Corman SA v Bureau d’intervention et de restitution belge (BIRB).
Date: 2010-12-22
24. Article 2262a of the Belgian Civil Code, which was introduced by Article 5 of the law of 10 June 1998 amending certain provisions relating to limitation periods ( Moniteur belge  of 17 July 1998, p. 23544) provides as follows:
‘1. The limitation period for all personal actions shall be ten years.
By way of derogation from the first subparagraph, the limitation period for any action seeking compensation for damage based on non-contractual liability shall be five years from the day following that on which the person harmed became aware of the damage or its aggravation and the identity of the person responsible for the damage.
In any event, the limitation period for actions of the type referred to in the second subparagraph shall be 20 years from the day following that on which the event giving rise to the damage occurred.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
31. The BIRB took the view that the forfeiture in question cannot be time-barred because, in accordance with Article 3(3) of Regulation No 2988/95, the Member States retain the option of applying longer limitation periods resulting from general provisions of law, such as the 30‑year period applicable in Belgium prior to 1998 and the ten‑year period that is now applicable.
36. First, it should be borne in mind that 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 combat ‘fraud against the Communities’ financial interests … for all areas …’ (Case C‑278/02 Handlbauer  [2004] ECR I‑6171, paragraph 31).
38. As far as legal proceedings are concerned, the first subparagraph of Article 3(1) of Regulation No 2988/95 fixes a limitation period which is applicable, inter alia, to such administrative measures and 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 …’ (see Handlbauer  , paragraphs 32 and 33, and Joined Cases C‑278/07 to C‑280/07 Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others  [2009] ECR I‑457, paragraphs 21 and 22).
39. By adopting Regulation No 2988/95, in particular the first subparagraph of Article 3(1) thereof, the European Union legislature decided 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 bringing proceedings concerning an irregularity that is detrimental to the European Union’s financial interests after the expiry of a four-year period after the irregularity was committed (see Josef Vosding Schlacht‑, Kühl- und Zerlegebetrieb and Others , paragraph 27).
40. It follows that, as from the date on which Regulation No 2988/95 entered into force, as a rule and apart from in the sectors for which the European Union legislature has prescribed a shorter period, proceedings may be brought concerning any irregularity that is detrimental to the European Union’s financial interests by the competent authorities of the Member States within a period of four years (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 28).
41. The second sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95 deals with sectoral rules adopted at European Union level, as the fifth recital in the preamble to that regulation confirms, and not national sectoral rules ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 44).
42. Moreover, the rule providing for a four‑year limitation period established in the first sentence of the first subparagraph of Article 3(1) of Regulation No 2988/95, which is directly applicable in the Member States, can be disregarded where there exist sectoral rules within the meaning of the second sentence of the first subparagraph of Article 3(1) only if those sectoral rules provide for a shorter period, which may not be less than three years (see, to that effect, Handlbauer , paragraph 35).
48. In the main proceedings, clearance of the securities to the appropriate account was thus liable, in the absence of a suspensory act, to be time-barred after a period of four years from the date on which the irregularity was committed, 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 of providing for a longer limitation period (see Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 36).
49. Under that provision, Member States may, 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. Moreover, Article 3(3) of Regulation No 2988/95 cannot be interpreted as meaning that, in the context of that provision, the Member States are required, when providing for longer limitation periods, to do so in specific and/or sectoral rules, and accordingly such periods may result from general provisions of law (see, to that effect, Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraphs 42, 46 and 47).
54. First of all, it is clear that, under the derogation provided for in Article 3(3) of Regulation No 2988/95, Member States retain wide discretion in fixing longer limitation periods which they intend to apply in cases involving an irregularity that is detrimental to the European Union’s financial interests.
55. 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. Thus, no form of monitoring has been provided for at European Union 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 ( Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , paragraph 45).
57. Lastly, since Article 19(4) of Regulation No 2571/97 provides that ‘rights and obligations arising in connection with the invitation to tender shall not be transferable’, the successful tenderer remains responsible for the use to which the butter is finally put and must answer for the conduct of the persons with whom he enters into contracts as well as that of subsequent buyers (see, by analogy, Case 124/83 Corman  [1985] ECR 3777, paragraph 19).
59. The Court has already pointed out that there are several means a prudent tenderer may use, such as requiring a security or inserting an indemnity clause in the works contract or the sales contract, to prevent subsequent persons with whom it enters into contracts from disregarding their obligations. Moreover, the Court has already held that a clause entered into the sale contract by the successful tenderer, as a precaution, does not exhaust all the possible measures for guarding against the possibility that subsequent buyers might not comply with their obligations (see, by analogy, Case 125/83 Corman  [1985] ECR 3039, paragraphs 29 and 30).
60. In any event, the checks which the successful tenderer may then carry out to ascertain whether those obligations have been complied with are in his interests alone and do not affect his liability towards the selling agency (see, by analogy, Case C‑124/83 Corman , paragraph 20).