Judgment of the Court of 10 July 1990. - Hellenic Republic v Commission of the European Communities. - Agriculture - Clearance of EAGGF accounts - 1984 financial year. - Case C-334/87.



European Court reports 1990 Page I-02849

Pub.RJ Page Pub somm



Summary

Parties

Operative part



Keywords

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1 . Agriculture - Common agricultural policy - Expenditure financed by the EAGGF - Decision relating to the clearance of accounts - Decision subject to reservations - Permissible in view of the fact that the time-limit for the Commission' s decision is not mandatory

( Council Regulation No 729/70, Art . 5(2)(b ) )

2 . Agriculture - EAGGF - Clearance of accounts - Refusal to accept expenditure arising from irregularities in the application of Community legislation - Limitation by the Commission to the cost to the EAGGF of the irregularities - Disagreement on the cost calculated by the Commission - Burden of proof on the Member State concerned

( Council Regulation No 729/70 )

3 . Community law - Principles - Force majeure - Concept - Non-performance of an export sales contract attributable to the purchaser - Not included

4 . Agriculture - Common organization of the markets - Export licences - Community provisions allowing account to be taken of force majeure - Application by the Member States - Commission' s right of review - Manner of exercise - Action for failure to fulfil obligations or procedure for the clearance of EAGGF accounts

( EEC Treaty, Art . 169; Council Regulation No 729/70; Commission Regulation No 3183/80, Art . 37(5 ) )

5 . Agriculture - Common agricultural policy - Financing by the EAGGF - Principles - Refusal to charge to the fund expenditure incurred in breach of Community legislation - Application of the de minimis rule - Not applicable

( Council Regulation No 729/70 )

6 . Agriculture - Common agricultural policy - Financing by the EAGGF - Principles - Costs incurred by a national intervention agency as a result of the unwarranted delay of the Commission in replying to a reasonable enquiry for information - Chargeable to the fund

( Council Regulation No 729/70 )

Summary

1 . Since no penalty is imposed for failure by the Commission to comply with the time-limit provided for by Article 5(2)(b ) of Regulation No 729/70 for the adoption of a decision on the clearance of accounts in respect of expenditure financed by the EAGGF it must be regarded as a merely formal limit, save where the interests of a Member State are affected ( see the judgment in Case 349/85 Denmark v Commission [1988] ECR 169 ). It follows that where it is not possible to reach a final decision on the financing of certain expenditure, the Commission is entitled to express reservations in its decision on the clearance of accounts . It is immaterial in that respect that the decision contains reservations of a general nature and not specific reservations relating to each inspection which was carried out, since the Member States are closely associated with the procedure for clearing the accounts and are fully informed of any inspections .

Those reservations, which simply clarify the effects of the decision, may appear in the preamble alone, since the preamble is an integral part of the decision and may thus help to specify its objective and scope .

2 . When the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was caused by a national measure incompatible with Community law and the amount disallowed has been calculated by examining the manner in which the national measures in question affected EAGGF expenditure, it is for the Member State contesting the disallowance to prove that EAGGF expenditure was not increased by those measures or that it was increased by an amount less than that calculated by the Commission ( see the judgment in Case 347/85 United Kingdom v Commission [1988] ECR 1749 ).

3 . The Court has consistently held that the concept of force majeure requires the non-performance of the act in question to be due to circumstances beyond the control of the person claiming force majeure which are abnormal and unforeseeable and whose consequences could not have been avoided despite the exercise of all due care .

As the Court has already held ( see the judgment in Case 109/86 Theodorakis v Greece [1987] ECR 4319 ), although non-performance by the other party to an export sales contract may be described as a circumstance outside the control of the holder of an export licence, it is neither abnormal nor unforeseeable . Such an event is an ordinary commercial risk inherent in commercial transactions and it is for the holder of the licence to take appropriate precautions either by including the appropriate clauses in the contract in question or by obtaining insurance . It is irrelevant in that respect that the other party to the contract is a body governed by public law, even though, in other circumstances, the interpretation of the concept of force majeure must take account of the special nature of the relationship under public law between a trader and the authorities ( see the judgment in Case 158/73 Kampffmeyer v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel [1974] ECR 101 ).

4 . The fact that the Court has held ( see the judgment in Case 36/70 Getreide-Import v Einfuhr - und Vorratsstelle fuer Getreide und Futtermittel [1970] ECR 1107 ) that when Member States apply the common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products laid down in Regulation No 3183/80 they are entitled to treat certain circumstances as cases of force majeure enabling the duration of the validity of an export certificate or the period for exporting to be extended does not mean that the Commission is not entitled to review the manner in which the Member States exercise that power . On the contrary, that right of review is necessary to ensure the correct application of Community law, as is confirmed, in particular, by the obligation imposed on Member States by Article 37(5 ) of Regulation No 3183/80 to advise the Commission of cases which they accept as force majeure .

Such review may be exercised by initiating the procedure laid down in Article 169 of the Treaty or as part of the clearance of the EAGGF accounts, since although the two procedures meet different needs and purposes, they are both of an adversary nature, entailing the right to be heard, and may culminate in proceedings before the Court .

5 . The Commission cannot charge to the EAGGF expenditure not incurred in accordance with Community law; that precludes application of the de minimis rule, that is to say the rule that a practice is to be regarded as contrary to the common market only if it has an appreciable effect, which may apply in other sectors of Community law .

6 . The financial consequences, in the present case storage costs, resulting from a delay in the delivery of agricultural products by a national intervention agency to a successful tenderer are chargeable to the EAGGF where the delay is attributable to the Commission, which when asked by the national authorities for information, owing to the lack of clarity of the Community legislation, replied only after the lapse of several months without even attempting to justify the delay .

Parties

In Case C-334/87,

Hellenic Republic, represented by Eleni Marinou, lawyer, counsel to the Ministry of Foreign Affairs, Ilias Laios, Legal Adviser in the Ministry of Agriculture, and Meletis Tsotsanis, lawyer in the Ministry of Agriculture, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,

applicant,

v

Commission of the European Communities, represented initially by Xenophon Yataganas, a member of its Legal Department, acting as Agent, then by Dimitrios Gouloussis, Legal Adviser, acting as Agent, and then by Théofanis Christoforou, a member of its Legal Department, assisted by Michaïl Vilaras, an assessor at the Greek Council of State on secondment to the Commission' s Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 87/468/EEC of 18 August 1987 on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1984 ( Official Journal 1987 L 262, p . 23 ),

THE COURT

composed of : O . Due, President, Sir Gordon Slynn and C . N . Kakouris, ( Presidents of Chambers ), G . F . Mancini, T . F . O' Higgins, G . C . Rodríguez Iglesias and M . Díez de Velasco, Judges,

( The grounds of the judgment are not reproduced .)

hereby :

Operative part

( 1 ) Declares void Commission Decision 87/468/EEC of 18 August 1987 on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1984 in so far as the Commission has not charged to the European Agricultural Guidance and Guarantee Fund the amount representing the storage costs of a consignment of olive-residue oil for the period from 14 March to 7 August 1984;

( 2 ) Dismisses the remainder of the application;

( 3 ) Orders the Hellenic Republic to pay the costs .