62000CC0329_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1.
The Kingdom of Spain is applying to the Court of Justice for the annulment of Commission Decision 2000/449/EC of 5 July 2000 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the EAGGF
(2) ( "the contested decision"
) in so far as it provides for a financial adjustment in respect of expenditure declared by the Kingdom of Spain by way of compensatory aid for bananas for the 1995 and 1996 marketing years.
I ─ Legal background
2.
Article 5(2)(b) of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy
(3) provides:
"The Commission, after consulting the Fund Committee referred to in Article 11,
...
(b)
shall, before the end of the following year, on the basis of the documents referred to in paragraph 1(b), make up the accounts of the authorities and bodies.
"
3.
Article 5(2)(b) and (c) of the same regulation, as amended by Council Regulation (EC) No 1287/95 of 22 May 1995,
(4) provides:
"The Commission, after consulting the Fund Committee:
...
(b)
shall, before 30 April of the year following the financial year concerned, on the basis of the information referred to in point (b) of paragraph 1, clear the accounts of the paying agencies.
The accounts clearance decision ... shall not prejudice the adoption of a subsequent decision pursuant to point (c);
(c)
shall decide on the expenditure to be excluded from the Community financing referred to in Articles 2 and 3 where it finds that expenditure has not been effected in compliance with Community rules.
...
The Commission shall evaluate the amounts to be excluded having regard in particular to the degree of non-compliance found. The Commission shall take into account the nature and gravity of the infringement and the financial loss suffered by the Community.
A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication of the results of those checks to the Member State concerned. ...
"
4.
Article 2 of Regulation No 1287/95 reads as follows:
"1.
...
[This Regulation] shall apply from the financial year beginning on 16 October 1995.
2.
Refusal to grant financing as referred to in Article 5(2)(c) of Regulation (EEC) No 729/70 may not relate to expenditure claimed against a financial year prior to 16 October 1992, but without prejudice to decisions regarding the clearance of the financial years preceding the entry into force of this Regulation.
"
5.
The Commission's guidelines on financial adjustment were laid down in document VI/5330/97 of 23 December 1997. Where information provided by an inquiry is inadequate for assessing the losses sustained by the Community a flat-rate adjustment may be envisaged. The adjustment rates applicable are 2%, 5% or 10% depending on the extent of the risk of loss; in some cases the rate may be 25% or even higher, rising to 100% in exceptional cases.
6.
The regulations governing the sector concerned include in particular Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas
(5) and Commission Regulation (EEC) No 1858/93 of 9 July 1993 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the aid scheme to compensate for loss of income from marketing in the
banana sector.
(6)
7.
Regulation No 404/93 provided for compensation to be granted to producers for any loss of income following the introduction of the common organisation of the market in bananas.
8.
Article 12(1), (2), (3), (4), (5) and (7) of Regulation No 404/93 provides:
"1.
Compensation for any loss of income shall be granted to Community producers who are members of a recognised producers' organisation which is marketing in the Community bananas complying with the common standards laid down. ...
2.
The maximum quantity of bananas produced in the Community and marketed for which compensation may be paid shall be fixed at 854 000 tonnes (net weight) to be broken down as follows for each producer region in the Community:
(1)
420 000 tonnes for the Canary Islands,
...
3.
Compensation shall be calculated on the basis of the difference between:
─
the
"flat-rate reference income"
for bananas produced and marketed within the Community, and
─
the
"average production income"
obtained on the Community market during the year in question for bananas produced and marketed within the Community.
4.
The
"flat-rate reference income"
shall be:
─
the average price of bananas produced in the Community and marketed during a reference period prior to 1 January 1993 to be determined in accordance with the procedure laid down in Article 27;
─
less the average cost of transport and delivery fob.
...
5.
The
"average production income"
for Community bananas shall be calculated each year from:
─
the average price of bananas produced in the Community and marketed during the year in question,
─
less the average cost of transport and delivery fob.
...
7.
Advances may be paid, against a security, on the basis of compensatory aid granted in the previous year.
"
9.
Article 4(1), (3) and (5) of Regulation No 1858/93 provides:
"1.
Applications for advances may be submitted in accordance with the timetable laid down in Article 7(2).
...
3.
Payment of the advance shall be subject to the lodging of a security together with the application. The amount of this security shall be fixed at 50% of the advance.
...
5.
The security shall be released as soon as the definitive aid is paid by the competent authority.
"
II ─ Facts and pre-litigation procedure
10.
During an inspection visit to the Canary Islands in January 1997 Commission officials found that invoices relating to a significant quantity of bananas intended for the Canary Islands market, drawn up by a number of producers' organisations contained prices which could only be called token prices (ESP 1, 2 or 5/kg).
11.
The explanations given to the Commission officials showed that the checks on those operations had been made at a purely administrative level, so the Commission considered that there was a genuine risk that those invoices related either to bananas which had not actually been marketed, or to bananas which were of poor quality. The Commission inspectors considered that the Spanish authorities should have carried out additional checks.
12.
The Commission sent its findings to the Kingdom of Spain by letter of 8 July 1997.
13.
A further visit was made by Commission officials in November 1997.
14.
At a bilateral meeting held on 31 March 1998 the Commission gave its agreement to the authorities of the Autonomous Community of the Canaries for it to conduct an audit within those undertakings which had bought bananas at a low price during the 1996 financial year. The audit took place in May 1998. The audit report sent to the Commission on 2 July 1998 did not reveal any consignment which had been placed on the marketed at under ESP 10/kg.
15.
The Commission officials considered that that report confirmed their own views.
16.
By letter of 15 June 1999 the Commission proposed a financial adjustment based on the difference between the compensatory aid paid to Spanish producers and the compensatory aid which would have been paid to them if the quantities concerned and the relevant prices had been excluded, in whole or in part, from the calculation of the average Community aid.
