CELEX: 62002CC0249
Language: en
Date: 2004-09-07
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 7 September 2004. # Portuguese Republic v Commission of the European Communities. # Agriculture - Common agricultural policy - Financing by the EAGGF - Actual expenditure of a Member State which is less than the forecast expenditure notified by it to the Commission - Power of the Commission to reduce sums paid as advances - Letter from a Director-General of the Commission informing the Member State of that reduction - Act having binding legal effects. # Case C-249/02.

OPINION OF ADVOCATE GENERALRUIZ-JARABO COLOMERdelivered on 7 September 2004(1)
         Case C-249/02Portuguese RepublicvCommission of the European Communities
            (Action for annulment  –  Agriculture  –  Common agricultural policy  –  EAGGF  –  Expenditure of a Member State which is less than the forecasts communicated to the Commission  –  Reduction of advances in the next financial year  –  Letter from a Director-General of the Commission notifying the Member State of the reduction  –  Admissibility of the action)
            
      
         
        1.        The Portuguese Republic seeks the annulment of the letter of 18 April 2002 from the Director-General for Agriculture of the
      Commission of the European Communities 
         			(2)
         		 in which, in accordance with Article 39(3) of Regulation (EC) No 1750/1999, 
         			(3)
         		 a reduction of EUR 4 583 055.83 was applied to two advances received in 2002 by way of funding for rural development plans
      (hereinafter ‘RDPs’).
      
      
      I –  The legal framework
        2.        The number of issues which arise in this application for annulment calls for a detailed presentation of the Community legal
      framework in which those issues must be examined.
      
      
       A – Rural development plans: objective, creation and financial considerations
       1. Regulation (EC) No 1257/1999 
         			(4)
         		
        3.        This regulation establishes the framework for Community support for sustainable rural development, which accompanies and complements
      other instruments of the common agricultural policy (Article 1). The measures concerned are set out in Title II, 
         			(5)
         		 following which Title III, under the heading ‘Programming’, provides that RDPs shall be drawn up at the most appropriate
      geographical level (Article 41(1)).
      
      
        4.        In addition to stipulating the content of RDPs (Article 43), the regulation provides as follows:
      
        
      –
         ‘… They shall be prepared by the competent authorities designated by the Member State and submitted by the Member State to
            the Commission after competent authorities and organisations have been consulted at the appropriate territorial level’ (Article
            41(1)).
         
      
      
        
      –
         ‘Rural development plans shall cover a period of seven years from 1 January 2000’ (Article 42).
      
      
        
      –
         ‘1. Rural development plans shall be submitted not later than six months after the entry into force of this regulation. 2.
            The Commission shall appraise the proposed plans to determine whether they are consistent with this regulation. On the basis
            of the plans, it shall approve rural development programming documents in accordance with the procedure referred to in Article
            50(2) of Regulation (EC) No 1260/1999 
               			(6)
               		 within six months after the submission of the plans’ (Article 44).
         
      
      
      
      
        5.        In addition, Article 46 provides that Community support for rural development from the EAGGF Guarantee Section ‘shall be subject
      to financial planning and accounting on an annual basis ...’ (paragraph (1)); that ‘the Commission shall make initial allocations
      to Member States, broken down on an annual basis and using objective criteria which take into account particular situations
      and needs, and efforts to be undertaken especially for the environment, job creation and maintenance of the landscape’ (paragraph
      (2)); and, lastly, that ‘initial allocations shall be adjusted on the basis of actual expenditure and revised expenditure
      forecasts submitted by the Member States taking into account programme objectives, and be subject to the funds available …’
      (paragraph (3)).
       It is also important to note that ‘payments of financial assistance from the EAGGF Guarantee Section may take the form of
      advances for programme implementation and of payments in respect of expenditure incurred’ (Article 47(3)).
       Article 50 contains implementing rules 7 –Those rules ‘shall be adopted in accordance with the procedure laid down in Article 50(2) of Regulation (EC) No 1260/1999.’ governing the presentation and revision of RDP documents, on financial planning, to ensure budgetary discipline and participation
      in financing, on monitoring and evaluation, and on how to ensure consistency between rural development measures and the support
      measures introduced by the market organisations.
      
      
       2. Regulation No 1750/1999 
         			(8)
         		
        6.        Regulation No 1257/1999 was supplemented by Regulation No 1750/1999, 
         			(9)
         		 which was amended a number of times 
         			(10)
         		 and repealed by Regulation (EC) No 445/2002, 
         			(11)
         		 to which I will refer later. 
         			(12)
         		
      
        7.        This implementing regulation also governs RDPs, and provides that they are to be drawn up in conformity with Article 43 of
      Regulation No 1257/1999, ‘in accordance with the detailed requirements laid down in the Annex to this regulation’, and that
      the approval of RDPs ‘shall determine the overall amount of Community support’ 
         			(13)
         		 (Article 33(1) and (2)).
      
      
        8.        From a financial perspective, regard must be had to Article 37(1), which provides:
      ‘No later than 30 September each year, the Member States shall forward to the Commission, for each rural development programming
      document and each single programming document under Objective 2 in the case of rural development measures financed by the
      EAGGF Guarantee Section:
      (a)     a statement of expenditure incurred in the current financial year and of expenditure remaining to be disbursed by the end
      of that year and covered by Community support as defined in Article 33(2) of this regulation, and
      (b)     revised forecasts of such expenditure for subsequent financial years until the end of the programming period concerned, keeping
      within the allocation for each Member State.
       This information shall be transmitted in table format using a computerised model supplied by the Commission.’ 14 –Wording inserted by Article 1(12) of Regulation No 2075/2000, cited in footnote 10.
      
      
        9.        Article 39(1) provides that, ‘for each Member State, expenditure declared for any given financial year shall be financed up
      to the limit of the amounts notified to the Commission under point (b) of Article 37(1) which are covered by the appropriations
      entered in the budget for the financial year in question.’
       However, differences may arise between expenditure actually incurred and that forecast. The remaining paragraphs of Article
      39 deal with such discrepancies. 15  –Paragraph 1a was inserted by Article 1(3)(a) of Regulation No 1763/2001, cited in footnote 10. Paragraph (3) is material to this case:
      ‘Where expenditure actually incurred by a Member State in a given financial year is less than 75% of the amounts referred
      to in paragraph 1, the expenditure to be recognised for the following financial year shall be reduced by a third of the difference
      between this threshold, or the amounts resulting from the application of paragraph 1(a) if they are below it, and the actual
      expenditure incurred during the financial year in question.
       This reduction shall not be taken into account when establishing actual expenditure in the financial year following that in
      which the reduction was made.’ 16  –The wording of this paragraph was provided by Article 1(3)(c) of Regulation No 1763/2001, cited in footnote 10.
       In accordance with Article 39(4), however, ‘Paragraph 3 shall not apply to the first statement of expenditure under the rural
      development programming document or the single programming document under Objective 2 in the case of rural development measures
      financed by the EAGGF Guarantee Section.’ 17 –The wording of paragraph (4) was provided by Article 1(14) of Regulation No 2075/2000, cited in footnote 10.
      
      
        10.      Finally, in accordance with Article 50 thereof, Regulation No 1750/1999 applies ‘in relation to Community support as from
      1 January 2000.’
      
