NoC 137/10 Official Journal of the European Communities 6. 6. 90 
Proposal for a Council Regulation (EEC) on the checks and penalties applicable under the 
common agricultural and fisheries policies 
COM(90) 126 final 
(Submitted by the Commission on 21 May 1990) 
(90/C 137/07) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Article 43 
thereof, 
Having regard to the proposal from the Commission, 
Having regard to the opinion of the European 
Parliament, 
Whereas Article 155 of the Treaty conferred on the 
Commission responsibility for ensuring that the 
provisions of the Treaty as well as the provisions of the 
acts adopted by the Council for their implementation are 
applied; 
Whereas the third indent of Article 145 of the Treaty 
lays down that the Council shall confer on the 
Commission, in the acts which the Council adopts, 
powers for the implementation of the rules which the 
Council lays down; 
Whereas the Community legislation on the common 
agricultural and fisheries policies contains, in particular, 
both for the management of the market organizations 
and for the management of other instruments, especially 
those relating to structures, a set of measures whose 
correct and uniform implementation throughout the 
Community is indispensable for the achievement of the 
Treaty's objectives; 
Whereas the acts adopted by the Council confer on the 
Commission general powers to adopt, according to 
various consultation procedures, all necessary rules of 
application; whereas it is appropriate to specify that these 
powers include the power to adopt provisions regarding 
both the checks and the penalties necessary to ensure the 
correct application of the arrangements adopted by the 
Council; 
Whereas the powers of the Commission are exercised in 
accordance with general legal principles, in particular the 
principles of equality and proportionality; whereas, to 
avoid any ambiguity, it is therefore appropriate to restate 
these principles, to indicate certain additional criteria 
and to specify, by way of example, the checks and 
penalties generally to be implemented, in the form of a 
regulation valid for all legislation adopted by the Council 
in the contact of the abovementioned common policies; 
Whereas it is the responsibility of the Member States in 
the first instance to ensure that infringements of 
Community law are penalized by the application of 
appropriate measures provided for in national law and 
whereas, therefore, the penalties laid down in this Regu­lation constitute only the minimum measures to be 
applied; whereas it is the responsibility of the Member 
States to take into account the penalties laid down in this 
Regulation when applying the penalties provided for in 
their own legislation; 
Whereas this Regulation is to be applied without 
prejudice to any specific provisions adopted by the 
Council, 
HAS ADOPTED THIS REGULATION: 
Article 1 
The aim of this Regulation is to specify the powers of 
the Commission as regards the checks and penalties 
required for the implementation of the common agri­
cultural and fisheries policies and to define certain prin­
ciples in these areas. 
Article 2 
1. When Community legislation relating to the 
common agricultural or fisheries policies confers on the 
Commission the power to adopt rules of application in 
accordance with one of the procedures laid down by the 
Council Decision 87/373/EEC of 13 July 1987 laying 
down the procedures for the exercise of implementing 
powers conferred on the Commission ('), this power 
shall include the power to adopt rules providing for the 
checks and penalties necessary to implement the legis­
lation in question in an effective and uniform manner. 
2. The rules providing for checks and penalties shall 
be appropriate to the specific legislation to be 
implemented and shall be proportionate to the objectives 
pursued. 
Article 3 
1. The nature and frequency of the checks shall be 
determined so as to ensure effective and uniform 
application of the legislation and in particular to prevent 
irregularities. The checks shall be limited to those 
necessary to achieve these objectives. They shall as far as 
possible take account of the administrative practices and 
structures existing in the Member States and shall be 
determined so as not to entail excessive economic conse­
quences or administrative costs. 
(') OJ No L 197, 18. 7. 1987, p. 33. 
6. 6. 90 Official Journal of the European Communities NoC 137/11 
2. In particular checks may include: 
— checks on books and other business documents, 
including taking of copies, 
— on-site requests for additional explanations, 
— the examination of systems and methods of 
production, packaging and dispatch, 
— taking and verification of representative samples. 
Checks made by the Commission within its powers shall 
be carried out by its officials or, if necessary, by auth­
orized agents. 
3. Operators, whether natural or legal persons, on 
whom the Community rules impose obligations, shall 
have the duty to permit checks to be made and shall in 
particular allow access to buildings and land to be visited 
for that purpose. 
Article 4 
1. For the purposes of this Regulation penalties shall 
be understood to mean measures entailing unfavorable 
financial or economic consequences for an operator who 
has injustifiably received a benefit or who has failed to 
fulfil an obligation imposed by legislation. 
However, measures whose consequences are limited to 
the following shall not be considered as penalties: 
— the total or partial withdrawal of a benefit injusti­
fiably received, 
— the obligation to reimburse amounts unjustifiably 
received plus interest, where appropriate, even if 
fixed at a flat rate, 
— the simple forfeit of a guarantee lodged in support of 
an application for a benefit or for the receipt of an 
advance. 
2. The provisions relating to penalties shall determine 
the type and scope of the penalties on the basis of the 
benefit granted, the nature and the seriousness of the 
irregularity in so far as is necessary to ensure the correct 
functioning of the legislation in question. In particular 
penalties may include: — the obligation to pay an amount greater than the 
amounts injustifiably received plus interest, where 
appropriate, 
— total withdrawal of the benefit granted by 
Community legislation even if the operator has injus­
tifiably received only a part of this benefit, 
— refusal or withdrawal of the benefit for a period 
exceeding that of the irregularity if such irregularity 
shows a lack of reliability on the part of the 
beneficiary. 
3. The penalties shall be imposed by the competent 
authorities of the Member States. 
4. The application of a penalty presupposes that the 
irregularity is intentional or the result of negligence. 
However, the rules referred to in Article 2 may derogate 
from this rule if the correct functioning of the legislation 
in question, in particular in the cases referred to in the 
third indent of paragraph 2, require that the penalty be 
imposed irrespective of the existence of any subjective 
factor. 
Article 5 
Member States shall apply the penalties without 
prejudice to their obligation to ensure that infringements 
of Community law are penalized by appropriate 
measures under their national law, and under the same 
conditions and using the same procedures as those 
applicable in the case of infringements of national law of 
a similar nature and gravity. 
Article 6 
This Regulation shall be applied without prejudice to any 
specific measures taken by the Council. 
Article 7 
This Regulation shall enter into force on the third day 
following its publication in the Official Journal of the 
European Communities. 
This Regulation shall be binding in its entirety and 
directly applicable in all Member States.