17.
By letter of 4 August 1999 the Spanish authorities applied for the conciliation procedure to be initiated.
18.
The Conciliation Body set up by Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the European Agricultural Guidance and Guarantee Fund (EAGGF) Guarantee Section
(7) ( "the Conciliation Body"
) delivered its final report on 4 February 2002. It states that it is extremely difficult to settle the dispute between the parties since their positions are based on assumptions rather than confirmed facts. It mentions that the evidence in its possession gives no reason to exclude the fact that the quality of the bananas in question was below standard, but it is unlikely that all the quantities concerned were of poor quality. It is also possible that frauds were committed in connection with the qualities actually sold, but no specific evidence was submitted to it to that effect.
19.
According to the Conciliation Body, the reasoning of the Spanish authorities was therefore also plausible. In particular, it was possible that small quantities of bananas complying with the standards were disposed of at prices below the cost price, since selling them would have enabled the producers to receive compensatory aid which they would otherwise have lost. Such a practice is not prohibited.
20.
The Conciliation Body concludes that it was unable to reach a compromise between the views of the two parties. It nonetheless requests the Commission to check the basis for its proposed financial adjustment in the light of the observations it made to it.
21.
On 15 May 2000 the Commission adopted its consolidated report. It concluded that the Spanish authorities did not manage to show that the contested sales at extremely low prices had actually been made or that they met the conditions specified. The Commission stated that it was proposing a financial adjustment based on withdrawal of an amount equivalent to 100% of the compensatory aid relating to the quantities of bananas marketed at below ESP 5/kg and of an amount equivalent to 25% in the case of quantities of bananas marketed at between ESP 5 and 10/kg; that adjustment also meant recalculating the amount of compensation by subtracting the said goods in order to determine the average ex-warehouse processing price and prevent the assumed
"sales"
from having an impact on the final amount of compensatory aid. The total amount of the adjustment was ESP 428 882 534.
22.
The procedure ended on 5 July 2000 with the adoption of the contested decision imposing the financial adjustment stated in the consolidated report.
III ─ Forms of order sought
23.
The Kingdom of Spain claims that the Court should annul the contested decision in so far as it refers to compensatory aid for bananas in Spain and order the Commission to pay the costs.
24.
The Commission contends that the application should be dismissed and the applicant ordered to pay the costs.
IV ─ Assessment
25.
The Spanish Government puts forward three pleas.
26.
First, by refusing to finance expenditure effected during the 1995 financial year the Commission committed an error and infringed the principles of legitimate expectations and legal certainty.
27.
Second, the Commission made an error in the data it used in order to calculate the financial adjustment and drew incorrect conclusions from its findings.
28.
Third, the contested decision fails to state adequate grounds.
A ─
First plea: error in extending the adjustment to expenditure in 1995
29.
The Spanish Government contends that it was incorrect for the contested decision to apply also to expenditure effected in 1995, since that expenditure had already been cleared by another decision, namely Commission Decision 1999/187/EC of 3 February 1999 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1995 financed by the EAGGF.
(8) The only exceptions to the clearance as regards Spain related to so-called
"disallowed"
expenditure listed in paragraph 1(f) of the annex to that decision and to the so-called
"excluded"
quantities listed in paragraph 1(c) of that annex.
30.
The payments relating to bananas do not form part of the excluded quantities but of the recognised expenditure and were therefore cleared.
31.
By refusing to finance that expenditure the Commission is infringing the principle of legitimate expectations to the detriment of the Spanish administration and of the individual recipients of compensatory aid.
32.
The Commission is also infringing the principle of legal certainty. The Spanish Government observes that it is essential that the Community institutions respect the intangible nature of the measures they have adopted.
33.
The Commission considers that the first plea relied on by the Spanish Government is unfounded. It contends that Decision 1999/187 did not clear the amounts paid by way of the compensatory aid in question.
34.
According to the Commission, the payments made to producers during the 1995 marketing season, from 1 January 1995 to 31 December 1995, were merely advances on the final amounts of compensatory aid. The aid cannot be regarded as being finally received until the balance of the aid has been paid and the security released, which took place during the 1996 financial year, from 16 October 1995 to 15 October 1996, and not during the 1995 financial year.
35.
The Commission states that in order to be able to consider that there is entitlement to the aid, as provided in Regulation No 1858/93, as amended by Commission Regulation (EC) No 796/95 of 7 April 1995,
(9) it must have at its disposal all the data relating to the annual reference period, corresponding to the marketing season, which, in the case of bananas, corresponds to the calendar year. It is only once it is in possession of that data, at the end of the year, that the Commission ascertains whether the circumstances justifying payment of the aid exist, in the sense that production income was less than the reference income, and fixes the amount of the aid. Only then can the balance be paid and the securities released. The amounts paid previously must be regarded just as provisional payments on account open to subsequent revision. Until then there is no entitlement to aid, it is not possible to calculate the amount of any aid and hence consider that there is a particular amount to be cleared.
36.
The Commission therefore contends that, as regards the bananas marketed in 1995, since the aid was only finally paid in 1996, Decision 1999/187 relating to the 1995 financial year, could not clear the amounts paid by way of the aid in question.
37.
I support the Commission's position that Decision 1999/187 does not cover the expenditure adjusted by the contested decision.
38.
It is clear from the annex to the contested decision that the adjustments disputed by the Kingdom of Spain concern expenditure relating to financial years 1996 and 1997. However, Decision 1999/187 clears the accounts for financial year 1995. As regards other financial years, Decision 1999/187 does not relate to the expenditure covered by the contested decision.
39.
The Spanish Government submits, however, that some of the expenditure adjusted by the Commission relates in actual fact to financial year 1995.
40.
