Judgment of the Court of 22 June 1993. - Hellenic Republic v Commission of the European Communities. - Clearance of EAGGF accounts - 1988 financial year. - Case C-56/91.



European Court reports 1993 Page I-03433



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Agriculture ° EAGGF ° Clearance of accounts ° Finding by the Court of the existence in a Member State of unlawful practices extending over a number of years ° Refusal to charge expenditure for a subsequent year to the EAGGF ° Refusal by the Member State concerned of the Commission' s requests for on-the-spot inquiries ° Burden of proof on the Member State

2. Agriculture ° EAGGF ° Clearance of accounts ° Amounts to be paid to the EAGGF by a Member State by way of the co-responsibility levy in the cereals sector ° Calculation based on information provided by the national authorities ° Subsequent amendment of the data communicated ° Not permissible in the absence of plausible justification

3. Agriculture ° Common agricultural policy ° Financing by the EAGGF ° Principles ° Recalculation by the national authorities of the amount of a security declared forfeit in accordance with indications provided by the Commission ° Not permissible

Summary

1. Where the Court finds in a number of judgments that practices exist in a Member State which are incompatible with the Community rules on the common organizations of the markets and that that Member State has consistently resisted the Commission' s requests for on-the-spot inquiries, the Commission is entitled, in the context of the procedure for the clearance of EAGGF accounts, to consider that those practices continued after the period to which the Court' s findings related and, in the absence of proof to the contrary from the Member State concerned, to refuse to charge to the EAGGF expenditure in the sector affected by the unlawful practices.

2. It is for the national authorities which subsequently amend figures of decisive significance for the purposes of the calculation of the amount which the Member State concerned owes to the EAGGF in connection with the co -responsibility levy in the cereals sector to provide sufficient specific information to justify that change.

3. Where the Commission, after receiving a complaint regarding the total forfeiture of a security given by an economic operator which has purchased intervention products, has informed the national authorities concerned that it is possible to recalculate the amount of the security having to be regarded as definitively forfeit and makes that recalculation conditional solely on the primary obligation undertaken by the operator being fulfilled, the national authorities cannot be criticized, on the clearance of the EAGGF accounts, for having effected that recalculation in accordance with a method consistent with the content of the communication sent to them, even though it may be incorrect or incomplete.

Parties

In Case C-56/91,

Hellenic Republic, represented initially by Constantinos Stavropoulos, Legal Assistant in the Special Department for Community Legal Affairs of the Ministry of Foreign Affairs, and Meletis Tsotanis, Legal Administrator in the Ministry of Agriculture, and subsequently by Vassilios Kondolaimos, Assistant Member of the Legal Council of State, 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 by Xenophon A. Yataganas, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 90/644/EEC of 30 November 1990 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (OJ 1990 L 350, p. 82),

THE COURT,

composed of: C.N. Kakouris, acting for the President, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: F.G. Jacobs,

Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 21 October 1992,

after hearing the Opinion of the Advocate General at the sitting on 15 December 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 8 February 1991, the Hellenic Republic brought an action under the first paragraph of Article 173 of the EEC Treaty for the partial annulment of Commission Decision 90/644/EEC of 30 November 1990 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (hereinafter "the EAGGF"; OJ 1990 L 350, p. 82).

2 In the first place, the Hellenic Republic claims that the Commission failed to give proper effect to the Court' s judgments in Case C-259/87 and Case C-334/87 Greece v Commission [1990] ECR I-2845 and I-2873 upholding the claims of the applicant Member State and partially annulling the decisions on the clearance of the accounts for the 1983 and 1984 financial years pursuant to which certain amounts in respect of common wheat and olive residue oil, respectively, had not been charged to the EAGGF. Secondly, the Hellenic Republic complains that the Commission failed to charge the following amounts to the EAGGF:

° DR 869 296 279 in respect of export refunds on animal feed;

° DR 215 156 000 in respect of the co-responsibility levy on cereals (1987-1988 marketing year);

° DR 245 233 on account of an improper reduction in the amount forfeited from a security provided on the sale of intervention meat intended for processing;

° DR 216 800 on account of the non-forfeiture of a security (milk sector);

° DR 511 862 586 on account of the poor quality of intervention stocks of tobacco;

° DR 528 931 426 on account of the consequences, for the 1988 financial year, of an adjustment carried out during the 1987 financial year regarding the quality of intervention stocks of tobacco.

