Hellenic Republic v Commission of the European Communities.
Date: 1992-05-20
9 With the aim of achieving a better balance in the cereals market and controlling growth, Council Regulation (EEC) No 1579/86 of 23 May 1986 amending Regulation (EEC) No 2727/75 on the common organization of the market in cereals (OJ 1986 L 139, p. 29) instituted from 1 July 1986 a co-responsibility levy. It is payable on cereals produced in the Community when they are processed for the first time or bought in through intervention or exported as grain. The co-responsibility levy was fixed at ECU 5.38 per tonne for the 1986/87 marketing year, collected by the competent national bodies and paid into the EAGGF as a receipt.
10 On clearing the accounts, the Commission checks whether the co-responsibility levy has been correctly and fully collected and paid into the EAGGF. In order to do this it has worked out a method of calculation, which has been notified to the Member States. It is based on various statistical data supplied by the Member States themselves to the Statistical Office of the European Communities (Eurostat) and enables a full and reliable assessment to be made of the actual extent to which the levy has been collected in each of the Member States. Any financial adjustment depends on the quantities of cereals on which the levy has not been collected.
11 One of the basic data of this method is the figure relating to the total domestic use of cereals. In the present case, Eurostat published on 21 July 1988, that is a year after the end of the 1986/87 marketing year, the figure of 5 141 000 tonnes which had been notified by the Hellenic authorities and which the Commission took as basis for the calculation which led to the contested financial adjustment. The amount of that adjustment was notified by letter of 10 February 1989 to the Hellenic authorities which, by a telex message of 17 April 1989, notified a new figure, namely 4 489 000 tonnes, that is 652 000 tonnes less than the first. The Commission refused to take it into account and on 15 November 1989 adopted the contested decision. On 6 December 1989, Eurostat published the amended figure.
12 The Hellenic Republic, which does not challenge the method of calculation as such, alleges that the Commission wrongly took into account the figure originally notified, for it was only provisional. In the applicant' s view, the Commission ought to have taken account of the figure subsequently notified, based on a more thorough audit and which, in its opinion, reflects the precise level of total domestic use.
13 According to the Commission, the Hellenic authorities have adduced no evidence to show that the statistical data first notified did not reflect the true position. Its refusal to take account of the figure subsequently notified was thus justified.
14 The Court observes that where, as in the present case, the national authorities subsequently make substantial amendments to statistical data which have a decisive importance in the calculation of the co-responsibility levy, they should supply sufficient specific information to justify such amendments. That is particularly true where, as in the present case, consistent evidence, on matters such as the size, never previously observed, of the variation occurring two years after the end of the marketing year and notified after the results of the Commission' s calculation have been known and the fact that the first figure is almost identical to that notified by the Hellenic authorities in the provisional accounts, leads to serious doubts about the correctness of the second figure. Far from providing, even in reply to a specific written question from the Court, the slightest concrete evidence to prove its contentions, the Hellenic Republic has confined itself to general statements.
30 Furthermore, it is to be borne in mind that in an application for annulment of a Commission decision disallowing certain expenditure on the ground that it was incurred as a result of breaches of Community rules imputable to a Member State, it is for the applicant Member State to show that the conditions for obtaining the financing disallowed are satisfied (see, in particular, Case 214/86 Greece v Commission [1989] ECR 367). That principle also applies in a case such as the present where the Commission, on the basis of conclusive results of inspection by sampling, considers that the Member State in question has not satisfied the obligation of checking the quality of tobacco properly before accepting it into intervention.