It considers, in particular, that
"the Commission should have taken into account solely amounts paid by way of compensatory aid for bananas during financial year 1996 and not taken into consideration
payments made during financial year 1995
, which ... had already been settled"
.
(10)
41.
That argument cannot be accepted, however.
42.
As the Commission rightly observes,
"payments made during financial year 1995"
are, in the context of Regulations Nos 404/93 and 1858/93, regarded as advances.
43.
In that regard, it is appropriate to refer to Article 7(2) of Regulation No 1858/93, which reads:
"[a]pplications shall be submitted:
(a)
in the case of
advances
, in the first ten days of March, May, July, September and November
in the case of bananas actually marketed during the two-month period preceding the month of application
; ...
(b)
in the case of
payment of the balance of the aid, in the first ten days of January of the year following that in respect of which the aid is applied for
.
The balance shall comprise:
─
the aid for bananas marketed during November and December, and
─
where applicable, the adjustment to the amounts paid for bananas marketed during the periods referred to in (a), on the basis of the definitive amount of aid
"
.
(11)
44.
It is clear from that provision that the marketing of bananas gives rise, during the year in which it takes place, to payment of an advance to the producer. The producer does not receive the balance of the aid until the following year.
45.
That interpretation is also confirmed by the sixth recital
in the preamble to Regulation No 1858/93, to which the Commission refers, which provides:
"... in view of the fact that the compensatory aid for a given year cannot be determined and paid until the beginning of the following year, it is necessary to grant advances in order to maintain normal disposal of Community produce and achieve the measure's objective; whereas, however, these advances must be paid subject to a security to cover the possibility of the aid eventually paid being less than the total of the advances"
.
46.
Thus, if the Commission found irregularities in the marketing of bananas during 1995 and 1996, the producers had only received advances in respect of such marketing during those years. The balance of the aid, however, was not paid until 1996 and 1997, respectively.
47.
The Commission observes, quite rightly, that since the amount of aid was not determined finally until 1996 and 1997 that aid was cleared during the procedures relating to financial years 1996 and 1997, and not during the procedure relating to financial year 1995, which was the subject of Decision 1999/187.
48.
The procedure for the clearance of accounts relates, as the title of Decision 1999/187 confirms moreover, to
"expenditure"
financed by the EAGGF.
49.
There is no expenditure to be financed by the EAGGF until the aid has become final and the security has been released. Up until then it is in fact uncertain whether there is any such expenditure and the amount paid by way of an advance can always be recovered through forfeiture of the security if no aid proves to be due.
50.
The Spanish Government also wonders why in that case the Commission did not make clear in Decision 1999/187 that it was not including the expenditure relating to compensatory aid for bananas on the grounds that the final payment had not been made before 1996, although it had expressly made that clear in that decision with regard to aid for producers of certain herbaceous crops.
51.
I am, however, of the view that the only fact that the Commission referred to herbaceous crops but not to bananas in the recitals in the preamble to Decision 1999/187 is insufficient to conclude that that decision cleared the amounts paid by way of advances to banana producers in 1995. The existence of expenditure to be financed by the EAGGF depends on the regulations in force and not on one of the recitals in the preamble to a Commission decision.
52.
The Spanish Government also considers that the point of view that the payments made in 1995 must be regarded as advances is not consistent if one takes account of Article 7(4), fourth subparagraph, (b), of Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy,
(12) which relates to aid for rural development.
53.
According to the Spanish Government, the European legislature introduced a distinction between the aid to rural development referred to in that Article 7 and other aid. As regards rural development aid, payments preceding the final payment only constitute advances. However, in the case of other types of aid such as compensatory aid for bananas, the various payments up to the final payment should not be regarded as advances. Those payments form part of the compensatory aid granted and could be settled. In this case they were settled by Decision 1999/187 relating to financial year 1995.
54.
In that regard, it is appropriate to point out that Article 7(4), fourth subparagraph, of Regulation No 1258/1999 provides:
"[a] refusal to finance may not involve:
(a)
expenditure referred to in Article 2 effected prior to 24 months preceding the Commission's written communication of the results of those checks to the Member State concerned;
(b)
expenditure for a measure or action referred to in Article 3 in respect of which the final payment was effected prior to 24 months preceding the Commission's written communication of the results of those checks to the Member State concerned.
"
55.
As the Commission rightly observes, Regulation No 1258/1999, which replaces Regulation No 729/70, applies, under Article 20, only to expenditure effected from 1 January 2000. It does not apply to the expenditure at issue in this case and it therefore appears difficult to deduce from it an interpretation which affects it.
56.
For the rest, the fact that, as regards aid for rural development, the period of twenty-four months runs from the final payment, does not yet mean that, in the case of the aid referred to in the said Article 7(4), fourth subparagraph (a), every payment, whether final or not, must be regarded as
"expenditure"
which triggers the start of the period of twenty-four months.
57.
As the Commission rightly points out,
"the fact that the part payments are regarded as expenditure to be cleared or that payment of the balance is awaited depends exclusively on the characteristics of the aid and the sector, and on the rules governing it"
.
58.
It is therefore by reference to Regulation No 1858/93 that it is appropriate to define the term
"expenditure"
for the purposes of Article 7(4), fourth subparagraph, (a), of Regulation No 1258/1999 and not by reference to Article 7(4), fourth subparagraph, (b), of that regulation.
59.
In the light of this, I am of the view that the expenditure adjusted by the contested decision does not relate to financial year 1995, which was the subject of Decision 1999/187.
60.
The premise on which the Spanish Government bases its first plea, which is essentially that there is an overlap between Decision 1999/187 on the one hand and the contested decision on the other is not therefore correct.
61.
It follows that Decision 1999/187 could not create any legitimate expectations that the expenditure at issue in the contested decision would never be adjusted. Since the rules are logical and consistent there was no breach of the principle of legal certainty either.
62.
