Belgisch Interventie- en Restitutiebureau v SGS Belgium NV and Others.
Date: 2010-10-28
32. In that regard, by virtue of the very nature of regulations and of their function in the system of sources of EU law, the provisions of regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application (Case 93/71 Leonesio  [1972] ECR 287, paragraph 5, and Case C‑278/02 Handlbauer  [2004] ECR I‑6171, paragraph 25) or without it being necessary for the EU legislature to adopt supplementary legislation.
33. Some of the provisions of a regulation may, however, necessitate, for their implementation, the adoption of measures of application (see, to that effect, Case C-403/98 Monte Arcosu  [2001] ECR I-103, paragraph 26) either by the Member States or by the EU legislature itself.
35. Indeed, Article 5 of that regulation merely provides that intentional irregularities or those caused by negligence ‘may’ lead to certain administrative penalties listed in that provision whilst, as regards the categories of operators who may be liable to incur such penalties, Article 7 of the regulation provides that those penalties ‘may’ be applied not only to the economic operators who have committed the irregularity but also to persons who have taken part in the irregularity and to those who are under a duty to take responsibility for the irregularity or to ensure that it is not committed.
36. It must therefore be concluded that those provisions merely lay down general rules for supervision and penalties for the purpose of safeguarding the EU’s financial interests (see Joined Cases C‑383/06 to C‑385/06 Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening [2008] ECR I‑1561, paragraph 39). In particular, those provisions do not specify which of the penalties listed in Article 5 of Regulation No 2988/95 should be applied in the case of an irregularity detrimental to the EU’s financial interests nor the category of operators on whom such penalties are to be imposed in such cases.
37. In that regard, it should be added, first, that it is clear from Article 2 of Regulation No 2988/95, in particular from paragraph 3 thereof, in conjunction with the fifth and eighth recitals to the regulation, that it is for the EU legislature to lay down sectoral rules establishing administrative penalties, following the example of those which already existed in the sphere of the common agricultural policy when the regulation was adopted. Furthermore, as is apparent from the seventh recital to Regulation No 2988/95, the latter seeks to establish general rules applicable to such sectoral rules.
40. However, as is clear from Article 325 TFEU, Member States are to take the same measures to counter fraud affecting the financial interests of the EU as they take to counter fraud affecting their own financial interests. Consequently and in view of the objectives pursued by Regulation No 2988/95, when the EU legislature has not adopted sectoral rules intended to protect the Union’s financial interests against the conduct of certain operators, Member States are entitled to maintain or adopt provisions in that domain and in respect of those operators in so far as such provisions prove to be necessary for combating fraud and provided that they observe the general principles of EU law, in particular that of proportionality, as well as the general rules laid down in Regulation No 2988/95 and any existing EU sectoral rules concerning other operators.
41. In fact, where EU legislation does not make specific provision for a penalty in cases of infringement, or where such legislation provides that certain penalties may be imposed for infringement of EU law but does not exhaustively list the penalties that the Member States may impose, Article 4(3) TEU requires the Member States to take all effective measures to penalise conduct detrimental to the financial interests of the EU (see, to that effect, Case 68/88 Commission v Greece  [1989] ECR I‑2965, paragraph 23, and Case C‑186/98 Nunes and de Matos  [1999] ECR I‑4883, paragraphs 12 and 14).
42. Furthermore, it would be inconsistent with the objective pursued by Article 325 TFEU, which places a duty on both the EU and the Member States to counter fraud and other irregularities affecting the EU’s financial interests, to restrict the action of Member States against a category of operators who are not yet subject to sectoral rules adopted at EU level. Indeed, if the protection of the EU’s financial interests is to be rendered effective, it is essential that the deterrence of, and the fight against, fraud and other irregularities operate at all levels at which those interests are liable to be affected by such phenomena, in particular since it is often the case that phenomena so fought involve actors at various levels (see, to that effect, Case C‑15/00 Commission  v EIB  [2003] ECR I‑7281, paragraph 135). That is the case with regard to the role played by control and supervisory agencies in relation to the lawfulness of payments of export refunds.
