Kingdom of the Netherlands v Commission of the European Communities.
Date: 2001-03-06
38 It must be observed at the outset that only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets is to be financed by the EAGGF (see Case C-253/97 Italy v Commission [1999] ECR I-7529, paragraph 6).
39 In this context, it must be emphasised that it is for the Commission to prove that an infringement of the rules on the common organisation of the agricultural markets has occurred (see Cases C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19; C-55/91 Italy v Commission [1993] ECR I-4813, paragraph 13, and C-253/97 Italy v Commission, cited above, paragraph 6). The Commission is therefore obliged to give reasons for its decision finding an absence of, or defects in, inspection procedures operated by the Member State in question (Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 23).
40 However, the Commission is required not to demonstrate exhaustively that the checks carried out by the national authorities are inadequate, or that there are irregularities in the figures submitted by them, but to adduce evidence of serious and reasonable doubt on its part regarding those checks or figures (Cases C-54/95 Germany v Commission [1999] ECR I-35, paragraph 35, and C-28/94 Netherlands v Commission [1999] ECR I-1973, paragraph 40).
41 The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed to collect and verify the data required for the clearance of EAGGF accounts; consequently, it is for the State to adduce the most detailed and comprehensive evidence that it has made checks or that its figures are accurate and, if appropriate, that the Commission's assertions are incorrect (Cases C-54/95 Germany v Commission, cited above, paragraph 35, and C-28/94 Netherlands v Commission, cited above, paragraph 41).
53 In those circumstances, if the Commission complains that the Kingdom of the Netherlands failed to carry out the appropriate checks, it is for that Member State to prove that the Commission's assertions are incorrect (Case C-54/95 Commission v Germany, cited above, paragraph 35, and Case C-28/94 Netherlands v Commission, cited above, paragraph 41).
60 It must first be observed that the announcement of checks cannot be regarded as compatible with the objective of Regulation No 386/90, namely, the carrying out of effective checks (see, to that effect, Case C-242/97 Belgium v Commission [2000] ECR I-3421, paragraph 41). Accordingly, the Netherlands Government cannot claim that it was only from the time when Article 5(2) of Regulation No 2221/95 entered into force that announced checks could no longer be counted as checks within the meaning of Article 2(a) of Regulation No 386/90.
70 The Netherlands authorities' practice of accepting a fax is clearly not compatible with that provision. It created a risk of unlawful payment of subsidies making it possible, after an inaccuracy had been found during a customs check made on the basis of a fax, for the trader to lodge another declaration containing the correct information.
82 In order to give Article 2(2) of Regulation No 1287/95 a useful sense, the correction procedure must be taken to apply to financial years subsequent to 16 October 1992 which were not the subject of a clearance decision prior to the entry into force of that regulation.
92 According to the case-law of the Court, Article 8(1) of Regulation No 729/70, which lays down the obligations imposed on the Member States in this field by Article 5 of the EC Treaty (now Article 10 EC), defines the principles according to which the Community and the Member States are to ensure the implementation of Community decisions on agricultural intervention financed by the EAGGF and combat fraud and irregularities in relation to those operations. That provision imposes on the Member States the obligation to take the measures necessary to satisfy themselves that the transactions financed by the EAGGF are actually carried out and are executed correctly (Case C-2/93 Exportslachterijen van Oordegem v Belgische Dienst voor Bedrijfsleven en Landbouw and Generale Bank [1994] ECR I-2283, paragraphs 17 and 18, and Case C-235/97 France v Commission [1998] ECR I-7555, paragraph 45).
97 In such circumstances, the applicant cannot claim that the failure to monitor that undertaking meant that the investigations were not representative (see, to that effect, Case 151/80 De Hoe v Commission [1981] ECR 3161, paragraphs 17 to 19).
119 On this point, the Court has consistently held that, in the particular context of the preparation of decisions relating to the clearance of EAGGF accounts, the statement of reasons for a decision must be regarded as sufficient if the Member State to which the decision was addressed was closely involved in the process by which the decision came about and was aware of the reasons for which the Commission took the view that it must not charge the sum in dispute to the EAGGF (Case C-22/89 Netherlands v Commission [1990] ECR I-4799, paragraph 18, and Case C-27/94 Netherlands v Commission [1998] ECR I-5581, paragraph 36).