Somalische Vereniging Amsterdam en Omgeving (Somvao) v Staatssecretaris van Veiligheid en Justitie.
Date: 2014-12-18
32. As regards Regulation No 2988/95, it should be borne in mind that, according to Article 1(1), that regulation introduces general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law in order, as is clear from the third recital in the preamble to the regulation, to combat fraud against the European Union’s financial interests for all areas (judgments in FranceAgriMer , C‑670/11, EU:C:2012:807, paragraph 41 and case-law cited, and in Cruz & Companhia , C‑341/13, EU:C:2014:2230, paragraph 43).
33. It is apparent from the fourth recital in the preamble to Regulation No 2988/95 that the effectiveness of the combating of fraud against the European Union’s financial interests calls for a common set of legal rules to be enacted for all areas covered by European Union policies. Furthermore, according to the fifth recital in the preamble to that regulation, what constitutes irregular conduct and the administrative measures and penalties relating thereto are provided for in sector-specific rules in accordance with Regulation No 2988/95. In the area of checks and penalties for irregularities committed under EU law, the EU legislature has, by adopting Regulation No 2988/95, laid down a series of general principles and has required that, as a general rule, all sector-specific regulations to observe those principles (judgment in FranceAgriMer , EU:C:2012:807, paragraphs 42 and 43 and the case law cited).
34. Thus Regulation No 2988/95 is intended to regulate any situation involving an ‘irregularity’ within the meaning of Article 1 of that regulation, namely, a breach of a provision of EU law as a result of an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by the Union, either by reducing or losing revenue accruing from own resources collected directly on behalf of the European Union, or by an unjustified item of expenditure (judgment in FranceAgriMer , EU:C:2012:807, paragraph 44).
35. As the first indent of Article 4(1) of Regulation No 2988/95 provides, any irregularity is to involve, as a general rule, the withdrawal of the advantage wrongly obtained, in particular by an obligation to pay the amounts due or repay the amounts wrongly received (judgment in FranceAgriMer , EU:C:2012:807, paragraph 46 and the case-law cited).
36. As regards the obligation to make restitution for advantage improperly received by means of an irregular practice, the Court has already held that that obligation is not a penalty, but simply the consequence of a finding that the conditions required to obtain the advantage derived from the EU rules had not been observed, so that that advantage becomes an advantage wrongly received (see to that effect, judgments in Pometon , C‑158/08, EU:C:2009:349, paragraph 28 and the case-law cited and in Cruz & Companhia , EU:C:2014:2230, paragraph 45).
37. However, the Court has also pointed out that Regulation No 2988/95 merely lays down general rules for supervision and penalties for the purpose of safeguarding the European Union’s financial interests. It is therefore on the basis of other provisions, namely, where appropriate, on the basis of sector-specific provisions, that the recovery of misused funds must be carried out (see, to that effect, judgment in Chambre de commerce and d’industrie de l’Indre , EU:C:2011:867, paragraph 33 and the case-law cited).
44. The Court has already held, as regards the third indent of Article 23(1) of Regulation No 4253/88, that such provision creates an obligation for the Member States to recover any amounts lost as a result of an irregularity or negligence, without any need for authority to do so under national law. Any exercise of discretion, by the Member State in question, to decide whether or not it would be expedient to demand repayment of European Union funds unduly or irregularly granted would be inconsistent with the abovementioned obligation to recover any such amounts (see, to that effect, judgment in Chambre de commerce and d’industrie de l’Indre , EU:C:2011:867, paragraphs 34 and 35 and the case-law cited).
50. Furthermore, the Court has already stated that the recovery of amounts unduly paid cannot be carried out except in accordance with the principles of legal certainty and the protection of legitimate expectations (see, to that effect, judgment in Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others , EU:C:2008:165, paragraph 53).
51. The principle of legal certainty requires EU rules to enable those concerned to know precisely the extent of the obligations which are imposed on them (judgment in ROM-projecten , C‑158/06, EU:C:2007:370, paragraph 25 and case-law cited).
52. As regards the principle of the protection of legitimate expectations, the Court has already held that the beneficiary of a subsidy cannot rely on such protection if it has not complied with one of the conditions to which the grant of the subsidy was subject (see, to that effect, judgment in Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening and Others , EU:C:2008:165, paragraph 56 and the case-law cited).