Case T‑126/14

Kingdom of the Netherlands

v

European Commission

‛EAGGF — Guarantee Section — EAGF and EAFRD — Financial correction applied in respect of the non-reporting of interest — Obligation to state reasons — Obligation to account for interest — Article 32(5) of Regulation (EC) No 1290/2005 — Principle of equivalence — Obligation of due care’

Summary — Judgment of the General Court (Second Chamber), 24 November 2015

Agriculture — Common agricultural policy — EAGF financing — Procedure for the clearance of accounts — Amounts recoverable from the Member State — Invocation of the principle of equivalence as the basis of an obligation to demand interest when recovering sums — Lawfulness — Condition — Comparability of EU claims with national claims of the same type — Comparison of EU claims relating to additional levies on milk and to export refunds with national tax claims — Not comparable

Agriculture — Common agricultural policy — EAGF financing — Procedure for the clearance of accounts — Amounts recoverable from the Member State — No obligation on the Member State to demand, under Article 32(1) and (5) of Regulation No 1290/2005, interest on the amounts due

Agriculture — Common agricultural policy — EAGF financing — Procedure for the clearance of accounts — Amounts recoverable from the Member State — Non-recovery by the Member State within the prescribed periods of sums due as a result of irregularities or negligence — Financial consequences — Account taken of interest — Condition — Existence of an obligation to account for interest

Article 32 of Regulation No 1290/2005 on the financing of the common agricultural policy relates to Member States’ obligations as regards the recovery of sums from beneficiaries who have committed irregularities or demonstrated negligence. In particular, according to Article 32(1) of Regulation No 1290/2005, sums recovered following the occurrence of irregularity or negligence and the interest thereon are to be made over to the paying agency and booked by it as revenue assigned to the EAGF in the month in which the money is actually received. Also, Article 32(5) of Regulation No 1290/2005 relates to specific situations in which a Member State has not recovered the sums within a certain period. In such situations, 50% of the financial consequences of non-recovery are to be borne by the Member State concerned and 50% by the Union budget. That division of financial responsibility between the Member State concerned and the Union budget applies to all the effects of a financial nature linked to non-recovery of sums irregularly paid, which include inter alia the principal sums and interest thereon which should have been paid pursuant to Article 32(1) of that regulation. It follows that the Commission is, in principle, authorised to include, in the sums owing pursuant to Article 32(5) of Regulation No 1290/2005, interest on the claims for which recovery has not taken place within the time-limit laid down in that provision. However, that inclusion of interest is necessarily subject to the existence, in the case concerned, of an obligation for the Member State concerned to require payment of interest on the sums at issue. (see paras 72, 73, 75-78)

Article 32(1) and (5) of Regulation No 1290/2005 contain no obligation on Member States to charge interest on claims to be recovered. Like the second subparagraph of Article 8(2) of Regulation No 729/70 on the financing of the common agricultural policy, in the version resulting from Regulation No 1287/95, Article 32(1) of Regulation 1290/2005 contains only a straightforward rule of budgetary assignment of the sums recovered following an irregularity or negligence, and does not provide that Member States are under an obligation to charge interest on such recovered sums. Nor does Article 32(5) of Regulation No 1290/2005 establish any such obligation, since that provision contains only a rule for sharing the financial responsibility for the consequences of non-recovery of the sums at issue, beyond the time limits laid down by that provision. In that regard, whilst it is true that exclusion of interest from the sum to be recovered, and thus a reduction in the amount charged to the Member State concerned, pursuant to Article 32(5) of Regulation No 1290/2005, would be incompatible with the protection of the financial interests of the Union budget, it cannot be inferred from those considerations that there is a general principle according to which Member States are required to charge interest when sums due owing to irregularity are recovered. (see paras 80-82, 85, 86)

In the matter of recovery of agricultural claims, in the absence, both in the sectoral regulations and in Regulation No 1290/2005, of any obligation to charge interest on such claims, such an obligation may, in certain cases, be founded on the principle of equivalence, where the national law of the Member State in question provides for the collection of interest when recovering advantages of the same type wrongly received from its national budget. The same applies with regard to financial charges which the authorities of the Member States are responsible for receiving of behalf of the Union. It is not possible to regard as equivalent, for the purposes of applying the principle of equivalence, claims relating to additional levies in the milk sector and to export refunds cannot be precluded that, as the Commission claims in essence, additional levies, on the one hand, and national tax claims, on the other. Additional levies on milk are designed to raise funds for the EU budget and are characterised by their function of regularising agricultural markets, whereas national taxes are characterised by their principal, if not their only, function of generating income for the national budget. Moreover, agricultural levies are received from a strictly defined category of liable persons and not from the population as a whole, and the revenue from the additional levies is used to finance expenditure in the milk sector and, more specifically, to dispose of milk produced by producers in excess of their quotas. Moreover, the purpose of the export refund scheme is to enable Community products to be exported where that course would not otherwise be financially viable for the exporter. By their very nature, export refunds, which constitute an advantage given to farmers, differ from national taxes. Whereas the former are financed by the EU budget, the latter provide revenue for the national budget. Whilst it is true that sums relating to export refunds wrongly granted and recovered are entered as revenue in the EU budget, the fact remains that, unlike the recovery of national taxes, the recovery of export refunds unduly paid do not specifically feed the EU budget but repay amounts which should never have been paid. (see paras 91, 92, 97-100, 104, 106, 110, 111)

See the text of the decision. (see para. 121)