62001CC0331_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1. The Kingdom of Spain claims that Commission Decision 2001/557/EC of 11 July 2001 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (2) should be annulled in so far as it provides for an adjustment of ESP 185 046 088.00 in respect of the expenditure incurred by Spain in 1996 on the basis of Regulation (EC) No 1357/96 (3) (hereinafter
" Regulation No 1357/96" ).
II ─ Legislative background
A ─ Community law
2. The financing of the common agricultural policy is governed by Regulation (EEC) No 729/70 (4) (hereinafter
" Regulation No 729/70" ). Under Article 1(2)(b) and Article 3(1) of this regulation the Guarantee Section of the EAGGF finances intervention intended to stabilise the agricultural markets, undertaken according to Community rules within the framework of the common organisation of agricultural markets. Such intervention also includes the premiums at issue in the present case, which are based on Regulation No 1357/96.
3. Under Article 5(2)(c), first subparagraph, of Regulation No 729/70 the Commission
" shall decide on the expenditure to be excluded from Community financing ... where it finds that expenditure has not been effected in compliance with Community rules" .
4. Under Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70
" a refusal to finance may not involve expenditure effected prior to 24 months preceding the Commission ' s written communication of the results of those checks to the Member State concerned" .
5. Pursuant to Article 7, second sentence, in conjunction with Article 11 of Regulation No 1357/96, the resources for which that regulation provided could be distributed only once, from 13 July until 15 October 1996. Regulation No 1357/96 set out two methods for the distribution of the resources:
6. First, they could be granted as payments in addition to the current premiums in respect of male bovine animals or suckler cows
in accordance with Regulation (EEC) No 805/68 on the common organisation of the market in beef and veal (5) (hereinafter
" Regulation No 805/68" ), the regulation in force at the time in question (hereinafter
" additional payments" ).
Regulation No 1357/96 stipulates to this end:
Second recital
" ... whereas in order to enable rapid payment and to achieve the described economic effect, such resources should generally be made available in the form of payments in addition to the premiums due in respect of animals eligible in the 1995 calendar year ...; whereas, however, producers should only be entitled to such additional payments to the extent that the number of eligible animals for which they are entitled to a premium in respect of the 1996 calendar year is not reduced as compared with the 1995 calendar year" .
Article 1(3)
" The extent to which a producer is entitled to each of the additional payments referred to in paragraphs 1 and 2 and received in respect of the 1995 calendar year shall depend upon the number of animals for which he establishes entitlement to a premium in the 1996 calendar year."
Article 2(1) and (2)
" 1. Where the number of animals for which entitlement to premiums is established in relation to the 1996 calendar year is less than that for which a producer received additional payments under Article 1, the part of the additional payment to which he was not entitled shall be set off against his entitlement to premiums under Regulation (EEC) No 805/68 for the 1996 calendar year.
2. Where a producer does not make an application for premiums under Regulation (EEC) No 805/68 in respect of the 1996 calendar year or where the premiums to which he is entitled are insufficient to make the set-off referred to in paragraph 1, he shall be required to repay the additional payments made under Article 1 to which he was not entitled.
"
7. Second, the Member States could grant the resources
in a different way .
Regulation No 1357/96 stipulates in this respect:
Fifth recital
" Whereas Member States, in which the structure of production makes a system of payment other than by means of the said increase in premiums more appropriate and/or where the need to complete all payments by 15 October makes this necessary, should be authorised, in derogation from the above, to distribute the total of the aid which would otherwise have been payable by way of increases in premiums and the amount provided for in the Annex to producers of bovine animals on the basis of objective criteria" .
Article 5
" By way of derogation from Articles 1, 2, 3 and 4, Member States may grant the total amount of aids resulting from the application of Article 1(1) and (2) and Article 4(a) to producers of bovine animals according to objective criteria, provided that the compensation will not be higher than the loss of income to such producers and that there is no distortion of competition."
