CELEX: 51990PC0112
Language: en
Date: 1990-05-11
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) AMENDING COUNCIL REGULATION ( EEC ) NO 283/72 CONCERNING IRREGULARITIES AND THE RECOVERY OF SUMS WRONGLY PAID IN CONNECTION WITH THE FINANCING OF THE COMMON AGRICULTURAL POLICY AND THE ORGANIZATION OF AN INFORMATION SYSTEM IN THIS FIELD

No C 138/6                             Official Journal of the European Communities                                  7. 6. 90
                                                               II
                                                       (Preparatory Acts)
                                                  COMMISSION
               Proposal for a Council Regulation (EEC) amending Council Regulation (EEC) No 283/72
               concerning irregularities and the recovery of sums wrongly paid in connection with the financing
               of the common agricultural policy and the organization of an information system in this field
                                                      COM(90) 112 final
                                        (Submitted by the Commission on 22 May 1990)
                                                        (90/C 138/04)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          Whereas the Commission should be systematically
                                                                  informed of judicial and administrative procedures
                                                                  against persons suspected of having committed irregu-
 Having regard to the Treaty establishing the European            larities; whereas it would also be advisable to ensure the
 Economic Community,                                              systematic transmission of information concerning the
                                                                  measures taken by the Member States to safeguard the
                                                                  Community's financial interests;
 Having regard to Council Regulation (EEC) No 729/70
 of 21 April 1970 on the financing of the common agri-
 cultural policy O, as last amended by Regulation (EEC)
 No 2048/88 (2), and in particular Article 8 (3) thereof,         Whereas the procedures to be followed by the Member
                                                                  States and the Commission in cases where the sums lost
                                                                  through an irregularity cannot be recovered should be
 Having regard to Council Regulation (EEC) No                     specified;
 1676/85 of 11 June 1985 on the value of the unit of
 account and the conversion rates to be applied for the
purposes of the common agricultural policy (*), as last
 amended by Regulation (EEC) No 1636/87 (4), and in               Whereas, in cases where the Commission requests a
particular Article 2 (4) thereof,                                 Member State to institute an inquiry, it must be fully
                                                                  informed of the preparation for the inquiry and its
                                                                  outcome; whereas the rights of the Commission officials
Having regard to the proposal from the Commission,                participating in such inquiries and the conclusive force of
                                                                  their findings should be defined;
Having regard to the opinion of the European
Parliament,
                                                                  Whereas Member States should be encouraged in their
                                                                  inquiries and recovery procedures by means of a
Whereas Council Regulation (EEC) No 283/72 (') needs              Community contribution based on the sums recovered;
to be amended in order to harmonize its application in            whereas provision should also be made for the
the Member States and intensify the campaign against              Community to contribute to legal costs and other costs
irregularities in the light of the experience acquired;           arising directly from legal proceedings;
Whereas the information to be communicated to the
Commission by the Member States should be amplified;
                                                                  Whereas the minimum threshold above which cases of
                                                                  irregularities must automatically be notified by the
                                                                  Member State should be raised; whereas that threshold is
                                                                  determined, Article 2 (1) of Regulation (EEC) No
(') OJ No L 94, 28. 4. 1970, p. 13.                               1676/85 notwithstanding, in such a way as to have a
O   OJ No L 185, 15. 7. 1988, p. 1.                               uniform and comparable approach, which can readily be
O   OJ No L 164, 24. 6. 1985, p. 1.                               put into effect by the national administrations concerned
O   OJ No L 153, 13. 6. 1987, p. 1.                               on the basis of an exchange rate which reflects economic
(*) OJ No L 36, 10. 2. 1972, p. 1.                                reality;
 ---pagebreak--- 7. 6. 90                                Official Journal of the European Communities                               No C 138/7
Whereas it should be specified that the provisions of               3. In Article 4, 'suspected or established' is inserted
Regulation (EEC) No 283/72 also apply in cases where                   before 'irregularities'.
a payment which should have been made by an operator
within the framework of the European Agricultural
Guidance and Guarantee Fund has not been made as a                  4. Article 5 is replaced by the following:
result of an irregularity,
                                                                        'Article 5
HAS ADOPTED THIS REGULATION:
                                                                       1.     During the two months following the end of
                                                                       each quarter, Member States shall inform the
                             Article 1                                 Commission of, and supply it with all the relevant
                                                                       information concerning:
Regulation (EEC) N o 283/72 is hereby amended as
follows:                                                               — the judicial and administrative procedures
                                                                            instituted with a view to recovering sums
  1. Article 1 is replaced by the following:                                wrongly paid,
                                                                       — the action taken by Member States to safeguard
      'Article 1                                                            the Community's financial interests,
     The measures referred to in this Regulation relate to
                                                                       — the judicial and administrative procedures
     all expenditure by the European Agricultural
                                                                            instituted with a view to applying sanctions as a
     Guidance and Guarantee Fund, Guarantee Section,
                                                                            result of irregularities.
     hereinafter called "the EAGGF".