      
       3. Regulation No 445/2002 
         			(18)
         		
        11.      As I pointed out above, 
         			(19)
         		 this regulation, which came into force on 22 March 2002, 
         			(20)
         		 expressly repealed Regulation No 1750/1999, and provides that references to the repealed regulation ‘shall be construed as
      references to this regulation and shall be read in accordance with the correlation table in Annex III’ (Article 65).
      
      
        12.      It is important to bear in mind that many of the provisions of Regulation No 445/2002 replicate those of Regulation No 1750/1999,
      which essentially makes it a consolidated text. 
         			(21)
         		 That applies to Articles 40, 41(1) (which correspond to Article 33(1) and (2) respectively of Regulation No 1750/1999), 47
      (Article 37 of Regulation No 1750/1999) and 49 (Article 39 of Regulation No 1750/1999).
      
      
        13.      Apart from the obvious differences which arise depending on the regulation to which one refers, 
         			(22)
         		 a number of changes can be seen in Regulation No 445/2002 in relation to the earlier regulation. Without prejudice to the
      other amendments, 
         			(23)
         		 attention must be drawn to the change effected by Article 49(5), pursuant to which ‘Paragraph 4 shall not apply to the first
      statement of expenditure incurred during the 2000 financial year under the rural development programming document or the single
      programming document under Objective 2 in the case of rural development measures financed by the EAGGF Guarantee Section.’
      The words ‘during the 2000 financial year’ did not appear in Article 39(4) of Regulation No 1750/1999. 
         			(24)
         		
      
       B – The financing of the common agricultural policy
        14.      Regulation (EC) No 1258/1999 
         			(25)
         		 sets out the cases in which financing is available from the Guidance Section and the Guarantee Section of the EAGGF, and
      then, in Article 6(1), it places on Member States the obligation to transmit to the Commission, at regular intervals, ‘the
      following information concerning the accredited paying agencies and coordinating bodies and relating to the transactions financed
      by the Guarantee Section of the Fund:
      
      (a)
         statements of expenditure and estimates of financial needs;
      
      
      (b)
         annual accounts, accompanied by the information required for clearance and an attestation regarding the integrality, accuracy
            and veracity of the accounts transmitted’.
         
      
      
      
        15.      The regulation also requires the Commission, after consulting the Fund Committee, 
         			(26)
         		 to adopt decisions on ‘monthly advances on the provision for expenditure effected by the accredited paying agencies’ (first
      subparagraph of Article 7(2)) and to clear the accounts of the paying agencies ‘before 30 April of the year following the
      financial year concerned, on the basis of the information referred to in Article 6(1)(b)’. The clearance of accounts decision
      must cover the integrality, accuracy and veracity of the accounts submitted. That decision does not prejudice the adoption
      of a subsequent decision pursuant to paragraph (4) 
         			(27)
         		 (Article 7(3)).
      
      
        16.      I must also point out that Regulation No 1258/1999 applies ‘to expenditure effected as from 1 January 2000’ (second paragraph
      of Article 20).
      
      
        17.      Finally, it should be noted that Regulation No 729/70, 
         			(28)
         		 which preceded Regulation No 1258/1999, was implemented by Regulation (EC) No 1663/95, 
         			(29)
         		 which is also applicable, with the proviso that references to Regulation No 729/70 must be construed as references to the
      regulation which replaced it. 
         			(30)
         		
      
       C – The adoption of decisions by the Commission
        18.      Article 211 EC confers on the Commission ‘its own power of decision’, while Article 4 of the Rules of Procedure of the Commission
      
         			(31)
         		 sets out four ways in which that power may be exercised:
      
      (a)
         at meetings,
      
      
      (b)
         by written procedure in accordance with Article 12,
      
      
      (c)
         by empowerment in accordance with Article 13, or
      
      
      (d)
         by delegation in accordance with Article 14.
      
      
      
        19.      Powers conferred on one or more members of the Commission ‘may be subdelegated to the Directors-General and Heads of Service’,
      unless this is expressly prohibited (Article 13). The Commission may also delegate adoption of management or administrative
      measures ‘to the Directors-General and Heads of Service’ (Article 14). Finally, ‘decisions adopted by empowerment procedure
      or delegation procedure shall be recorded in a day note which shall be recorded in the minutes of the next Commission meeting’
      (Article 15).
      
      
      II –  The facts
       A – Approval of the RDPs of the Portuguese Republic
        20.      The Portuguese Republic submitted three RDPs to the Commission for the period 2000-2006:
      – The one dated 6 January 2000 for continental Portugal. 32  –The final draft was submitted on 22 October 2000.
      – The one dated 4 February 2000 for the autonomous region of the Azores. 33  –The final draft was submitted on 24 January 2001.
      – The one dated 22 February 2000 for the autonomous region of Madeira. 34  –The final draft was submitted on 13 March 2001.
      
      
        21.      The Commission approved the RDPs by decisions dated 22 November 2000, 1 March 2001 and 30 April 2001 respectively. 
         			(35)
         		 Article 2(1) of each decision specifies the contribution from the Guarantee Section of the EAGGF towards the cost of the
      measures proposed for implementing the plan concerned, while Article 2(2) stipulates that, in accordance with Article 7 of
      Regulation (EC) No 296/96, 
         			(36)
         		 payments effected by the relevant bodies with effect from 16 October 1999 will be attributed to the 2000 budget year. Article
      3(1) states that the expenditure may be claimed with effect from 6 January 2000, 4 February or 22 February 2000, as appropriate.
      
         			(37)
         		
      
       B – Application by the Commission of Article 39(3) of Regulation No 1750/1999 
        22.      In accordance with Article 37(1)(b) of Regulation No 1750/1999, 
         			(38)
         		 the Portuguese Republic, by a communication dated 30 September 2000, submitted to the Commission its expenditure forecast
      for subsequent financial years in the programming period covered by each RDP. The amount in respect of the 2001 financial
      year was EUR 281 430 000.
      
      
        23.      On the basis of the data forwarded each month by the Portuguese authorities, the Commission concluded that, in the 2001 financial
      year, expenditure actually incurred amounted to EUR 197 323 332.52, or 70.11% of the expenditure forecast for that financial
      year.
      
      
        24.      The EAGGF Committee discussed the application of Article 39(3) of Regulation No 1750/1999 on a number of occasions:
      (a) The minutes of the meeting of 22 January 2002 contain details of the penalties applicable to certain Member States for
      failing to adhere to their rural development budgets for the 2001 EAGGF financial year, and refer specifically to Article
      39(3) of Regulation No 1750/1999 (point 6.1). However, that point was withdrawn for reasons of internal procedure, because,
      before the penalties could be determined, the total amount of the expenditure submitted by the Member States for that year
      had to be calculated, but that information would not be available until after 31 January 2002, the closing date of the 2001
      EAGGF Guarantee Section financial year.
       The minutes of that meeting also record, under the heading ‘Details of rural development expenditure forecasts for the 2002
      EAGGF financial year, revised in accordance with Article 39(3) of Regulation No 1750/1999’, that the representative of the
      Commission explained the method of calculation (point 6.2).
      (b) The minutes of the meeting of 19 February 2002 contain similar information, and they also specifically mention the application
      of Article 39(3) of Regulation No 1750/1999 (point 6).
       Likewise, those minutes record that the representative of the Commission referred to the penalties for the six Member States
      whose expenditure in respect of RDPs had been less than 75% of that forecast and informed those Member States that they would
      be notified by letter of the date on which the applicable amount would be deducted from their monthly advances.
      
      
        25.      The letter being challenged in these proceedings, which was sent to the Instituto Nacional de Garantía Agrícola (‘INGA’),
      
         			(39)
         		 explains that the expenditure incurred during the 2001 EAGGF financial year came to EUR 197 323 332.52, and that, since that
      sum does not amount to 75% of the EUR 281 430 000.00 forecast, it is appropriate to apply Article 39(3) of Regulation No 1750/1999.
      The letter refers to an attached document with the reference AGRI/46059/2001-Rev. 2, which was discussed by the EAGGF Committee
      on 19 February 2002 and contains a detailed breakdown of the calculation. 
         			(40)
         		 The letter states that, in accordance with Article 39(3), a reduction of EUR 4 583 055.83 would be applied to two advances
      in 2002 and attributed to Chapter B01-41 (Clearance of accounts and reductions/corrections to advances), but that the reduction
      would not affect the expenditure recognised for the Member State in Decision 2000/426/EC. 
         			(41)
         		
      
        26.      The reduction provided for in Article 39(3) of Regulation No 1750/1999 was discussed again at the EAGGF Committee meeting
      of 19 April 2002. At the request of the Danish delegation, the chairman made known the opinion of the Legal Service of the
      Commission, confirming that the reduction was akin to a typical financial penalty and that it would be applied by way of a
      deduction from the advances to the Member States concerned in June and August 2002.
      
      
        27.      At the meetings of 22 May and 19 June 2002, the EAGGF Committee was questioned about the advances to the Member States in
      June and July 2002, in the light of expenditure in April and May 2002. At those meetings it was stated that the amount of
      the advances took into account the positive and negative corrections applied to expenditure declared by the Member States.
      
      
        28.      By decisions of 27 May and 24 June 2002, signed by the Commissioner for Agriculture, the Commission set the amounts of the
      advances to the Member States for April and May 2002 respectively. Those decisions merely indicate the total amount for each
      Member State, without giving any further details.
      
      
        29.      Finally, it should be noted that, by Decision 2002/461/EC of 12 June 2002, 
         			(42)
         		 adopted in accordance with Article 7(3) of Regulation No 1258/1999, the Commission cleared the accounts of the Member States
      in respect of expenditure financed by the EAGGF Guarantee Section for the 2001 financial year.
      
      
      III –  The procedure before the Court of Justice
        30.      The Portuguese Republic lodged the application at the Court Registry on 1 July 2002.
      
      
        31.      The Commission of the European Communities lodged a defence, in which it claimed that the application should be ruled inadmissible
      or, in the alternative, dismissed, and that an order for costs should be made against the applicant.
      
      
        32.      The written phase of the proceedings closed after the reply and the rejoinder had been lodged.
      
      
        33.      A hearing was held, at the request of the applicant, on 1 July 2004. The defendant also took part in the hearing, at which
      it was announced that the Opinion would be delivered on 7 September 2004.
      
      
      IV –  Legal analysis
        34.      As a preliminary matter, the Commission submits that the action is inadmissible on the ground that the subject-matter of the
      contested letter is merely informative in nature. In all other respects, the analysis of the action centres on the pleas for
      annulment advanced by the Portuguese Republic.
      
      
        35.      There is, however, a connection between the claim of inadmissibility and the pleas for annulment, because the legal status
      of the contested letter is liable to have a significant bearing on the principal complaint of lack of competence put forward
      by the applicant.
      
      
       A – The admissibility of the action for annulment
       1. Reasoning
      
        36.      Essentially, the Commission submits that the action should be ruled inadmissible on the ground that an action for annulment
      may only be brought against acts which produce binding legal effects, and that is not true of the contested letter, and likewise
      the letter does not alter legal positions; rather, following the announcements made at the meeting of the EAGGF Committee
      on 19 February 2002, its subject-matter is merely informative, as it is simply a communication from the services of the Commission
      to those of the Portuguese Republic, informing the latter of matters of which it was already aware through the meetings of
      the Committee, and it thus comes under the category of cooperation between the Community and the Member States.
       The Commission further submits that the legally binding decisions affecting the interests of the applicant were the ones of
      27 May and 24 June 2002 relating to the advances due to the applicant in April and May 2002, in which the Commissioner for
      Agriculture adopted the measure reducing those advances.
      
      
        37.      Based on the fact that the imposition of penalties was not discussed at all at the meeting of the EAGGF Committee of 22 January
      2002, because the amount of the expenditure incurred by each State had not been determined, and on the fact that, at the meeting
      of 19 February 2002, the Commission merely gave notice of its intention to impose penalties, the Portuguese Government contends
      that the letter affects its legal position, since it is the measure imposing the reduction and it specifies the amount of
      that reduction, so that its subject-matter is individual and specific.
       The Portuguese Government argues that, until it received the letter, it did not know that the Commission had decided to effect
      the reduction or the amount thereof; nor did it know whether the reduction would be divided between the monthly advances for
      the 2002 financial year or would be applied in full in a single month.
       In the view of the Portuguese Government, the decisions of 27 May and 24 June 2002 are merely implementing measures against
      which no action can be brought, because they do not state that the expenditure forecast by the Portuguese Government is less
      than 75% of that actually incurred; nor do they specify the penalty imposed or its amount.
      
      
        38.      In my opinion, the starting point for deciding whether the action for annulment is admissible must be Article 230 EC, 
         			(43)
         		 as interpreted by the Court.
      
      
        39.      An action for annulment has a dual aim: to monitor compliance with Community law by the institutions and to safeguard the
      rights of the applicants (other Community institutions, Member States or individuals) in respect of the acts of those institutions.
      
         			(44)
         		 According to case-law, it would be inconsistent with the objective pursued by such an action to interpret restrictively the
      conditions for its admissibility. 
         			(45)
         		
      
        40.      In that regard, it has been noted that the European Community is a community based on the rule of law, inasmuch as neither
      its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity
      with the basic constitutional charter, the Treaty. Moreover, the Treaty lays down a complete system of legal remedies and
      procedures designed to permit the Court of Justice to review the legality of acts of the institutions. 
         			(46)
         		 Under that system an action must be available in the case of ‘all measures adopted by the institutions … which are intended
      to have legal effects.’ 
         			(47)
         		
      
        41.      The difficulty lies in determining when exactly a Community act produces legal effects.
      
      
       2. The definition of an act having legal effects
      
        42.      I have examined this concept on a previous occasion. 
         			(48)
         		 To my mind, what I stated then applies equally to the case currently before the Court, which raises the question of the scope
      of the effects produced by such a measure in relation to a Member State.
      
      
        43.      The Court has held that the name or form of the measure is, in principle, irrelevant, since what is decisive is its content
      and scope. 
         			(49)
         		 The Court has ruled admissible an action against a letter; 
         			(50)
         		 likewise an action against a verbal decision. 
         			(51)
         		 In that context, the Court heard an action for annulment of proceedings of the Council calling on the Member States to conclude
      an international agreement on behalf of the Community, 
         			(52)
         		 and an action challenging a Commission communication which, on the pretext of interpreting the provisions of a directive,
      created new obligations for the Member States. 
         			(53)
         		
      
        44.      On the other hand, actions brought against measures which do not inherently create rights and obligations affecting third
      parties have been ruled inadmissible. Consequently, the Court has dismissed actions brought against measures or instructions
      of an internal character, which do not produce effects outside the institution which adopts them, 
         			(54)
         		 and actions brought against a specific Community practice. 
         			(55)
         		 Likewise, actions brought against the measures which are prior or subsequent to a final decision in a complex procedure have
      been ruled inadmissible. Defects in the preparatory measures for an act adopted subsequently, which contains the institution’s
      decision, must be pointed out when the action is brought against the latter act, 
         			(56)
         		 subject always to the fact that preparatory acts may be contested separately in so far as, by producing legal effects, they
      have a decisive influence on an issue in the main procedure. For the same reason, actions cannot be brought against measures
      which merely reproduce or confirm previous decisions 
         			(57)
         		 or which are purely implementing measures. 
         			(58)
         		
      
       3. Application of the above definition to this case
      
        45.      It follows from the foregoing considerations that the contested letter must be regarded as an act having legal effects.
      
      
        46.      Article 39(3) of Regulation No 1750/99 
         			(59)
         		 provides for a reduction of the expenditure to be recognised for the following financial year, taking into account a number
      of precise criteria, 
         			(60)
         		 from which it follows that the competent body is required to adopt a measure specifying the reduction and setting out the
      relevant information. In other words, it is necessary to determine the ‘actual expenditure’, ‘the amounts referred to in paragraph
      1’, the percentage differential between the two, and, finally, the resulting third of ‘the difference’ to which the reduction
      amounts.
      
      
        47.      Only where a Member State knows that it will be subject to a reduction, and is able to refer to all those details, will it
      be in a position to challenge effectively the measure concerned by disputing the factors and data on which the reduction was
      based. That will be difficult to do if the information is provided in stages, rather than in a specific measure which sets
      out all the available factors and data, thereby enabling the Member State to dispute the measure and, should it consider it
      appropriate, to bring legal proceedings. 
      
      
        48.      In the present case, the letter clearly explains that it is appropriate to apply Article 39(3) of Regulation No 1750/1999
      to the Portuguese Republic, and states the amount of the reduction, when it will be applied, and the data which was taken
      into account:
      
        
      –
         the expenditure incurred is EUR 197 323 332.52;
      
      
        
      –
         the forecast for 2001, which was transmitted to the services of the Commission on 30 September 2000, was EUR 281 430 000.00;
      
      
        
      –
         actual expenditure came to less than 75% of that forecast; and
      
      
        
      –
         the reduction amounts to EUR 4 583 055.83, and will be applied to two advances in 2002.
      
      
      
      
        49.      Accordingly, the action for annulment of the letter appears to be admissible, notwithstanding the claims to the contrary put
      forward by the Commission.
      
      
        50.      However, the application of Article 39(3) of Regulation No 1750/1999 was discussed at two previous meetings of the EAGGF Committee,
      
         			(61)
         		 the discussions being informative in nature on both occasions. 
         			(62)
         		 The discussions at the meeting of 22 January 2002 do not have a significant legal bearing on these proceedings, in that all
      references to the application of Article 39(3) were withdrawn from the agenda because one of the pieces of information required
      was unavailable. An analysis of the discussions which took place at the meeting of 19 February 2002 gives rise to greater
      uncertainty.
      
      
        51.      According to the minutes of that meeting, the representative of the Commission referred to the penalties to be imposed on
      a number of Member States, which, it appears, 
         			(63)
         		 were set out in an annex which was subsequently attached to the contested letter. It could, therefore, be concluded that,
      by the time of the meeting of 19 February 2002, the Commission had already adopted the decision on the application of the
      reduction, the basis for the calculation of the reduction and the amount, and that the letter of 18 April 2002 was simply
      a means of communicating what had already been decided. Accordingly, if the Portuguese Republic disagreed, it ought to have
      challenged that decision rather than the letter.
      
      
        52.      That said, what should the Portuguese Government have challenged? The annex setting out the calculation? The penalty notification?
      The information provided by the representative of the Commission? In short, which is the measure containing the decision to
      effect the reduction? 
         			(64)
         		
      
        53.      In the light of those questions, and in accordance with the principle of legal certainty, which states that ‘any act of the
      administration that has legal effects must be definitive, in particular as regards its author and content’, 
         			(65)
         		 and the requirement of effective judicial control to ensure that all acts of the institutions comply with Community law,
      
         			(66)
         		 it appears that it is appropriate for the Court to hear the application for annulment of the letter, since it is the material
      record of the decision to impose the reduction and it informs the Portuguese authorities of all the relevant information.
      
      
        54.      In fact, the action should have been brought against the decision imposing the reduction but, in the absence of a formal instrument
      adopting that decision, the letter becomes its material expression. Accordingly, the applicant is entitled to challenge the
      letter with a view to the Court examining whether it complies with Community law. For that reason, although, formally, the
      action for annulment was brought against the letter, the object of the action is really the decision to which the letter refers.
      Moreover, the same approach must be used to analyse the pleas of illegality put forward by the Portuguese Republic, in so
      far as regard must be had to the procedure for imposing the reduction and the manner in which it was imposed, rather than
      to the letter which is merely the instrument in which those matters are set out.
      
      
        55.      Furthermore, I do not support the claim of the Commission that the acts which are open to challenge are the decisions of May
      and June 2002 setting out the amounts of the advances applicable to the Member States in April and May 2002, because those
      measures merely implement decisions which had already been adopted. As the applicant points out, those decisions are similar
      to previous ones, from which they differ with regard to the amount recognised and the month concerned, but to which they add
      nothing.
      
      
       B – The pleas for annulment
        56.      Should the Court rule the application admissible, it must then consider the pleas for annulment put forward.
      
      
       1. The first plea: lack of competence
      
        57.      The complaint of lack of competence falls into two parts, the first relating to the infringement of the Rules of Procedure
      of the Commission and the second to the infringement of Article 7(3) of Regulation No 1258/1999.
      
      
       a) Infringement of the Rules of Procedure of the Commission 
         			(67)
         		
        58.      The Portuguese Republic claims that the letter should be annulled because it was drawn up by a Director‑General who lacked
      competence for that purpose and who was not acting in reliance on empowerment or delegation, methods of conferring powers
      which, moreover, cannot be assumed to have been exercised.
      
      
        59.      I agree with the applicant’s assertion that a Director‑General is not entitled to impose the reduction referred to in Article
      39(3) of Regulation No 1750/1999. I also agree that, in the case before the Court, there is no evidence whatever of empowerment
      or delegation. 
         			(68)
         		 Moreover, the Commission does not contest either of those points. 
         			(69)
         		
      
        60.      However, I do not agree with the conclusion drawn from those assertions, because the letter cannot be considered in isolation,
      
         			(70)
         		 outside the context in which it arose. That would be a highly simplistic solution and it would mean attributing to the letter
      a character which it does not possess. It must be recalled that I have argued that the action is admissible on the ground
      that the decision of the Commission to reduce the advances to the Portuguese Republic lacks a specific material expression,
      a role which is therefore performed by the letter. Accordingly, an action brought against the letter enables the Court to
      analyse the complaint of the applicant against the decision. 
         			(71)
         		 However, it is not appropriate to infer from that finding that the decision imposing the reduction was adopted by the Director‑General
      in the letter, as the applicant Member State claims.
      
      
       b) Infringement of Article 7(3) of Regulation No 1258/1999 
         			(72)
         		
        61.      The applicant points out that the letter is dated 18 April 2002, but that the accounts of the paying agencies for the 2001
      financial year were not cleared until 12 June 2002. Therefore, the applicant claims, it was not possible to calculate the
      amount of the reduction to be applied in 2002 until the latter date, so that when the Director‑General made the calculation
      on the basis of a sum which had yet to be approved, he acted ultra vires, thus infringing Article 7(3) of Regulation No 1258/1999.
      
      
        62.      I disagree with that argument. Article 7(3) provides that the Commission clears the accounts of the paying agencies, but the
      Director‑General did not clear the accounts. Another complaint is that the Director‑General did not wait for the accounts
      to be cleared before effecting the reduction. In other words, as the Commission contends in the rejoinder, the Portuguese
      Republic is actually calling into question the method of calculation, a matter which can, in certain circumstances, give rise
      to a substantive defect, but not to a complaint of lack of competence or a procedural defect. I believe that the applicant
      is actually aware of the position in view of the way it has worded the fourth plea in law, with which I will deal below. Accordingly,
      the complaint of lack of competence has not been substantiated.
      
      
       2. The second plea for annulment
      
        63.      The Portuguese Republic submits that the decision does not have any legal basis, because at the time of its adoption Regulation
      No 1750/1999, on which it is based, had been expressly repealed by Regulation No 445/2002. 
         			(73)
         		
      
        64.      The Commission contends that, in accordance with Article 65(1) of Regulation No 445/2002, references to the repealed regulation
      are to be construed as references to the corresponding provisions of the new regulation.
      
      
        65.      I do not agree with that approach. The stipulation in Article 65(1) relates to measures and acts adopted while Regulation
      No 1750/1999 was in force and not to those adopted subsequently, whose point of reference must be the new regulation rather
      than the repealed one. Nor do I agree with the argument advanced by the applicant, however. As I have already observed, 
         			(74)
         		 Article 39(3) of Regulation No 1750/1999 is identical to Article 49(4) of Regulation No 445/2002, so that the decision to
      reduce the advances has the same legal basis, from which it follows that the reference to the incorrect article and regulation
      cannot give rise to the annulment sought by the applicant, because the decision has a basis in law and the effect is the same
      irrespective of which provision is applied. That is all the more so if, as I indicated above, one regards the letter as merely
      the material expression of a decision which had already been adopted. 
         			(75)
         		
      
       3. The third plea for annulment
      
        66.      According to this plea, there was a manifest error in the application of Article 39(4) of Regulation No 1750/1999, which provides
      that paragraph (3) does not apply to the first statement of expenditure under the rural development programming document.
      That gives rise to the question whether that first statement is the one relating to the 2000 financial year, as the Commission
      claims, or to the 2001 financial year, as the applicant claims.
      
      
        67.      In order to resolve that question, it must be borne in mind that the decisions relating to the RDPs submitted by Portugal
      provide, on the one hand, that payments made by the paying agencies with effect from 16 October 1999 will be attributed to
      the 2000 budget year (Article 2(2)), and, on the other hand, that expenditure becomes payable with effect from 6 January 2000,
      and 4 and 22 February 2000, respectively (Article 3(1)). 
         			(76)
         		
      
        68.      Therefore, notwithstanding the fact that the RDPs were approved after the expiry of the time-limit of six months from the
      date on which they were submitted, 
         			(77)
         		 provision was made for there to be retroactive effect in relation to the 2000 financial year. Accordingly, the date of submission
      or approval of the plans, and likewise the date on which the expenditure was incurred, are less important than the period
      to which they refer.
      
      
        69.      For that reason, although I agree with the argument advanced by the Commission to the effect that the moratorium, in Article
      39(4) of Regulation 1750/1999, on the imposition of the penalty provided for in the previous paragraph seeks to allow the
      Member States a period of adaptation so that they can gain a deeper understanding based on their experience in a particular
      financial year, to my mind it also addresses the possibility that the first statement of expenditure might be affected by
      delays in the approval of RDPs, as a result of which provision was made for the time-limit not to apply in order to alleviate
      the adverse effects of such a situation. 
      
      
        70.      It is within that context that the Commission’s claim to the effect that Article 49(5) of Regulation No 445/2002, in so far
      as it provides that the penalty relating to the first statement of expenditure incurred ‘during the 2000 financial year’ is
      not to apply, must be regarded as merely clarifying Article 39(4) of Regulation No 1750/1999, which preceded it. 
         			(78)
         		
      
        71.      Accordingly, the moratorium on the penalty was applicable to the 2000 financial year, rather than to the 2001 financial year.
      
      
        72.      That finding is not weakened, but rather strengthened, by the fact stressed by the Portuguese Government that the Commission,
      in letters dated 2 October and 20 November 2000, and 12 January 2001, stated that certain sums could not be reimbursed under
      the advances for the 2000 financial year because the RDPs had not yet been approved, since those letters preceded the aforementioned
      decisions, which, doubtless because the Commission was aware of the problem, provide for the retroactive effect of which I
      have spoken above.
      
      
       4. The fourth and sixth pleas for annulment
      
        73.      The Portuguese Republic further submits that there was a manifest error in the application of Article 39(3) of Regulation
      No 1750/1999 (fourth plea) and in the application of Article 49(4) of Regulation No 445/2002 (sixth plea), advancing a similar
      argument in support of both submissions. 
         			(79)
         		 According to the Portuguese Government, the error stems from the fact that the Commission determined the actual expenditure
      on the basis of data supplied by INGA (EUR 197 323 332.52), which is not in dispute, without taking into account, as was required,
      the data set out in the decision clearing the accounts for the 2001 financial year (EUR 197 757 664.51).
      
      
        74.      The Commission argues that there is no need to wait for clearance of the annual accounts and points out that Article 49(4)
      of Regulation No 445/2002 (Article 39(3) of Regulation No 1750/1999) does not refer to cleared accounts but to expenditure
      incurred in the relevant financial year. The Commission goes on to state that, under Article 4(1) of Regulation No 296/96,
      
         			(80)
         		 monthly advances are determined on the basis of data sent weekly and monthly by the Member States in accordance with Article
      3.
      
      
        75.      The following considerations must be borne in mind when approaching this question. First of all, the main purpose of the penalty
      provided for in Article 39(3) of Regulation No 1750/1999 is to ensure that, as far as possible, the amount of expenditure
      actually incurred is consistent with that forecast, so that, where a Member State has made an unrealistic estimate, it will
      have its advances reduced in the next financial year. 
         			(81)
         		 Second, it is necessary to differentiate between statements of expenditure and estimates of financial needs, on the one hand,
      and the clearance of annual accounts, on the other, because they satisfy different aims and are based on different information.
      
         			(82)
         		 In that regard, monthly advances are made on the basis of the expenditure incurred in the same period, whereas clearance
      takes place annually and must be effected before 30 April of the year following the financial year concerned, without prejudice
      to the existence of a specific procedure to exclude the financing of expenditure not incurred in compliance with the Community
      rules. 
         			(83)
         		
      
        76.      Therefore, notwithstanding that, in all cases, it would ensure greater legal certainty to wait until the annual accounts have
      been cleared before, where appropriate, imposing a penalty, taking into account the sums referred to in communications from
      the paying agencies of the Member States does not constitute an infringement of that principle or of Article 39(3) of Regulation
      No 1750/1999. Aside from the fact that the Commission uses data which the Member States themselves have provided, and the
      fact that there should not be an appreciable difference between the data submitted monthly and the annual accounts, 
         			(84)
         		 making application of the penalty conditional on final clearance would give rise to unacceptable situations. A Member State
      might disagree with the exclusion of certain expenditure, with the result that a decision authorising the accounts would only
      be adopted after the prescribed inter partes proceedings. 
         			(85)
         		 Accordingly, once the Commission is in possession of accurate data, taken from the information sent by the national paying
      agencies, it is perfectly entitled to use them for the abovementioned purposes. 
         			(86)
         		 That argument is borne out by the fact that financing of the common agricultural policy is effected under a system based
      on trust, in which management of the Fund is principally in the hands of the competent national authorities. 
         			(87)
         		
      
        77.      Another consideration is the fact that the Commission adjusts the penalty imposed on the basis of the annual accounts. In
      other words, although there is no need and no legal obligation to wait for clearance of the annual accounts before determining
      the amount of the penalty, it must be borne in mind that there may be a difference between the total resulting from the data
      provided throughout the year and the final amount. It is important to check whether the penalty is appropriate and also to
      calculate the exact amount of that penalty with extreme care, so that if, as is the case here, the difference is favourable
      to the Member State, the amount of the penalty is reduced in line with the approved expenditure and the remaining monthly
      advances for the financial year are adjusted accordingly.
      
      
        78.      In support of that view, I refer to the judgment in Germany v Commission, 
         			(88)
         		 in which the Court held that the Commission has the power to reduce the payment of amounts due under monthly advances according
      to the state of the account of each Member State with the EAGGF when it establishes that the national body has, contrary to
      Community law, failed to collect certain payments or effected certain expenditure chargeable to the Fund, but it stipulated
      that that power may be exercised ‘while awaiting the final decision on the clearance of the annual accounts’ (paragraph 16),
      so that ‘such a Commission decision … thus remains subject to review until the annual clearance of accounts and therefore
      cannot definitively have an adverse effect on the financial interests of the Member State in question’ (paragraph 19).
      
      
       5. The plea of illegality
      
        79.      The Portuguese Republic claims that, in the event that Regulation No 445/2002 is found to be applicable, Article 49(5) thereof,
      in so far as it refers to the non-application of paragraph (4) to ‘the first statement of expenditure incurred during the
      2000 financial year’, is void on the grounds that it is contrary to the principle of non-retroactivity.
      
      
        80.      Obviously this plea is closely related to the third plea so that, in line with the considerations set out above, the specific
      reference to the 2000 financial year does not add anything to the more general rules laid down earlier in Article 39(4) of
      Regulation No 1750/1999. 
         			(89)
         		
      
        81.      Moreover, according to settled case-law, in order to ensure observance of the principles of legal certainty and the protection
      of legitimate expectations, the substantive rules of Community law must be interpreted as applying to pre-existing situations
      only in so far as it clearly follows from their terms, their objectives or their general scheme. 
         			(90)
         		 It would be difficult to apply Article 49(5) retroactively because it refers to the future, notwithstanding that it is based
      on an article from an earlier regulation. The applicant does not dispute the retroactivity of the new provision but rather
      the wording which it adds to that of its predecessor, to which it is appropriate to reply in the terms set out above.
      
      
       6. The seventh plea for annulment
      
        82.      Finally, the Portuguese Republic complains that there has been a breach of the obligation to provide a statement of reasons
      under Article 253 EC, because it does not know how the Commission arrived at the sum of EUR 197 323 332.52, to which the contested
      letter refers in respect of expenditure incurred, and is unaware of the method used to calculate that sum.
      
      
        83.      The statement of reasons ‘is an essential part’ of a measure 
         			(91)
         		 and the obligation to provide reasons is not only for the protection of interested parties, but is also intended to provide
      the Court with the information necessary to enable it to undertake fully the appropriate legal review. 
         			(92)
         		 It is also settled case-law that the statement of reasons required by the Treaty must show clearly and unequivocally the
      reasoning of the institution which enacted the contested measure so as to inform the persons concerned of the justification
      for the measure adopted and to enable the Court to exercise its power of review. It is not necessary, however, for details
      of all relevant factual and legal aspects to be given, provided that regard is had not only to the wording of the decision
      but also to its context and to all the legal rules governing the matter in question. 
         			(93)
         		
      
        84.      On those grounds, this plea appears to be unfounded, because the applicant acknowledges that it knows where the Commission
      obtained the information from, which bears out the fact that at that time the annual accounts had not yet been cleared. 
         			(94)
         		 Moreover, it is clear from the minutes of the EAGGF Committee meetings that the issue of the imposition of the penalty did
      not arise from nowhere, since, for example, the minutes of the meeting of 22 January 2002 state that the representative of
      the Commission explained the method of calculation. 
         			(95)
         		
      
        85.      Accordingly, I am of the opinion that the Portuguese Republic was aware of all the factual and legal aspects on which the
      decision on the reduction and its amount were based. That has been demonstrated by the fact that the Portuguese Government
      challenged the points with which it disagreed, from which it follows that there was no failure to provide reasons for the
      contested measure.
      
      
      V –  Costs
        86.      In accordance with Article 69(2) of the Rules of Procedure, since its claims have been dismissed, an order for costs must
      be made against the applicant Member State.
      
       
      VI –  Conclusion
        87.      In the light of the foregoing considerations, I propose that the Court should:
      
      (1)
         Dismiss the plea of inadmissibility put forward by the Commission;
      
      
      (2)
         Dismiss the action for annulment brought by the Portuguese Republic against the letter from the Director‑General for Agriculture
            of the Commission of the European Communities;
         
      
      
      (3)
         Order the Portuguese Republic to pay the costs. 
      
      
      
       1 –
         
         Original language: Spanish.
      
      2 –
         
         Reference: AGRI/G/4-D11703; heading: ‘Portugal – EAGGF – Guarantee – 2002 – Application of Article 39(3) of Regulation (EC)
            No 1750/99 – Correction to advances’.
            
         
      
      3 –
         
         Commission Regulation of 23 July 1999 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999
            on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 1999 L 214, p. 31).
            
         
      
      4 –
         
         Council Regulation of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund
            (EAGGF) and amending and repealing certain regulations (OJ 1999 L 160, p. 80).
            
         
      
      5 –
         
         Investment in agricultural holdings; setting up of young farmers; training; early retirement; less-favoured areas and areas
            with environmental restrictions; agri-environment; improving processing and marketing of agricultural products; forestry;
            and promoting the adaptation and development of rural areas.
            
         
      
      6 –
         
         Council Regulation of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).
            
         
      
      7 –
         
         Those rules ‘shall be adopted in accordance with the procedure laid down in Article 50(2) of Regulation (EC) No 1260/1999.’
            
         
      
      8 –
         
         Cited in footnote 3 of this Opinion.
            
         
      
      9 –
         
         Article 1 states expressly that the regulation contains detailed rules for the application of Regulation No 1257/1999.
            
         
      
      10 –
         
         Commission Regulation (EC) No  2075/2000 of 29 September 2000 (OJ 2000 L 246, p. 46) amended Articles 2, 5, 31(3), 33, 35,
            37(1), 38, 39(4), 46(2), 47(4), 48(1), 49(2) and a number of points in the annex, while also inserting Articles 32a and 39a.
            Commission Regulation (EC) No 672/2001 of 2 April 2001 (OJ 2001 L 93, p. 28) amended one point of the annex. Finally, Commission
            Regulation (EC) No 1763/2001 of 6 September 2001 (OJ 2001 L 239, p. 10) amended Articles 5, 39 (to which it also added paragraph
            1a), 46 and 48, and one point of the annex, while also inserting Article 11a.
            