3 During the proceedings the Hellenic Republic withdrew the plea relating to the non-forfeiture of a security (milk sector), since the parties had agreed to reconsider that point in the context of the clearance of subsequent accounts, and also the pleas relating to the poor quality of intervention stocks of tobacco and the consequences of the aforementioned financial adjustment, since the parties had reached an agreement on that matter.

4 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Failure to give proper effect to the judgment of the Court of 10 July 1990 in Case C-259/87 Greece v Commission

5 The Hellenic Republic complains that the Commission has failed to give proper effect to the abovementioned judgment, by which the Court partially annulled the decision on the clearance of the accounts for 1983 in so far as the Commission had not charged to the EAGGF the amount representing the sums received on the sale of two consignments of 30 000 tonnes of common wheat which were paid to the EAGGF, with the consequence that the Community was unjustly enriched.

6 The Hellenic Republic argues that, in order to comply with the Court' s judgment, the Commission should have charged to the EAGGF, not the sum of DR 596 040 000 indicated in the decision in question, but all the expenditure relating to the sale in question, namely DR 875 045 976.

7 It should be considered in that respect that in the judgment in question the Court accepted that the sales of the two consignments of common wheat had taken place in a manner which did not comply with the applicable rules and that the Commission was entitled to refuse to charge to the EAGGF the corresponding expenditure, namely an amount made up of the theoretical price of the consignments and the cost of withdrawing them from the intervention scheme.

8 The Court none the less found that the sums received following the sales in question had been paid to the EAGGF. Accordingly, the Commission could not, without unjustly enriching the EAGGF, both refuse to recognize the full expenditure relating to the two sales and keep the proceeds of the sales.

9 Consequently, it must be held that, in order to comply with the judgment, the Commission was obliged to charge to the EAGGF only the amount corresponding to the sums received on the sale of the consignments of common wheat, with which, moreover, the EAGGF was credited, namely a total of DR 596 040 000.

10 Neither the accuracy of that amount nor the fact that it was actually charged to the EAGGF has been disputed. Accordingly, this head of claim must be rejected.

Failure to give proper effect to the judgment of the Court of 10 July 1990 in Case C-334/87 Greece v Commission

11 By the abovementioned judgment the Court annulled the decision on the clearance of the accounts for 1984 in so far as the Commission had not charged to the EAGGF the amount representing the storage costs of a consignment of olive residue oil for the period from 14 March to 7 August 1984, these two dates being, respectively, the date of a request for information made by the Greek authorities to the Commission with regard to the interpretation of the applicable Community rules and the date of the Commission' s reply, which was given after an unjustifiable delay of several months.

12 The origin of the dispute thus decided by the Court was the sale by tender of the said consignment of olive residue oil in July 1983, although actual delivery did not take place until October 1984.

13 The applicable Community legislation provided that the purchaser was required to withdraw the oil within 60 days of notification of the result of the tender. In view of the Greek authorities' request for information regarding certain aspects of the legislation, the Commission calculated the 60 day period only from the date of its reply, namely 8 November 1983. However, since delivery had not taken place, in clearing the accounts relating to the financial year concerned, the Commission refused to charge to the EAGGF the storage costs incurred between 1 February 1984, the first day of the month following the expiry of the 60 day withdrawal period, and the date of delivery in October 1984, in other words for a period of 270 days, which worked out at DR 17 604 833.

14 In its judgment, the Court held that the Commission' s position was well founded, although it considered that the period mentioned in paragraph 11, above, could not be accepted. The Commission then charged the sum of DR 9 389 270 to the EAGGF.

15 The Hellenic Republic argues that the Commission' s calculations are incorrect and that the EAGGF should have been charged in respect of a larger number of days than the number actually used. In that regard, the applicant first claims that the starting date for the calculation of the 60 day delivery period should not have been 8 November 1983 but 20 December 1983, the date of the telex by which the Commission confirmed that the EAGGF would cover the storage costs until the expiry of the withdrawal period. Secondly, the applicant claims that the reply to the request for information of 14 March 1984 was given on 9 August 1984, not on 7 August 1984.

16 Those allegations cannot be accepted. As regards the first, suffice it to say that, in paragraph 48 of its judgment, the Court expressly dismissed the applicant' s argument as far as the period prior to 14 March 1984 is concerned by holding that the applicant was entitled to have the storage costs charged to the EAGGF only with effect from that date. As regards the second allegation, it is manifest that the applicant is in fact challenging, not the Commission' s implementation of the judgment, but the judgment itself.

17 Consequently, it must be held that the Commission' s calculations are consistent with the substance of the judgment and this head of claim must be rejected.

