premium granted to OF.
Legal context
Regulation No 2988/95
3
The third recital of Regulation No 2988/95 states:
‘… acts detrimental to the Communities’ financial interests must … be countered in all areas’.
4
In accordance with Article 1(1) of that regulation:
‘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.’
5
Article 3(1) of the regulation, in Title I thereof entitled ‘General principles’, is worded as follows:
‘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).’
Regulation No 1122/2009
6
Article 54 of Regulation No 1122/2009, entitled ‘Control report’, provides, in paragraph 1:
‘Every on-the-spot check under this Chapter, regardless [of] whether the farmer in question was selected for the on-the-spot check in accordance with Article 51 or as a follow-up of non-compliances brought to the attention of the competent control authority in any other way, shall be the subject of a control report to be established by the competent control authority.
The report shall be divided into the following parts:
…
(b)
a part reflecting separately the checks carried out in respect of each of the acts and standards and containing, in particular, the following information:
(i)
the requirements and standards subject to the on-the-spot check;
(ii)
the nature and extent of checks carried out;
(iii)
the findings;
(iv)
the acts and standards in relation to which non-compliances are found;
(c)
an evaluation part giving an assessment of the importance of the non-compliance in respect of each act and/or standard … with an indication of any factors that should lead to an increase or decrease of the reduction to be applied.
…’
The dispute in the main proceedings and the question referred for a preliminary ruling
7
OF is the owner of a farm holding in Portugal. On 2 February 2010, a sheep and goat premium was paid to him by IFAP.
8
Between 12 July and 14 July 2011, IFAP carried out an on-the-spot check of that holding. A report of that control was notified to OF’s legal representative on 14 July 2011 (‘the control report in the main proceedings’). According to that report, it was impossible to carry out a retroactive check on account of the absence of a sheep and goat stock and movements register for 2010.
9
On 6 April 2015, OF received a letter from IFAP informing him that the premium referred to in paragraph 7 of the present order had been received in error. As OF refused to repay the premium, IFAP adopted a recovery decision on 20 April 2015.
10
OF challenged that decision before the Tribunal Administrativo e Fiscal de Almada (Administrative and Tax Court, Almada, Portugal), which, by judgment of 27 June 2018, upheld his action and annulled that decision, finding that the proceedings were time-barred on the ground that the control report in the main proceedings had not interrupted the four-year limitation period for proceedings, laid down in Article 3(1) of Regulation No 2988/95. IFAP appealed against that judgment before the Tribunal Central Administrativo Sul (Central Administrative Court – Southern Division, Portugal), which set it aside, on the ground that that time limit, which had started to run from the date of the payment of that premium to OF on 2 February 2010, had been interrupted both on 14 July 2011 by the notification of the control report in the main proceedings to OF and on 6 April 2015 by the letter referred to in the preceding paragraph and that, as a result, IFAP’s right to request reimbursement of the sums received in error was not time-barred.
11
The referring court, before which OF brought an action, is uncertain whether the notification of a control report ‘such as that provided for in Article 54 of Regulation No 1122/2009’, which merely reveals the existence of an irregularity and does not mention any intention to institute proceedings in respect of that irregularity, constitutes an act relating to investigation or legal proceedings concerning an irregularity, within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95, such as to interrupt the limitation period of the proceedings set out in that article.
12
In those circumstances the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Does an on-the-spot check within the meaning of Article 54 of [Regulation No 1122/2009] which merely reveals the existence of an irregularity and does not mention any intention to investigate or institute legal proceedings in respect of an irregularity constitute a ground for interruption of the limitation period, in accordance with the second subparagraph of Article 3(1) of [Regulation No 2988/95], according to which “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”?’
Consideration of the question referred
13
Under Article 99 of the Rules of Procedure of the Court, where the reply to a question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to such a question admits of no reasonable doubt, the Court may, at any time, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
14
It is appropriate to apply that provision in the present case.
15
By its question, the referring court asks the Court about the interpretation of the second subparagraph of Article 3(1) of Regulation No 2988/95 in order to determine whether the control report in the main proceedings, identifying an irregularity committed by the applicant in the main proceedings, interrupted the limitation period for proceedings against the applicant.
16
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 EU law in order, as is clear from the third recital of that regulation, to counter acts detrimental to the European Union’s financial interests in all areas (judgment of 7 April 2022, IFAP, C‑447/20 and C‑448/20, EU:C:2022:265, paragraph 45 and the case-law cited).
