Cruz & Companhia Lda v Instituto de Financiamento da Agricultura e Pescas IP (IFAP).
Date: 2014-09-17
32. It must be borne in mind that, according to the settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgments in Pfleger and Others , C‑390/12, EU:C:2014:429, paragraph 26, and Melki and Abdeli , C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 27 and the case-law cited).
39. It follows from these provisions that it continues to be the task of the Member States to undertake prosecutions and proceedings for the purpose of the system of levies and refunds (see, to that effect, judgment in Mertens and Others , 178/73 to 180/73, EU:C:1974:36, paragraph 16) and that, in the exercise of those prerogatives, the very wording of Article 8(1) of Regulation No 729/70 concerning the recovery by the Member States of sums lost as a result of irregularities, expressly requires the national authorities responsible for operating Community machinery for agricultural intervention to recover sums unduly or irregularly paid without such authorities, acting on behalf of the European Union, on such occasions, being able to exercise a discretion as to the expediency of demanding repayment of EU funds unduly or irregularly granted (see, to that effect, judgment in BayWa and Others , 146/81, 192/81 and 193/81, EU:C:1982:146, paragraph 30).
43. In that regard, it must 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 [EU] law’ in order, as is clear from the third recital in the preamble to that regulation, ‘to combat fraud against the European Union’s financial interests for all areas’ (judgments in Handlbauer , C‑278/02, EU:C:2004:388, paragraph 31, and Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , C‑278/07 to C‑280/07, EU:C:2009:38, paragraph 20).
44. The first subparagraph of Article 3(1) of Regulation No 2988/95 fixes, as far as proceedings are concerned, a limitation period which runs from the time when the irregularity was committed, such irregularity, according to Article 1(2) of that regulation, being ‘any infringement of a provision of [EU] 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’ (judgments in Handlbauer , EU :C:2004:388, paragraph 32, and Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 21).
45. It follows therefrom that Article 3(1) of Regulation No 2988/95 is applicable both to irregularities leading to the imposition of an administrative penalty for the purposes of Article 5 thereof and to irregularities which are the subject of an administrative measure for the purposes of Article 4 of that regulation, a measure which is intended to withdraw the wrongly obtained advantage without however constituting a penalty (see, to that effect, judgments in Handlbauer , EU:C:2004:388, paragraphs 33 and 34, and Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 22).
47. Before the adoption of Regulation No 2988/95, the EU legislature had made no provision for a rule on limitation applicable to the recovery of advantages wrongly received by economic operators as a result of an act or omission on their part which had or would have had the effect of prejudicing the general budget of the European Union or budgets managed by it (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 25).
48. Therefore, before the adoption of that regulation, in the absence of provisions of EU law, disputes concerning the recovery of amounts wrongly paid under EU law had to be decided by national courts in application of their own domestic law, subject nevertheless to the limits imposed by EU law, on the basis that the rules and procedures laid down by domestic law were not permitted to have the effect of making it in practice impossible or excessively difficult to recover the aid not due and that domestic law had to be applied in a manner which was not discriminatory as compared to procedures for deciding similar national disputes (see judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 26).
49. By adopting Regulation No 2988/95, and in particular the first subparagraph of Article 3(1) thereof, the EU legislature intended to establish a general limitation rule which was applicable in the area and by which it intended, first, to define a minimum period applied in all the Member States and, secondly, to waive the possibility of recovering sums wrongly received from the European Union budget after the expiry of a four-year period after the irregularity affecting the payments at issue was committed (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 27).
50. Thus, by the adoption of Article 3(1) of Regulation No 2988/95 and without prejudice to Article 3(3) thereof, the EU legislature thereby defined a general rule on limitation by which it voluntarily reduced to four years the period during which the authorities of the Member States, acting in the name and on behalf of the Community budget, should recover or should have recovered such wrongly received advantages (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 29), with the exception, however, of the bringing of proceedings in respect of errors or irregularities committed by the national authorities themselves (see, to that effect, judgment in Bayerische Hypotheken- und Vereinsbank , C-281/07, EU:C:2009:6, paragraph 22).
51. As regards debts which arose subject to a national rule on limitation, the recovery of which was not yet time-barred thereunder, the entry into force of Regulation No 2988/95 has the effect that, pursuant to the first subparagraph of Article 3(1) thereof, the recovery of such debts must as a rule be time-barred within a period of four years running from the date on which the irregularities were committed (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 31).
52. In such circumstances, under that provision, the repayment of any sum wrongly received by an operator as a result of an irregularity predating the entry into force of Regulation No 2988/95 must, as a rule, be regarded as time-barred in the absence of any suspensory act adopted in the four years following the commission of the irregularity, a suspensory act which, pursuant to the third subparagraph of Article 3(1) thereof, is to be understood as an act of the competent authority, notified to the person in question, relating to the investigation or legal proceedings concerning the irregularity (judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 32).
53. It follows that, where an irregularity was committed, as in the main proceedings, in the course of 1995 such an irregularity will be covered by the general Community rule providing for a four-year limitation period and will, on that basis, be subject to limitation in the course of 1999 according to the exact date of the commission of that irregularity in 1995, subject nonetheless to the possibility retained by the Member States, under Article 3(3) of Regulation No 2988/95, of providing for longer limitation periods (see, by analogy, judgment in Josef Vosding Schlacht-, Kühl- und Zerlegebetrieb and Others , EU:C:2009:38, paragraph 33).
