1 By its appeal, the Kingdom of Belgium seeks to have set aside the judgment of the General Court of the European Union of 20 July 2017, Belgium v Commission (T‑287/16, not published, ‘the judgment under appeal’, EU:T:2017:531), by which the General Court dismissed its action seeking annulment of Commission Implementing Decision (EU) 2016/417 of 17 March 2016 excluding from European Union financing certain expenditure incurred by the Member States under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2016 L 75, p. 16), in so far as it excludes from that financing in relation to the Kingdom of Belgium the sum of EUR 9601619 (‘the decision at issue’).
2 Article 3(1) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1) provided: ‘The [European Agricultural Guarantee Fund (EAGF)] shall finance in a context of shared management between the Member States and the Community the following expenditure, which shall be effected in accordance with Community law: (a) refunds for the exportation of agricultural products to third countries; …’
3 Article 9(1)(a) of that regulation provided: ‘The Member States shall: (a) within the framework of the common agricultural policy, adopt all legislative, regulatory and administrative provisions and take any other measures necessary to ensure effective protection of the financial interests of the Community, and particularly in order to: (i) check the genuineness and compliance of operations financed by the EAGF and the [European Agricultural Fund for Rural Development (EAFRD)]; (ii) prevent and pursue irregularities; (iii) recover sums lost as a result of irregularities or negligence.’
4 Under Article 32(5), fourth subparagraph, and (8)(a) of that regulation: ‘5. ... Where, in the context of the recovery procedure, the absence of any irregularity is recorded by an administrative or legal instrument of a definitive nature, the Member State concerned shall declare as expenditure to the EAGF the financial burden borne by it under the first subparagraph. … 8. Following completion of the procedure laid down in Article 31(3), the Commission may decide to exclude from financing sums charged to the Community budget in the following cases: (a) under paragraphs 5 and 6 of this Article, if it finds that the irregularity or lack of recovery is the outcome of irregularity or negligence attributable to the administrative authorities or another official body of the Member State; …’
5 Regulation No 1290/2005 was repealed and replaced by Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549, and corrigendum OJ 2016 L 130, p. 6). Article 9(1)(a) of Regulation No 1290/2005 was replaced and reproduced, in essence, in Article 58(1)(e) of Regulation No 1306/2013 which adds to the requirements of the first provision, in particular by requiring Member States to take the necessary measures to initiate the necessary court proceedings, where appropriate, to recover undue payments. The provisions of Article 32(5), fourth subparagraph, and (8)(a) of Regulation No 1290/2005 were reproduced, in essence, in Article 54(2), second subparagraph, and (5)(c) of Regulation No 1306/2013.
6 In 1992, Générale Sucrière, which was succeeded in title by Saint-Louis Sucre, sold a total of 24000 tonnes of sugar to Metelmann & CO and Sucre Export. Under the sales contracts, that sugar was intended for export outside the European Union. Both those companies, through two intermediaries, resold 6000 tonnes of that sugar to Proud Trading and Shawline Offshore. The sales contracts also stipulated that the sugar was destined for a third country and had to leave the territory of the European Union without delay after it was loaded.
7 The loading of the vessels, from the port of Antwerp (Belgium) destined for Uzbekistan, took place between 20 January and 29 March 1993.
8 Manuport Services which, along with Belgian Bunkering and Stevedoring, was engaged by Saint-Louis Sucre to take delivery of the sugar and to load it on board the vessels, and to deal with related documentary business, dealt with, on behalf of Saint-Louis Sucre, that documentary business and forwarded the export declarations to the competent paying agency, that is to say, the Bureau d’intervention et de restitution belge (Belgian Intervention and Refund Bureau, ‘the BIRB’), then known as the Office central des contingents et licences (Central Quotas and Licences Agency, Belgium). On the basis of those declarations, Saint-Louis Sucre obtained from the BIRB the advance payments to be set off against the export refunds to which it was entitled. Those advance payments were definitively retained by Saint-Louis Sucre as export refunds when evidence had been provided that the sugar had actually left the customs territory of the European Union.
9 It was discovered thereafter that the 6000 tonnes of sugar resold by Metelmann & CO and Sucre Export to Proud Trading and Shawline Offshore, after leaving Belgium from the port of Antwerp, had in fact been diverted from its initial destination and fraudulently re-imported to the territory of the European Union, in Spain via the port of Guernica, on the basis of falsified documents, that is to say, the T2L forms. Saint-Louis Sucre voluntarily informed the BIRB of the discovery of those fraudulent re-imports.
