Hellenic Republic v Commission of the European Communities.
Date: 1998-01-29
12 With regard to the claim that it was objectively impossible to establish a register of olive cultivation, it is sufficient to note that it was not until its letter of 28 December 1988, that is, after the deadline of 31 October 1988 (see Council Regulation No 3453/80 of 22 December 1980 amending Council Regulation (EEC) No 154/75 on the establishment of a register of olive cultivation in the Member States producing olive oil (OJ 1980 L 360, p. 15)), that the Greek Government submitted to the Commission a programme of trials for the purposes of establishing the register. As the Court held in Case C-50/94 Greece v Commission [1996] ECR I-3331, paragraph 40, the fact that after that date the Commission assisted the Greek Government in its efforts to fulfil its obligations cannot, in those circumstances, prove that it was absolutely impossible to establish the register by the required date, since the Greek Government has not put forward any argument relating to the period before 31 October 1988.
21 On this point, it need merely be observed that in Case C-50/94 Greece v Commission, cited above, at paragraph 28, the Court has already held that if, in its function of clearing the accounts the Commission, instead of refusing the entire expenditure, endeavours to draw up rules to differentiate according to the degree of risk posed to the EAGGF by different levels of defective supervision, the Member State must show that those criteria are arbitrary and unfair. Since the Greek Government has adduced no such evidence, its plea that the Commission had no such power must be rejected.
30 On this point, it should be observed that, in accordance with Article 5(2)(b) of Regulation No 729/70, the Commission, after consulting the EAGGF Committee, is to make up the accounts of the authorities and bodies, before the end of the following year, on the basis of the annual accounts. However, if the information that should be supplied by the Member States and the checks that it considers necessary to undertake do not lead to any definite results, the Commission is entitled to draw up the accounts on the basis of the information obtained during the clearance procedure, reserving to itself the possibility of correcting that decision in a subsequent clearance.
39 As the Court held in Case C-342/89 Germany v Commission [1991] ECR I-5031, paragraph 18, Case C-346/89 Italy v Commission [1991] ECR I-5057, paragraph 18, and Case C-69/94 France v Commission [1997] ECR I-2599, paragraph 30, the final and conclusive decision on the annual clearance of accounts is taken at the conclusion of the specific procedure giving effect to the audi alteram partem rule, during which the Member States concerned are provided with all the guarantees necessary for them to present their point of view.
45 It should be noted in this connection that, by decision of 21 January 1994 addressed to the Member States, the Commission set a deadline of 31 January 1994 for the transmission of supplementary information with regard to the clearance of accounts for 1991. In this case, it was only in notes dated 12 December 1994, in other words a few days before the final decision, that the Hellenic Republic informed the Commission of certain facts which, in its view, were relevant. Since that information obviously reached the Commission outside the prescribed period, the Commission was not bound to take it into account in the final decision. The application should therefore be dismissed on those heads.