BayWa AG and others v Bundesanstalt für landwirtschaftliche Marktordnung.
Date: 1982-05-06
13 REGULATION ( EEC ) NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY LAYS DOWN IN ARTICLE 8 THE PRINCIPLES ACCORDING TO WHICH THE COMMUNITY AND THE MEMBER STATES MUST ORGANIZE THE IMPLEMENTATION OF COMMUNITY DECISIONS ON AGRICULTURAL INTERVENTION FINANCED BY THE FUND AND COMBAT FRAUD AND IRREGULARITIES IN RELATION TO THOSE OPERATIONS . WITH THAT END IN VIEW , ARTICLE 8 ( 1 ) PROVIDED THAT : ' ' THE MEMBER STATES IN ACCORDANCE WITH NATIONAL PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION SHALL TAKE THE MEASURES NECESSARY TO SATISFY THEMSELVES THAT TRANSACTIONS FINANCED BY THE FUND ARE ACTUALLY CARRIED OUT AND ARE EXECUTED CORRECTLY , PREVENT AND DEAL WITH IRREGULARITIES ( AND ) RECOVER SUMS LOST AS A RESULT OF IRREGULARITIES OR NEGLIGENCE ' ' .
20 AS THE COURT HAS ALREADY ESTABLISHED IN ITS JUDGMENT OF 11 JULY 1973 IN CASE 3/73 HESSISCHE MEHLINDUSTRIE V EINFUHR- UND VORRATSSTELLE FUR GETREIDE ( 1973 ) ECR 745 , THE AFOREMENTIONED PROVISIONS OF REGULATIONS NOS 172/67 AND 1403/69 MERELY INDICATE THAT SUPERVISION IS INDISPENSABLE WITHOUT SPECIFYING IN WHAT MANNER AND BY WHAT METHOD THE NATIONAL INTERVENTION AGENCIES ARE TO FULFIL THEIR OBLIGATION TO EXERCISE SUPERVISION . IN THAT CASE , THE COURT EMPHASIZED THAT DIFFERENT METHODS OF SUPERVISION SUCH AS SAMPLING , AUDIT OR RECOGNITION OF DENATURING UNDERTAKINGS MAY , INDIVIDUALLY OR IN COMBINATION , BE EQUALLY EFFECTIVE EVEN THOUGH NONE OF THEM CONSTITUTES AN ABSOLUTE GUARANTEE . FINALLY , AS THE COURT HAS OBSERVED , THE COMMUNITY LEGISLATURE HAS REFRAINED FROM ENACTING PROVISIONS REGULATING THE PROCEDURE FOR SUPERVISION IN DETAIL , LEAVING TO THE MEMBER STATES THE POWER TO REGULATE THE DETAILED RULES FOR SUPERVISION UNDER THEIR OWN LEGAL SYSTEM AND ON THEIR OWN RESPONSIBILITY BUT CHOOSING THE MOST APPROPRIATE SOLUTION .
29 IT IS CLEAR FROM THE AFORESAID PROVISIONS OF ARTICLE 8 OF REGULATION NO 729/70 THAT THE MEMBER STATES ARE ENTRUSTED WITH THE TASK OF BRINGING PROSECUTIONS AND INSTITUTING PROCEEDINGS WHERE IT IS NECESSARY FOR THE OPERATION OF THE COMMUNITY MACHINERY FOR AGRICULTURAL INTERVENTION AND , IN PARTICULAR , THAT THEY ARE RESPONSIBLE FOR RECOVERY OF PREMIUMS FROM THE FUND WHICH HAVE BEEN UNDULY PAID . IN THOSE CIRCUMSTANCES , WHERE THE IMPLEMENTATION OF A COMMUNITY REGULATION IS A MATTER FOR THE NATIONAL AUTHORITIES SUBJECT TO REVIEW BY THE NATIONAL COURTS , IMPLEMENTATION MUST COMPLY WITH THE PRO    CEDURAL AND FORMAL RULES PRESCRIBED BY THE NATIONAL LAW OF THE MEMBER STATE CONCERNED . HOWEVER , AS THE COURT HAS ALREADY EMPHASIZED IN A NUMBER OF CONSISTENT DECISIONS , RECOURSE TO RULES OF NATIONAL LAW IS POSSIBLE ONLY IN SO FAR AS IT IS NECESSARY FOR THE IMPLEMENTATION OF PROVISIONS OF COMMUNITY LAW AND IN SO FAR AS THE APPLICATION OF THOSE RULES OF NATIONAL LAW DOES NOT JEOPARDIZE THE SCOPE AND EFFECTIVENESS OF THAT COMMUNITY LAW .
30 IN PARTICULAR , IT IS APPROPRIATE TO POINT OUT THAT THE VERY WORDING OF ARTICLE 8 ( 1 ) OF REGULATION NO 729/70 CONCERNING THE RECOVERY BY THE MEMBER STATES OF SUMS LOST AS A RESULT OF IRREGULARITIES , EXPRESSLY REQUIRES THE NATIONAL AUTHORITIES RESPONSIBLE FOR OPERATING COMMUNITY MACHINERY FOR AGRICULTURAL INTERVENTION TO RECOVER SUMS UNDULY OR IRREGULARLY PAID ; AND SUCH AUTHORITIES , ACTING ON BEHALF OF THE COMMUNITY , MAY NOT , ON SUCH OCCASIONS , EXERCISE A DISCRETION AS TO THE EXPEDIENCY OF DEMANDING REPAYMENT OF COMMUNITY FUNDS UNDULY OR IRREGULARLY GRANTED . THE OPPOSITE INTERPRETATION WOULD LEAD TO AN EROSION BOTH OF THE PRINCIPLE OF EQUAL TREATMENT BETWEEN UNDERTAKINGS FROM DIFFERENT MEMBER STATES AND OF THE APPLICATION OF COMMUNITY LAW WHICH MUST , SO FAR AS POSSIBLE , REMAIN UNIFORM THROUGHOUT THE COMMUNITY .