JOINED OPINION OF MR ADVOCATE GENERAL VILACA DELIVERED ON 17 DECEMBER 1987. - KINGDOM OF THE NETHERLANDS V COMMISSION OF THE EUROPEAN COMMUNITIES. - EAGGF - AID FOR SKIMMED MILK - FREQUENCY OF INSPECTIONS. - CASES 327/85 AND 238/86.



European Court reports 1988 Page 01065



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . Subject-matter of the applications

1 . The applications which I am about to consider have been lodged by the Kingdom of the Netherlands and seek the annulment of three Commission decisions concerning the clearance of the accounts of the European Agricultural Guidance and Guarantee Fund ( EAGGF ). Specificially, the decisions in question are 85/463/EEC and 85/464/EEC both of 28 August 1985 relating to the 1980 and 1981 financial years respectively ( 1 ) ( Case 327/85 ) and Decision 86/443/EEC of 1 July 1986 relating to the 1982 financial year ( 2 ) ( Case 238/86 ).

2 . The issue involved is the Commission' s refusal to finance certain expenditure on aid for skimmed milk processed into compound feed and skimmed-milk powder intended as feed for calves .

3 . Since the contested decisions are similar, the applicant is the same in both cases and the submissions and arguments of the parties are identical, I propose to deal with the two applications together .

2 . Summary of the facts and of the applicable law

4 . Commission Regulation ( EEC ) No 1725/79 of 26 July 1979 ( 3 ) laid down the rules for granting aid for skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended as feed for calves . In order to ensure compliance with those rules, that regulation established a system of physical inspections and scrutiny of the documents, involving inspections on the premises of the conditions of manufacture in an undertaking, supplemented by

scrutiny of its accounts and of the commercial documents . Those inspections must be unannounced and are to be carried out periodically as required by the regulation .

5 . Article 10 ( 2 ) ( c ) provides that physical inspections must be carried out frequently, at least once in every 14 days of manufacture . According to Article 10 ( 2 ) ( d ), thorough scrutiny of the accounts and of the commercial documents must be carried out, in principle, at least once every 12 months, but if it is carried out at least once every three months, the frequency of the inspections may be reduced from at least once in every 14 days to at least once in every 28 days of manufacture ( Article 10 ( 2 ) ( e ) ).

6 . The Commission' s departments established that those time-limits had been exceeded in a number of cases .

7 . In the Summary Report of 22 October 1984 it was pointed out that an inspection which should have been carried out by 11 October 1981 at the latest did not take place until 3 November 1981 . Accordingly, financing was disallowed for the corresponding period ( 12 October to 2 November ) and expenditure was adjusted by HFL 3 060 405.36 .

8 . In Addendum No 1 of 15 April 1985 to the Summary Report, the Commission' s departments further adjusted expenditure by HFL 66 167 616.62 for 1980 and by HFL 19 324 624.21 for 1981, after establishing that, as confirmed by the Netherlands authorities, the 14-day time-limit had been exceeded on 45 occasions in 1980, the 28-day time-limit had been exceeded on five occasions in 1980 and the 28-day time-limit had been exceeded on eight occasions in 1981 .

9 . In Addendum No 3 of 24 May 1985 to the Summary Report, the Commission' s departments, having regard to the results of the quarterly inspections carried out ex post facto by the Netherlands in 1985 which did not reveal any serious anomalies, suggested the possibility of assimilating the Netherlands practice with the system established by Article 10 ( 2 ) ( e ) of the regulation ( inspections to be carried out at least once in every 28 days ). That possibility would have led to smaller adjustments : a reduction of HFL 6 482 249.09 for 1980 and a reduction of HFL 19 324 624.21 for 1981 .

10 . However, that suggestion was not adopted by the Commission and the final decisions, now contested by the applicant, were based on the amounts set out in Addendum No 1 of 15 April 1985 to the Summary Report .

11 . In the Summary Report of 15 January 1986 relating to the accounts for 1982, the Commission pointed out that the Netherlands system of supervision described in the Summary Report for 1980/81 ( 28-day periods with quarterly scrutiny of the documents ) had been applied to all undertakings in the Netherlands from February/March 1981 until 30 April 1984 and that, in relation to that system, it maintained the position it had already taken in Addendum No 1 to the Summary Report for 1980/81 .

12 . Consequently, by Decision 86/443, the Commission refused to charge the sum of HFL 27 214 850.08 to the EAGGF for 1982 .