                                                                       2.     At the intervals referred to in paragraph 1, the
     This Regulation shall continue to apply in the case
                                                                       Commission shall be informed in detail of:
     of irregularities which relate to EAGGF Guidance
     expenditure and which were notified prior to the
     entry into force of Council Regulation (EEC) No                   — the progress of the procedures referred to in
     4256/88 (').                                                           paragraph 1,
      (>) OJ No L 374, 31. 12. 1988, p. 25.'                           — the reasons for the abandonment, if any, of legal
                                                                            proceedings for recovery. The Commission shall,
                                                                            as far as possible, be notified before a decision is
  2. Article 3 is amended as follows:                                       taken,
      (a) in the first subparagraph, 'the month following'             — the reasons for the abandonment, if any, of
           is replaced by 'the two months following';                       prosecutions,
      (b) in the second indent of the second subparagraph              — the amounts which have been or are expected to
           the following is added:                                          be recovered,
           'in cases where no payment has been made, the
           amounts which would have been diverted if the               — the reasons for partial or complete failure to
           irregularity had not been discovered, except                     recover sums due.
           where the economic operator is guilty of a
           simple error or negligence which was detected               The Member States shall notify the Commission of
           prior to payment and which does not result in                administrative or judicial decisions, or the essential
           any administrative or judicial penalty;'                     aspects thereof, concerning the termination of the
                                                                       procedures referred to in paragraph 1.
      (c) the following indents are added to the second
           subparagraph:
                                                                        3.     In cases of partial or complete failure to
           '— the date and source of the first information              recover sums due, Member States shall, when
                leading to suspicion that an irregularity               effecting the notifications referred to in paragraphs 1
                existed,                                                and 2, inform the Commission of the amount which
            — the date that the irregularity was discovered,            has not been recovered which should, in their view,
                                                                       be borne by the Community or by the Member
            — where appropriate, the Member States and                  State. This information must be sufficiently detailed
                third countries involved,                              to enable the Commission to decide who shall bear
            — the identity of the natural and legal persons            the financial consequences, in accordance with
                implicated.'                                           Article 8 (2) of Regulation (EEC) N o 729/70.'
 ---pagebreak--- No C 138/8                            Official Journal of the European Communities                                  7. 6. 90
 5. Article 6 is replaced by the following:                          has duly informed the Commission in accordance
                                                                     with Articles 3, 4 and 5 and has carried out the
                                                                     recovery procedures as swiftly as possible.
     'Article 6
                                                                     2.    Where a Member State, at the express request
    1.      Where the Commission considers that irregu-              of the Commission, initiates legal proceedings with a
    larities have taken place in one or more Member                  view to recovering amounts wrongly paid or evaded,
    States, it shall inform the Member State or States               the legal costs and costs arising directly from the
    concerned thereof, and that State or those States                proceedings may, on presentation of documentary
    shall, at the earliest opportunity, hold an inquiry in           evidence, be wholly or partially reimbursed to the
    which servants of the Commission may take part.                  Member State by the Commission, even if the
                                                                     proceedings are unsuccessful.
    For the purposes of this Article, "inquiry" shall be
    taken to mean any inspection, verification or action
    carried out by officials of the national administration          3.    Where the legal proceedings instituted at the
    with a view to establishing whether there has been               request of the Commission are successful, the sums
    an irregularity.                                                 determined as the Community contribution referred
                                                                     to in paragraph 1 shall be deducted from the costs
                                                                     referred to in paragraph 2.
    2.      The Member State shall, as soon as possible,
    communicate to the Commission the report and the
    inquiry findings.                                                4.     Paragraphs 1, 2 and 3 shall not apply where the
                                                                     financial consequences of an irregularity are to be
                                                                     borne by a Member State in the circumstances
    Where an inquiry shows that there has been an                    provided for in Article 8 (2) of Regulation (EEC)
    irregularity, the Member State must inform the                   No 729/70.'
    Commission thereof in accordance with Articles 3, 4
    and 5 and, where appropriate, the other Member
    States concerned, in accordance with Article 4.               7. In Article 9 the existing text becomes paragraph 1
                                                                     and the following paragraphs are added:
    3.      Where servants of the Commission take part in
    the inquiry the Member State concerned shall be                  '2.    The information referred to in the first
    informed thereof.                                                paragraph may not, in particular, be sent to persons
                                                                     other than those in the Member States or within the
                                                                     Community institutions whose duties require that
    Except in urgent cases, the Member State shall                   they have access to it, unless the Member State
    communicate the programme of the inquiry to the                  supplying it has expressly agreed.
    Commission at least one week in advance.
                                                                     3.     The names of natural or legal persons may be
    4.      Commission servants participating in an inquiry          disclosed to another Member State only in so far as
    must be allowed access to the same premises and                  this may assist in preventing or prosecuting an ir-
    documents as the national officials conducting the               regularity or in establishing whether an alleged
    inquiry.                                                         irregularity has taken place.'
     5.     The findings established by servants of the
    Commission in the context of such an inquiry may              8. Article 10 is replaced by the following:
    be invoked by the competent authorities of a
     Member State or the Commission. Such findings                    Article 10
     may not be given less weight simply because they
    were not established by national officials of the
     Member State where the inquiry took place.'                      In cases of cofinancing by the EAGGF and a
                                                                      Member State, the amounts recovered and the
                                                                     financial consequences of the amounts which have
 6. The following Article 6a is inserted:                             not been recovered shall be shared by that Member
                                                                      State and the Community in proportion to their
                                                                     respective expenditure.'
      'Article 6a
                                                                  9. Article 11 is amended as follows:
     1.     At the request of the Member State, the
    Commission shall contribute to the inquiry and
    recovery costs, to the amount of 10 °/o of the                    (a) The existing text becomes paragraph        1 and
    amounts recovered, provided that the Member State                     '1 000 u.a.' is replaced by 'ECU 4 000*.
 ---pagebreak--- 7. 6. 90                               Official Journal of the European Communities                            No C 138/9
     (b) The following paragraph 2 is added:                           'Article 12
                                                                      The provisions of this Regulation shall be applicable
                                                                      mutatis mutandis in cases where the payment of a
         '2. The amount referred to in paragraph 1                    sum to the EAGGF has been evaded/
         shall be converted into national currency by
         applying the exchange rates as published in the          11. Article 13 is hereby repealed.
         C series of the Official Journal of the European
          Communities, which are valid on the first                                        Article 2
         working day of the year in which the infor-
         mation on the irregularities is communicated.'          This Regulation shall enter into force on the third day
                                                                 following its publication in the Official Journal of the
                                                                 European Communities.
                                                                 This Regulation shall be binding in its entirety and
10. Article 12 is replaced by the following:                     directly applicable in all Member States.
              Proposal for a Council Regulation (EEC) amending Regulation (EEC) No 804/68 on the
                               common organization of the market in milk and milk products
                                                     COM(90) 206 final
                                       (Submitted by the Commission on 23 May 1990)
                                                        (90/C 138/05)
              THE COUNCIL OF THE EUROPEAN- COMMUNITIES,
              Having regard to the Treaty establishing the European Economic Community, and in
              particular Article 43 thereof,
              Having regard to the proposal from the Commission,
              Having regard to the opinion of the European Parliament,
              Whereas Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
              nomenclature and on the Common Customs Tariff ('), as last amended by Regulation (EEC)
              No 1251/90 (2), subdivides flavoured yoghurt into produces in powder and products other than
              in powder; whereas Council Regulation (EEC) No 804/68 (J), as last amended by Regulation
              (EEC) No 3879/89 (4), does not lay down such a subdivision for non-flavoured yoghurt;
              whereas Article 1 thereof should be amended accordingly so that the two products are treated
              in the same way;
              Whereas, in accordance with Article 7a (2) (b) of Regulation (EEC) No 804/68, special
              measures may be taken with a view to increasing the possibility of disposing of butter and
              skimmed-milk powder which have neither been bought in by intervention agencies nor been the
              subject of aid to private storage; whereas, however, in view of experience gained, it appears
              that the aim of the abovementioned Article 7a as regards the disposal of such products
              generally applies irrespective of whether the product has or has not been the subject of aid to
              private storage; whereas the provisions concerned should be amended accordingly;
              (') OJ No L 256, 7. 9. 1987, p. 1.
              O   OJ No L 121, 12. 5. 1990, p. 29.
              (») OJ No L 148, 28. 6. 1968, p. 13.
              (4) OJ No L 378, 27. 12. 1989, p. 1.