Those findings are sufficient to propose that the Spanish Government's first plea should be rejected.
63.
In order to be exhaustive, it is appropriate, however, to consider also the argument put forward as an alternative claim by the Commission that even if financial year 1995 were to be regarded as the relevant year, Decision 1999/187 would not have cleared all the expenditure effected during that year.
64.
In particular, the Commission refers to the last recital in the preamble to Decision 1999/187, which states that the decision
"is without prejudice to any financial consequences drawn by the Commission, during a subsequent accounts clearance procedure, from current investigations under way at the time of this Decision ..."
, that is to say 3 February 1999.
65.
The Commission states that the inquiries into the contested compensatory aid had not been concluded on that date, if only because it had not yet notified the Spanish Government of the final result.
66.
In addition, the Commission refers to the twelfth recital in the preamble to Decision 1999/187, which states that
"Article 5(2)(c) of Regulation (EEC) No 729/70 [as amended by Regulation No 1287/95] provides that the Commission may refuse to finance expenditure effected within a period of 24 months preceding its written communication of the results of its checks to the Member States concerned; whereas the Commission has communicated the results of certain checks to the Member States concerned between May and September 1997; whereas financial consequences may arise from these checks and that these consequences may affect expenditure declared in the financial year 1995; whereas this Decision does not prejudice the Commission's right to exclude by subsequent Decision from Community financing expenditure effected in the financial year 1995 for which it finds as a result of the aforementioned checks that this expenditure was not in compliance with Community rules"
.
67.
In that regard, it is appropriate in the first place to refer to paragraph 30 of the judgment in Case C-61/95
Greece
v
Commission
,
(13) in which the Court held:
"[T]he Commission, after consulting the EAGGF Committee, is to make up the accounts of the authorities and bodies, before the end of the following year, on the basis of the annual accounts. However, if the information that should be supplied by the Member States and the checks that it considers necessary to undertake do not lead to any definite results, the Commission is entitled to draw up the accounts on the basis of the information obtained during the clearance procedure, reserving to itself the possibility of correcting that decision in a subsequent clearance"
.(14)
68.
In my view it is clear from this that the Commission can indeed retain the possibility of making adjustments as part of a later clearance operation if some information is lacking, for example, due to the fact that inquiries are still in progress.
69.
Second, contrary to what the Spanish Government contends, the fact that the Commission adopted Decision 1999/187 has not deprived the Commission of the opportunity of making further adjustments affecting expenditure for financial year 1995.
70.
Specifically, the Spanish Government considers that Article 5(2)(c) of Regulation No 729/70, as amended by Regulation No 1287/95, on which the contested decision is based, could not apply to expenditure effected in 1995 because, under Article 2(1) of Regulation No 1287/95, Article 5(2)(c) of Regulation No 729/70 did not enter into force until financial year 1996.
71.
However, as the Commission rightly observes, the Spanish Government's view is contradicted by the case-law of the Court.
72.
In Case C-278/98
Netherlands
v
Commission (15) the Court held that
"[i]n order to give Article 2(2) of Regulation No 1287/95 a useful sense, the correction procedure must be taken to apply to financial years subsequent to 16 October 1992 which were not the subject of a clearance decision prior to the entry into force of that regulation"
.
73.
Moreover, in Case C-373/99
Greece
v
Commission (16) the Court inferred that
"... as far as the clearance of accounts for 1994
[Tr. Note: French text reads 1995]
is concerned, the Commission was required to implement the procedure referred to in Article 5(2)(c) of Regulation No 729/70[, as amended by Regulation No 1287/95]"
.
74.
The Spanish Government's response, however, is that if it were to be accepted that the adjustment procedure could nonetheless cover expenditure relating to financial year 1995 the period of twenty-four months provided for in Article 5(2)(c), fifth subparagraph, of Regulation No 729/70, as amended by Regulation No 1287/95 would apply.
75.
Specifically, according to the Spanish Government, that period should be calculated from the letter of 8 July 1997, which was the date on which the Commission first communicated the results of its inspections to the Kingdom of Spain. Expenditure prior to 8 July 1995 cannot therefore be taken into account for the adjustment.
76.
At that date a good part of the expenditure for financial year 1995 relating to the harvests for that year had already been effected, according to the Spanish Government.
77.
I share the Spanish Government's view that the period of twenty-four months provided for in Article 5(2)(c) of Regulation No 729/70, as amended by Regulation No 1287/95, applies in this case.
78.
The contested decision is, in fact, based on Article 5(2)(c), the fifth subparagraph of which lays down the period of twenty-four months, as follows:
"A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication of the results of those checks to the Member State concerned. ..."
79.
The significance of the period of twenty-four months, which, according to the sixth recital in the preamble to Regulation No 1287/95, is designed to determine
"the maximum period to which the consequences to be drawn from the checks on conformity [carried out by the Commission] may be applied"
, has already been stated in the case-law of the Court.
(17)
80.
Thus, in paragraph 133 of Case C-130/99Spain
v
Commission
, cited above, the Court held that
"[t]he purpose of that limitation is to protect Member States against the absence of legal certainty which would exist if the Commission were able to call into question expenditure incurred several years before the adoption of a compliance decision"
.
81.
It follows that, if the expenditure adjusted by the contested decision did relate to financial year 1995 it could no longer be the subject of an adjustment since it was effected before 8 July 1995.
82.
The parties do not dispute the fact that the communication in writing, within the meaning of Article 5(2)(c), fifth subparagraph, of Regulation No 729/70, as amended by Regulation No 1287/95, was made on 8 July 1997. The period of twenty-four months therefore extended to 8 July 1995.
83.
The effect of the foregoing is that the subsidiary argument put forward by the Commission based on the recitals in the preamble to Decision 1999/187 is only partly valid.
84.