3 . Consideration of the applicant' s submissions

A - Infringement of essential procedural requirements inasmuch as the decisions contain an inadequate statement of the reasons on which they are based

13 . The Netherlands claims that the decisions in question do not contain an adequate statement of the reasons on which they are based, contrary to Article 190 of the EEC Treaty .

14 . The applicant acknowledges that it cooperated with the Commission' s departments with regard to the clearance of the accounts for the three years under consideration .

15 . However, the Netherlands considers that, in view of the existence of addenda postdating the Summary Report for 1980/81 - and, in particular, of the proposal set out in Addendum No 3 - the Commission should have explained why it opted for one of the alternatives set out therein, since there is no doubt that there were significant differences between them . Moreover, with regard to the 1982 financial year, the Netherlands criticizes the reference made in the Summary Report for that year to the Summary Report for 1980/81 . In connection with its criticism of the latter report, it contends that the decision does not contain a separate statement of reasons .

16 . With regard to that allegation, let me begin by stating that, according to the consistent case-law of the Court, "the extent of the duty to state reasons, laid down by Article 190 of the Treaty, depends on the nature of the act in question and on the context in which it is adopted ". ( 4 )

17 . In this case - in keeping with current practice in procedures for the clearance of accounts - the applicant was closely involved in the process of drawing up the contested decision, as evidenced by various letters and other documents exchanged in that connection between the Netherlands authorities and the Commission' s departments .

18 . Those consultations are described in outline in the Summary Report of 22 October 1984 .

19 . Moreover, the grounds for the adoption of the decision are explained to a sufficient extent by the considerations set out in that report and in Addendum No 1 .

20 . In particular, Addendum No 1 contains a clear and detailed statement of the reasons for the figures arrived at therein, and there is no doubt that it was on the basis of the data set out in that addendum that the decisions relating to the accounts for 1980 and 1981 were adopted .

21 . Similarly, the reference made in the Summary Report for 1982 to the Summary Report for 1980/81 was sufficient to enable the Netherlands to ascertain all the reasons for which the Commission considered that the amount in question for that year should not be charged to the EAGGF .

22 . However, the Netherlands criticizes the Commission for not stating the reasons which induced it to reject the suggestion made by its departments in Addendum No 3 to the Summary Report for 1980/81 in favour of the solution set out in Addendum No 1 .

23 . In my view, the applicant is wrong .

24 . The statement of reasons required by Article 190 of the Treaty relates to the decision actually adopted and it would, in principle, be quite excessive to require the Commission to explain the reasons for which it did not take a decision other than that which it in fact adopted .

25 . Instead, in my view, it is the applicant who bears the onus of demonstrating that a different solution should have been adopted .

26 . I therefore consider that the applicant' s first submission should be rejected .

B - Infringement of Regulation No 729/70 in conjunction with Regulation No 1725/79

27 . ( a ) The Kingdom of the Netherlands claims that the Commission' s decisions are based on a misinterpretation of Article 10 ( 2 ) ( c ) of Regulation No 1725/79, and that financing of the aid in question should not therefore be refused on the basis of Article 3 of Regulation ( EEC ) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy ( 5 ). According to the Netherlands, the phrase "once in every 14 days of manufacture" does not mean, as the Commission maintains, that not more than 14 days may elapse between two inspections, but simply that an inspection must be carried out at least once in the course of each period of 14 days of manufacture . Mutatis mutandis, that also holds true for the phrase "at least once in every 28 days of manufacture" in Article 10 ( 2 ) ( c ).

28 . According to the applicant' s interpretation, therefore, more than 14 days may elapse between two successive inspections . That would be the case, for instance, provided that, in a given undertaking, the first inspection was carried out at the beginning of an initial 14-day period and the next inspection at the end of the new 14-day period .

29 . In support of its position, the Netherlands puts forward a number of arguments which are summarized in the Report for the Hearing .

30 . I do not believe that those arguments are well founded .

31 . ( b ) In purely literal terms, the Commission' s interpretation strikes me as plausible when it states that the wording of Article 10 ( 2 ) ( c ) of Regulation No 1725/79 does not mean "at least once in every period of 14 days of manufacture" but, as is quite clearly stated in that provision, "at least once in every 14 days of manufacture ". There is nothing in the wording of that regulation to suggest that it intended to create separate periods of 14 days and permit inspections to be carried out at any time during such a period . Instead, it is clear from the wording of that provision that it fixes the maximum period which may elapse between two inspections .

