Hauptzollamt Hamburg-Jonas v Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb GmbH & Co. (C-278/07), Vion Trading GmbH (C-279/07) and Ze Fu Fleischhandel GmbH (C-280/07).
Date: 2009-01-29
16. First of all, as regards the argument of the defendants in the main proceedings seeking to call into question the statement of the facts by the referring court, in particular so far as concerns the existence of the irregularities which they are alleged to have committed, it is not for the Court to establish the facts relevant to the decision in the main proceedings. The Court must take account, under the division of jurisdiction between the Community Courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (see, to that effect, Case C-153/02 Neri [2003] ECR I‑13555, paragraphs 34 and 35, and Case C‑347/06 ASM Brescia  [2008] ECR I‑0000, paragraph 28).
20. In this connection, Article 1(1) of Regulation No 2988/95 introduces ‘general rules … relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law’ in order, as is clear from the third recital in the preamble to the regulation, to counter ‘acts detrimental to the Communities’ financial interests ... in all areas’ (Case C-278/02 Handlbauer [2004] ECR I-6171, paragraph 31).
21. The first subparagraph of Article 3(1) of the regulation fixes, as far as proceedings are concerned, a limitation period which runs from the time when the irregularity was committed, such irregularity, according to Article 1(2) of that regulation, being ‘any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities …’ ( Handlbauer , paragraph 32).
22. Thus, contrary to what is submitted, inter alia, by the French Government and the Commission of the European Communities, it follows that Article 3(1) of Regulation No 2988/95 is applicable both to irregularities leading to the imposition of an administrative penalty for the purposes of Article 5 thereof and to irregularities which are the subject of an administrative measure for the purposes of Article 4 of that regulation, a measure which is intended to withdraw the wrongly obtained advantage without however constituting a penalty (see, to that effect, Handlbauer , paragraphs 33 and 34).
25. First of all, it must be pointed out that, before the adoption of Regulation No 2988/95, the Community legislature had made no provision for a rule on limitation applicable to the recovery of advantages wrongly received by economic operators as a result of an act or omission on their part which had or would have had the effect of prejudicing the general budget of the Communities or budgets managed by them.
26. Therefore, before the adoption of Regulation No 2988/95, in the absence of provisions of Community law, disputes concerning the recovery of amounts wrongly paid under Community law had to be decided by national courts in application of their own domestic law, subject nevertheless to the limits imposed by Community law, on the basis that the rules and procedures laid down by domestic law were not permitted to have the effect of making it in practice impossible or excessively difficult to recover the aid not due and that domestic law had to be applied in a manner which was not discriminatory as compared to procedures for deciding similar national disputes (Case C-336/00 Huber [2002] ECR I-7699, paragraph 55 and the case-law cited).
27. By adopting Regulation No 2988/95, and in particular the first subparagraph of Article 3(1) thereof, the Community legislature intended however to establish a general rule on limitation which was applicable in that area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of recovering sums wrongly received from the Community budget after the expiry of a four-year period after the irregularity affecting the payments at issue was committed.
28. It follows that, as from the date on which Regulation No 2988/95 entered into force, any advantage wrongly received from the Community budget can, as a rule and apart from in the sectors for which the Community legislature has prescribed a shorter period, be recovered by the competent authorities of the Member States within a period of four years.
31. As regards debts which arose subject to a national rule on limitation, such as that at issue in the main proceedings, the recovery of which is not yet time‑barred, the entry into force of Regulation No 2988/95 has the effect that, pursuant to the first subparagraph of Article 3(1) thereof, the recovery of such debts must as a rule be time-barred within a period of four years running from the date on which the irregularities were committed.
32. Accordingly, pursuant to that provision, the repayment of any sum wrongly received by an operator as a result of an irregularity predating the entry into force of Regulation No 2988/95 must, as a rule, be regarded as time-barred in the absence of any suspensory act adopted in the four years following the commission of the irregularity, a suspensory act which, pursuant to the third subparagraph of Article 3(1) of the regulation, is to be understood as an act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity.
33. It follows that, where an irregularity was committed, as in the cases in the main proceedings, in the course of 1993 subject to a national rule providing for a 30-year limitation period, such an irregularity will be covered by the general Community rule providing for a four-year limitation period and will, on that basis, be subject to limitation in the course of 1997 according to the exact date of the commission of that irregularity in 1993, subject none the less to the possibility retained by the Member States, under Article 3(3) of Regulation No 2988/95, of providing for longer limitation periods.
34. Taking account of the foregoing, the answer to the first question is that, in situations such as those at issue in the main proceedings, the limitation period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95:
– applies to irregularities committed before the entry into force of that regulation;
– starts to run from the date on which the irregularity at issue was committed.
The third question
36. In situations such as those at issue in the main proceedings, in which the irregularities were allegedly committed by the operators in 1993 subject to a national rule providing for a 30-year limitation period, as was found in paragraph 33 above, the repayment of the sums wrongly received as a result of such irregularities was liable, in the absence of a suspensory act, to be time-barred in the course of 1997, provided that the Member State in which the irregularities were committed has not made use of the possibility offered to it under Article 3(3) of Regulation No 2988/95.
38. It follows from this that the recovery of the sums at issue should as a rule have been regarded as time-barred by the application of the general four-year limitation period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95.
42. Accordingly, under Article 3(3) of Regulation No 2988/95, Member States can, first, continue to apply longer limitation periods which existed at the date when that regulation was adopted and, secondly, introduce new rules on limitation providing for such periods after that date.
44. Admittedly, the first subparagraph of Article 3(1) provides that sectoral rules may make provision for a period shorter than the four-year period, but which may not be less than three years. Nevertheless, that provision deals with sectoral rules adopted at Community level, as the fifth recital in the preamble to that regulation confirms, and not national sectoral rules (see, to that effect, Handlbauer , paragraph 28).
45. Moreover, Regulation No 2988/95 does not provide for any information or notification process relating to the use made by Member States of their possibility of providing for longer limitation periods, in accordance with Article 3(3) thereof. It follows that no form of monitoring has been provided for at Community level as regards either the limitation periods applied by way of exception by Member States under that provision or the sectors in which Member States have decided to apply those periods.
46. Consequently, Article 3(3) of Regulation No 2988/95 cannot be interpreted as meaning that the Member States must, in the context of that provision, provide for those longer limitation periods in specific and/or sectoral rules.