         
      
      11 –
         
         Commission Regulation of 26 February 2002 laying down detailed rules for the application of Council Regulation (EC) No 1257/1999
            on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) (OJ 2002 L 74, p. 1).
            
         
      
      12 –
         
         Points 11 to 13 of this Opinion.
            
         
      
      13 –
         
         Article 1(5) of Regulation No 2075/2000, cited in footnote 10, inserted a number of subparagraphs into Article 33(2), which
            specify the expenditure included in the overall amount of Community support.
            
         
      
      14 –
         
         Wording inserted by Article 1(12) of Regulation No 2075/2000, cited in footnote 10.
            
         
      
      15 –
         
         Paragraph 1a was inserted by Article 1(3)(a) of Regulation No 1763/2001, cited in footnote 10.
            
         
      
      16 –
         
         The wording of this paragraph was provided by Article 1(3)(c) of Regulation No 1763/2001, cited in footnote 10.
            
         
      
      17 –
         
         The wording of paragraph (4) was provided by Article 1(14) of Regulation No 2075/2000, cited in footnote 10.
            
         
      
      18 –
         
         Cited in footnote 11 of this Opinion.
            
         
      
      19 –
         
         Point 6 of this Opinion.
            
         
      
      20 –
         
         The seventh day following its official publication (Article 66), which took place on 15 March 2002.
            
         
      
      21 –
         
         As the first recital in the preamble thereto also notes.
            
         
      
      22 –
         
         For example, Article 47(1)(a) of Regulation No 445/2002 refers to Article 41(1) thereof, while Article 37(1) of Regulation
            No 1750/1999, in the version resulting from Regulation No 2075/2000, refers to Article 33(2).
            
         
      
      23 –
         
         Thus, Article 47(1)(b) of Regulation No 445/2002 inserts the words ‘keeping within the allocation for each Member State’ to
            the wording of the corresponding provision of Regulation No 1750/1999 (resulting from Regulation No 2075/2000).
            
         
      
      24 –
         
         In the version resulting from Regulation No 2075/2000, cited in footnote 10.
            
         
      
      25 –
         
         Council Regulation of 17 May 1999 on the financing of the common agricultural policy (OJ 1999 L 160, p. 103). This regulation
            expressly repeals (Article 16) Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural
            policy (OJ, English Special Edition 1970 (I), p. 218), which was amended several times and to which I will refer in point
            17 of this Opinion.
            
         
      
      26 –
         
         Pursuant to Article 12 of the same regulation, the Committee consists of representatives of the Member States and of the Commission.
            
         
      
      27 –
         
         Article 7(4) governs the procedure under which the Commission decides on the expenditure to be excluded from the Community
            financing, during which it must endeavour to reach an agreement with the Member State concerned, and mediation between the
            respective positions may take place.
            
         
      
      28 –
         
         Cited in footnote 25.
            
         
      
      29 –
         
         Commission Regulation of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70
            regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6).
            
         
      
      30 –
         
         Using the correlation table annexed to Regulation No 1258/1999.
            
         
      
      31 –
         
         OJ 2000 L 308, p. 26.
            
         
      
      32 –
         
         The final draft was submitted on 22 October 2000.
            
         
      
      33 –
         
         The final draft was submitted on 24 January 2001.
            
         
      
      34 –
         
         The final draft was submitted on 13 March 2001.
            
         
      
      35 –
         
         The subject-matter of the three decisions is essentially the same, although dates and figures differ, as do the tables in
            the annexes.
            
         
      
      36 –
         
         Commission Regulation of 16 February 1996 on data to be forwarded by the Member States and the monthly booking of expenditure
            financed under the Guarantee Section of the Agricultural Guidance and Guarantee Fund (EAGGF) and repealing Regulation (EEC)
            No 2776/88 (OJ 1996 L 39, p. 5).
            
         
      
      37 –
         
         As I indicated in the previous point, those are the dates on which the plans were submitted.
            
         
      
      38 –
         
         See point 8 of this Opinion.
            
         
      
      39 –
         
         INGA is the body in Portugal responsible for coordinating expenditure financed by the EAGGF Guarantee Section.
            
         
      
      40 –
         
         I must emphasise, however, that, although the breakdown of the calculation of the penalty was appended to the letter, I have
            no information as to whether it was available at the meeting of the EAGGF Committee of 19 February 2002. The minutes of that
            meeting were attached to the application as document A.11 but did not include any annexes. Nor did the Commission submit the
            document in question when it lodged its defence and rejoinder.
            
         
      
      41 –
         
         Commission Decision of 26 June 2000 amending Decision 1999/659/EC fixing an indicative allocation by Member State of the allocations
            under the European Agricultural Guidance and Guarantee Fund Guarantee Section for rural development measures for the period
            2000 to 2006 (OJ 2000 L 165, p. 33).
            
         
      
      42 –
         
         Commission Decision of 12 June 2002 on the clearance of the accounts of Member States’ expenditure financed by the European
            Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the 2001 financial year (OJ 2000 L 160, p. 28).
            
         
      
      43 –
         
         The first two paragraphs of Article 230 EC provide that ‘The Court of Justice shall review the legality of acts adopted jointly
            by the European Parliament and the Council, of acts of the Council, of the Commission and of the ECB, other than recommendations
            and opinions, and of acts of the European Parliament intended to produce legal effects vis-à-vis third parties. It shall for
            this purpose have jurisdiction in actions brought by a Member State, the European Parliament, the Council or the Commission
            on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any
            rule of law relating to its application, or misuse of powers.’ The fourth paragraph goes on to provide that ‘any natural or
            legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against
            a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual
            concern to the former.’
            
         
      
      44 –
         
         Those were the words I used in the Opinion I delivered in Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281.
            
         
      
      45 –
         
         Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 8.
            
         
      
      46 –
         
         Case 294/83 Les Verts v Parliament [1986] ECR 1339; similarly, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR  I-6677.
            
         
      
      47 –
         
         The phrase in quotation marks is taken from the judgment in Case 22/70 Commission v Council [1971] ECR 263.
            
         
      
      48 –
         
         See my Opinion in Ismeri Europa v Court of Auditors, cited in footnote 44, point 45 et seq.
            
         
      
      49 –
         
         The Court stated in Commission v Council, cited in footnote 47, that an action for annulment must be available in the case of all measures adopted by the institutions,
            whatever their nature or form, which may have legal effects (paragraph 42). In Case C-147/96 Netherlands v Commission [2000] ECR I-4723, the Court reiterated that ‘in order to ascertain whether or not a measure which has been challenged produces
            such effects it is necessary to look to its substance’ (paragraph 27). See also the order of 13 June 1991 in Case C-50/90
            Sunzest v Commission [1991] ECR I-2917.
            
         
      
      50 –
         
         Joined Cases 1/57 and 14/57 Usines à tubes de la Sarre v High Authority [1957] ECR 105.
            
         
      
      51 –
         
         Joined Cases 316/82 and 40/83 Kohler v Court of Auditors [1984] ECR 641.
            
         
      
      52 –
         
         .Commission v Council, cited in footnote 47.
            
         
      
      53 –
         
         Case C-325/91 France v Commission [1993] ECR I-3283.
            
         
      
      54 –
         
         Case 20/58 Phoenix-Rheinrohr v High Authority [1959] ECR 75 and Case C-443/97 Spain v Commission [2000] ECR I-2415.
            
         
      
      55 –
         
         Case C-159/96 Portugal v Commission [1998] ECR I-7379.
            