8. On the basis of Article 10 of Regulation No 1357/96 the Commission adopted Regulation (EC) No 1504/96 of 29 July 1996 (6) (hereinafter
" implementing regulation" ), which stipulates, inter alia, the following:
First recital
" Whereas for the sake of transparency between Member States, and the monitoring and proper administration of the additional payments provided for in Regulation (EC) No 1357/96, the Member States should inform the Commission of the grant model used ..." .
Article 1
" As regards the additional aid provided for in Regulation (EC) No 1357/96, the Member States shall communicate to the Commission:
(a) where Articles 1 to 4 of that Regulation are applied:
─ no later than 15 November 1996 and 31 July 1997, the number of additional amounts granted pursuant to Article 1, broken down according to the arrangements referred to in Articles 4b and 4d of Regulation (EEC) No 805/68, ...
(b) where Article 5 and, where applicable, Article 4(b) of that Regulation are applied:
─ without delay, the methods used to grant the aid referred to therein, and in particular the type or category of animals concerned, the unit amounts provided for, their method of calculation and the final dates for payment,
─ no later than 15 November 1996 and 31 July 1997 respectively, the total amounts of aid paid pursuant to Article 5 and Article 4(b), and the number of beneficiaries and animals concerned.
"
B ─ National law
9. The Orden Ministerial del Ministerio de Agricultura, Pesca y Alimentación (Order of the Ministry of Agriculture, Fisheries and Food) of 19 September 1996 (7) (hereinafter
" Ministerial Order" ) governs the procedure for the granting of the additional payments to producers of male bovine animals and holders of suckler cows.
10. Article 1 of the Ministerial Order explicitly states that it is based on Article 5 of Regulation No 1357/96. According to Article 2 of the Ministerial Order, the aforementioned producers and holders receive additional payments in respect of the number of animals for which they were entitled to premiums pursuant to Regulation No 805/68.
III ─ Facts of the case and forms of order sought by the parties
11. All payments of resources pursuant to Regulation No 1357/96 were made by the Spanish authorities before 15 October 1996. By fax of 8 June 1998 the Spanish authorities informed the Commission of the amount of resources distributed. From 21 to 25 September 1998 the Commission carried out general enquiries concerning the payments of premiums in respect of animals.
12. In their fax of 8 June 1998 the Spanish authorities referred to Article 1 of the implementing regulation and cited Article 1 and Article 4(a) or (b) of Regulation No 1357/96 as the
" legal basis"
for the various payments, which were, moreover, designated
" additional payments" . The amount of the payments was given ─ under the headings relating to expenditure pursuant to Article 1 of Regulation No 1357/96 ─ as ECU 27.00 for each suckler cow and ECU 23.00 for each male bovine animal. The expenditure was also entered in the annual accounts under the budget headings for the application of Article 1 of Regulation No 1357/96 (B01-2133.001 and 002), rather than the budget heading for the application of Article 5 of Regulation No 1357/96 (B01-2133.004).
13. The enquiries carried out in Spain from 21 to 25 September 1998 revealed that the Spanish authorities had made additional payments appropriate to the number of relevant animals held in each case in 1995. No account had been taken of any reduction in the size of herds in 1996. The Spanish authorities failed to respond to the Commission ' s request for information on any excess payments made as a result.
14. By letter of 29 March 1999, received by the Permanent Representative of the Kingdom of Spain to the European Union on 12 April 1999, the Commission forwarded the communication of the findings of the enquiries. (8)
15. On 11 July 2001 the Commission adopted Decision 2001/557/EC, in which it set in respect of the Kingdom of Spain ─ giving
" system not in conformity with the rules"
as the reason─ a financial correction of 2% to the expenditure declared under budget headings B01-2133.001 and 002 (ESP 185 046 088.00) pursuant to Regulation No 1357/96 for the 1997 financial year. This financial correction is the subject of the application for annulment at issue, which the Kingdom of Spain lodged by letter of 3 September 2001, registered at the Court of Justice on 6 September 2001.