32 . Moreover, it was made clear at the hearing that, during the manufacturing process in question, there are no technical production cycles capable of justifying a reference to a 14-day production period as if it were a separate temporal unit with its own rationale within the framework of production .

33 . That argument is reinforced by a consideration relating to the scheme of the provision in question . The second subparagraph of Article 10 ( 2 ) ( c ) refers to undertakings not permanently using skimmed milk . According to the first subparagraph of that provision, therefore, the inspections are to be applied to undertakings using such milk continuously, without any interruptions or intervals between production cycles; that would not appear to be compatible with the notion of separate 14-day periods and the mere requirement of one inspection for each period .

34 . Both the frequency of inspections advocated by the applicant and that advocated by the Commission are indeed compatible with the carrying out of inspections unannounced . However, even from the point of view of the deterrent effect of the two methods of calculation with regard to the prevention of fraud, the second method is preferable to the first .

35 . From the Netherlands' point of view, the longer the period which elapses after an inspection, the greater is not just the likelihood of a fresh inspection but also the risk, in the event of an irregularity, that an undertaking may forfeit the whole of the aid relating to the period up to the last positive inspection that was carried out .

36 . However, the Commission emphasizes that the risk that fraud may escape detection is also greater . In that case, the deterrent effect varies in inverse proportion to the time which has elapsed since the last inspection, and it is therefore preferable to rely on the possibility of detecting fraud than to foster the ill will or bad faith of traders based on the anticipation of longer intervals between inspections .

37 . Moreover, the concern to supervise operations which may qualify for aid financed by the EAGGF is clearly expressed in the preamble to Regulation No 1725/79 .

38 . The preamble refers to the need to "increase the effectiveness of the rules designed to ensure that the skimmed milk and skimmed-milk powder reach their intended uses" and, to that end, "certain technical requirements concerning the nature and use of skimmed-milk powder should ... be made stricter and the inspection measures reinforced" ( second recital ).

39 . Similarly, the concern for supervision which pervades the regulation is expressed in practically all the other recitals in the preamble .

40 . For all those reasons, I fail to see any need to ascribe a special significance to the wording used in the Dutch version of the regulation . The expression "frequent" inspections has been translated as "regelmatig", which the Commission itself acknowledges is not the most accurate rendering since it corresponds more closely to "regular ".

41 . It must be said, however, even at this stage, that - as the Court has consistently held ( 6 ) - the different language versions of a provision of Community law must be given a uniform interpretation based on the objectives and the general scheme of the provision in question .

42 . Not only is the Commission' s interpretation the one that is closest to the actual wording of the second sentence of Article 10 ( 2 ) ( c ) "at least once in every 14 days of manufacture" and to the objectives pursued by the organization of the system of inspections established by Regulation No 1725/79, but it is also difficult to see how the Dutch version, even if viewed on its own, would be capable of bearing a different interpretation . On the contrary, if any particular conclusion is to be drawn from it, such a conclusion would, if anything, appear to support the interpretation advocated by the Commission .

43 . The use of a term corresponding to "regular" does not mean that the notion of unforeseeability - which is a precondition for the effectiveness of thos inspections - cannot be inferred from the word that seems to be associated with it (" inspections shall be frequent and unannounced "). In those circumstances, the use of such wording cannot mean anything other than "unannounced inspections carried out at least once every 14 days ".

44 . Nor, therefore, can any weight be attached to the argument derived by the applicant ( in Case 238/86 ) from the wording used in Article 14 ( 2 ) of Commission Regulation ( EEC ) No 2409/86 of 30 July 1986 on the sale of intervention butter intended for incorporation in compound feedingstuffs . ( 7 )

45 . ( c ) The applicant' s second observation concerning the infringement of Regulations No 1725/79 and No 729/70 relates to the Commission' s attitude during the procedure for the clearance of the accounts .

46 . The Kingdom of the Netherlands alleges that, as a result of the inspection carried out on 15 November 1982 and the reports drawn up by the Netherlands general inspection agency, the Commission was aware of the method of supervision applied in the Netherlands . However it remained silent and did not make its views known in due time . It did not express its views either in its letter of 4 July 1983 ( concerning the inspection carried out on 15 November 1982 ) or in its letter of 2 April 1985 ( concerning the inspection carried out on 30 January 1984 ), but did so only in 1985 when Addendum No 1 was drawn up . That attitude ran counter to the proposals made by the Court of Auditors and the observations made by the European Parliament in 1985 to the effect that the Commission should encourage the Member States to rectify errors with all due speed .

