CELEX: C1997/271/07
Language: en
Date: 1997-09-06 00:00:00
Title: Action brought on 30 June 1997 by the Kingdom of Spain against Commission of the European Communities (Case C-240/97)

6 . 9 . 97             1 EN |                Official Journal of the European Communities                                  C 271 /5
      national park, there is no significant change affecting           Action brought on 30 June 1997 by the Kingdom of Spain
      the nature or conditions of operation of the measure .                against Commission of the European Communities
      The Commission's decision reducing its assistance so
                                                                                              ( Case C-240/97 )
      that no monies spent by the Office of Public Works on
      the development at the Burren National Park were to                                       ( 97/C 271 /07)
      be treated as eligible European Regional Development
      Fund expenditure is therefore a breach of the
      provisions of Article 24 of Regulation ( EEC ) No 4253/
      88 and ought to be annulled.                                      An action against the Commission of the European
                                                                        Communities was brought before the Court of Justice on
ii ) Incorrect interpretation of Article 24                             30 June 1997 by the Kingdom of Spain, represented by
                                                                        Santiago Ortiz Vaamonde, Abogado del Estado, acting as
                                                                        Agent, with an address for service in Luxembourg at the
      Even if the Court does not accept that no significant             Spanish Embassy, 4—6 Boulevard Emmanuel Servais .
      change took place in relation to the development at
      the Burren National Park, the applicant submits in
      relation to both developments that the conditions for
      the reduction or suspension of assistance under                   The applicant claims that the Court of Justice should:
      Article 24 of Regulation ( EEC ) No 4253/88 have not
      been met since no irregularity took place and no sums
      were received unduly.                                             1 . annul Commission Decision 97/333/EC of 23 April
                                                                            1997 (') on the clearance of the accounts in respect of
in ) Force majeure                                                          the expenditure for 1993 financed by the EAGGF as
                                                                            regards the financial adjustments made in relation to
                                                                            export refunds for butter and meat and aid for the
      In the circumstances of the present case, the applicant               processing of fruit and vegetables .
      submits that it could not have sought the
      Commission's approval for any changes that took
      place since the projects as originally conceived were
      found to be in breach of Irish planning law by the                2 . order the Commission to pay the costs.
      Supreme Court of Ireland, who ordered work on the
      projects to cease until planning permission was
      obtained. Subsequently the planning permission                    Pleas in law and main arguments adduced in support:
      applications lodged were refused, in the case of the
      project in the Wicklow National Park, and withdrawn
      following that refusal, in the case of the project in the
      Burren National Park .                                            Export refunds for butter
      The applicant therefore submits that it could not have
      gone ahead with the original projects due to                      The adjustment concerns a sale of 1 550 tonnes of butter
      circumstances      outside    its control . Moreover     the      bound ultimately for Kaliningrad ( Russian Federation ).
      circumstances which caused non-performance of the                 The problem is one purely of fact. The Commission is
      projects as initially agreed were abnormal and                    withholding advance funds from Spain for lack of
      unforeseeable since the Office of Public Works had at             evidence that the butter was actually exported to a non­
       all time complied with what had been perceived to be             member country, owing to its poor quality.
      the applicable law in Ireland for circa 30 years.
iv) Breach of the duty of sincere cooperation                           The Spanish authorities regarded as more that sufficient
                                                                        the evidence produced by the exporter, since it documents
                                                                        the incidents affecting the cargo before it was finally
      The duty of sincere cooperation between the Member                discharged in a non-member country. It is impossible to
       States and the Community is a well established                   assess the Commission's evidence to the contrary because
      principle of Community law. The applicant submits                 it has produced none .
      that the Commission, by reducing the assistance due
       to Ireland under the Operational Programme, has
       breached this duty.
                                                                        Export refunds for beef and veal
 (') Council Regulation ( EEC ) No 4253/88 of 19 December 1988
     laying down provisions for implementing Regulation ( EEC)
     No 2052/88 as regards coordination of the activities of the        Article 68 of the Community Customs Code ( Regulation
     different Structural Funds between themselves and with the         ( EEC ) No 2913/92 (2 )) provides for the examination or
     operations of the European Investment Bank and the other           physical checking of goods as an alternative, and not
     existing financial instruments .                                   exclusive, procedure for verifying the declarations
                                                                        accepted by the customs authorities, since at the same
                                                                        time it provides for documentary checks . Article 71 ( 1 ) of
 ---pagebreak---  C 271 /6                  EN                  Official Journal of the European Communities                                     6 . 9 . 97
the same regulation provides that the results of the                      The applicant claims that the Court should:
 verification, by either of the procedures allowed, are to be
 used for the purposes of applying the provisions governing
 the customs procedure under which the goods are placed .
