Kingdom of Belgium v Commission of the European Communities.
Date: 2001-09-20
35 It must be observed at the outset that the EAGGF finances only intervention undertaken in accordance with the Community rules in the framework of the common organisation of agricultural markets.
36 In that connection, the Court has consistently held that, where the Commission refuses to charge certain expenditure to the EAGGF on the ground that it was incurred as a result of breach of Community rules for which a Member State can be held responsible, it is for that State to show that the conditions for obtaining the financing refused are fulfilled (see Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 14, and Case C-48/91 Netherlands v Commission [1993] ECR I-5611, paragraph 16). The Commission is not required to demonstrate exhaustively that there are irregularities in the data submitted by Member States; it is sufficient for it to put forward evidence in support of the serious and reasonable doubt which it entertains concerning the figures supplied by the national authorities.
37 The reason for this mitigation of the burden of proof on the Commission is that it is the State which is best placed to collect and check the data required for the clearance of EAGGF accounts, and which is consequently required to adduce the most detailed and comprehensive evidence that its figures are accurate and, if appropriate, that the Commission's calculations are incorrect (Netherlands v Commission, cited above, paragraph 17; Case C-59/97 Italy v Commission [1999] ECR I-1683, paragraph 55). In the event of a dispute, it is for the Commission to prove that the rules of the common organisation of the agricultural markets have been infringed and, once it has established such an infringement, the Member State concerned must then, if appropriate, demonstrate that the Commission made an error as to the financial consequences to be inferred from that infringement (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 19, Netherlands v Commission, cited above, paragraph 18, and Case C-59/97 Italy v Commission, cited above, paragraph 55).
45 Finally, as regards the Belgian Government's statement that, in addition to the inspector, three officers were responsible for controls in the Termonde customs office, this information was supplied by the Belgian authorities in the course of their application submitted on 3 July 1997 in Case C-242/97, that is, after 28 February 1997, the time-limit fixed by the Commission in its final Decision C(97)515 of 24 February 1997 for Member States to forward additional information for the clearance of accounts for 1994. The Belgian Government puts forward no exceptional circumstances to justify this delay. Since that information was supplied after the time-limit, it could not be taken into account (see Case C-197/90 Italy v Commission [1992] ECR I-1, paragraph 9; Case C-54/91 Germany v Commission [1993] ECR I-3399, paragraphs 13 to 15; Case C-41/94 Germany v Commission [1996] ECR I-4733, paragraph 23; Case 61/95 Greece v Commission [1998] ECR I-207, paragraph 45; Case 27/94 Netherlands v Commission [1998] ECR I-5581, paragraph 29, and Case 59/97 Italy v Commission, cited above, paragraph 37).
54 As the Court pointed out at paragraph 51 of its judgment in Belgium v Commission, cited above, the Commission withdrew that charge, which had been made in Annex II to its 1993 summary report; it also stated that Decision 97/333 was not based on that charge. However, the contested Decision is based on the same grounds as Decision 97/333.
91 It is clear from paragraph 88 of Belgium v Commission, cited above, that the Commission, while it considers the method used by Belgian authorities to be undesirable, did not regard it as infringing Community law and did not take it into account in connection with the financial corrections made in Decision 97/333. The same is true for the contested Decision, which is based on the same grounds as Decision 97/333.
94 With regard to the objection that, when the Commission adopted the contested decision, it failed to observe the principles of bona fide cooperation and due care, the documents before the Court show that a large amount of information was exchanged by the Commission and the Belgian authorities before the adoption of, first, Decision 97/333 and subsequently the contested Decision, inter alia during the conciliation procedure.
95 As regards, in particular, the fact that the Commission adopted the 1993 draft summary report without awaiting the report of the conciliation body, it must be observed, first, that the Belgian Government has raised this fact, not as a ground of annulment of the contested decision, but in support of its plea for annulment based on breach of the principles of bona fide cooperation and due care. Second, notwithstanding the Commission's haste in adopting the 1993 draft summary report, the documents before the Court show that in any event the Commission took note of the Belgian authorities' arguments and examined them, even if it did not find them persuasive.
96 In those circumstances, neither the principle of bona fide cooperation nor the principle of due care has been infringed.
Breach of the obligation to state reasons
98 On this point, the Court has consistently held that, in the particular context of the preparation of decisions relating to the clearance of accounts, the statement of reasons for a decision must be regarded as sufficient if the Member State to which the decision was addressed was sufficiently 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 (see Case C-22/89 Netherlands v Commission [1990] ECR I-4799, paragraph 18, and Case C-27/94 Netherlands v Commission, cited above, paragraph 36).
106 Article 8(1) of Regulation No 729/70, which expressly lays down the obligations imposed on the Member States in this field by Article 5 of the Treaty, defines, in accordance with the Court's case-law, the principles in accordance with 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. It imposes on the Member States an obligation to take the measures necessary to satisfy themselves that operations financed by the EAGGF are actually carried out and are executed correctly (Case C-2/93 Exportslachterijen van Oordegem [1994] ECR I-2283, paragraphs 17 and 18, and Case C-235/97 France v Commission [1998] I-7555, paragraph 45).
132 In this connection, it must be observed first of all that each case must in principle be assessed separately to determine whether, when the Member State in question carried out operations financed by the EAGGF, it acted in accordance with the requirements of Community law and, if it failed to do so, to what extent.
134 Next, it should be borne in mind that the Court has consistently held that prohibited discrimination can arise only where comparable situations are treated differently, unless such treatment is objectively justified (see, in particular, Case C-309/89 Codorniu v Council [1994] ECR I-1853, paragraph 26).
135 In the present case, the list of shortcomings affecting the Kingdom of Belgium is longer than that relating to the other Member States which were checked, and the shortcomings and defects in the Belgian control system were more serious than in the other Member States to which the contested decision relates.
136 It follows that the situations were not comparable and there was no breach of the principle of equal treatment.
142 Furthermore, the fact that the Commission did not specifially mention the 1994 financial year in the headings of the notifications of inspection, regrettable as that may be, does not prohibit the Commission from carrying out adjustments justified by irregularities discovered in respect of that financial year. In the first place, the Commission clearly referred to the 1994 financial year, especially in its formal notification of the results of checks for the clearance of the accounts of the EAGGF Guarantee Section for 1992, 1993 and 1994, dated 7 November 1995. Secondly, Articles 2 and 3 of Regulation No 729/70 permit the Commission to charge to the EAGGF only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets (see Case 233/96 Denmark v Commission [1998] ECR I-5759, paragraph 52, and Case C-242/96 Italy v Commission [1998] ECR I-5863, paragraph 122). It would therefore, as correctly stated by the Commission in its defence, be contrary to those provisions not to apply adjustments to a budgetery year during which those provisions were breached simply because that year had not been expressly mentioned at the beginning of letters giving the results of the checks.