Expenditure disallowed in respect of export refunds on animal feed

18 In the contested decision the Commission refused to charge to the EAGGF for the 1988 financial year expenditure in respect of export refunds on animal feed on account of the State' s intervention in the market through the intermediary of the Central Office for the Management of National Products (hereinafter "Kydep"). This agency applied a parallel national agricultural policy contrary to the Community regulations which consisted in purchasing animal feed and selling it to stockbreeders and processors at below the cost price, the resulting deficits being covered by public funds.

19 The Hellenic Republic maintains that, in order to justify refusing Community financing, the Commission relied on reports and minutes referring to periods prior to the 1988 financial year, to which the contested decision relates. It claims that documents relating to years prior to a given financial year cannot constitute a valid basis for refusing to recognize expenditure for that year, since each financial year stands alone. In the event, the State did not make any payment for the 1988 financial year to cover Kydep' s activities in the animal feed sector.

20 In that respect, it should be observed that in the judgment in Case C-35/88 Commission v Greece [1990] ECR I-3125 the Court accepted on the basis of probative documents produced by the Commission that between 1981 and 1984 Kydep intervened in the market in cereals on behalf of the State and that its deficits had been covered by the State. Likewise, in the judgment in Case C-32/89 Greece v Commission [1991] ECR I-1321 the Court considered that the Greek authorities had also controlled the operations carried out by Kydep and covered its deficits for the 1986 financial year. Similar findings were made in the judgment in Case C-61/90 Commission v Greece [1992] ECR I-2444.

21 Moreover, it is common ground that the Greek authorities still opposed, even for 1988, the Commission' s repeated requests to carry out on-the-spot inquiries for the purposes of examining, in particular, the operation of the animal feed market in Greece and the financial relationship between Kydep and the State.

22 In those circumstances, and in the absence of proof to the contrary, the Commission cannot be accused of having erred by assuming that Kydep was still carrying out unlawful intervention, in particular in the animal feed market.

23 For the rest, the Hellenic Republic does not deny that Kydep was in deficit following its intervention in the animal feed sector in 1988 or that this deficit was entered in Kydep' s accounts as "claims against the State". It merely states that during that year the State did not subsidize Kydep' s activities in that sector. In any event, that fact is not sufficient to prove that Kydep did not intervene in the animal feed market contrary to Community law during the period concerned by the contested decision.

24 In the light of those considerations, this head of claim must be rejected.

Expenditure disallowed in respect of the co-responsibility levy on cereals

25 With the aim of achieving an improved balance on the market in cereals and controlling growth, Council Regulation (EEC) No 1579/86 of 23 May 1986 amending Regulation (EEC) No 2727/75 on the common organization of the market in cereals (OJ 1986 L 139, p. 29) introduced a co-responsibility levy with effect from 1 July 1986. The levy is payable in respect of cereals produced in the Community where they are processed for the first time, bought into intervention or exported in the form of grain. The levy, which was fixed at DR 722 per tonne for the 1987-1988 marketing year, is collected by the competent national agencies and paid to the EAGGF in the form of revenue.

26 When the accounts are being cleared, the Commission checks that the co-responsibility levy was collected correctly and in full and then paid to the EAGGF. To this end, it follows the calculation method ° which it drew up and communicated to the Member States ° based on a series of statistical data supplied by the Member States themselves to the Statistical Office of the European Communities (Eurostat), which enable a full, reliable assessment to be made of the actual extent to which the levy has been collected in each of the Member States. Any financial adjustment made depends upon the quantities of cereals in respect of which the levy has not been collected.

27 In the present case, the Commission made the disputed financial adjustment on the basis of statistical data communicated by the Greek authorities more than one year after the end of the marketing year, which were published by Eurostat on 6 December 1989. The Commission refused to take into consideration revised data submitted by the Greek authorities on 6 February 1990.

28 The Hellenic Republic claims that the first figures were only provisional, while those communicated subsequently were definitive, and that the Commission ought to have taken account of the latter figures in accordance with the practice followed in statistical matters.

29 According to the Commission, it was not possible to regard as provisional figures established on the basis of information communicated by the Greek authorities more than a year after the quantities at issue had been harvested. Furthermore, the authorities had failed to provide any explanation whatsoever to justify the changes made. Moreover, taking the new figures into account, far from being advantageous to the Hellenic Republic, would have led to an increase in the order of 21 000 tonnes of the quantity in respect of which the levy had not been collected and, consequently, a financial adjustment greater than the adjustment challenged.

30 It should be observed that the present case is identical to the case which gave rise to the judgment in Case C-385/89 Greece v Commission [1992] ECR I-3253, paragraphs 9 to 14. In that judgment the Court considered that it was for national authorities which subsequently amended figures of decisive significance for the purposes of the calculation of the co-responsibility levy to provide sufficient specific information to justify that change.

31 Just as in the case cited above, the Hellenic Republic has not provided any concrete evidence to prove its allegations, but has merely made assertions of a general nature. What is more, it has not been able to prove the inaccuracy of the Commission' s claim that, if the new figures had been taken into account, this would have significantly increased the financial adjustment at issue.

32 Accordingly, this head of claim must also be rejected.

Improper reduction of the amount of the security lodged on the sale of intervention meat intended for processing

33 The Community rules provide for a security to be lodged on the sale of intervention meat intended for processing which is to be released only where processing has taken place within the time-limits laid down and proof thereof has been provided also within the prescribed time-limits. However, the rules provide for a degree of flexibility, which consists essentially in a graduated forfeiture of the security, in particular where a primary requirement, that is a requirement basic to the purposes of the regulation imposing it, such as the processing of the meat, has actually been fulfilled, even though the time-limit set, which constitutes a secondary requirement, has been slightly exceeded, or where a subordinate requirement, that is to say, any other requirement imposed, has not been complied with (Commission Regulation (EEC) No 2220/85 of 22 July 1985 laying down common detailed rules for the application of the system of securities for agricultural products, Articles 20 to 28 (OJ 1985 L 205, p. 5), and Commission Regulation (EEC) No 2182/77 of 30 September 1977 laying down detailed rules for the sale of frozen beef from intervention stocks for processing in the Community, Article 5(3) (OJ 1977 L 251, p. 60), as amended by Regulation (EEC) No 1809/87 (OJ 1987 L 170, p. 23)).

34 The Hellenic Republic claims that its competent authorities had declared a security given by the company Thraki AE forfeit on the ground that it had not complied with the time-limits for processing certain quantities of meat purchased from the Italian intervention agency on 12 April 1986. That trader lodged a complaint with the Commission, which on 20 November 1987 sent the Greek intervention agency a letter in the following terms:

"... The Commission' s services note that the provisions of Regulation (EEC) No 2182/87 appear to have been correctly applied by the Greek intervention agency. The Commission none the less considers that the principle of proportionality might be applied in this case. Consequently, subject to confirmation of the fact that the primary requirement, namely the processing of the meat, has been fulfilled, the penalty may be recalculated in accordance with Article 5(3) of Regulation (EEC) No 2182/77, as amended by Regulation (EEC) No 1809/87."

35 On the basis of that letter from the Commission the Greek authorities reduced the amount of the security forfeit from DR 868 909 to DR 623 676. Upon clearance of the accounts in question, however, the Commission refused to charge to the EAGGF the difference between these two amounts, namely DR 245 233.

36 The Hellenic Republic considers that the Commission ought to have taken account of the amount in issue in so far as the national authorities applied the calculation method indicated to them by the Commission itself.

37 According to the Commission, on the other hand, that letter meant that it was prepared to agree to the non-forfeiture of the security ° even if the supporting documents reached it after the expiry of the prescribed time-limit ° on the express condition that the processing and the corresponding inspection were carried out in accordance with the rules. The inspection was carried out on 26 January 1988, that is to say, two years after the contracts were signed and therefore quite clearly outside the time-limits laid down in the Community provisions.

38 In that respect, it must be held that the Commission' s allegations do not accord with the content of the letter in question, which makes the possibility of recalculating the security conditional solely on confirmation that the processing of the meat has taken place. The Greek authorities cannot therefore be criticized for following a method consistent with the content of that letter, even though it may be incorrect or incomplete.

39 In those circumstances, this head of claim must be upheld and Commission Decision 90/644/EEC must be annulled in so far as it did not charge to the EAGGF the sum corresponding to the reduction by the Greek intervention agency of the amount of the security lodged by Thraki AE on the sale to the latter of intervention meat intended for processing.

Decision on costs

Costs

40 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Hellenic Republic has been unsuccessful in all essential respects, it must be ordered to pay the costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Annuls Commission Decision 90/644/EEC of 30 November 1990 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1988 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund in so far as the Commission did not charge to the EAGGF the sum corresponding to the reduction by the Greek intervention agency of the amount of the security given by the company Thraki AE on the sale to that company of intervention meat intended for processing;

2. Dismisses the remainder of the application;

3. Orders the Hellenic Republic to pay the costs.