16. The Kingdom of Spain claims that the Court should:
─ annul the decision of the Commission of 11 July 2001 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as it concerns the financial adjustments imposed on the Kingdom of Spain and challenged in the present application,
─ order the defendant institution to pay the costs.
The Commission claims that the Court should:
─ dismiss the application as unfounded,
─ order the applicant to pay the costs.
IV ─ Pleas in law
17. The Kingdom of Spain bases its application on two pleas in law.
In the
first
plea in law it is asserted that, as Spain complied with the system for the granting of additional payments for which Regulation No 1357/96 provided, there was no legal basis for the refusal to finance.
In the
second
plea in law it is asserted that the refusal to finance in question was in any event effected without regard for the exclusion period of 24 months for which Article 5(2)(c), fifth subparagraph, of Regulation No 729/70 provides.
V ─ Legal assessment
A ─First plea in law: compliance with the system for the granting of resources for which Regulation No 1357/96 provides
1. Arguments of the parties
18. The
Spanish Government
maintains that the distribution of the additional payments was in conformity with the rules. Spain had opted for a payment system pursuant to Article 5 of Regulation No 1357/96 (hereinafter
" special payment system" ). A special payment system of this kind did not need to include means of recovering payments pursuant to Article 2 of Regulation No 1357/96. They were necessary only where the payment system defined in Articles 1 to 4 of Regulation No 1357/96 (hereinafter
" general payment system" ) was used.
19. It followed from the fifth recital of Regulation No 1357/96 that the Member States might use a special payment system if this was necessary because of particular urgency caused by the need to make payments before 15 October 1996 pursuant to Article 7 of Regulation No 1357/96. That was not the case in Spain.
20. Opposing the Commission ' s view that Member States might have opted for a special payment system only if they ─ unlike Spain ─ had not intended the payments to be additional to the premiums paid pursuant to Regulation No 805/68, the Spanish Government similarly cites the fifth recital of Regulation No 1357/96. It followed from the wording of this recital ( " and/or" ) that the Member States could have based the choice of a special payment system
either
on the need for a payment system other than that for increasing the premiums
or
on the need for distribution before 15 October 1996. In Spain the latter ground had been decisive.
21. As regards the form which a special payment system should take, Article 5 of Regulation No 1357/96 required in particular that the additional payments be granted
" according to objective criteria", provided that the compensation was not higher than the loss of income to the producer.
22. The payment system defined in the Ministerial Order was based on objective criteria in that it provided for all payments to be based on the size of herds of relevant animals in 1995.
23. Nor was the compensation paid to the individual producers and holders higher than the losses incurred: although the payment system for which the Ministerial Order provided was such that it was possible for producers or holders whose herds of relevant animals were smaller in 1996 than in 1995 to obtain additional payments for more animals than their herds comprised, the additional payments amounted to only 2.9% of the market price, which in Spain had fallen by more than 32% from February 1995 until June 1996. As the average herd of relevant animals in Spain when the additional payments were made comprised 15 animals and as the loss per animal was many times the amount granted as additional payments, the compensation paid to the individuals affected had not, as a general rule, been higher than the loss incurred.
24. In response to the objection that the Spanish authorities themselves had notified the Commission of the use of a general payment system, the Spanish Government states that this information had merely been incomplete in respect of the requirements of Regulation No 1504/96. The reference to Articles 1 and 4(a) of Regulation No 1357/96 was solely intended to make it clear that the payments effected under the Spanish payment system had corresponded in form and amount to the additional payments made pursuant to Articles 1 and 4 of Regulation No 1357/96.
25. The
Commission
takes the view that the distribution by the Kingdom of Spain of the resources for which Regulation No 1357/96 provides was not in conformity with the rules.
