Łukasz Marcin Bonda.
Date: 2012-06-05
28. It must be recalled that the Court has previously held that penalties laid down in rules of the common agricultural policy, such as the temporary exclusion of an economic operator from the benefit of an aid scheme, are not of a criminal nature (see Case 137/85 Maizena and Others  [1987] ECR 4587, paragraph 13; Case C-240/90 Germany  v Commission  [1992] ECR I-5383, paragraph 25; and Case C-210/00 Käserei Champignon Hofmeister  [2002] ECR I-6453, paragraph 43).
29. The Court considered that such exclusions are intended to combat the numerous irregularities which are committed in the context of agricultural aid and, because they weigh heavily on the European Union budget, are of such a nature as to compromise the action undertaken by the institutions in that field to stabilise markets, support the standard of living of farmers and ensure that supplies reach consumers at reasonable prices (see Käserei Champignon Hofmeister , paragraph 38).
30. In support of that view, the Court further observed that the rules breached are aimed solely at economic operators who have freely chosen to take advantage of an agricultural aid scheme (see Maizena and Others , paragraph 13; Germany  v Commission , paragraph 26; and Käserei Champignon Hofmeister , paragraph 41). It added that, in the context of a European Union aid scheme in which the granting of the aid is necessarily subject to the condition that the beneficiary offers all guarantees of probity and trustworthiness, the penalty imposed in the event of non-compliance with those requirements constitutes a specific administrative instrument forming an integral part of the scheme of aid and intended to ensure the sound financial management of public funds of the European Union ( Käserei Champignon Hofmeister , paragraph 41).
33. It may be added that, first, it follows from Article 1 of Regulation No 2988/95, which lays down a common set of legal rules for all fields covered by Community policies, that any infringement of a provision of European Union law resulting from an act or omission by an economic operator which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by it is regarded as an ‘irregularity’ and gives rise to the application of ‘administrative measures and penalties’.
34. Next, it may be seen from Article 5(1)(c) and (d) of Regulation No 2988/95 that the total or partial removal of an advantage granted by Community rules, even if the operator has wrongly benefited from only a part of that advantage, and the exclusion from or withdrawal of an advantage for a period subsequent to that of the irregularity constitute administrative penalties. Those two cases are referred to in Article 138(1) of Regulation No 1973/2004.
37. According to that case-law, three criteria are relevant in this respect. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned is liable to incur (see, inter alia, ECHR, Engel and Others v. the Netherlands , 8 June 1976, §§ 80 to 82, Series A no. 22, and Sergey Zolotukhin v. Russia , no. 14939/03, §§ 52 and 53, 10 February 2009).
39. As regards the second criterion, it must be ascertained whether the purpose of the penalty imposed on the farmer is punitive.