Judgment of the Court (Fourth Chamber) of 4 October 2012 —

ED & F Man Alcohols

(Case C-669/11)

Protection of the financial interests of the European Union – Regulation (EC, Euratom) No 2988/95 – Scope ratione materiae – Meaning of ‘detriment to the financial interests of the European Union’ – Individual invitation to tender for the export of vinous alcohol held by intervention agencies – Export of quantities of alcohol outside the European Union after the expiry of the prescribed time-limit – Retention of the performance guarantee – Administrative measures – Administrative penalties – Regulation (EC) No 360/95 – Regulation (EC) No 1623/2000 – Retroactive application of a less severe penalty

1. Own ressources of the European Union – Regulation on the protection of the financial interests of the Union – Irregularity – Notion – Infringement, by an operator having obtained quantities of alcohol by invitation to tender, of the obligation to export those quantities outside of the European Union within the prescribed time-limit – Included (Council Regulation No 2988/95, Art. 1; Commission Regulation No 360/95) (see paras 35-38, operative part 1)

2. Own ressources of the European Union – Regulation on the protection of the financial interests of the Union – Administrative penalty – Notion – Loss in whole or in part of the performance guarantee provided by an exporter in order to ensure compliance with its obligations, such as export within the time-limit allowed – Included (Council Regulation No 2988/95, Art. 5; Commission Regulations No 360/95, Art. 5(5) and No 1623/2000, Art. 91(12)) (see paras 40, 41, 43, operative part 2)

3. Agriculture – Common organisation of the markets – Wine – Individual sales by invitation to tender for the export of vinous alcohol outside the European Union – Administrative penalties in the event of a failure to export within the prescribed time-limit – Loss of the performance guarantee – Legal basis – Whether possible to impose a penalty on the sole basis of Article 5 of Regulation No 2988/95 – Requirement to base a penalty on Article 5(5) of Regulation No 360/95 (Council Regulation No 2988/95, Art. 5; Commission Regulation No 360/95, Art. 5(5)) (see paras 46-49, operative part 3)

4. Agriculture – Common organisation of the markets – Wine – Individual sales by invitation to tender for the export of vinous alcohol outside the European Union – Irregularity leading to a penalty – No retroactive applicability of less severe fines resulting from the combined provisions of Regulation No 2988/1995 and No 1623/2000 – Application of Regulation No 360/95 as a special law concerning only certain exports to Brazil (Council Regulation 2988/95, Art. 2(2); Commission Regulations No 2220/85, Art. 23, No 360/95, Art. 5(5) and No 1623/2000, Arts 91(2), 12, 13 and 100) (see paras 53, 57-60, operative part 4)

Re:

Reference for a preliminary ruling – Conseil d’État – Interpretation of Article 5(5) of Commission Regulation (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies (OJ 1995 L 41, p. 14), of Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine, with regard to market mechanisms (OJ 2000 L 194, p. 45), of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1), and of the provisions of Commission Regulation (EEC) No 377/93 of 12 February 1993 laying down detailed rules for the disposal of alcohol obtained from the distillation operations referred to in Articles 35, 36 and 39 of Council Regulation (EEC) No 822/87 and held by intervention agencies (OJ 1993 L 43, p. 6) and of Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products (OJ 1985 L 205, p. 5) – Individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies for the purpose of an end use as motor fuel – Time-limit for export exceeded by the successful tenderer – Administrative penalties or other measures – Failure likely to prejudice the budget of the European Union.

Operative part

1. The failure of an operator to comply with the time-limit for export imposed in respect of quantities of alcohol obtained in an invitation to tender procedure organised by the European Commission, as governed by Commission Regulation (EC) No 360/95 of 22 February 1995 opening individual sales by invitation to tender for the export of vinous alcohol held by intervention agencies, constitutes an ‘irregularity’ within the meaning of Article 1 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests.

2. The loss in whole or in part of a performance guarantee, such as that provided for in Article 5(5) of Regulation No 360/95, or of a security to ensure export within the time allowed, such as that provided for in Article 91(12) of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine, with regard to market mechanisms, is covered by the concept of ‘administrative penalty’ within the meaning of Article 5 of Regulation No 2988/95.

3. In circumstances such as those of the main proceedings, Article 5(5) of Regulation No 360/95 constitutes the necessary legal basis for the imposition of a penalty consisting of the loss in whole or in part of a performance guarantee.