26. The distribution of the resources in accordance with the Ministerial Order had been effected in the form of payments in addition to the premiums provided for in Regulation No 805/68 and at precisely the level required by Article 1 of Regulation No 1357/96. The Kingdom of Spain had thus indicated that it had made additional payments under the general payment system. The Spanish authorities had stated precisely this in their communication to the Commission pursuant to Article 1 of Regulation No 1504/96.
27. In using the general payment system, however, a Member State should not have disregarded the method of calculation defined in Article 1(3) or the provisions concerning recovery set out in Article 2 of Regulation No 1357/96.
28. However, even if the payment system defined in the Ministerial Order had been a special payment system as provided for in Article 5 of Regulation No 1357/96, it had not complied with the prescriptions of the regulation in this respect. Neither the requirements for the use of such a system had been satisfied, nor had the payment system for which the Ministerial Order provided met the substantive requirements for a special payment system.
29. With regard to the various requirements, the Commission argues that the Member States were not free to decide under Regulation No 1357/96 whether to distribute the resources under the general payment system or under a special payment system.
30. Although the use of a special payment system could in principle be justified under Article 5 of Regulation No 1357/96 by the need to ensure payment by 15 October 1996, the Spanish Government had referred only to particular urgency, for which it had, however, been unable to provide any evidence. The required data on the size of herds of relevant animals in 1995 had been available before Regulation No 1357/96 entered into force, and repayments due to the fact that herds were smaller in 1996 than in 1995 could not have delayed the granting of the additional payments in the relevant period, since the repayments could in any case have been required only after appropriate data had been presented, i.e. in 1997.
31. However, even if it had been possible for the Kingdom of Spain to opt for a special payment system, the payment system provided for in the Ministerial Order would not substantively have satisfied the criteria of Regulation No 1357/96.
32. It followed from the fifth recital of that regulation, after all, that a special payment system must in any event provide for a form of payment that differed from the general payment system. It might not, for example, provide for payments in the form of additions to the premiums granted under Regulation No 805/68. Provisions concerning recovery could, moreover, be omitted from a special payment system only if it made no reference whatever to the size of herds of eligible animals pursuant to Regulation No 805/68 in 1995; a payment system of this kind had been used by the Federal Republic of Germany, for example.
33. Article 5 of Regulation No 1357/96 also referred to
" objective criteria"
and required that payments be no higher than the loss of income incurred. Consequently, a special payment system must also ensure that no payments were made to holders or producers whose herds of relevant animals were smaller in 1996 than in 1995.
2. Assessment
34. The distribution of the resources for which Regulation No 1357/96 provided could be effected, as the regulation shows, by two different payment systems. The Commission ' s premiss in the contested decision is that the Kingdom of Spain did not use either payment system in conformity with the rules.
35. What therefore needs to be considered first is whether the payment system for which the Ministerial Order provides meets the requirements of the general payment system. If it does not, it needs further to be considered whether the Kingdom of Spain satisfies the requirements for the use of a special payment system. Only if this is the case should the discussion between the parties regarding the substantive requirements of a special payment system be considered.
(a) The use of the general payment system
36. The parties are divided on whether in their fax of 8 June 1996 the Spanish authorities claimed to be using the general payment system. This does not need to be discussed further, however, since the parties do at least agree that the payment system for which the Ministerial Order provides does not satisfy the requirements of the general payment system defined in Regulation No 1357/96.
37. Although the Ministerial Order provides for payments in addition to the premiums governed by Regulation No 805/68 and refers to the size of herds of relevant animals in 1995, the payments are not of a temporary nature, since the Ministerial Order does not include a provision requiring the recovery of any excess payments if herds are found to be smaller in 1996 than in 1995. The requirements of Article 1(3) and Article 2 of Regulation No 1357/96 are not therefore satisfied.
(b) The use of a special payment system
38. The payment system for which the Ministerial Order provides is therefore, at best, a special payment system within the meaning of Article 5 of Regulation No 1357/96.
39. The parties disagree as to the conditions under which Member States might have provided for a special system for the distribution of resources pursuant to Regulation No 1357/96 and as to the substance of this system.
