2.

Second ground of appeal — error of law in the grounds of the judgment under appeal, in so far as it dismissed as unfounded the appellants’ argument before the General Court alleging breach of the Treaty — the principle of proportionality. — It is apparent from Article 85 of Regulation No 2342/2002 that, as long as the requirements and conditions laid down in that provision are fulfilled, the person responsible on behalf of the Community for taking a decision (in this case, the accounting officer) must determine the request submitted to that person by the undertaking concerned for an additional specific period within which to complete payment and grant that request, as long as those requirements are satisfied and the lawful conditions for the granting of such permission fulfilled. — The ‘broad powers of discretion’ conferred on the Commission’s accounting officer under Article 85 of Regulation No 2342/2002 cover the determination of the request submitted to that person by the undertaking concerned for an additional specific period within which to complete payment and the granting of the request, not the type of bank guarantee which the Commission’s accounting officer considers acceptable, so that, in reviewing the contested measure, it is not sufficient merely to check whether the measure is manifestly inappropriate for the purpose of attaining the objectives pursued, as claimed, incorrectly, in the judgment under appeal. — An at-first-demand guarantee, along the lines of the model required by the Commission, issued by a credit institution, constitutes a proper and appropriate means of ensuring payment of the amounts due. Thus, the whole Portuguese legal system (and, in general, that of the other countries of the European Union) accepts the provision of a bank guarantee for the most diverse purposes, including that of suspending the execution of judicial decisions, in particular any enforcement proceedings brought by the Commission before the national courts and tribunals in connection with a failure to pay. — In the present case, the guarantee proposed by the appellants (and not accepted by the Commission) would be issued by the Banco Comercial Português, S.A., a credit institution having its head office in the European Union, subject to the rules of supervision and consolidation defined by the Community institutions. Thus, there seems to be no justification, in order to defend the Community’s rights, for ruling out the possibility of the guarantee being issued by the said bank and requiring it to be issued by a bank with long-term ‘AA’ rating. — Furthermore, the public is aware of the current situation in which the ratings of Portuguese banks have been affected by the change in the rating of the Portuguese Republic. Thus, there is no bank based in Portugal that fulfils the rating criteria (long-term ‘AA’) required in the Commission decision. That situation was referred to in the judgment under appeal, under the heading ‘Facts of the dispute’. Nevertheless, it was not taken into account in the grounds of that judgment. — Accordingly, the Commission decision does not fulfil the criterion of necessity (which constitutes an important dimension of the principle of proportionality) since, of the possible measures, the Commission opted for the one that, in the current circumstances, is most prejudicial to the interests of the appellants. — Thus, there is a clear lack of proportionality between the requirement imposed by the Commission (guarantee issued by a European bank with long-term ‘AA’ rating) and the objective sought (protection of the right of the Commission to receipt of the amounts due), so that the judgment under appeal erred in so far as it considered that the contested measure did not infringe the principle of proportionality.