47 . That argument raises two problems : first, the question of proof, and secondly, the question whether it serves any purpose .

48 . The Commission contends that there is no truth in the allegation that its departments failed to react to the Netherlands practice . In support of its contention, it relies on the oral statements made in the course of the inspection carried out in November 1982, the official internal report relating to that inspection, the letter of 4 July 1983 and a later telex message, in which it never failed to call in question the number of days elapsing between inspections . The Commission emphasizes that, in case of doubt, the Netherlands should have asked it to make its position clear in an interpretative note .

49 . In that regard, it must first be acknowledged that, although the internal report concerning the inspection carried out in November 1982 was not communicated to the applicant, the report states that at the time of the inspection EAGGF officials at once challenged the interpretation of the Netherlands authorities, and it is impossible to conclude from its response whether the Netherlands Government expressly denies that specific fact . On the other hand, it is clear that the references in points A 3 and A 4 of the annex to the letter of 4 July 1983 were likely to cast doubt on the compatibility of the parties' interpretations, which would have justified a request by the Netherlands for clarification .

50 . However, more important than proof that the Commission alerted the Netherlands to the fact that its system was unlawful is the significance of a hypothetical omission to do so . In fact it would appear that the aim of the applicant' s argument is not so much to substantiate the legality of its conduct but to draw attention to the Commission' s attitude in that regard . Even if the Commission' s inaction were established, such conduct would not in principle be capable of expunging any irregularities previously committed by the applicant under Community law .

51 . That conclusion follows from the case-law of the Court, which has held that the Member States may not justify a failure to fulfil their obligations by relying on a failure on the part of the Community institutions to carry out their obligations . ( 8 )

52 . Furthermore, it is impossible to detect in this case any conduct on the part of the Commission which is capable of arousing a legitimate expectation on the part of the applicant that the interpretation it was applying was the correct one .

53 . ( d ) Thirdly, the applicant maintains that the Commission was wrong in refusing to adopt the solution advocated in Addendum No 3 to the Summary Report for 1980/81 inasmuch as scrutiny of the administrative documents carried out by the national authorities in 1985 - which the applicant claims is as effective as if it had been carried out at the time of the operations in question - did not reveal the existence of any irregularities . Moreover, the applicant maintains, the Commission has acknowledged the effectiveness of a posteriori inspections in the case of Ireland .

54 . However, that allegation would not appear to be well founded . As the Commission emphasizes, the refusal to finance the expenditure in question stems not from the fact that the aid was unduly paid but from the fact that the inspections were not carried out within the time-limits laid down . ( 9 )

55 . It also seems clear that the combined effect of the physical inspections and scrutiny of the documents required by the regulation cannot be achieved by scrutiny of the administrative documents four years later since the deterrent factor is missing .

56 . The duty to carry out inspections is a mandatory obligation imposed on the Member States by the regulation and its infringement constitutes a failure to comply with a rule of Community law which is intended to ensure the legality of the operations to be financed; that infringement, according to Article 2 of Regulation No 729/70, leads to financing by the EAGGF being refused .

57 . In that regard, the applicant attempts to dispel the notion that scrutiny of the administrative documents is ineffective in the absence of physical inspections . It relies in particular on a letter of 3 March 1981 from the Commission' s Directorate-General for Agriculture in which the latter acknowledged the decisive role played by scrutiny of the administrative documents in the event of any divergence from the results of the physical inspections .

58 . I am not swayed by that argument either .

59 . It is clear from the wording of the regulation that its aim was not to detract from the need to exercise both kinds of supervision . In those circumstances, even though scrutiny of the documents alone may be effective, it cannot remedy a failure to comply with the law .

60 . In reply to a written question from the Court, the Commission provided information concerning the nature and number of the irregularities which inspections are designed to prevent . The potential extent of those irregularities ( taking account, moreover, of the fact that in the field in question the amount of aid represents approximately 55% of the intervention price for skimmed-milk powder ) confirms the importance of the twofold supervision provided for by the Community rules .

61 . In particular, physical inspections relate specifically to the quality of the raw materials and intermediate products ( for instance, fat and water content, absence of products which already qualify for aid under other Community rules ), the manufacturing process for compound feed and the quality of the end product ( minimum content of skimmed-milk powder, quality criteria, presence of prescribed denaturing agents ), and so on .

62 . The inspections to be carried out include, in particular, examination of the raw materials processed, verification of the quantities bought and sold, analysis of samples of the product and an audit of the accounts .

