Etablissement national des produits de l’agriculture et de la mer (FranceAgriMer) v Vinifrance SA.
Date: 2012-12-13
41. It should be borne in mind that Article 1(1) of Regulation No 2988/95 introduces general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law in order, as is clear from the third recital in the regulation, to combat fraud against the Communities’ financial interests for all areas (Case C-278/02 Handlbauer  [2004] ECR I-6171, paragraph 31, and Case C-131/10 Corman ECR I-14199, paragraph 36).
42. It is apparent from the fourth recital in Regulation No 2988/95 that the effectiveness of the combating of fraud against the European Union’s financial interests calls for a common set of legal rules to be enacted for all areas covered by European Union policies. Furthermore, according to the fifth recital, the conduct which constitutes an irregularity and the administrative measures and penalties relating thereto are provided for in sectoral rules in accordance with Regulation No 2988/95 (Case C-295/02 Gerken [2004] ECR I-6369, paragraph 55).
43. In the area of checks and penalties for irregularities committed under European Union law, the European Union legislature has, by adopting Regulation No 2988/95, laid down a series of general principles and has required that, as a general rule, all sectoral regulations are to comply with those principles (see, inter alia, Case C-420/06 Jager  [2008] ECR I-1315, paragraph 61; Case C-150/10 Beneo Orafti  [2011] ECR I-6843, paragraph 69; and C-669/11 Société ED & F Man Alcohols [2012] ECR, paragraph 45). Furthermore, it is apparent from that regulation that it clearly applies equally to sectoral rules in existence when it entered into force (see, to that effect, Case C-354/95 National Farmers’ Union and Others [1997] ECR I-4559, paragraph 39).
44. Regulation No 2988/95 is intended to regulate any situation involving an ‘irregularity’ within the meaning of Article 1 of that regulation, namely a breach 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, either by reducing or losing revenue accruing from own resources collected directly on behalf of the European Union, or by an unjustified item of expenditure.
45. In that respect, any ‘irregularity’ within the meaning of Article 1 of Regulation No 2988/95 gives rise to the application of administrative measures and penalties (see, to that effect Case C-489/10 Bonda [2012] ECR, paragraph 33).
46. The first indent of Article 4(1) of Regulation No 2988/95 thus provides that, as a general rule, any irregularity is to involve, as a general rule, withdrawal of the advantage wrongly obtained, in particular by an obligation to pay or repay the amounts due or wrongly received.
47. 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 (see Case C-367/09 SGS Belgium and Others  [2010] ECR I-10761, paragraph 35).
48. That provision does not specify which of the penalties it lists should be applied in the case of an irregularity detrimental to the European Union’s financial interests (see SGS Belgium and Others , paragraph 36, and Société ED & F Man Alcohols , paragraph 46).
49. 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 in the regulation, that it is for the European Union 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 (see SGS Belgium and Others , paragraph 37).
50. 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, constitutes an administrative penalty (see, to that effect, Bonda , paragraph 34). However, the case-law of the Court provides that a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (see Case C-110/99 Emsland-Stärke [2000] ECR I-11569, paragraph 56; Case C-210/00 Käserei Champignon Hofmeister [2002] ECR I-6453, paragraph 52; and Case C-274/04 ED & F Man Sugar  [2006] ECR I-3269, paragraph 15), and cannot, consequently, be imposed on the basis of those provisions alone (see, to that effect, SGS Belgium and Others , paragraph 43).
b) Relationship between the sectoral Regulations No 822/87 and No 1059/83 and Regulation No 2988/95
61. In that respect, it should be noted that, in connection with the protection of the European Union’s financial interests, Article 5 of Regulation No 2988/95 is not a sufficient legal basis for the application of an administrative penalty, since the application of a penalty requires that, prior to commission of the irregularity in question, either the European Union legislature has adopted sectoral rules laying down such a penalty or, where such rules have not yet been adopted at European Union level, the law of the Member State where the irregularity was committed has provided for the application of an administrative penalty (see, to that effect, SGS Belgium and Others , paragraph 43, and ED & F Man Alcohols , paragraph 47).
64. It should also be noted in that regard that, under the common agricultural policy, when the European Union legislature fixes conditions for eligibility in respect of the award of aid, the exclusion entailed by the failure to observe one of those conditions is not a penalty, but merely the consequence of failure to fulfil those conditions laid down by the law (see, Case C-45/05 Maatschap Schonewille-Prins  [2007] ECR I-3997, paragraph 47, and Case C-188/11 Hehenberger [2012] ECR, paragraph 37).
65. Consequently, the obligation to give back an advantage improperly received by means of an irregular practice does not breach the principle of legality. A finding that the conditions required to obtain the advantage derived from the European Union law were created artificially makes, on any view, the advantage received a payment that was not due and thus justifies the obligation to repay it (see, to that effect, Emsland-Stärke , paragraph 56, and Case C-158/08 Pometon  [2009] ECR I-4695, paragraph 28).
66. In relation to aid granted by the European Union budget in the framework of the common agricultural policy, the Court has already held that any exercise, by a Member State, of a discretion to decide whether or not it would be expedient to demand repayment of aid unduly or unlawfully granted would be inconsistent with the obligations imposed on national administrations by European Union rules applicable in those sectors to recover aid unduly or unlawfully paid ( SGS Belgium and Others , paragraph 50).