40. Only if the requirements for a special payment system are satisfied should it be considered whether the payment system for which the Ministerial Order provides satisfies the substantive requirements of a special payment system pursuant to Article 5 of the regulation. The requirements should therefore be examined first.
41. Article 5 of Regulation No 1357/96 does not itself contain any information on the conditions under which Member States may use a special payment system.
42. More detailed information is to be found only in the fifth recital: Member States may use a special payment system if
" the structure of production makes a system of payment other than by means of the said increase in premiums more appropriate and/or where the need to complete all payments by 15 October makes this necessary" .
43. As the special payment system provided for in the Ministerial Order takes the form of an increase in the premiums pursuant to Regulation No 805/68, the first requirement at least has no bearing. The parties therefore disagree as to whether the fifth recital should be taken to mean that a special payment system can be justified
solely
by the need to complete the payments pursuant to Regulation No 1357/96 within a relatively short period, namely from 15 July until 15 October 1996 at the latest.
44. Ten of the eleven language versions of the wording of the fifth recital include the phrase
" and/or", the Swedish version being alone in using only the word
" or" . The phrase
" and/or", however, covers the two cases in which a Member State meets both requirements (a special structure of production requiring a different method of payment/the need to observe the payment period) and cases in which only one of the two requirements is satisfied. Nor is this interpretation inconsistent with the Swedish version of the recital. It is thus common to all the language versions in this respect. (9)
45. If, then, a special payment system may be chosen solely to meet the need for all payments to be made before 15 October, a further question that arises is whether this requirement actually obtained in Spain.
46. On this it must first be said that the fifth recital undoubtedly cannot be taken to mean that the requirement set out in the second sentence of Article 7 of Regulation No 1357/96 (completion of payments by 15 October 1996) is in itself intended to enable the application of the derogation for which Article 5 of Regulation No 1357/96 provides, since all the Member States were subject to this time-limit. It would not make any sense for the observance of a deadline applicable to all Member States to be made the sole requirement for the applicability of a derogation (the use of a special payment system). The fifth recital states rather that the use of a special payment system must be
necessary
(because of the need for the resources to be distributed within the prescribed period). This can only be taken to mean that the Member State concerned must have been confronted with special problems making it difficult or impossible to complete the distribution of the resources before the deadline unless it used a special payment system.
47. According to settled case-law of the Court of Justice, although it is 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. (10)
48. In the present case the Commission has given
" system not in conformity with the rules"
as the reason for the contested adjustment. It believes, in other words, that the Kingdom of Spain should have explained and, if appropriate, proved that it was entitled to use a special payment system. In the present case the Spanish Government should thus have demonstrated why the use of a special payment system was necessary in Spain to ensure that the resources for which Regulation No 1357/96 provided were distributed within the prescribed period. Instead, the Spanish Government confined itself to stating that, as the deadline left only a short period for distribution, particular urgency existed. It did not, on the other hand, explain why distribution could not have been effected in Spain within the prescribed period using the general payment system.
49. It must therefore be assumed that the Kingdom of Spain did not satisfy any of the requirements for the use of a special payment system pursuant to Article 5 of Regulation No 1357/96. Consequently, there is no further need to consider whether the payment system for which the Ministerial Order provided was substantively consistent with the provisions of the regulation.
50. In respect of the adjustment the Commission therefore rightly claims that the Kingdom of Spain did not use a payment system which conformed to the rules when applying Regulation No 1357/96. The
first
plea in law should therefore be dismissed.
B ─ Second plea in law: failure to observe the exclusion period for expenditure effected more than 24 months before the communication of the results of the enquiries
1. Arguments of the parties
51. The Spanish Government maintains that the Commission disregarded Article 7(4), fifth subparagraph, (a), of Regulation No 1258/99 (11) when determining the contested adjustment, since that adjustment took into account expenditure which the Spanish authorities had effected more than 24 months before the Commission ' s written communication concerning the results of the enquiries.
