Case C‑521/15

Kingdom of Spain

v

Council of the European Union

(Action for annulment — Implementing Decision (EU) 2015/1289 — Imposition of a fine on a Member State in the context of economic and budgetary surveillance of the euro area — Manipulation of statistical data relating to the deficit of the Member State concerned — Jurisdiction — Regulation (EU) No 1173/2011 — Article 8(1) and (3) — Delegated Decision 2012/678/EU — Articles 2(1) and (3) and 14(2) — Regulation (EC) No 479/2009 — Articles 3(1), 8(1), 11 and 11a — Rights of defence — Charter of Fundamental Rights of the European Union — Article 41(1) — Right to good administration — Articles 121, 126 and 136 TFEU — Protocol No 12 on the excessive deficit procedure — Existence of an infringement — Misrepresentations — Determination of the fine — Principle that penal provisions may not have retroactive effect)

Summary — Judgment of the Court (Grand Chamber), 20 December 2017

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Fines—Amount—Criteria—Setting of the reference amount at 5% of the larger impact of the misrepresentation on the level of the deficit or the debt—Concept of ‘larger impact’

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Conditions—Existence of intent or serious negligence on the part of the Member State concerned—Criteria for assessment

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Conditions—Misrepresentations by a Member State regarding its deficit—Need for the misrepresentations to jeopardise economic and budgetary coordination and surveillance—No such need

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Conditions—Misrepresentations by a Member State regarding its deficit—Provisional nature of the data to which the misrepresentations relate—Irrelevant

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Adoption of a decision imposing a sanction following an investigation conducted by members of Eurostat’s staff who have previously taken part in inspections in the Member State concerned—Infringement of the requirement of impartiality—No such infringement

Economic and monetary policy—Economic policy—Economic and budgetary surveillance of the euro area—Imposition of sanctions for the manipulation of statistics—Adoption of a decision imposing a sanction on the basis of information gathered before the investigation was launched and before the decision specifying the rules applicable to investigations and sanctions was adopted—Infringement of the rights of defence of the Member State concerned—No such infringement

EU institutions—Exercise of powers—Implementing power conferred on the Commission or the Council—Nature of the act adopted—Need for the act to be binding and to lend itself to implementation by the Member States—Scope

Decision 2015/1289 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia cannot be regarded as having been adopted in the exercise of an implementing power conferred on the Council in accordance with Article 291(2) TFEU. Whilst that decision must be regarded as an act adopted in the exercise of an implementing power in that it was adopted pursuant to the powers conferred on the Council by Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area, Article 291(2) TFEU is just one of a number of possible legal bases for the exercise of such a power by the Council. Article 291(2) TFEU relates solely to legally binding acts of the European Union which lend themselves in principle to implementation by the Member States, like those to which Article 291(1) TFEU refers, but which, in contrast to the latter acts, must, for a particular reason, be implemented by means of measures adopted not by each Member State concerned, but by the Commission or the Council, for the purpose of ensuring that they are applied uniformly within the European Union. That is clearly not so in the case of an act which establishes a power consisting in the imposition of a fine on a Member State. Such an act does not lend itself in the slightest to implementation by the Member States themselves, as implementation of that kind involves the adoption of an enforcement measure in respect of one of them. (see paras 44, 48, 49, 51)

The Council did not infringe the rights of defence of a Member State fined pursuant to Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area in relying, in the decision imposing the sanction, on information gathered by a Commission department, namely Eurostat, when visits were carried out in that Member State before the decision to launch the investigation was adopted and before the entry into force of Decision 2012/678 on investigations and fines related to the manipulation of statistics as referred to in Regulation No 1173/2011. First, where the various visits carried out in the Member State concerned have been organised after Regulation No 1173/2011 entered into force, the fact that on those visits Eurostat has gathered information does not mean that the decision at issue is vitiated by an infringement of the rights of the defence. Second, Regulation No 479/2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community, and more specifically Article 11a thereof, constitutes a legal basis authorising Eurostat to gather, in the course of such visits, information relating to possible misrepresentations by a Member State of data relating to its deficit. Furthermore, the permanent dialogue conducted by Eurostat with Member States’ statistical authorities pursuant to Article 11 of Regulation No 479/2009 necessarily entails it being able to carry out the various visits and missions called for by the discharge of its responsibilities, in addition to the visits specifically referred to by that article. (see paras 62, 66, 73, 75, 83)

The right to good administration set out in Article 41(1) of the Charter of Fundamental Rights of the European Union reflects a general principle of EU law which may be relied upon by the Member States. (see para. 89)

The EU institutions are required to observe the right to good administration in the context of administrative procedures that are initiated against Member States and are liable to result in decisions adversely affecting them. In particular, it is incumbent upon the EU institutions to comply with both components of the requirement of impartiality, which are, first, subjective impartiality, by virtue of which no member of the institution concerned may show bias or personal prejudice, and second, objective impartiality, under which there must be sufficient guarantees to exclude any legitimate doubt as to possible bias on the part of the institution concerned. Where a number of EU institutions are given separate responsibilities of their own in the context of a procedure initiated against a Member State that is liable to result in a decision adversely affecting it, each of those institutions is required, in respect of its own activities, to comply with the requirement of objective impartiality. Consequently, even where only one of them has breached that requirement, such a breach is liable to render the decision adopted by the other at the end of the procedure at issue unlawful. (see paras 90, 91, 94)

The fact that the conduct of an investigation procedure founded on Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area is entrusted to a team largely composed of members of Eurostat’s staff who have already taken part in visits organised by Eurostat in the Member State concerned on the basis of Regulation No 479/2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community, before the institution of that procedure, does not, as such, permit it to be concluded that the decision adopted at the end of that procedure is unlawful on account of a breach of the requirement of objective impartiality to which the Commission is subject. Furthermore, it is not to Eurostat, whose responsibilities are clearly defined by Regulation No 479/2009, but to the Commission, and therefore to the Commissioners acting as a collegiate body, that Article 8(3) of Regulation No 1173/2011 reserves (i) the power to decide to initiate the investigation procedure, (ii) responsibility for conducting the investigation and (iii) the power to submit to the Council the recommendations and proposals that are necessary at the conclusion of the investigation. Regulation No 1173/2011 does not entrust Eurostat’s staff with any responsibility of their own in the conduct of the investigation procedure. (see paras 101-103)

The scope of Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area encompasses all misrepresentations by the Member States of data relating to their deficit and their debt which must be reported to Eurostat under Article 3 of Regulation No 479/2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community, including misrepresentations regarding data of a provisional nature. That conclusion is not called into question by the argument that the inclusion within the scope of Article 8(1) of Regulation No 1173/2011 of misrepresentations made regarding provisional data would render Article 6 of Regulation No 479/2009 redundant inasmuch as that article permits the Member States to revise the provisional data that they have previously reported to Eurostat. Article 6 of Regulation No 479/2009 obliges the Member States to report both instances of revision of provisional data and instances of revision of actual data, irrespective of the power conferred upon the Council to impose a sanction on them if the data at issue has been misrepresented. (see paras 119-121)

Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area defines misrepresentations by the Member States by reference to the subject matter of the data concerned, namely the deficit and debt of the Member State at issue. irrespective of whether they have had the effect of jeopardising the economic and budgetary coordination and surveillance carried out by the Council and the Commission. (see paras 124, 125)

Assessment as to whether there is serious negligence on the part of the Member State concerned, for the purpose of classification as an infringement under Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area, depends not on the extent to which the irregularities giving rise to the misrepresentations made by the Member State were of a limited nature, but on the magnitude of the Member State’s breach of the obligation to exercise due care owed by it when drawing up and checking the data to be reported to Eurostat under Article 3 of Regulation No 479/2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community. Since initiation of the investigation procedure provided for in Article 8(3) of Regulation No 1173/2011 must be justified by there being serious indications of facts liable to constitute a misrepresentation made intentionally or by serious negligence, it is necessary to assess whether that serious negligence exists in the light of the facts constituting misrepresentation, while disregarding that Member State’s conduct after the misrepresentation. It follows that neither the fact that the misrepresentations concern only the deficit of a single autonomous community, within the entire government deficit, nor the fact that the Member State cooperated in the investigation conducted by the Commission, after spontaneously reporting the irregularities at issue to it, is capable of calling into question the classification of serious negligence adopted by the Council. (see paras 128-131)

See the text of the decision. (see para. 141)

The principle that penal provisions may not have retroactive effect constitutes a general principle of EU law. That general principle of law requires the infringement attributed to a person and the penalty imposed on that basis to correspond to those which were laid down at the time when the action or omission constituting the infringement occurred. More specifically, that general principle of law is also applicable to fines of an administrative nature. Consequently, the imposition of a fine under Article 8(1) of Regulation No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area cannot escape application of that general principle of law, notwithstanding the fact that Article 9 of the regulation states that such a sanction is of an administrative nature. (see paras 145, 146)

The Member States are entitled to rely on the general principle that penal provisions may not have retroactive effect, in order to call into question the legality of the fines imposed upon them if they fail to comply with EU law. (see para. 147)