63 . In those circumstances, it is difficult to conceive of those inspections being disregarded and replaced by scrutiny of the documents ex post facto .

64 . As the Commission points out in reply to a question from the Court, both types of supervision are necessary because neither physical inspection nor scrutiny of the documents is capable on its own of providing a sufficient guarantee of compliance with the relevant provisions of Community law .

65 . Moreover, the Commission' s reasoning neutralizes the applicant' s arguments based on the letter of 3 March 1981 . Although that letter was concerned with scrutiny of the documents taking precedence over physical inspections, this case is concerned with the question whether scrutiny of the documents alone is permissible if no on-the-spot inspections have been carried out . If such scrutiny were sufficient, the regulation would not have prescribed other inspections . It did so because they were deemed necessary and to take the view that mere scrutiny of the documents takes the place of physical inspections is tantamount to regarding those inspections as superfluous .

66 . Furthermore, it is difficult to accept that a delay in carrying out physical inspections can be remedied by scrutiny of the documents, itself carried out some considerable time after the expiry of the time-limits laid down and, consequently, also contrary to the relevant provisions of Community law .

67 . The case of Ireland is not quite the same since, according to the Commission, that country was carrying out inspections continuously and that is the only reason why it considered annual scrutiny to be unnecessary .

68 . ( e ) The Netherlands also complains that it was not given the same possibility as that which undertakings at fault have by virtue of Article 9 ( 4 ) of Regulation No 1725/79 of securing by means of a special investigation a reduction of the amount in respect of which financing is refused .

69 . However, that analogy would appear to be completely misconceived . It is one thing to rebut the presumption that, between two positive inspections, all the aid received by an undertaking was unduly granted, it is quite another to accept the belated carrying out of inspections which a Member State was required to carry out and which would make it possible to substantiate that presumption .

70 . ( f ) Finally, the applicant claims that, if a financial adjustment is necessary, it should not entail a refusal to finance the whole of the amount corresponding to the period up to the last inspection but only the amount corresponding to the days by which the time-limit was exceeded .

71 . In my view, that suggestion is not acceptable either . To accept it would raise a presumption that all the products up to the date when the inspection should lawfully have been carried out were properly manufactured . That is precisely the point which the inspection was designed to ascertain during that period . In that regard, I would also refer to the considerations relied upon by the Commission which are set out in the Summary Report for 1980/81 .

C - Breach of the principle of proportionality

72 . The applicant contends that, notwithstanding the fact that only certain procedural defects had been established and no substantive irregularities, the Commission deducted from the whole amount over three years the sum of HFL 115 million, which is out of proportion to the irregularity committed . In support of that contention the applicant refers to the judgment of 25 September 1985 in Case 181/84 Man Sugar (( 1985 )) ECR 2889, in which forfeiture of the security lodged was held to be a disproportionate penalty, and maintains that the Commission enjoys a discretion as is shown by the alternative solutions set out in the addenda to the Summary Reports .

73 . In my view, that contention is meaningless unless the Commission is acknowledged to have a genuine discretion in this area .

74 . I am convinced that this is not the case .

75 . The Commission has no power to assess the importance of the rules infringed nor is there any question of its choosing, from amongst a range of penalties, that which is most appropriate to the gravity of the infringement .

76 . As the Court has already held, ( 10 ) Articles 2 and 3 of Regulation No 729/70 "permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production while leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorized to pay in the context of the common organization of the markets ". If it were otherwise, the differences in the severity with which each provision is applied in the various Member States would jeopardize the equality prescribed with regard to the conditions of competition between traders, favouring those from one Member State to the detriment of the others .

77 . More explicitly, in its judgment of 14 January 1981 in Case 819/79 Germany v Commission ( cited above ), the Court made it clear that : "... the function of a Commission decision relating to the clearance of accounts in respect of expenditure financed by the EAGGF is to establish whether the expenditure was incurred by the national authorities in accordance with Community provisions . In cases where Community rules authorize payment of aid only on condition that certain formalities relating to proof or supervision are observed, aid paid in disregard of that condition is not in accordance with Community law and the expenditure incurred therein may not, in principle, be charged to the EAGGF" ( paragraph 8 of the decision ). ( 11 )

78 . Equally eloquent in that regard is the judgment of 7 February 1979 in Joined Cases 15 and 16/76 France v Commission ( 12 ) in which the Court stated that "as Community law now stands the procedure for the discharge of the accounts ... serves to determine not only that the expenditure was actually and properly incurred but also that the financial burden of the common agricultural policy is correctly apportioned between the Member States and the Community and in this respect the Commission has no discretionary power to derogate from the rules regulating the allocation of expenses ".

