French Republic v Commission of the European Communities.
Date: 2001-11-13
37 It is also clear from the mechanism introduced by Regulation No 1546/88 that, whilst the Member State is required to pay over the amounts collected by it to the Commission, it is not itself liable to pay the supplementary levy. The Community rules on the supplementary levy do not provide for the Member State to be substituted for the purchaser as the person liable where that purchaser has recourse to remedies under the applicable national procedures in order to resist payment of the amounts claimed from him in respect of the supplementary levy. Such substitution of the Member State for the purchaser as the person liable to pay, even for a period co-terminous with the proceedings before courts, presupposes the existence of a legal basis laying down the conditions for such substitution (see, to that effect, Case C-352/92 Milchwerke Köln v Wuppertal [1994] ECR I-3385, paragraph 22). In this case, there is no such legal basis.
40 As regards the argument put forward by the Commission in the alternative, based on Article 8 of Regulation no 729/70, it must be borne in mind that, according to the case-law of the Court, the Member States must, in the first place, respect the obligation of general diligence in Article 5 of the Treaty, as specifically embodied in Article 8(1) and (2) of Regulation No 729/70 with regard to the financing of the common agricultural policy. That obligation implies that the Member States must take steps to rectify irregularities promptly (Case C-54/95 Germany v Commission [1999] ECR I-35, paragraph 177).
41 However, the Commission is obliged to give reasons for each decision finding that negligence is attributable to the Member State concerned (see, to the effect, Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 23).
42 It is true that, in order to satisfy that obligation, the Commission need merely give reasons for which it entertains serious and reasonable doubt. However, in this case, the statement by the Commission that the length of time elapsed is in itself sufficient for negligence on the part of the Member State to be assumed is unacceptable. The Commission has not shown, on the basis of specific examples, how the protraction of the proceedings might be imputable to the French authorities. On the contrary, it is clear from the file that, in its letter No VI/48419 of 21 December 1995 concerning clearance of the accounts for 1992 and 1993, by which it brought to the attention of the French authorities its observations following inspections carried out by its staff at French dairy undertakings in 1994 and 1995, the Commission recognised that the French authorities have commenced, in respect of all the files submitted, the necessary proceedings for recovery. Even though, in that letter, the Commission criticised the applicant, in general and abstract terms, for slowness or delays, it did not give details thereof before the Court. Moreover, the Commission has given no indications of the extent to which the alleged irregularities or negligence which it attributes to the French authorities justify the general application of negative corrections.