CELEX: C1999/366/29
Language: en
Date: 1999-12-18 00:00:00
Title: Case C-375/99: Action brought on 7 October 1999 by the Kingdom of Spain against the Commission of the European Communities

C 366/18              EN                      Official Journal of the European Communities                                   18.12.1999
Such a large adjustment, amounting to 10 % of the entire                 — the principle of sound administration;
expenditure declared by Spain, contained in the contested
decision is not in any way justified pursuant to the general             — in the alternative, breach of the principle of pro-
Community law principle of proportionality. The system for                    portionality.
monitoring aid for the consumption of olive oil is an altogether
reliable system and the basic checks demanded by Community
legislation have been properly carried out. In particular, as            (1) OJ L 61 of 10.3.1999, p. 37.
recognised by the Conciliation Body itself, the importance of
the risk of any losses for the EAGGF may be non-existent. In
any event, in the contested decision the Commission goes
counter to its own measures in taking into consideration the
application of sanctions and the proper supervision of the
procedures (although Spain considers itself to have acted
correctly without infringing Community law) in its communi-
cation on guidelines for the calculation of the budgetary
implications in preparing the Decision on the clearance of the           Action brought on 7 October 1999 by the Kingdom of
accounts of the EAGGF, Guarantee Section, on the basis of                Spain against the Commission of the European Communi-
auxiliary and not basic cheeks. That should, of itself, lead in                                           ties
any event to a much smaller adjustment than that imposed in
the decision.
                                                                                                 (Case C-375/99)
                                                                                                 (1999/C 366/29)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice on 7 October
2. P r e m i u m s f o r s h e e p o r g o a t s                         1999 by the Kingdom of Spain, represented by Mónica
                                                                         López-Monı́s Gallego, Abogado del Estado, with an address for
                                                                         service in Luxembourg at the Spanish Embassy, 4-6 Boulevard
                                                                         E. Servais.
A total of PTE 159 802 819 corresponding to an adjustment
of 5 % of the payments made in the provinces of Palencia,                The applicant claims that the Court of Justice should:
Salamanca, Orense and Castellón and of 2 % of the payments
made in the province of Lugo in the financial years 1994 and             — Annul the Commission’s decision of 28 July 1999, exclud-
1995 for the marketing year 1993. The higher amounts                          ing from Community financing certain expenditure by the
considered by the Commission also include payments made in                    Member States in respect of the financial adjustments
1993, a financial year which had already been cleared by                      imposed on the Kingdom of Spain and contested in the
Decision 97/33/EC of 23 April 1997 and Decision 97/608/EC                     application;
of 30 July 1997 in which distinct penalties were imposed for
various reasons, no sum being separated for subsequent                   — order the defendant institution to pay the costs.
clearance.
                                                                         Pleas in law and main arguments
In general, breach of the following principles of Community
                                                                         The Kingdom of Spain expresses its disagreement with the
law:
                                                                         flat-rate adjustment amounting to 5 % of the expenditure
                                                                         declared and with the way in which the Commission’s staff
                                                                         acted, for the following reasons:
— principle of the right to a hearing: this principle has
     been breached in all the adjustments contested in the               (A) Since the financial adjustment was not calculated in the
     application. It was formally observed, but the Com-                      formal notification on the ground that it was subject to
     mission’s replies are in practice confined to repetition of              the sending of further information, it was not possible to
     the same points, without contradiction or rebuttal of the                know whether the conditions laid down in Commission
     arguments put forward;                                                   Decision 94/442/EC (1) in order to seek the intervention of
                                                                              the Conciliation Body had been satisfied.