43. In view of the foregoing, the answer to the first question is that Articles 5 and 7 of Regulation No 2988/95 do not apply in such a way that an administrative penalty may be imposed on the basis of those provisions alone, since, if, in connection with the protection of the EU’s financial interests, an administrative penalty is to be applied to a category of persons, a necessary precondition is that, prior to commission of the irregularity in question, either the EU legislature has adopted sectoral rules laying down such a penalty and the conditions for its application to that category of persons or, where such rules have not yet been adopted at EU level, the law of the Member State where the irregularity was committed has provided for the imposition of an administrative penalty on that category of persons.
Second question
50. In relation to assistance granted by the EU budget in the framework of the Structural Funds and the common agricultural policy, the Court has previously held that the exercise, by a Member State, of any discretion to decide whether or not it would be expedient to demand repayment of assistance unduly or unlawfully granted would be inconsistent with the obligations imposed on national administrations by EU rules applicable in those sectors to recover assistance unduly or unlawfully paid (see, to that effect, Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others  [1983] ECR 2633, paragraph 22, and Vereniging Nationaal Overlegorgaan Sociale Werkvoorziening , paragraph 38).
57. In those circumstances, if, in the case before the referring court, it is apparent that the exporter was unaware of the errors in the certificate of release for consumption which was intentionally provided by the control and supervisory agency – a matter which falls to be determined by the referring court, it cannot be held that the exporter intentionally supplied false information for the purposes of Article 11(1)(b) of Regulation No 3665/87: consequently, the penalty provided for in that provision cannot be applied either to the exporter or, in application of a national rule providing for joint and several liability, to the control and supervisory agency.
58. Conversely, in such a situation, the penalty laid down in Article 11(1)(a) of Regulation No 3665/87 could be applied. Indeed, that penalty may be applied even if the exporter has not committed any fault (see Case C‑143/07 AOB Reuter [2008] ECR I‑3171, paragraph 17).
59. In that regard, first, such a penalty may, as a rule, be imposed only on those operators who have applied for export refunds when it is apparent that the information provided by them in support of their application is incorrect. Second, as there is a real risk that the exporter, who is often the last link in a contractual chain of purchases for resale, may avoid responsibility for the inaccuracy of his declaration because of the possibility of error, negligence or fraud further back up the chain, Article 11 of Regulation No 3665/87 makes him responsible for the accuracy of his declaration, subject to a penalty in the event of non-compliance (see, to that effect, Case C‑210/00 Käserei Champignon Hofmeister [2002] ECR I‑6453, paragraphs 42, 61 and 62). The exporter is fully at liberty to select his trading partners and it is up to him to take the appropriate precautions, either by including the necessary clauses in the contracts which he concludes with them or by effecting appropriate insurance ( AOB Reuter , paragraph 36).
61. It must, however, be recalled that a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (Case C-110/99 Emsland-Stärke  [2000] ECR I-11569, paragraph 56; Käserei Champignon Hofmeister , paragraph 52; and Case C‑274/04 ED & F Man Sugar [2006] ECR I‑3269, paragraph 15).
66. Since Regulation No 3665/87 does not lay down any rules concerning the limitation period applicable to an action for recovery of export refunds unduly received, it is appropriate to refer to the first subparagraph of Article 3(1) of Regulation No 2988/95 (Case C‑281/07 Bayerische Hypotheken- und Veriensbank [2009] ECR I-91, paragraph 16), since that provision is directly applicable in the Member States, including in the field of export refunds on agricultural products, in the absence of EU sectoral rules providing for a shorter limitation period, which may not be less than three years, or of national rules providing for a longer limitation period ( Handlbauer , paragraph 35).
68. In general, limitation periods fulfil the function of ensuring legal certainty. Such a function would not be wholly fulfilled, if the limitation period referred to in Article 3(1) of Regulation No 2988/95 could be interrupted by any act relating to a general check by the national authorities which bears no relation to any suspicion concerning the existence of irregularities regarding sufficiently precisely circumscribed transactions ( Handlbauer , paragraph 40).
69. However, when the national authorities send a person reports drawing attention to an irregularity in which that person is said to have played a part in connection with a specific export operation, ask the person for further information concerning that operation or apply a penalty to the person in connection with that operation, those authorities adopt acts relating to investigation or legal proceedings concerning the irregularity which are sufficiently specific for the purposes of the third subparagraph of Article 3(1) of Regulation No 2988/95.