Kingdom of Belgium v Commission of the European Communities.
Date: 2000-05-18
33 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.
34 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 committed 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, and Netherlands v Commission, cited above, paragraph 18).
41 Next, it is also not in dispute that, because there is no official car, the checker was able to carry out a physical check only by contacting beforehand the manager of the store or the enterprise to be checked. Consequently the Belgian Government has not succeeded in showing that, for goods placed in the store, the physical checks without prior notice required by Article 3 of Regulation No 386/90 were possible under those conditions.
51 During the written procedure before the Court, the Commission withdrew that charge, which had been made in Annex II to its summary report. It also stated that the contested decision was not based on that charge.
88 It is clear from the written observations submitted to the Court by the Commission that, although the Commission considers the method used by Belgian authorities to be undesirable, it did not regard it as infringing Community law and did not take it into account in connection with the financial corrections made in the contested decision.
95 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 [1998] I-5581, paragraph 36).
103 Article 8(1) of Regulation No 729/70, which in this field constitutes a manifestation of the obligations imposed on the Member States 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).
104 Next, as already pointed out in paragraph 33 of this judgment, 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, the Commission is not required to demonstrate exhaustively that the checks carried out by the Member States are inadequate, but to forward evidence in support of the serious and reasonable doubt it entertains concerning the checks carried out by the national authorities. 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 checks are actually carried out and, if appropriate, that the Commission's assertions are incorrect.
122 It must be observed, first, that so far as the amount of the financial correction is concerned, the Commission may even refuse to charge to the EAGGF the whole of the expenditure in question if it finds that there are no adequate control procedures.
129 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.
130 That does not mean that a Member State is not authorised to plead breach of the principle of equal treatment. However, it may do so only if the cases it cites are at least comparable as regards all the elements which characterise them, including, in particular, the period during which the expenditure was incurred, the sectors concerned and the nature of the irregularities complained of.
131 It should next be borne in mind that the Court has consistently held that prohibited discrimination can arise only in cases 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).
132 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.
133 It follows that the situations were not comparable and there was no breach of the principle of equal treatment.