                                                                         (B) The formal notification document states that, because of
— lack of evidence of the wrongful conduct attributed to the                  the laxity of the implementing legislation in the Member
     Member State: the Commission based the adjustments                       State, it was proposed in the clearance of the accounts for
     either on circumstantial factors or suspicions, or on data               the financial years 1996 and 1997 to impose a financial
     rebutted or corrected by the Spanish authorities;                        adjustment of 5 % of the expenditure declared by Spain
 ---pagebreak--- 18.12.1999              EN                   Official Journal of the European Communities                                      C 366/19
     under tariff headings 2 1 1 1, 2 1 1 2 and 2 1 1 3. Since          Pleas in law and main arguments
     the expenditure declared by Spain under tariff heading
     2 1 1 3 was negative, it was considered that the Com-
     mission would not take account of that line for the                The action is directed against the fact that the contested
     purposes of the calculation of the total amount of the             decision charged to the Federal Republic of Germany, with
     financial adjustment. However, the adjustment in respect           respect to Mecklenburg-Vorpommern, instead of a financial
     of heading 2 1 1 3 made by the Commission corresponds              correction of 2 % a correction of 5 %, and hence an amount in
     solely to the item relating to purchases and not to the total      excess of DEM 12 157 646,13, namely DEM 18 236 469,20,
     amount of expenditure declared by Spain under the tariff           for 1995 for the arable crops sector.
     heading during the financial year, which significantly
     increases the proposed adjustment, thus departing from
     the letter of the official communication.                          The Commission was not able, in the annex to the Summary
                                                                        Report, to produce any comprehensible and substantiated
                                                                        reasons to show that the entire ‘on-the-spot control’ measure
(C) The differences found during the prior inspection referred
                                                                        in Mecklenburg-Vorpommern was defective and that all the
     to in the summary report are similar to those detected in
                                                                        defects taken together led to a substantial risk of loss for the
     other Member States, where the percentage applied in the
                                                                        EAGGF, justifying a correction of 5 %. In particular, it was
     financial adjustment has been only 2 % as opposed to the
                                                                        unable, on the basis of its inspection visit to Mecklenburg-
     5 % applied to Spain.
                                                                        Vorpommern in 1998, to adduce any new facts capable of
                                                                        justifying that assessment.
(1) OJ L 182 of 16 July 1994, p. 45.
                                                                        The increase of the financial correction from 2 % to 5 % by
                                                                        the Commission is unlawful because the Commission complied
                                                                        neither with the principle that the administrative authorities
                                                                        are bound by the reservation they formulated nor with the
                                                                        necessary procedural rules with respect to the procedure
                                                                        for closure of the accounts, in particular arbitration. The
                                                                        Commission further incorrectly exercised its discretion with
                                                                        respect to assessment of the defects actually found.
Action brought on 7 October 1999 by the Federal Repub-                  Altogether, the Commission has not shown conclusively why
lic of Germany against the Commission of the European                   in its definitive fixing of the financial correction it departed
                            Communities                                 both from its originally intended rate of correction and from
                                                                        the rate proposed by the arbitration body of not more than
                                                                        2 %.
                          (Case C-377/99)
                          (1999/C 366/30)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 7 October 1999 by the Federal Republic of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat,
and Claus-Dieter Quassowski, Regierungsdirektor, of the Feder-          Reference for a preliminary ruling by the Bundesarbeits-
al Ministry of Financial Affairs, 108 Graurheindorfer Strasse,          gericht by order of that court of 23 March 1999 in the
D-53117 Bonn.                                                           case of Pensionskasse für die Angestellten der Barmer
                                                                                     Ersatzkasse VVAG v Hans Menauer
The applicant claims that the Court should:
                                                                                                (Case C-379/99)
— Annul Commission Decision COM(1999) 2476 fin. of
     28 July 1999 amending Decision 1999/187/EC on the
     clearance of the accounts presented by the Member States                                   (1999/C 366/31)
     in respect of the expenditure for 1995 of the Guarantee
     Section of the European Agricultural Guidance and
                                                                        Reference has been made to the Court of Justice of the
     Guarantee Fund (EAGGF) in so far as under Article 2 the
                                                                        European Communities by order of the Bundesarbeitsgericht
     sum of DEM 18 236 469,20 is not accepted by the EAGGF
                                                                        (Federal Labour Court) of 23 March 1999, received at the
     but charged to the Federal Republic of Germany;
                                                                        Court Registry on 7 October 1999, for a preliminary ruling in
                                                                        the case of Pensionskasse für die Angestellten der Barmer
— Order the defendant to pay the costs.                                 Ersatzkasse VVAG v Hans Menauer on the following question: