CELEX: 51990PC0126
Language: en
Date: 1990-05-08
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE CHECKS AND PENALTIES APPLICABLE UNDER THE COMMON AGRICULTURAL AND FISHERIES POLICIES

N o C 137/10                           Official Journal of the European Communities                                   6. 6. 90
             Proposal for a Council Regulation (EEC) on the checks and penalties applicable under the
                                          common agricultural and fisheries policies
                                                      COM(90) 126 final
                                       (Submitted by the Commission on 21 May 1990)
                                                         (90/C 137/07)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          lation constitute only the minimum measures to be
                                                                  applied; whereas it is the responsibility of the Member
 Having regard to the Treaty establishing the European            States to take into account the penalties laid down in this
 Economic Community, and in particular Article 43                 Regulation when applying the penalties provided for in
thereof,                                                          their own legislation;
 Having regard to the proposal from the Commission,
                                                                  Whereas this Regulation is to be applied without
 Having regard      to   the   opinion   of   the  European       prejudice to any specific provisions adopted by the
 Parliament,                                                      Council,
Whereas Article 155 of the Treaty conferred on            the
 Commission responsibility for ensuring that              the     HAS ADOPTED THIS REGULATION:
provisions of the Treaty as well as the provisions of     the
acts adopted by the Council for their implementation      are                               Article 1
 applied;
                                                                  The aim of this Regulation is to     specify the powers of
Whereas the third indent of Article 145 of the Treaty             the Commission as regards the         checks and penalties
lays down that the Council shall confer on the                    required for the implementation      of the common agri-
Commission, in the acts which the Council adopts,                 cultural and fisheries policies and  to define certain prin-
powers for the implementation of the rules which the              ciples in these areas.
Council lays down;
Whereas the Community legislation on the common                                             Article 2
agricultural and fisheries policies contains, in particular,
                                                                   1.   When Community legislation relating to the
both for the management of the market organizations
                                                                  common agricultural or fisheries policies confers on the
and for the management of other instruments, especially
                                                                  Commission the power to adopt rules of application in
those relating to structures, a set of measures whose
                                                                  accordance with one of the procedures laid down by the
correct and uniform implementation throughout the
                                                                  Council Decision 87/373/EEC of 13 July 1987 laying
Community is indispensable for the achievement of the
                                                                  down the procedures for the exercise of implementing
Treaty's objectives;
                                                                  powers conferred on the Commission ('), this power
                                                                  shall include the power to adopt rules providing for the
Whereas the acts adopted by the Council confer on the
                                                                  checks and penalties necessary to implement the legis-
Commission general powers to adopt, according to
                                                                  lation in question in an effective and uniform manner.
various consultation procedures, all necessary rules of
application; whereas it is appropriate to specify that these
powers include the power to adopt provisions regarding            2.    The rules providing for checks and penalties shall
both the checks and the penalties necessary to ensure the         be appropriate to the specific legislation to be
correct application of the arrangements adopted by the            implemented and shall be proportionate to the objectives
Council;                                                          pursued.
Whereas the powers of the Commission are exercised in
accordance with general legal principles, in particular the                                 Article 3
principles of equality and proportionality; whereas, to           1.    The nature and frequency of the checks shall be
avoid any ambiguity, it is therefore appropriate to restate       determined so as to ensure effective and uniform
these principles, to indicate certain additional criteria         application of the legislation and in particular to prevent
and to specify, by way of example, the checks and                 irregularities. The checks shall be limited to those
penalties generally to be implemented, in the form of a           necessary to achieve these objectives. They shall as far as
regulation valid for all legislation adopted by the Council       possible take account of the administrative practices and
in the contact of the abovementioned common policies;             structures existing in the Member States and shall be
                                                                  determined so as not to entail excessive economic conse-
Whereas it is the responsibility of the Member States in          quences or administrative costs.
the first instance to ensure that infringements of
Community law are penalized by the application of
appropriate measures provided for in national law and
whereas, therefore, the penalties laid down in this Regu-         (') OJ No L 197, 18. 7. 1987, p. 33.
 ---pagebreak---  6. 6. 90                               Official Journal of the European Communities                              N o C 137/11
 2.     In particular checks may include:                         — the obligation to pay an amount greater than the
                                                                       amounts injustifiably received plus interest, where
— checks on books and other business documents,                        appropriate,
     including taking of copies,
                                                                  — total withdrawal of the benefit granted by
— on-site requests for additional explanations,                        Community legislation even if the operator has injus-
— the examination of systems and                methods    of          tifiably received only a part of this benefit,
     production, packaging and dispatch,                          — refusal or withdrawal of the benefit for a period
— taking and verification of representative samples.                   exceeding that of the irregularity if such irregularity
                                                                      shows a lack of reliability on the part of the
Checks made by the Commission within its powers shall                 beneficiary.
be carried out by its officials or, if necessary, by auth-
orized agents.                                                    3.     The penalties shall be imposed by the competent
                                                                  authorities of the Member States.
3.      Operators, whether natural or legal persons, on
whom the Community rules impose obligations, shall                4.     The application of a penalty presupposes that the
have the duty to permit checks to be made and shall in            irregularity is intentional or the result of negligence.
particular allow access to buildings and land to be visited       However, the rules referred to in Article 2 may derogate
for that purpose.                                                 from this rule if the correct functioning of the legislation
                                                                  in question, in particular in the cases referred to in the
                                                                  third indent of paragraph 2, require that the penalty be
                           Article 4
                                                                  imposed irrespective of the existence of any subjective
 1.     For the purposes of this Regulation penalties shall       factor.
be understood to mean measures entailing unfavorable
financial or economic consequences for an operator who                                       Article 5
has injustifiably received a benefit or who has failed to
fulfil an obligation imposed by legislation.                      Member States shall apply the penalties without
                                                                  prejudice to their obligation to ensure that infringements
However, measures whose consequences are limited to               of Community law are penalized by appropriate
the following shall not be considered as penalties:               measures under their national law, and under the same
                                                                  conditions and using the same procedures as those
— the total or partial withdrawal of a benefit injusti-
                                                                  applicable in the case of infringements of national law of
     fiably received,
                                                                  a similar nature and gravity.
— the obligation to reimburse amounts unjustifiably
     received plus interest, where appropriate, even if                                      Article 6
     fixed at a flat rate,
                                                                  This Regulation shall be applied without prejudice to any
— the simple forfeit of a guarantee lodged in support of          specific measures taken by the Council.
     an application for a benefit or for the receipt of an
     advance.
                                                                                             Article 7
2.     The provisions relating to penalties shall determine       This Regulation shall enter into force on the third day
the type and scope of the penalties on the basis of the           following its publication in the Official Journal of the
benefit granted, the nature and the seriousness of the            European Communities.
irregularity in so far as is necessary to ensure the correct
functioning of the legislation in question. In particular         This Regulation shall be binding in its entirety and
penalties may include:                                            directly applicable in all Member States.