         
      
      56 –
         
         .Phoenix Rheinrohr v High Authority, cited in footnote 54; see also IBM v Commission, cited in footnote 45.
            
         
      
      57 –
         
         Joined Cases 42/59 and 49/59 SNUPAT v High Authority [1961] ECR 53; Joined Cases 166/86 and 220/86 Irish Cement v Commission [1988] ECR 6473; Case 26/76 Metro v Commission [1977] ECR 1875; and Case C-199/91 Foyer Culturel du Sart-Tilman v Commission [1993] ECR I-2667. See also the order of 21 November 1990 in Case C-12/90 Infortec v Commission [1990] ECR I-4265.
            
         
      
      58 –
         
         Case 190/84 Les Verts v Parliament [1988] ECR 1017.
            
         
      
      59 –
         
         See point 9 of this Opinion.
            
         
      
      60 –
         
         Note that the reduction is compulsory, since the article provides that ‘the expenditure … shall be reduced’, rather than ‘it
            may be reduced’ or similar wording.
            
         
      
      61 –
         
         See point 24 of this Opinion.
            
         
      
      62 –
         
         I have drawn attention to the fact that the discussions at the meetings were informative in nature, because informing someone
            that a fine is about to be imposed on them is not the same as actually imposing that fine. An action cannot be brought against
            the measure which gives notice of the fine. 
            
         
      
      63 –
         
         See footnote 40 of this Opinion.
            
         
      
      64 –
         
         It should be recalled that, according to the judgment in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, ‘since the intellectual component and the formal component form an inseparable whole, reducing the act
            to writing is the necessary expression of the intention of the adopting authority’ (paragraph 70).
            
         
      
      65 –
         
         Joined Cases C-287/95 P and C-288/95 P Commission v Solvay [2000] ECR I-2391, paragraph 49.
            
         
      
      66 –
         
         As the Court held in Case C-97/91 Oleificio Borelli v Commission [1992] ECR I-6313, Case C‑1/99 Kofisa Italia [2001] ECR I-207, and Case C-269/99 Carl Kühne and Others [2001] ECR I-9517, the requirement of judicial control stems from the constitutional traditions common to the Member States
            and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental
            Freedoms.
            
         
      
      67 –
         
         See the legal framework set out at points 18 and 19 of this Opinion.
            
         
      
      68 –
         
         Even if empowerment or delegation had taken place, a record would be required, not simply because, as the applicant points
            out, they cannot be presumed, but also because Article 15 of the Rules of Procedure of the Commission stipulates as much.
            See in that regard point 19 of this Opinion.
            
         
      
      69 –
         
         Furthermore, it is common ground in these proceedings that the Commission has the power to reduce advances to the Member States.
            The Court ruled in favour of that power in Case C‑342/89 Germany v Commission [1991] ECR I-5031.
            
         
      
      70 –
         
         This is the point of connection between the plea of inadmissibility put forward by the Commission and the plea for annulment
            put forward by the Portuguese Republic, to which I referred in point 35 of this Opinion.
            
         
      
      71 –
         
         Point 52 et seq. of this Opinion.
            
         
      
      72 –
         
         See the legal framework set out in points 14 to 17 of this Opinion.
            
         
      
      73 –
         
         See point 11 of this Opinion.
            
         
      
      74 –
         
         See point 12 of this Opinion.
            
         
      
      75 –
         
         When, at the EAGGF Committee meeting of 19 February 2002, the representative of the Commission described the penalties applicable
            to the six Member States whose expenditure in respect of RDPs had been less than 75% of that forecast, Regulation No 1750/1999
            was still in force.
            
         
      
      76 –
         
         The dates on which the three plans were submitted. See points 20 and 21 of this Opinion.
            
         
      
      77 –
         
         Article 44 of Regulation No 1257/1999.  See point 4 of this Opinion.
            
         
      
      78 –
         
         See points 13 and 79 to 81 of this Opinion.
            
         
      
      79 –
         
         The two provisions are identical and, accordingly, from a legal point of view, it is immaterial which is cited; hence the
            fact that they are analysed together. See point 65 of this Opinion.
            
         
      
      80 –
         
         Cited in footnote 36 of this Opinion.
            
         
      
      81 –
         
         The third recital in the preamble to Regulation No 296/96 states that ‘the communication of data relating to quantities should
            benefit from a certain margin of imprecision which may be explained, among other things, by administrative difficulties linked
            to their establishment; this applies also to the estimates of expenditure which, while they must be reliable, are by their
            nature of an approximative character’.
            
         
      
      82 –
         
         With regard to those aims, the Court held in Case C-28/94 Netherlands v Commission [1999] ECR I-1973 that ‘the purpose of the procedure for clearing the accounts is to ensure that the credits made available
            to the Member States have been used in accordance with the Community rules in force in the context of the common organisation
            of the markets’ (paragraph 38). The Court made a similar declaration in Case 349/85 Denmark v Commission [1988] ECR 169, paragraph 19. For the background to the development of the legal arrangements for EAGGF financing and the
            treatment of advances, see point 3 of the Opinion of Advocate General Darmon in Germany v Commission, cited in footnote 69. For the information required, see Article 6(1) of Regulation No 1258/1999, transcribed at point 14
            of this Opinion.
            
         
      
      83 –
         
         Article 7(2), (3) and (4), in particular, of Regulation No 1258/1999. See points 15 to 18 of this Opinion.
            
         
      
      84 –
         
         That is the situation in this case, where the Commission calculated the actual expenditure to be EUR 197 323 332.52, while
            in the cleared accounts the amount came to EUR 197 757 664.51. According to the Portuguese Republic (paragraphs 94 and 118
            of the application), the difference is due to the interest on sums reimbursed and paid late.
            
         
      
      85 –
         
         Article 7(4) of Regulation No 1258/1999. See footnote 27 of this Opinion.
            
         
      
      86 –
         
         In that connection, I should like to draw attention to the fact that the minutes of the meeting of the EAGGF Committee of
            22 January 2000 record the withdrawal from the agenda of the item dealing with information about penalties to be applied to
            certain Member States for failure to adhere to their expenditure forecasts, precisely because details of the amount of expenditure
            relating to the financial year in question was needed in order to finalise the penalties and that information would not be
            available until after 31 January 2002. See in that regard point 24(a) of this Opinion.
            
         
      
      87 –
         
         .Denmark v Commission, paragraph 19, cited in footnote 82.
            
         
      
      88 –
         
         Cited in footnote 69.
            
         
      
      89 –
         
         Points 66 to 72 of this Opinion.
            
         
      
      90 –
         
         Case 21/81 Bout [1982] ECR 381 and Case C-34/92 GruSa Fleisch [1993] ECR I-4147.
            
         
      
      91 –
         
         Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 37.
            
         
      
      92 –
         
         Case 18/57 Nold v High Authority [1959] ECR 41 and subsequent cases.
            
         
      
      93 –
         
         Case C-350/88 Delacre and Others v Commission [1990] ECR I-395 and Case C-22/94 Irish Farmers Association and Others [1997] ECR I-1809.
            
         
      
      94 –
         
         Paragraphs 98 and 121 of the application state that, by taking into account the amounts set out in ‘Table 104’ of the 2001
            EAGGF (Guarantee) Statement for October 2001 (Annex A.12), which contains all the amounts for the 2001 financial year, ‘one
            arrives at the amount stated in the decision’.
            
         
      
      95 –
         
         In that connection, see point 24 of this Opinion.