52. As the results of the enquiries were not forwarded until 12 April 1999, it had in general been possible to exclude from Community financing only expenditure effected after 12 April 1997. The additional payments had, however, been made by 15 October 1996 in accordance with Article 7(2) of Regulation No 1357/96.
53. In response to the Commission ' s argument that the adjustment was related to the fact that the Spanish authorities had not required the repayment of what the Commission deemed to have been excess additional payments in the 1997 financial year, the Spanish Government maintains that the adjustment was related explicitly to expenditure under budget heading B01-2133 in the 1996 financial year and not to the amounts which were not recovered in the 1997 financial year. This budget heading had no longer existed in the 1997 financial year.
54. The
Commission
takes the view that it observed the exclusion period. The crucial failure to comply with Regulation No 1357/96 had occurred less than 24 months before the communication of the results of the enquiries. The adjustment did not concern the excess additional payments made before 15 October 1996, but was based on the Spanish authorities ' failure to require the repayment of the excess additional payments made after the actual size of herds of relevant animals in 1996 had been determined (this being known by June 1997 at the latest).
2. Assessment
55. In support of its view that the Commission disregarded the exclusion period for adjustments, the Spanish Government refers to Regulation No 1258/1999. It must first be said in this context that Article 20 of that regulation restricts its application to expenditure effected as from 1 January 2000. However, the wording of the provision on the exclusion period cited by the Spanish Government (Article 4(4), fifth subparagraph, (a), of Regulation No 1258/1999) is the same as that of Article 5(2)(c), fifth subparagraph, first sentence, of the version of Regulation No 729/70 applicable at the time in question. The second plea in law should therefore be examined on the basis of the latter provision.
56. Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70 excludes the adjustment of expenditure effected more than 24 months before the Commission ' s written communication of the findings of the enquiries (12 April 1999 in this case). Expenditure by the Kingdom of Spain effected before 12 April 1997 might therefore be excluded from an adjustment; in the present case this would mean in principle all resources granted in Spain pursuant to Regulation No 1357/96.
57. The parties disagree on what is meant by
" expenditure"
in the context of the exclusion period, the distribution of the additional payments or ─ as the Commission believes ─ the failure to require the necessary repayments of resources distributed in cases where herds of relevant animals were smaller in 1996 than in 1995. In the former case all expenditure would have been effected before the exclusion period; in the latter case it might still have been effected within that period.
58. In my opinion the Commission ' s position in this respect cannot be endorsed.
59. As is evident from the sixth recital of Regulation No 1287/95, which inserted Article 5(2)(c), fifth subparagraph, first sentence, into Regulation No 729/70, the exclusion period is meant to determine
" the maximum period to which the consequences to be drawn from the [Commission ' s] checks on conformity may be applied" .
60. The goal of thus providing legal certainty for the Member States (12) would be jeopardised, however, if
" expenditure"
which is to be appraised on the basis of whether or not it was effected within the exclusion period defined in Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70 was not clearly recognisable. This would be the case, however, if the Commission ' s view was endorsed, because it would not be possible to determine with sufficient accuracy when repayments should have been required.
61.
" Expenditure"
within the meaning of Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70 can therefore mean only the effective distribution of the resources of a Community scheme to assist agriculture.
(b) Determining the beginning of the exclusion period pursuant to Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70
62. The question that has now to be asked is how the beginning of the exclusion period is to be determined or, in other words, whether the exclusion period always begins only when the findings of the enquiries are communicated or whether it may also begin at another time, which can be calculated for the Member States.
63. The initial situation in the present case was as follows.
64. Article 1 of the implementing regulation required the Member States to provide information on the payment systems which they used to distribute the resources for which Regulation No 1357/96 provided. That information was to have been forwarded by 31 July 1997 where the general payment was used (Article 1(a) of the implementing regulation) and
" without delay", but similarly no later than 31 July 1997, where a special payment system was used (Article 1(b) of the implementing regulation). In the present case, however, the information on the payment system used in Spain was forwarded to the Commission (if at all (13) ) no earlier than 8 June 1998, the date of the Spanish authorities ' fax, and so at least 10 months late.
