In contrast, the conformity clearance procedure allows the Commission to determine the amounts to be excluded definitively from EU financing where expenditure under the EAGF and EAFRD has not been effected in conformity with EU law. It cannot be inferred from the existence of a clearance procedure for determining the amounts to be excluded from EU financing that the Commission was thus not entitled, beforehand or concomitantly, to use the suspension procedure for monthly payments corresponding to such amounts. Article 41(3) of Regulation No 1306/2013 expressly provides that suspensions under that article are without prejudice to the application of Articles 51 and 52 of that regulation relating to financial clearance and conformity clearance, respectively. Moreover, like the conformity clearance procedure, the procedure for suspending monthly payments confers procedural rights on the State concerned so that it can submit observations before the adoption of a decision to suspend payments.

The procedure for the suspension of monthly payments to a Member State provided for in Article 41 of Regulation No 1306/2013 on the financing, management and monitoring of the common agricultural policy does not have the same objective as the conformity clearance procedure laid down in Article 52 of that regulation. The suspension procedure enables the Commission to suspend temporarily monthly payments to a Member State under the European Agricultural Guarantee Fund (EAGF) or the European Agricultural Fund for Rural Development (EAFRD) where, for example, there are serious shortcomings in national control systems or in systems for the recovery of irregular payments.

In the context of an action brought by a Member State against a Commission decision to suspend monthly payments to it under the European Agricultural Guarantee Fund (EAGF), the possibility for a Member State to plead a breach of the principle of proportionality before the EU Courts does not require the Member State to submit that complaint beforehand to the Commission during the administrative procedure preceding the adoption of an implementing act suspending monthly payments. EU law contains no rule to the effect that, if a Member State does not raise issues of law in the course of the administrative procedure before the Commission, its right to raise those issues will lapse. As is apparent from Article 41(3) of Regulation No 1306/2013 on the financing, management and monitoring of the common agricultural policy, it is for the Commission to comply with the principle of proportionality and it is for the EU Courts to review such compliance if requested to do so. The Commission is required to adopt a final decision in conformity with law, regardless of whether the addressee of that decision has actually exercised its rights of defence in the administrative procedure or the extent to which it has done so.

The application by analogy of the Commission guidelines on the calculation of financial corrections in the context of conformity clearance and account clearance procedures does not, per se, demonstrate that the amount suspended is disproportionate. Moreover, in the absence of any other relevant information available concerning declared areas which actually posed a problem in the light of the deficiencies found, the Commission’s use of a flat-rate is not in itself, from a methodological standpoint, disproportionate.

(see paras 120, 132)