17
It should also be borne in mind that, under the first subparagraph of Article 3(1) of that regulation, the ‘limitation period for proceedings shall be four years as from the time when the irregularity … was committed’. The second subparagraph of Article 3(1) lays down specific rules regarding the starting point of that period for ‘continuous or repeated irregularities’ and ‘multiannual programmes’. According to the third subparagraph of Article 3(1), the limitation period for initiating legal proceedings is interrupted ‘by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity’.
18
Therefore, by its question, the referring court asks, in essence, whether the third subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that an on-the-spot check report, which merely reveals the existence of an irregularity and does not mention any intention to investigate or institute legal proceedings in respect of that irregularity, can be considered to be an ‘act relating to investigation or legal proceedings’, within the meaning of that provision, such as to interrupt the limitation period of the proceedings, referred to in the first subparagraph of Article 3(1) of that regulation.
19
As regards the concept of ‘act relating to investigation or legal proceedings’ within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95, the Court has held that limitation periods of proceedings 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 (see, to that effect, judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 41 and the case-law cited).
20
However, when the national authorities send a person a report drawing attention to an irregularity in which that person is said to have played a part in connection with a specific operation, ask the person for further information concerning that operation or apply a penalty to the person in connection with that operation, those authorities adopt acts relating to investigation or legal proceedings concerning the irregularity which are sufficiently specific for the purposes of the third subparagraph of Article 3(1) of Regulation No 2988/95 (judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 42 and the case-law cited).
21
It can be considered that acts, such as those listed, as examples, in the previous paragraph of the present order, set out with sufficient precision the transactions to which the suspicions of irregularities relate (see, to that effect, judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 45).
22
It follows therefrom that an act must set out with sufficient precision the transactions to which the suspicions of irregularities relate in order to constitute 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 requirement for precision does not, however, require the act to state the possibility that a penalty or particular administrative measure may be imposed (judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraph 43).
23
As a result, a control report which, as in the main proceedings, merely reveals the existence of an irregularity without stating the possibility that a penalty or particular administrative measure may be imposed, can nevertheless be considered to be an ‘act relating to investigation or legal proceedings’, within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95, if it sets out with sufficient precision the transactions to which the suspicions of irregularities relate (see, to that effect, judgment of 11 June 2015, Pfeifer & Langen, C‑52/14, EU:C:2015:381, paragraphs 46 and 47).
24
In that connection, it is apparent from the wording of the question referred that the control report in the main proceedings corresponds to the control reports referred to in Article 54 of Regulation No 1122/2009.
25
Under Article 54(1)(b) of that regulation, those reports must reflect the checks carried out in respect of each of the acts and standards and set out, more specifically, the requirements and standards subject to the on-the-spot check, the nature and extent of checks carried out, the findings and the acts and standards in relation to which non-compliances are found.
26
It is clear that a control report which meets the requirements laid down in that provision sets out, in any event, with sufficient precision the transactions to which the suspicions of irregularities relate in order to constitute an ‘act relating to investigation or legal proceedings’, within the meaning of the third subparagraph of Article 3(1) of Regulation No 2988/95.
27
In the present case, in so far as it is not apparent whether the national courts before which the case was brought at first instance and on appeal examined whether the control report in the main proceedings notified to OF did meet those requirements, it is for the referring court to draw the appropriate conclusions therefrom and, as the case may be and in the light of the content of that report, to carry out the necessary checks in the light of the guidance set out in paragraphs 19 to 23, 25 and 26 of the present order, or to order that those checks be carried out.
28
Having regard to all the foregoing considerations, the answer to the question referred is that the third subparagraph of Article 3(1) of Regulation No 2988/95 must be interpreted as meaning that an on-the-spot check report, which merely reveals the existence of an irregularity and does not mention any intention to investigate or institute legal proceedings in respect of that irregularity, can nevertheless be considered to be an ‘act relating to investigation or legal proceedings’, within the meaning of that provision, such as to interrupt the limitation period of the proceedings, referred to in the first subparagraph of Article 3(1) of that regulation, if it sets out with sufficient precision the transactions to which the suspicions of irregularities relate.
Costs
29
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.
On those grounds, the Court (Ninth Chamber) hereby rules:
The third 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 must be interpreted as meaning that an on-the-spot check report, which merely reveals the existence of an irregularity and does not mention any intention to investigate or institute legal proceedings in respect of that irregularity, can nevertheless be considered to be an ‘act relating to investigation or legal proceedings’, within the meaning of that provision, such as to interrupt the limitation period of the proceedings, referred to in the first subparagraph of Article 3(1) of that regulation, if it sets out with sufficient precision the transactions to which the suspicions of irregularities relate.
[Signatures]
(
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)	Language of the case: Portuguese.