65. The first recital of the implementing regulation shows, however, that the information on the national payment systems was intended to enable the Commission to obtain a clear picture of the distribution and administration of the resources and so to facilitate its examination of the payment systems for compatibility with the regulation. A possibility that cannot therefore be ruled out is that the communication of the findings of the enquiries, which determined the exclusion period, was delayed to the advantage of the Kingdom of Spain only because the Spanish authorities did not fulfil, or at least did not fulfil within the prescribed period, their obligation under Article 1 of the implementing regulation.
66. This gives rise to the fundamental question whether the beginning of the exclusion period could be irrefutably calculated from the date of the communication of the findings of the enquiries even if that date could be influenced by the Member State concerned.
67. In the case of
Spain
v
Commission (14) the Court has already considered whether the beginning of the exclusion period might in certain circumstances be calculated from a date before the communication of the findings of the enquiries. The Court rejected this, stating that
" ... the purpose of [the] limitation [of the period] is to protect Member States against the absence of legal certainty. ... Therefore, the interpretation according to which the temporal limitation does not apply where the Member State concerned is aware that the Commission considers its control system to be deficient does not fulfil the purpose of providing legal certainty."
68. In my view, however, the de facto and de jure situation in the case cited is not entirely comparable to the situation here at issue. In the former the Court had no cause, after all, to consider the role of any
special (15) involvement of the Member State, as exists here in the case of Article 1 of the implementing regulation.
69. Furthermore, in principle at least, it would be possible in the present case, unlike the case cited, to calculate ─ unequivocally ─ the beginning of the exclusion period from another date, (16) which might satisfy the requirement emphasised by the Court of providing legal certainty for the Member States. (17)
70. I hesitate, however, to propose that in the present case the Court should accept a departure from the date from which the beginning of the exclusion period is calculated pursuant to Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70.
71. I believe that such a departure should not in principle be impossible if the decisive date for the communication of the findings of the enquiries would be delayed by the Member State ' s failure to fulfil a particular obligation to cooperate under Community law and and would thus be to the advantage of the Member State infringing Community law. However, this should apply only if it can be shown that the failure to fulfil such a particular obligation to cooperate has prevented the Commission from carrying out the necessary enquiries and from communicating the findings earlier.
72. This cannot, however, be assumed unconditionally in the present case. The Commission ' s arguments have not demonstrated even in principle that it attached any importance in the present case to the fulfilment of the obligations to provide information pursuant to Article 1 of the implementing regulation for the performance of the enquiries and the subsequent communication of the findings, which marked the beginning of the exclusion period.
73. Nor, in particular, did the Commission argue that the information which was not forwarded, or which was forwarded with a significant delay, had been absolutely essential for it to determine which of the payment systems provided for in Regulation No 1357/96 was being used in Spain and whether this was being done in conformity with the rules. According to its own arguments, it was not in fact until
after
the enquiries at the end of September 1998 that the Commission itself endeavoured to determine which system had been used by the Spanish authorities to distribute the resources provided for in Regulation No 1357/96.
74. All this leads me to conclude that the beginning of the exclusion period pursuant to Article 5(2)(c), fifth subparagraph, first sentence, of Regulation No 729/70 must be calculated in the present case from the date of the communication of the findings of the enquiries to the Spanish authorities (12 April 1999).
75. Consequently, only expenditure effected after 12 April 1997 may be adjusted in the present case. However, as all the resources for which Regulation No 1357/96 provides had been distributed in Spain by 15 October 1996, it is wrong in this respect for the contested decision to concern itself with expenditure effected more than 24 months before the written communication of the findings of the enquiries.