                                                                          1 . annul Commission Decision 97/333/EC of 23 April
                                                                               1997 on the clearance of the accounts presented by the
                                                                               Member States in respect of the expenditure for 1993
 In a first instance it was noted that part of the goods did                   on the Guarantee Section of the European Agricultural
 not correspond to those indicated in the declaration. The                     Guidance and Guarantee Fund ( EAGGF) in so far as it
 Commission considered that ' the facts known indicate that
                                                                               disallows, in respect of the applicant, Community
 the consignment exported was of uniform composition',                         financing for the sum of Bfrs 413 309 611 by way of
 and therefore made a financial adjustment for the whole                       expenditure incurred for the advance payment of
consignment. However, the Spanish authorities were only                        export refunds;
 able to make an overall adjustment in respect of the
 declaration made by the person concerned on the basis of
 facts proved incontestably, not mere suspicions or fears.
                                                                          2. order the Commission to pay the costs .
 In a second instance, the Commission accepted the
 Spanish investigation as evidence that part of the                       Pleas in law and main arguments adduced in support:
declaration was incorrect but did not accept it as regards
the part which could not be proved false.
                                                                          — Infringement of Article 5 of Regulation ( EEC) No 729/
Export refunds in relation to processing                                       70 and Article 190 of the EC Treaty and infringement
contracts for fruit and vegetables ( citrus )                                 of the principle that due care should be taken : in
                                                                              preparing and adopting the contested decision, the
                                                                              Commission did not cooperate fairly with the Belgian
                                                                              authorities; furthermore, in inquiring into the data
The Commission perceived a fraud in the fact that a
                                                                              provided to it, the Commission did not set to work
processor of citrus fruits, as a result of a change of dates
                                                                              with the requisite care . The factual data produced by
negotiated ex post facto, obtained a lower minimum price                      the Belgian authorities and the mistakes and
but at the same time maintained the higher rate of aid
                                                                              inaccuracies identified by the applicant in the
which would have been appropriate had the contract date
                                                                              Commission's final conclusions have been disregarded
not been changed. But that was not the true position. The
                                                                              by the Commission without stating any grounds for so
processor obtained, in relation to the contracts of which
                                                                              doing. As a result, the Commission is in breach of the
the dates were changed, the lower rate of aid available for
                                                                              obligation of bona fide cooperation ( Article 5 of the
operations on or after 12 February 1993 , not the earlier
rate .
                                                                              EC Treaty, as given practical effect by the so-called
                                                                              ' Belle reform' and the conciliation procedure )* and of
                                                                              the principle that due care should be taken.
(') OJ L 139 , 30 . 5 . 1997, p . 30 .
( 2 ) OJ L 302 , 19 . 10 . 1992 , p . 1 .
                                                                              If the Commission had seriously and objectively
                                                                              inquired into the data and observations submitted by
                                                                              the Belgian authorities, its assessment of the risk
                                                                              connected with the deficiencies found would have been
                                                                              different and it would have had either to refrain in
                                                                              whole or in part from making a flat-rate correction or
Action brought on 3 July 1997 by the Kingdom of                               to apply a lower correction factor.
Belgium against the Commission of the European
                               Communities
                            ( Case C-242/97)                             — Infringement of Regulations ( EEC ) Nos 729/70 and
                              ( 97/C 271 /08 )                                1732/72 and of Article 190 of the EC Treaty: what is
                                                                              involved in this case is not expenditure which was
                                                                              wrongly incurred but a flat-rate sanction in the form
                                                                              of a refusal of a percentage of the expenditure
An action against the Commission of the European                              incurred imposed on the ground that the supervisory
Communities was brought before the Court of Justice of                        system set up in the Member State concerned is
the European Communities on 3 July 1997 by the                                allegedly inadequate. In the applicant's view, the
Kingdom of Belgium, represented by Jan Devadder,                              Commission is only entitled to impose flat-rate
General Adviser in the Ministry of Foreign Affairs,                           sanctions on the ground of perceived shortcomings in
Foreign Trade and Development Cooperation, and Hans                           the supervisory systems set up by Member States
Gilliams, of the Brussels Bar, acting as Agents, with an                      where three ( cumulative ) conditions are satisfied, that
address for service in Luxembourg at the Belgian Embassy,                     is to say, where the Commission can produce sufficient
4 Rue des Girondins .                                                         evidence that: