61996CJ0233_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-233/96,
Kingdom of Denmark, represented by P. Biering, Head of Division in the Ministry of Foreign Affairs, acting as Agent, with an address for service in Luxembourg at the Danish Embassy, 4 Boulevard Royal,
applicant,
v
Commission of the European Communities, represented by H.P. Hartvig, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of the Commission's Legal Service, Wagner Centre, Kirchberg,
defendant,
"APPLICATION for the annulment in part of Commission Decision 96/311/EC of 10 April 1996 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1992 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and in respect of certain expenditure for 1993 (OJ 1996 L 117, p. 19),
THE COURT
(Fifth Chamber),
composed of: C. Gulmann, President of the Chamber, M. Wathelet (Rapporteur), J.C. Moitinho de Almeida, J.-P. Puissochet and L. Sevón, Judges,
Advocate General: S. Alber,
Registrar: L. Hewlett, Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 4 February 1998,
after hearing the Opinion of the Advocate General at the sitting on 24 March 1998,
gives the following
Judgment
Grounds
1 By application lodged at the Court Registry on 9 July 1996, the Kingdom of Denmark brought an action under the first paragraph of Article 173 of the EC Treaty for the annulment in part of Commission Decision 96/311/EC of 10 April 1996 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1992 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and in respect of certain expenditure for 1993 (OJ 1996 L 117, p. 19, `the contested decision'), in so far as it refused to charge to the EAGGF DKR 26 867 909 declared by the Kingdom of Denmark in respect of 1991 and 1992 in the context of intervention purchases of beef and veal.
2 The basic rules for the common organisation of the market in beef and veal are contained in Regulation (EEC) No 805/68 of the Council of 27 June 1968 (OJ, English Special Edition 1968(I), p. 187).
Article 6 of that regulation authorises the Commission to intervene with a view to maintaining prices on the Community markets.
Regulation No 805/68 was amended in particular by Council Regulation (EEC) No 571/89 of 2 March 1989 (OJ 1989 L 61, p. 43), the version as thus amended (hereinafter `Regulation No 805/68') being that applicable to the relevant period in the present case (1991 and 1992).
3 Until 1989, there was a system of automatic intervention buying when prices fell below certain thresholds, with the result that very large quantities were purchased by the intervention agencies at prices exceeding the market price.
4 In order to remedy that unsatisfactory situation, the system was reformed in 1989.
Whilst preserving automatic buying-in in the event of a very large fall in prices, a system of buying-in by tendering procedures was introduced with a view to ensuring that the quantities bought in and the prices paid out did not go beyond what was required for reasonable support of the market.
5 Thus, under Article 6(2) of Regulation No 805/68, the Council sets the intervention price each year.
When market prices in the Community fall below certain percentages of the intervention price, the intervention agencies in one or more Member States may buy in certain categories, qualities or quality groups of beef and veal originating in the Community, under the conditions laid down in Article 6.
6 The buying-in is organised under tender procedures. Under Article 6(1), such purchases may not exceed a quantity of 220 000 tonnes per year for the entire Community.
7 However, under Article 6(5), in the event of a very steep fall in prices a procedure is implemented whereby all offers at or below 80% of the intervention price are then accepted and are not counted against the maximum quantity referred to in Article 6(1) (the `safety-net' procedure).
8 Under Article 6(6), tender procedures must ensure equality of access for all persons concerned and those procedures are opened on the basis of specifications.
9 In accordance with Article 6(7), the procedures implementing the intervention system are adopted by the Commission, which also decides on the opening and suspension of tender procedures after consulting a management committee.
During the period to which the present case relates, those procedures were defined by Commission Regulation (EEC) No 859/89 of 29 March 1989 laying down detailed rules for the application of intervention measures in the beef and veal sector (OJ 1989 L 91, p. 5).
10 Article 7 of Regulation No 859/89 provides that the decision to open buying-in by invitation to tender is to be published in the Official Journal of the European Communities on the Saturday or the Tuesday before the first deadline for the submission of tenders.
Under Article 8, during the period in which the invitation to tender is open, the deadline for the submission of tenders is 12 noon (Brussels time) on the second and fourth Wednesday of each month.
11 Article 9 of Regulation No 859/89, which lies at the centre of the dispute, provides:
`1. Tenderers may take part in the invitation to tender only if they undertake in writing to comply with all the provisions relating to the tender concerned.
2. Interested parties may participate in the invitation to tender issued by intervention agencies of the Member States in which this is opened either by lodging a written tender against a receipt or by any other written means of communication accepted by the intervention agency, with advice of receipt; they may submit one tender only per category in response to each invitation to tender.
3. Tenders shall specify:
(a) the name and address of the tenderer;
(b) the quantity tendered for, expressed in tonnes, of the products and categories specified in the notice of invitation to tender;
(c) the price tendered per 100 kilograms of products of quality R3 ...;
(d) the intervention centre or centres to which the tenderer intends to deliver the product.
...'
12 Under Article 9(4)(c) of that regulation, tenderers must prove that they lodged a security for the tender by the final date for submission of tenders and, in accordance with Article 9(5) and (6), tenders may not be withdrawn after the deadline for their submission and are to be confidential.
13 It follows from Article 7 of Regulation No 859/89 that, at the opening of the invitation to tender, a minimum price may be fixed below which tenders are not accepted and from Article 8 that intervention agencies are to notify the Commission of the tenders they have received within 24 hours of the expiry of the time-limit for their submission.
14 Article 11(1) of Regulation No 859/89 provides that, in the light of the tenders received in response to each invitation to tender and after consultation of the management committee, the Commission is to fix a maximum buying-in price; a different price may be set to reflect average market prices for individual Member States or regions within a Member State if special circumstances so require.
According to Article 11(2), a decision may also be taken not to proceed with the invitation to tender and, under Article 11(3), if the total of the quantities tendered at a price at or below the maximum price exceeds the quantities to be bought in, a reduction coefficient may be applied to the quantities awarded.
15 Article 12 of Regulation No 859/89 provides that tenders are not to be accepted if the price proposed is higher than the maximum price laid down and Article 10(2) provides that the security is to be released entirely if the tender is not accepted.
16 According to Article 13 of Regulation No 859/89, if the tender is accepted, the security is to be released entirely if the quantity delivered represents at least 95% of the quantity tendered.
If the quantity delivered comprises between 85% and 95% of the quantity tendered, the security is to be forfeited to the intervention agencies in proportion to the quantities lacking, except in cases of force majeure.
In all other cases, it is to be forfeited to the intervention agencies entirely, except in the event of force majeure.
17 The requirement that a security be lodged was introduced in order to put an end to the practice of inflated tenders.
18 Article 12(2) of Regulation No 859/89 provides that rights and obligations arising from the invitation to tender are not to be transferable.
Under Article 15 the intervention agency is to pay the successful tenderer the price indicated in his tender.
19 After the facts in the present case arose, Regulation No 859/89 was repealed and replaced by Commission Regulation (EEC) No 2456/93 of 1 September 1993 laying down detailed rules for the application of Regulation No 805/68 as regards the general and special intervention measures for beef (OJ 1993 L 225, p. 4).
In place of Article 9 of Regulation No 859/89, there was a new detailed provision concerning the persons eligible to submit tenders, Article 11 of Regulation No 2456/93, which provides that:
`1. Only the following may submit tenders:
(a) slaughterhouses for bovine animals approved in accordance with Directive 64/433/EEC, and not enjoying a derogation under Article 2 of Directive 91/498/EEC, whatever their legal status, and
(b) livestock or meat traders who have slaughtering undertaken therein on their own account and who are entered in a public register under an individual number.
2. In response to invitations to tender, interested parties shall forward tenders to the intervention agencies of the Member States in which they are opened, either by lodging a written bid against a receipt or by any other written means of communication accepted by the intervention agency, with advice of receipt.
Separate tenders shall be submitted for each type of invitation to tender.
3. Interested parties may submit only one tender per category in response to each invitation to tender.
The Member States shall ensure that tenderers are independent of each other in the terms of their management, staffing and operations.
Where there are serious indications to the contrary or that tenders are not in line with economic facts, tenders shall be deemed admissible only where the tenderer presents suitable evidence of compliance with the second subparagraph.
Where it is established that a tenderer has submitted more than one tender, all the tenders from that tenderer shall be deemed inadmissible.
4. ...'
20 Finally, Article 8(1) of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218) requires Member States to satisfy themselves that transactions financed by the EAGGF are executed correctly and are actually carried out, to prevent and deal with irregularities and to recover sums lost as a result of irregularities or negligence.
Article 8(2) provides that the financial consequences of irregularities or negligence attributable to administrative authorities or other bodies of the Member States are not to be borne by the Community.
21 Between 1990 and 1992, as a result of a combination of various circumstances (mad cow disease (BSE), the reunification of Germany, the Gulf War, developments in relations with Eastern Europe, etc.), the Community beef market underwent an unprecedented crisis which, as from the financial year 1991, led to a consistent increase in Community budgetary expenditure.
Community beef intervention purchases rose from 540 000 tonnes in 1987 to 1 030 000 tonnes in 1991, an increase of 90.7% in the space of four years.
22 According to the Commission, a number of undertakings had submitted several tenders in the context of a single tender procedure.
In its 1991 Summary Report it stated:
`Denmark
It was noted from detailed examination of the 77th adjudication procedure, for example, that the above rules governing purchasing of beef into intervention were not being respected by the EF-Direktoratet.
It was established that for category A beef the 17 received offers originated from only seven sources; one particularly large group having instigated eight offers at eight different prices for a total of 2 300 t (= 70% of the total quantity offered).
Important quantities of beef were found, therefore, to have been offered at various prices by several different companies on behalf of others. Securities were lodged by companies other than the initial participants and letters sent some weeks later enabled payment to companies other than those lodging offers.
By linking names, addresses, telefax and telex numbers, securities and payments, the EAGGF established for every adjudication procedure examined that many individual offers originated from the same source.
Invoices forwarded by the tenderers to the EF-Direktoratet specified payment to be made to other companies.'
23 According to the Commission, those practices were expressly prohibited by the applicable Community rules and totally incompatible with the purpose of the intervention scheme.
In its summary report, it found that there had been infringement of Article 9(2) (submission of a single tender per tenderer in response to each invitation to tender), Article 12(2) (non-transferability of rights and obligations arising from the invitation to tender), Article 9(4)(c) (lodging of a security by the tenderer himself) and Article 15(1) (payment of the price to the tenderer) of Regulation No 859/89.
24 The Commission concluded that this practice had been adopted by tenderers in order to sell the greatest possible amount of meat into intervention at the highest possible prices, while significantly reducing the risk of losing their security.
According to the Commission, where the quantity actually delivered was lower than that which should have been delivered, the splitting of one tender into several made it possible in fact to honour at least some of the tenders and therefore to recover the relevant securities.
25 In its 1992 Summary Report, the Commission, `in view of the serious and systematic nature of the abuses found in ... Denmark', maintained its position with regard to the 1992 accounts (p. 121).
26 In response to the Commission's argument that the competent national authorities should have intervened in order to stop such practices, the Danish authorities objected that Regulation No 859/89 did not authorise them to intervene where tenders were made by separate legal entities.
27 The matter was referred to the Conciliation Body established by the Commission on its own initiative by 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 (OJ 1994 L 182, p. 45).
28 The Conciliation Body took the view that it could not state with any certainty that the tender procedure followed by the Member States was contrary to Regulation No 859/89. It observed that, in any event, it had subsequently been deemed necessary to explain the rules contained in Regulation No 859/89.
The Conciliation Body also pointed out that the Commission had failed to react before 1993 to the Member States' practice.
29 Notwithstanding the conclusions of the Conciliation Body, the Commission adopted the contested decision.
30 In support of its application, the Kingdom of Denmark relies on three pleas in law alleging that (i) the practice followed within its territory was lawful, (ii) the EAGGF had suffered no harm and (iii) the statement of reasons for the contested decision was insufficient.
Lawfulness of the practice followed in Denmark
31 By its first plea in law, the Danish Government submits that the practice of accepting tenders from any legal entity during the relevant period was lawful.
There was no legal basis in 1991 and 1992 for the national intervention bodies to reject offers made by separate legal entities on the ground that those entities were not independent of other tenderers.
32 Although under the last sentence of Article 9(2) of Regulation No 859/89 a tenderer may submit one tender only per category in response to each invitation to tender, that regulation does not explain what is to be understood by the term `tenderer'.
The term should therefore be understood in its usual sense.
Thus a tenderer is any independent legal entity which submits a tender in the context of an invitation to tender, irrespective of whether or not it belongs to a group.
33 The possibility of a connection between tenderers was not taken into consideration until after the period with which the present case is concerned, in Regulation No 2456/93, which repealed Regulation No 859/89.
The second subparagraph of Article 11(3) of Regulation No 2456/93 was the first provision to require that tenderers be independent of each other.
34 The Danish Government also submits that when Regulation No 859/89 was being drafted it had been intended to introduce clearer criteria for the definition of a tenderer in tendering procedures.
The Commission had proposed to the management committee that only natural or legal persons engaged in fattening or slaughtering cattle for at least 24 months and entered in an official register could submit tenders.
35 However, those criteria were not reproduced in the definitive regulation because the Member States raised several objections.
36 According to the Danish Government, the national authority checked on each occasion that the various tenderers were genuinely separate legal entities.
The question whether the various tenderers belonged to a single group was not checked, however, since there was neither any need nor any legal basis for doing so.
37 The Commission draws a distinction between the term `tenderer' as used in Article 9(1) of Regulation No 859/89 and the concept of `interested parties' as used in Article 9(2).
Whereas the tenderer is merely the person submitting a tender, the term `interested party' covers a wider circle.
In its view, the prohibition laid down in Article 9(2) of the regulation precluding tenderers from submitting more than one tender per category in response to each invitation to tender would be rendered redundant if it were possible for the same interested party to make several tenders through tenderers who are de jure separate but de facto connected.
38 The first point to be borne in mind here is the need to ensure legal certainty, which means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them (see, to that effect, Case 348/85 Denmark v Commission [1987] ECR 5225, paragraph 19).
The Commission thus cannot choose, at the time of the clearance of EAGGF accounts, an interpretation which departs from and is not dictated by the normal meaning of the words used (see, to that effect, Case 349/85 Denmark v Commission [1988] ECR 169, paragraphs 15 and 16).
39 In this regard, the last sentence of Article 9(2) of Regulation No 859/89 merely provides that interested parties may submit one tender only per category in response to each invitation to tender.
That wording cannot therefore provide any support for the interpretation claimed by the Commission that, on account of the difference in meaning between the words `interested party' and `tenderers', the latter may submit one tender only in response to an invitation to tender where they are part of a single group.
40 It is only since the entry into force of Regulation No 2456/93 that the Community rules have contained provisions on interconnections between tenderers.
To uphold the interpretation of Article 9(2) of Regulation No 859/89 suggested by the Commission would be tantamount to applying Article 11 of Regulation No 2456/93 retroactively.
41 However, the contested decision does not fall to be annulled on the basis of the plea in law put forward by the Danish Government, since it contains other factual and legal grounds which provide it with a sufficient statement of reasons.
42 The EAGGF's 1991 Summary Report stated that large quantities of beef had been offered by various companies on behalf of other companies, that securities had been lodged by companies other than the original participants, that payments had been made to companies other than tenderers and that systematic cross-checking of names, addressees, telex, fax and telephone numbers, securities and payments had led to the conclusion that individual tenders came from the same source.
43 That evidence was such as to give rise to serious suspicions that the prohibition on tenderers submitting more than one tender per category in response to each invitation to tender had been circumvented by the use of other names in order to disguise the fact that the tenders in actual fact emanated from a single operator.
In view of the division of powers between the Community and the Member States in the field of the common agricultural policy, those were matters which called for inspection and investigation by the latter.
44 The management of EAGGF finances is principally in the hands of the national administrative authorities responsible for ensuring that the Community rules are strictly observed.
That system, based on trust between national and Community authorities, does not involve any systematic supervision by the Commission, which moreover would in practice be quite unable to carry it out.
Only the intervention agencies are in a position to provide the information necessary for setting a maximum buying-in price and, where necessary, a reduction coefficient, since the Commission is not close enough to obtain the information it needs from the economic operators (see, to this effect, Case C-48/91 Netherlands v Commission [1993] ECR I-5611, paragraph 11).
45 By failing to carry out such inquiries, the Kingdom of Denmark failed to fulfil its obligations under Article 8(1) of Regulation No 729/70 (see Case C-2/93 Exportslachterijen van Oordegem v Belgische Dienst voor Bedrijfsleven en Landbouw [1994] ECR I-2283, paragraphs 16 to 18).
46 That provision, which constitutes a specific expression in the agricultural area of the obligations imposed on Member States by Article 5 of the EC Treaty, defines the principles according to which the Community and the Member States must ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations (see Joined Cases 146/81, 192/81 and 193/81 BayWa and Others v Bundesanstalt für Landwirtschaftliche Marktordnung [1982] ECR 1503, paragraph 13).
It imposes on the Member States the general obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of particular supervisory measures (see Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraphs 16 and 17).
47 Moreover, the EAGGF found that there had been an infringement of more than Article 9(2) of Regulation No 859/89.
It also pointed out that the practices referred to at paragraph 42 of the present judgment breached the prohibition on the transfer of rights and obligations arising from the tender procedure (Article 12(2) of Regulation No 859/89) and the tenderers' obligation to lodge a security (Article 9(4)(c)) and to receive payment personally (Article 15) (pp. 103 and 104 of the Summary Report).