Despite the reservations expressed by the Commission in those recitals with regard to adjustments which could still affect the expenditure relating to financial year 1995, the Commission would not have been authorised to adjust expenditure effected before 8 July 1995.
85.
The simple fact of expressing reservations in the recitals in the preamble to a clearance decision does not free the Commission from the obligation to comply with the period of twenty-four months provided in Article 5(2)(c), fifth subparagraph, of Regulation No 729/70.
86.
I would point out, however, that the Commission's subsidiary argument is not relevant as regards resolving the dispute since to my mind it has been established that the contested decision does not cover expenditure relating to financial year 1995.
87.
I therefore propose that the first plea relied on by the Spanish Government should be rejected.
B ─
Second plea: error in the data used and error of interpretation
88.
The Spanish Government's second plea divides essentially into two limbs. The Government accuses the Commission, on the one hand, of taking incorrect data as its basis and, on the other hand, of drawing incorrect conclusions from that data.
As regards the use of incorrect data
89.
The Spanish Government contends that the Commission incorrectly used marketing data relating to financial years 1996 and 1997 and applied them to the 1995 and 1996 marketing seasons, which are calendar years and do not coincide with the financial years concerned. That practice is not only illogical, it is also incorrect.
90.
The Spanish Government claims that when the Commission officials asked the Spanish authorities to provide that data the terms they used were
"years 1995 and 1996"
, the term
"year"
corresponding, as regards the settlement of accounts, to the financial year. It states that when the Spanish authorities provided the figures they expressly indicated the two months of aid applications corresponding to each of the EAGGF financial years so that there could be no confusion. At no time, however, did the Commission officials indicate that the data supplied to them was incorrect.
91.
The Commission replies that it used the data which the Spanish authorities sent it and contends that it suggested to those authorities on a number of occasions that they should provide more specific data, indicating that it was prepared to redo the calculations. The Commission mentions in that regard its letter of 15 June 1999 and the suggestion it made subsequently and which the Conciliation Body mentions in its report.
92.
In that regard, it should be pointed out that the adjustment is based on the findings made by the Commission that, during the years 1995 and 1996, significant quantities of bananas taken into account for the calculation of the compensatory aid had been sold on the local market in the Canary Islands at extremely low prices, of below ESP 10/kg and even as little as the token price of ESP 1/kg.
93.
Even if the irregularities which the Commission inferred from this affect, for reasons already explained above, expenditure relating to financial years 1996 and 1997, the substantive data providing the basis for the conclusion that an irregularity exists relate to the years 1995 and 1996.
94.
It is clear in particular from the abovementioned letter of 15 June 1999 that the Commission was in fact guided by the substantive data relating to the years 1995 and 1996. Thus, in that letter, it refers to average prices for those years.
95.
For the rest, as the Commission rightly observes, that letter enabled the Spanish Government to correct the data it used. Thus, as footnote 1 to the annex to that letter mentioned:
"[i]f the Spanish administration has more specific data for this calculation it is requested to send it to us"
.
96.
The Spanish Government does not, therefore, show that the Commission used incorrect data or misled the Spanish authorities as regards the data to be provided.
97.
In my view, therefore, the first limb of the second plea is unfounded.
As regards the incorrect interpretation of the data
98.
The Spanish Government also considers that the findings made by the Commission during its inspections do not justify the contested adjustments.
99.
The Spanish Government rejects the Commission's conclusions based on the finding of an extremely low selling price. It denies that the Spanish authorities limited themselves to purely administrative checks and that there is a genuine risk that the invoices issued relate either to bananas which were not actually marketed, or to bananas which were of poor quality.
100.
First, the Spanish Government states that the
"low prices"
relates only to very small quantities. The quantities of bananas sold at prices of between ESP 1 and 5/kg, and between ESP 5 and 10/kg represent 0.48% and 0.4%, respectively, of the total volume of bananas in respect of which compensatory aid was applied for during financial year 1995, and 0.9% and 0.5%, respectively, of the same volume for financial year 1996.
101.
Second, the Spanish Government contends that compliance with quality standards is ensured under the provisions of Commission Regulation (EC) No 2898/95 of 15 December 1995 concerning verification of compliance with quality standards for bananas
(18) and by various sample checks. Other checks were carried out following short-term problems and complaints or on the basis of evidence of irregularity. In addition, an
"automatic alarm"
system was introduced, involving specific checks where reports drawn up by the competent authorities indicate that prices have fallen below the established threshold.
102.
In addition to those checks, the Intervención General de la Administración del Estado and the Servicio de Inspección Financiera de la Comunidad Autónoma de Canarias carry out ex post checks with the recipients of compensatory aid.
103.
As regards the EAGGF financial year 1995, checks were thus made with Coplaca, Félix Santiago Melián and Compañía Agrícola de Tenerife SA, which are some of the recipient producers.
104.
During the EAGGF financial year 1996 members of the Sociedad Cooperativa San Lorenzo (COSLO) and various recipients from SAT Plátanos Taburiente were inspected.
105.
Both Coplaca and SAT Plátanos Taburiente submitted invoices at
"low prices"
in respect of the period being checked. All the inspection reports indicate that the commercial transactions were indeed carried out during the reference period. Those transactions were correctly listed in the undertakings' accounts. The quantity of bananas supplied and packaged coincide with the quantity of bananas in respect of which aid was received. The quality checks are confirmed in writing. Lastly, the relevant supporting documents establish that the volume of bananas for which aid was sought was indeed marketed on the Canaries market and on the Iberian peninsula.
106.
Thirdly, the Spanish Government refers to the observation by the Conciliation Body that it is unlikely that substandard bananas were put on sale in a situation where there is excess supply.
107.
Fourthly, the low level of prices on the island market might be due to a number of reasons: there was excess supply on the continental market; other substitute fruit offered at lower prices appeared on the market; non-Community bananas were penetrating the Spanish market to an excessive extent; certain climatic factors were behind an increase in supply on the market.