54. Secondly, it must be noted that the EU legislature expressly provided, in Article 3(3) of Regulation No 2988/95, that the Member States may apply limitation periods which are longer than that minimum period of four years laid down in Article 3(1) thereof. It did not intend to standardise the periods applicable in the area and, consequently, the entry into force of Regulation No 2988/95 cannot have had the effect of compelling the Member States to reduce to four years the limitation periods which, in the absence of rules of EU law previously in the area, they applied in the past (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 25).
55. Thus, in the context of the possibility provided for in Article 3(3) of Regulation No 2988/95, Member States retain wide discretion in fixing longer limitation periods which they intend to apply in cases involving an irregularity that is detrimental to the European Union’s financial interests (judgments in Corman , C‑131/10, EU:C:2010:825, paragraph 54, and Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 26).
56. In that regard, the longer limitation periods which Member States retain the possibility of applying under Article 3(3) of Regulation No 2988/95 may result from general provisions of law predating the adoption of that regulation, so that Member States can apply such longer periods by means of application determined by case-law of a provision of general purport laying down a limitation period of more than four years to the recovery of wrongly received advantages (judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 29).
57. It is admittedly easier for an operator to determine the limitation period applicable when that period is established by the national legislature in a provision specifically applicable to the field concerned. Nevertheless, where the national legislature did not adopt a specific provision applicable to a field such as that of repayment of export refunds that have been wrongly received to the detriment of the European Union budget, the principle of legal certainty does not preclude, in principle, the application of a limitation period of a general nature that is laid down in a provision of civil law and exceeds the four-year period provided for in the first subparagraph of Article 3(1) of Regulation No 2988/95 (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 33).
58. However, such application complies with the principle of legal certainty only if it was sufficiently foreseeable. In this regard, it need only be noted that it is not for the Court to establish, in the present proceedings for a preliminary ruling, whether such a judicially determined practice existed (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 34).
59. Moreover, the application of a longer national limitation period, such as is referred to in Article 3(3) of Regulation No 2988/95, with a view to bringing proceedings in respect of irregularities within the meaning of that regulation, must not go clearly beyond what is necessary to achieve the objective of protecting the European Union’s financial interests (see, to that effect, AJD Tuna , C‑221/09, EU:C:2011:153, paragraph 79, and Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 38).
60. It is indeed possible, on the one hand, that a 20-year limitation rule arising from a provision of civil law may appear necessary and proportionate, in particular in the context of disputes between private persons, in light of the objective pursued by that rule and defined by the national legislature (see, by analogy, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 41). On the other, in the light of the objective of protecting the European Union’s financial interests, the application of a 10-year limitation period resulting from a provision of civil law of the Member State in question does not run counter to the principle of proportionality (see, to that effect, Corman , EU:C:2010:825, paragraphs 24, 31 and 49).
61. However, the Court has already held that, in the light of that objective, for which the EU legislature considered that a limitation period of four, or indeed even three, years was already in itself sufficient to enable the national authorities to bring proceedings in respect of an irregularity detrimental to those financial interests and capable of leading to the adoption of a measure such as recovery of a wrongly obtained advantage, to grant those authorities a period of 30 years goes beyond what is necessary for a diligent public service (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 43).
62. The Court pointed out in that context that that service owes a general obligation of diligence when verifying the legality of payments made by it that are borne by the European Union budget, given that the Member States must observe the obligation of general diligence under Article 4(3) EU, an obligation which entails that they must take steps to rectify irregularities promptly. In those circumstances, providing Member States with the possibility of granting the public service a much longer period within which to act than that laid down in the first subparagraph of Article 3(1) of Regulation No 2988/95 could, in a certain way, encourage inertia on the part of the national authorities in bringing proceedings in respect of ‘irregularities’ within the meaning of Article 1 of Regulation No 2988/95, whilst exposing operators, firstly, to a long period of legal uncertainty and, secondly, to the risk of no longer being in a position to prove at the end of such a period that the transactions in question were lawful (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraphs 44 and 45).
63. Such considerations are also valid as regards the application of a 20-year limitation period laid down in a provision of the Civil Code with a view to bringing proceedings in respect of an irregularity, within the meaning of Article 1 of Regulation No 2988/95. In any event, if a four-year limitation period were to appear, from the national authorities’ point of view, too short to enable them to bring proceedings in respect of irregularities displaying a certain complexity, it would always be open to the national legislature, within the framework of the possibility provided for in Article 3(3), to adopt a longer limitation rule such as Article 40 of Decree-Law No 155/92 (see, to that effect, judgment in Ze Fu Fleischhandel and Vion Trading , EU:C:2011:282, paragraph 46).
64. However, it is appropriate to point out that, in the absence of such a rule, irregularities such as those giving rise to the main proceedings must, in accordance with the case-law set out in paragraph 53 of this judgment, be regarded as time-barred after four years from the date on which they were committed, taking into account any interruptions to the limitation period provided for in the third subparagraph of Article 3(1) of Regulation No 2988/95 and in compliance with the maximum limit laid down in the fourth subparagraph of Article 3(1) thereof.