48 The EAGGF was thereby alleging that Danish tenderers had breached the rule that tenders must be independent, an essential requirement for the validity and effectiveness of any tender procedure, which underlies not only the abovementioned provisions but also Article 9(6) of Regulation No 859/89 (confidentiality of tenders) and Article 6(6) of Regulation No 805/68 (equality of access for all persons concerned).
Although that rule does not prevent several companies belonging to one group from taking part at the same time in one tender procedure, it does preclude those same companies from agreeing on the terms and conditions of the tenders which they each submit, if the tender procedure is not to be distorted.
49 In view of the foregoing considerations, the first plea in law must be rejected.
Absence of harm suffered by the EAGGF
50 By its second plea in law, the Danish Government claims that the EAGGF suffered no harm.
Thus, by deciding to make a linear reduction of 2% of the expenditure declared by the Kingdom of Denmark in respect of the purchase into intervention of beef in 1991 and 1992, the Commission applied a correction which is devoid of legal basis.
51 In this connection, the Danish Government claims that the Commission has sources of information on the market situation other than the offers to sell into intervention communicated by the Member States.
It places reliance on Commission Regulation (EEC) No 610/77 of 18 March 1977 on the determination of prices of adult bovine animals on representative Community markets and the survey of prices of certain other cattle in the Community (OJ 1977 L 77, p. 1).
52 Here, it must be noted that, as the Court has consistently held, Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, 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 authorised to pay in the context of the common organisation of the markets (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 8; Case 18/76 Germany v Commission [1979] ECR 343, paragraph 7; and Case C-48/91 Netherlands v Commission, cited above, paragraph 14).
53 Although it is therefore for the Commission to prove an infringement of the Community rules, the Member State concerned must demonstrate that the Commission committed an error as to the financial consequences to be attributed to it (see, to this effect, Case 49/83 Luxembourg v Commission [1984] ECR 2931, paragraph 30).
54 In the present case, it is apparent from paragraphs 41 to 47 of the present judgment that the Commission has established that the Kingdom of Denmark infringed several Community rules in the field of agriculture.
55 In addition, it indicated how it was possible for the unlawful conduct of the Danish tenderers to have led to an erroneous assessment of the market by the Community authorities likely to result in the purchase of excessive quantities of beef and veal, possibly at higher prices.
In so doing, it established the probability that harm was caused to the Community budget.
The Commission cannot be required to do more than that, since it cannot carry out the systematic checks and since analysis of the current state of a given market depends on information gathered by the Member States (see Case C-48/91 Netherlands v Commission, cited above, paragraph 17).
56 Nor has the Danish Government shown that the conduct for which it was responsible did not lead to an increase in expenditure in the context of the EAGGF.
As regards its arguments derived from Regulation No 610/77, it need only be observed that, although it is true that the information which that regulation allows the Commission to obtain is necessary for deciding whether intervention measures should be undertaken, the fact remains that the fixing of prices and quantities bought into intervention is determined on the basis of the tenders received, as the Advocate General rightly observed at point 63 of his Opinion.
57 In view of the foregoing considerations, the second plea in law must be rejected.
Insufficient statement of reasons in the contested decision
58 By its third plea in law, the Danish Government claims that the contested decision does not fulfil the requirement laid down in Article 190 of the EC Treaty that reasons be stated, since it does not make clear the reason for refusing to cover the costs.
59 It must be borne in mind here that, according to settled case-law, the extent of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted (see Case 327/85 Netherlands v Commission [1988] ECR 1065, paragraph 13, and Case C-54/91 Germany v Commission [1993] ECR I-3399, paragraph 10).
60 In this regard, it is sufficient to point out that decisions concerning the clearance of accounts do not require detailed reasons if they are taken on the basis either of summary reports or of any correspondence between the Member State and the Commission, which implies that the government concerned was closely involved in the process by which the decision came about and is therefore aware of the reason for which the Commission considers that it must not charge the sums in dispute to the EAGGF (Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 60).
61 In the present case, the reasons on which the Commission's rejection is based are given in the 1991 Summary Report.
Moreover, the Commission informed the Danish Government of the criticisms it was making after having carried out its checks in 1992.
62 The third plea must therefore be rejected as unfounded.
63 In view of the foregoing considerations, the application must be dismissed in its entirety.
Decision on costs
Costs
64 Under the first sentence of Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.
Since the Kingdom of Denmark has been unsuccessful, it must be ordered to pay the costs.
Operative part
On those grounds,
THE COURT
(Fifth Chamber)
hereby:
65 Dismisses the application;
66 Orders the Kingdom of Denmark to pay the costs.