76. The
second
plea in law should therefore be granted. The contested decision should thus be annulled in so far as it provides for a financial adjustment in respect of expenditure effected by Spain in 1996 on the basis of Regulation No 1357/96.
VI ─ Conclusion
77. In view of the above considerations it is proposed that the Court should rule as follows:
(1) Commission Decision 2001/557/EC of 11 July 2001 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) is annulled in so far as that decision provides for an adjustment of ESP 185 046 088.00 in respect of the expenditure incurred by Spain in 1996 on the basis of Regulation (EC) No 1357/96.
(2) The Commission of the European Communities is ordered to pay the costs of the procedure.
(1) .
(2) OJ 2001 L 200, p. 28.
(3) Council Regulation (EC) No 1357/96 of 8 July 1996 providing for additional payments to be made in 1996 with the premiums referred to in Regulation (EEC) No 805/68 on the common organisation of the market in beef and veal and amending that Regulation.
(4) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ 1970 L 94, p. 13) as amended by Council Regulation (EC) No 1287/95 of 22 May 1995 amending Regulation (EEC) No 729/70 on the financing of the common agricultural policy (OJ 1995 L 125, p. 1).
(5) OJ, English Special Edition 1968(I), p. 187, at the time in question in the version amended by Regulation (EC) No 894/96 (OJ 1996 L 125, p. 1).
(6) OJ 1996 L 189, p. 77.
(7) BOE No 228 of 20 September 1996 (21089).
(8) Communication pursuant to Article 8(1) of Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (hereinafter
" communication of the findings of the enquiries" ).
(9) Case C-298/94
Henke
[1996] ECR I-4989, paragraph 15, and Case C-236/97
Codan
[1998] ECR I-8679, paragraph 26.
(10) See in this context, for example, Case 49/83
Luxembourg
v
Commission
[1984] ECR 2931, paragraph 30.
(11) Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103).
(12) Case C-130/99
Spain
v
Commission
[2002] ECR I-3005; Opinion of Mr Advocate General Tizzano in Case C-158/00
Luxembourg
v
Commission
[2000] I-5373, paragraph 41.
(13) The Spanish Government ' s position is that the fax of 8 June 1998 did not contain any information on the use of a specific payment system; it also claimed at the hearing that a copy of the Ministerial Order had not been forwarded to the Commission.
(14) Cited in footnote 12, paragraph 133 et seq.
(15) The legal situation also differs in this respect from that on which the Opinion of Mr Advocate General Tizzano in the case of
Luxembourg
v
Commission
(cited in footnote 12) is based. In point 45 of that Opinion the Advocate General objects to the acceptance of the delays in the communication of the findings of the enquiries due to the generally inadequate cooperation of the Member States as an argument against the Member States having confidence in the exclusion period of 24 months.
(16) The calculation of the exclusion period might begin from a fictional date for the communication of the findings of the enquiries arrived at mathematically as follows: provided that the Member State had forwarded the information on the payment system used within the prescribed period, the Commission would have had the necessary information by 31 July 1997 at the latest. Calculated from the actual receipt of the information in the present case (no earlier than 8 June 1998), it took the Commission 10 months to communicate the findings of the enquiries. If the Commission ' s
actual processing time
in each case was calculated from the
legally latest possible deadline
for the communication of the information by the Member States (i.e. 31 July 1997), the exclusion period in the present case should be calculated back from 31 May 1998. This would mean, however, that all expenditure effected in Spain from 15 July until 15 October 1996 under Regulation No 1357/96 would have come within the 24-month period in question and would therefore have been open to adjustment.
(17) Here too lies the basic difference from the situation in the case of
Spain
v
Commission
(cited in footnote 12). In that case the beginning of the exclusion period was to be determined from the date on which the Member State concerned had learnt that expenditure did not conform to Community law. It is virtually impossible to determine this date, however; see also the Opinion of Mr Advocate General Jacobs in the case of
Spain
v
Commission
(judgment cited in footnote 12), point 95.