108.
Fifthly, the Spanish Government mentions another comment made by the Conciliation Body, namely that it is perfectly possible that small quantities of bananas complying with quality standards were marketed at prices below the cost price (harvesting, packaging and transport) since their sale would have enabled producers to receive compensatory aid which they could not have received otherwise.
109.
In its reply, the Spanish Government refers to the weekly lists of prices charged by wholesalers on the Canaries market, which it had previously submitted to the Conciliation Body, and a graph showing the trend in fruit prices. Those documents, annexed to its reply, make it possible to assess the huge variations which take place over the year, variations which are perfectly compatible with actual production activity.
110.
The Spanish Government also refers to an internal audit report relating to the 1996 season, submitted as an annex to its reply, which concludes that the sales were genuine and were eligible for compensatory aid.
111.
Lastly, as regards the level of the adjustment, the Spanish Government contends that the flat-rate adjustment criteria set out in document VI/5330/97 are by no means met in the present case.
112.
The Commission rejects the Spanish Government's argument that the financial adjustment was not justified given that adequate checks had been made and that the extremely low prices could be due, in particular, to short-term factors.
113.
The Commission submits that the need for a financial adjustment stems from the conclusions reached by its officials after carrying out a random check on a sample of over 100 payment files. Some of the prices found ─ those which were under ESP 5 or between ESP 5 and 10/kg ─ could, according to the Commission, be called
"token"
prices. The Commission points out that, in comparison, the average annual marketing price for bananas was ESP 16/kg in 1995 and ESP 22.7/kg in 1996; on a weekly basis the lowest average was ESP 10/kg in 1995 and ESP 18/kg in 1996, although during the fourteenth week a fall of up to ESP 9.47/kg was observed.
114.
The explanations provided by the Canaries authorities revealed that the checks on sales transactions did not go beyond a purely administrative and superficial level. Furthermore, the information checked revealed that the inspection capabilities available to the regional agricultural authorities had not been used very often for that type of transaction.
115.
The Commission mentions that, in the light of that information, it considered that the token prices related to fictitious sales or to sales of sub-standard products, whilst accepting that reasonable doubt might exist regarding the quantities marketed at between ESP 5 and 10/kg, but that there could be no doubt regarding the quantities marketed at under ESP 5/kg.
116.
The Commission submits that the applicant was unable to provide evidence that that fruit had actually been marketed. The Commission states that, at a bilateral meeting, it agreed to the Canaries authorities organising an audit in order to compare purchases of bananas by intermediaries and their subsequent sales of such bananas. The report prepared at the end of that audit relating to the months of July and August 1996, a period during which prices tend to fall, revealed that prices of second grade bananas, in other words, those of inferior quality, remained within a range of ESP 10 to 50/kg. Consequently, the report did not, in the Commission's view, show that sales had been made at under ESP 10. Details on that report, supplied subsequently by the Kingdom of Spain, did not provide evidence that the sales were genuine, which is why the Commission decided to stay with its initial conclusions and apply the proposed adjustment.
117.
The Commission then responds to the five observations made by the Spanish Government.
118.
First, the Commission states that it shares the Spanish Government's view that the quantities of bananas sold at abnormally low prices were
"very small"
. It adds, however, that it is precisely for that reason that the adjustment is small and only relates to those quantities.
119.
Second, as regards the quality of the checks, the Commission observes that the fact that bananas were marketed at abnormally low prices did not lead to additional on-the-spot checks. The so-called
"automatic alarm"
system did not come into effect until 1997, whereas the seasons which were the subject of clearance covered the years 1995 and 1996 and were therefore over by then.
120.
Third, the Commission dismisses the Spanish Government's argument that it is improbable that there were any sales of poor quality bananas on the ground that intermediaries would have no commercial interest in making such sales. It considers that, on the contrary, one of the intermediaries' main commercial criteria is the price which might prompt them to make such sales.
121.
Fourth, the Commission considers that the explanation for such low prices lies neither in excess supply, nor the presence on the market of substitute products, nor climatic reasons.
122.
Fifth, the Commission recognises that some producers might wish to sell their products at any price in order to receive compensatory aid which they would otherwise have lost. It adds, however, that such a sale should at any rate be genuine and concern bananas of monitored quality. At the prices which were recorded, the Commission does not consider it possible that those two conditions were met.
123.
In its rejoinder the Commission contends that its arguments are by no means rebutted by the price statistics which the Spanish Government attached to its reply. Those statistics show the significant fluctuations in the price of bananas from the Canary Islands but do not explain the exceptionally low selling prices that the Commission found.
124.
Moreover, the price graph submitted by the applicant shows wholesale prices, whereas the adjustment is based on the prices at which producers sold the bananas to the wholesalers.
125.
The Commission considers that the Kingdom of Spain had the opportunity to show that the sales were genuine but failed to do so, merely providing statistics and documentation regarding sales by intermediaries and the prices charged to retailers and not those relating to sales and prices between producers and intermediary purchasers. The same criticism applies to the internal audit report which the Spanish Government produced with its reply.
126.
Lastly, as regards the method used to determine the financial adjustment, the Commission considers that, despite what the Spanish Government contends, it was not incorrect.
127.
The Commission submits that the references made by the applicant to certain criteria laid down in document VI/5330/97 are irrelevant because they only relate to flat-rate adjustments, an option which the Commission did not use in this case because it was able to assess the damage actually sustained.
128.
What is one to think of those arguments?
129.
It is appropriate to begin the assessment with a reference to Case C-373/99
Greece
v
Commission
, cited above, in which the Court ruled as follows on the division of the burden of proof between the Commission and the Member State concerned regarding the existence of an infringement of the rules on the common organisation of the agricultural markets:
"10.
It is for the Commission to prove an infringement of the rules on the common organisation of the agricultural markets. Accordingly, the Commission is obliged to give reasons for its decision finding an absence of, or defects in, inspection procedures operated by the Member State in question (see, in particular, Case C-247/98
Greece
v
Commission
[2001] ECR I-1, paragraph 7, and the case-law cited there).
11.
However, the Commission is not required to demonstrate exhaustively that the inspections carried out by the national authorities are insufficient, or that the data submitted by them are irregular, but to
adduce evidence justifying serious and reasonable doubt on its part regarding those inspections or data
(see Case C-54/95
Germany
v
Commission
[1999] ECR I-35, paragraph 35, Case C-28/94
Netherlands
v
Commission
[1999] ECR I-1973, paragraph 40, and
Greece
v
Commission
, cited above, paragraph 8).
12.
The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts and,
consequently,
it is for that State to adduce the most detailed and comprehensive evidence
that its inspections or figures are accurate and, if appropriate,
that the Commission's statements are incorrect
(Germany
v
Commission
, cited above, paragraph 35,
Netherlands
v
Commission
, cited above, paragraph 41, and
Greece
v
Commission
, cited above, paragraph 9)
"
.
(19)
130.
In the light of that case-law, I am of the view that the Commission adduced
"evidence justifying serious and reasonable doubt on its part"
regarding compliance with the rules of the common organisation of the market in bananas and, in particular, Article 12(1) of Regulation No 404/93, which provides:
"[c]ompensation for any loss of income shall be granted to Community producers who are members of a recognised producers' organisation
which is marketing in the Community bananas complying with the common standards laid down. ... "
.
(20)
131.
If, as the Commission did, one compares the prices at issue, recorded during inspections, with the prices generally ruling in the Canary Islands in 1995 and 1996, there is indeed
"serious and reasonable doubt"
as to whether the prices at issue, which were extremely low, if not token prices, related to genuine sales of bananas complying with established quality standards.
132.
Moreover, the Spanish Government, for its part, does not adduce
"the most detailed and comprehensive evidence ... that the Commission's statements are incorrect"
.
133.
On the one hand, as the Commission rightly observes, the existence of bananas marketed at abnormally low prices did not lead to additional on-the-spot checks or inspections during the seasons concerned, despite the suspicions of irregularity roused by such prices.
134.
In addition, one may question whether the ex post checks carried out by the Spanish authorities were exhaustive. As the Commission explains in its rejoinder, the internal audit report to which the Spanish Government refers in its reply
"solely records that [the sales] took place between intermediaries and retailers, and not between producers and intermediaries. [It] wonders why the inspectors only checked the sales invoices and took no interest in the purchase data of those undertakings. As the inspectors visited the undertakings it would not have caused them great difficulty and would have enabled the Kingdom of Spain to have reliable data on the subject"
.
135.
Since, under Article 12(1) of Regulation 404/93, aid is granted to banana producers, it is appropriate to establish whether at that level, rather than at intermediary level, the bananas sold complied with the quality standards.
136.
On the other hand, the Spanish Government does not rebut the Commission's explanations that:
"at a bilateral meeting with the Spanish authorities the Commission officials showed themselves willing to accept the evidence which the authorities were able to provide them with and were even ready to accept as evidence the results of a check designed to compare purchases of bananas by intermediaries and those intermediaries subsequent sales of bananas.
Despite the fact that the inspection report was based on a two-month period (July-August 1996), during which there was a downward trend in banana prices due to the increase in both the variety and quantity of supply, as stated in the report itself, the report confirmed that
"second grade"
banana prices, in other words, those of inferior quality, remained within a range of ESP 10 to 50
"
.
137.
The Commission in my view rightly infers that the audit report drawn up by the Spanish authorities themselves was unable to show that sales had actually been made at below ESP 10.
138.
The Spanish Government of course disputes that inference and refers to various short-term factors such as an excess supply on the market or climatic factors which it contends could explain the level of the prices recorded.
139.
I accept, with the Spanish Government, that the short-term factors it refers do influence the price and that it is precisely because of such factors that prices fluctuate.
140.
However, although short-term factors explain normal price fluctuations I share the Commission's view that such factors do not justify prices falling to an abnormally low, even a token, level.
141.
At most, such prices, if they did not conceal irregularities, might have been explained by an exceptional large-scale short-term factor. The Spanish Government has, nonetheless, failed to state what that was. Moreover, it is doubtful that such a factor could have gone unnoticed.
142.
As for the Conciliation Body's observation that it is unlikely that substandard bananas were put on sale in a situation where there was surplus supply, it must be pointed out, first, that
"when the Commission makes its decision it is not bound by the findings of the Conciliation Body"
.
(21)
143.
Also, as the Commission rightly observes, since the price for purchases from the producers is sufficiently low, even a token price, for bananas which do not comply with the quality standards, some intermediaries may feel inclined to market them even if there is a surplus supply of good quality bananas.
144.
I now come to the Conciliation Body's other comment, that
"it is quite possible that some, albeit only a few, quantities of bananas which met the standards were disposed of at prices which did not cover the picking and packaging costs or harbour expenses, since selling them enabled the producers to receive compensatory aid which they would otherwise have lost. That practice cannot be regarded as being prohibited by regulations which do not provide for a minimum price and which includes a mechanism for putting a ceiling on quantities which might receive compensatory aid"
.
145.
In my view this is a consideration which carries a great deal of weight. The fact that the Community regulations do not provide for a minimum price constitutes a manifest lacuna, but traders cannot be criticised for having taken advantage of it.
146.
I think therefore that I can support the Commission's position that with such low prices it is more doubtful that the bananas in question did meet the quality standards.
147.
Lastly, it must be said that from 1997 onwards the Canaries Government introduced an
"automatic alarm"
system which is triggered when prices fall below a specified threshold. It appears to be recognising in this way that the presence of excessively low prices cannot be thought of merely as the expression of any particular short-term factor.
148.
I am therefore of the view that the Commission has provided enough evidence to prove infringement of the rules of the common organisation of the market in bananas.
149.
In the context of the second limb of the second plea, the Spanish Government, however, disputes not only the existence of a breach of the rules of the common organisation of the market in bananas but also the level of the adjustment which the Commission imposed.
150.
In that respect, it should be pointed out that it is settled case-law that
"whilst it is for the Commission to prove that there has been a breach of the rules governing the common organisation of agricultural markets (see, for example, Case C-278/98
Netherlands
v
Commission
[2001] ECR I-1501, paragraph 39, and the case-law cited), it is for the Member State to demonstrate, if appropriate, that the Commission erred as to the action called for, on the financial level, as a result of that breach (see Case C-235/97
France
v
Commission
[1998] ECR I-7555, paragraph 39)"
.
(22)
151.
So far as disputing the level of the adjustment is concerned, the Spanish Government merely quotes certain passages from document VI/5330/97.
152.
However, as the Commission rightly observes, those passages concern the flat-rate adjustment, whereas in the present case the Commission calculated the adjustment not on a flat-rate basis but on the basis of the irregular quantities.
153.
I am, moreover, of the view that in any event the Commission did not commit an error in setting the level of the adjustment.
154.
Although the Spanish authorities themselves did not find any prices below ESP 10/kg for second grade bananas, the Commission did calculate a significant margin of plausibility of 75% for bananas marketed at between ESP 5 and 10/kg. The Commission therefore adjusted an amount equivalent to 25% of the compensatory aid relating to quantities marketed at a price of between ESP 5 and 10/kg. It is only for quantities marketed at under ESP 5/kg that the Commission adjusted an amount equivalent to 100% of the compensatory aid.
155.
For all the above reasons I conclude that the second limb of the second plea relied on by the Spanish Government should be rejected.
C ─
Third plea: insufficient grounds
156.
The Spanish Government submits that the contested decision contains insufficient grounds. The Commission did not explain either in the contested decision or during the procedure leading to its adoption the grounds on which the percentages of bananas excluded from Community financing are, on the one hand, 100% as regards bananas marketed at a price below ESP 5/kg and, on the other hand, 25% as regards bananas marketed at a price of between ESP 5 and 10/kg. The contested decision is totally lacking in grounds on that point, which prevents the Spanish Government from ascertaining the justification for the measure.
157.
The Commission disputes the plea put forward by the Kingdom of Spain. The Commission points out that case-law does not require detailed grounds since the Member State is closely associated with the process of drafting the decision. It mentions that in the present case the Kingdom of Spain knew from 15 June 1999, and even earlier, that the ground for the adjustment was the exceptionally low level of the selling prices.
158.
The Commission also points out that at no point in the proceedings did the Kingdom of Spain challenge the method of determining the adjustment percentages and had always understood the grounds for that.
159.
In that regard it is appropriate to point out that
"according to the settled case-law of the Court, in the particular context of the preparation of decisions on the clearance of accounts, the reasons for a decision must be considered adequate if the Member State to which the decision is addressed was closely involved in the decision-making process and is therefore aware of the reasons why the Commission considered that it was not required to charge the sum in dispute to the EAGGF (see Germany v Commission, cited above, paragraph 21)"
.
(23)
160.
There can be no dispute, in the light of the facts set out above, that the Spanish authorities were closely involved in the process of drafting the contested decision.
161.
Furthermore, the Consolidated Report adopted by the Commission on 15 May 2000 contains clear explanations regarding the grounds for the adjustment and for its calculation.
162.
I therefore propose that the third plea be rejected.
V ─ Conclusions
163.
In the light of the foregoing I propose that the Court:
─
dismiss the application;
─
order the Kingdom of Spain to pay the costs.
(1) .
(2)
OJ 2000 L 180, p. 49.
(3)
OJ, English Special Edition 1970(I), p. 218.
(4)
OJ 1995 L 125, p. 1.
(5)
OJ 1993 L 47, p. 1.
(6)
OJ 1993 L 170, p. 5.
(7)
OJ 1994 L 182, p. 5.
(8)
OJ 1999 L 61, p. 37.
(9)
OJ 1995 L 80, p. 17.
(10)
Emphasis added.
(11)
Emphasis added. Regulation No 796/95 replaced, with effect from 8 April 1995, the text of the Article 7(2) quoted by another text whilst maintaining the principle that advances are paid during year
x
and the balance of the aid is paid during year
x
+1.
(12)
OJ 1999 L 160, p. 103.
(13)
[1998] ECR I-207.
(14)
See also Case C-130/99
Spain
v
Commission
[2002] ECR I-3005, paragraph 164.
(15)
[2001] ECR I-1501, paragraph 82.
(16)
[2001] ECR I-9619, paragraph 81.
(17)
See Case C-130/99
Spain
v
Commission
, cited above, paragraphs 133 to 135 and Case C-158/00
Luxembourg
v
Commission
[2002] ECR I-5373, paragraphs 22 to 24.
(18)
OJ 1995 L 304, p. 17.
(19)
Emphasis added.
(20)
Emphasis added.
(21)
Case C-130/99
Spain
v
Commission
, cited above, paragraph 39. See also, Case C-374/99
Spain
v
Commission
[2001] ECR I-5943, paragraph 9, and Case C-44/97
Germany
v
Commission
[1999] ECR I-7177, paragraph 18.
(22)
Case C-130/99
Spain
v
Commission
, cited above, paragraph 42.
(23)
Case C-147/99
Italy
v
Commission
[2001] ECR I-8999, paragraph 57.