79 . Furthermore, what is really involved is not the imposition of a penalty but recognition of the fact that a given aid was granted contrary to Community law, and the necessary financial consequences must be drawn therefrom as required by Community law itself .

80 . Since the Commission has no power to evaluate the relative financial implications of infringements of the Community rules prescribing inspections that were not carried out, those implications could hypothetically be avoided only by challenging the validity of the provisions giving rise to them; quite clearly, this has not been done .

81 . It may indeed be possible to distinguish between substantive irregularities and mere procedural defects, given that it may be excessive to refuse financing as a result of a minor infringement of purely ancillary secondary rules .

82 . In this case the distinction would appear to be irrelevant . Strict observance of the requirement concerning inspections must be regarded as an essential condition for the lawful allocation of aid, particularly since it has not been established that a posteriori inspections are equally effective for the purpose of ascertaining the legality of intervention measures . ( 13 ) Even if they were just as effective, to accept them as sufficient would strongly diminish the deterrent effect of inspections and would set a dangerous precedent with regard to the observance of Community legislation in general and the rules governing the grant of aid in particular .

D - Conclusion

83 . In the light of the foregoing, I am of the opinion that the application must be dismissed as unfounded and that the Kingdom of the Netherlands must be ordered to bear the costs in both cases, in accordance with Article 69 ( 2 ) of the Rules of Procedure .

(*) Translated from the Portuguese .

( 1 )

Official Journal 1985, L 267, pp . 43 and 46 .

( 2 )

Official Journal 1986, L 256, p . 29 .

( 3 )

Official Journal 1979, L 199, p . 1 .

( 4 )

Judgment of 14 January 1981 in Case 819/79 Germany v Commission (( 1981 )) ECR 21, at p . 36, paragraph 19 of the decision . See also the judgment of 27 January 1981 in Case 1251/79 Italy v Commission (( 1981 )) ECR 205, at pp . 221 and 222 .

( 5 )

Official Journal, English Special Edition 1970 ( I ), p . 218 .

( 6 )

Judgment of 27 October 1977 in Case 30/77 R . v Bouchereau (( 1977 )) ECR 1999, at p . 2010, paragraph 14 of the decision . See also the judgment of 3 March 1977 in Case 80/76 Kerry Milk (( 1977 )) ECR 425, at p . 435; the judgments of 7 February 1979 in Case 11/76 Netherlands v Commission (( 1979 )) ECR 245, at p . 278, and in Case 18/76 Federal Republic of Germany v Commission (( 1979 )) ECR 343, at p . 383, and the judgment of 12 July 1979 in Case 9/79 Koschniske v Raad an Arbeid (( 1979 )) ECR 2717, at p . 2724 .

( 7 )

Official Journal 1986, L 208, p . 29 .

( 8 )

See the judgment of 13 November 1964 in Joined Cases 90 and 91/63 Commission v Luxembourg and Belgium (( 1964 )) ECR 625, at p . 631 .

( 9 )

A situation similar to that which arose in a recent case before the Court : see the judgments of 25 November 1987 in Case 342/85 Italy v Commission (( 1987 )) ECR 4677, paragraphs 20, 22, 27 and 28, and in Case 343/85 Italy v Commission, (( 1987 )) ECR 4711, paragraphs 20, 22, 28, 29 and 31 .

( 10 )

Judgments of 7 February 1979 in Case 11/76 Netherlands v Commission (( 1979 )) ECR 245, paragraph 8 of the decision, and in Case 18/76 Germany v Commission (( 1979 )) ECR 343, paragraph 7 of the decision; judgment of 27 February 1985 in Case 55/83 Italy v Commission (( 1985 )) ECR 683, at p . 699, paragraph 31 of the decision .

( 11 )

See also the judgment of 27 February 1985 in Case 55/83 Italy v Commission, supra, paragraph 21 of the decision, and the judgment of 7 February 1979 in Joined Cases 15 and 16/76 France v Commission, supra, paragraphs 9 and 10 of the decision .

( 12 )

(( 1979 )) ECR 321, at p . 339, paragraph 28 of the decision .

( 13 )

Along the same lines, see the judgment of 7 February 1979 in Joined Cases 15 and 16/76 France v Commission, supra, paragraphs 12 and 17 of the decision, and the judgments of 25 November 1987 in Cases 342/85 and 343/85 Italy v Commission, cited above .