10 By judgment of the hof van beroep te Antwerpen (Antwerp Court of Appeal, Belgium) of 22 October 2003, upholding a judgment of the rechtbank van eerste aanleg te Antwerpen (Antwerp Court of First Instance, Belgium) of 21 June 2001, two individuals who had acted as intermediaries between Metelmann & CO and Sucre Export, on the one hand, and Proud Trading and Shawline Offshore, on the other, were convicted, as a result of the fraudulent re-imports, of false accounting, using forged documents and deception. The BIRB, among others, brought a civil action against those individuals and obtained an award in principle for damages against them, provisionally assessed at EUR 0.01; that order became final by judgment of the Cour de cassation (Court of Cassation, Belgium) of 22 June 2004.
11 On 16 March 1994, the BIRB, having become aware that fraud had been committed, claimed from Saint-Louis Sucre reimbursement of the sum of 167020445 Belgian francs (BEF), equivalent to EUR 4140 328.68, on the ground that the consignments of sugar declared for export in Antwerp by that company, for which proof of exit from the customs territory of the European Union had been provided by the control documents, that is to say, the T5 forms, had been brought back into that territory under cover of falsified documents, that is to say, the T2L forms.
12 Saint-Louis Sucre indicated that it disagreed with the BIRB’s claim for reimbursement, arguing that it was not responsible for that fraud.
13 By letters of 19 November 1996 and 13 February 1997, the BIRB pursued its claim, stating that the sugar in question had never been exported.
14 Since the BIRB repeated its claim for payment of the principal sum, together with interest accrued since 16 April 1994, Saint-Louis Sucre decided, on 16 May 1997, to pay to the BIRB, on a purely without prejudice basis, that sum together with interest accrued for the period from 16 April 1994 to 16 May 1997, that is to say, a total sum of EUR 5133 087.54.
15 On receipt of that payment, the Kingdom of Belgium paid the EAGF the sum of EUR 4106 470.28, equivalent to 80% of the sum paid by Saint-Louis Sucre. It retained the remaining 20%, that is to say, the sum of EUR 1026 617.52, pursuant to Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organisation of an information system in this field and repealing Regulation (EEC) No 283/72 (OJ 1991 L 67, p. 11).
16 On 18 June 1997, Saint-Louis Sucre brought an action before the tribunal de première instance de Bruxelles (Brussels Court of First Instance, Belgium) to recover from the BIRB the sum of EUR 5133 087.54, together with default interest, court interest and costs.
17 By judgment of 20 March 2008, that court, having awaited the outcome of the criminal proceedings, upheld that claim and ordered the BIRB to repay those sums.
18 The BIRB lodged an appeal against that judgment before the cour d’appel de Bruxelles (Brussels Court of Appeal, Belgium) asking it to vary the judgment and not to uphold the original claim of Saint-Louis Sucre. In the alternative, the BIRB asked that court to refer three questions to the Court of Justice for a preliminary ruling on the interpretation of Commission Regulation (EEC) No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1987 L 351, p. 1, and corrigendum OJ 1988 L 337, p. 29).
19 By judgment of 3 May 2012, served on 29 June 2012, the cour d’appel de Bruxelles (Brussels Court of Appeal) upheld the judgment of the tribunal de première instance de Bruxelles (Brussels Court of First Instance). In addition, that court held that there was no need to refer any question to the Court of Justice for a preliminary ruling. Accordingly, it ordered the BIRB to pay to Saint-Louis Sucre the sum of EUR 10114 003.39, corresponding to the sum of EUR 5133 087.54 together with interest from 1 June 1997, plus default interest accrued since 7 March 2011, court interest and costs.
20 Following that judgment, the BIRB sought the opinion of a lawyer authorised to act before the Cour de cassation (Court of Cassation), as is required under Belgian procedural law, with a view to lodging an appeal before that court.
21 That lawyer gave his opinion on 25 September 2012 in which he concluded, following an examination of the case file and EU case-law, that it was ‘impossible to criticise, with a good chance of success before the Cour de cassation [Court of Cassation], the judgment [of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012] in so far as it orders the BIRB to pay the sum of EUR 10114 003.39’. As a result of that negative opinion, the BIRB decided not to disregard the advice and refrained from lodging an appeal on a point of law. The BIRB paid to Saint-Louis Sucre the amount which it was ordered to pay, which came to a total sum of EUR 10659 055.85, made up of EUR 10114 003.39 together with the relevant interest.
22 On 4 July 2012, the BIRB announced to the Commission that, following the judgment of the Brussels Court of Appeal of 3 May 2012, which was enforceable immediately even in the event of an appeal on a point of law, the amount which it had been ordered to pay would be charged to the EAGF.
23 By letter of 13 November 2012, the BIRB informed the Commission that, pursuant to the fourth subparagraph of Article 32(5) of Regulation No 1290/2005, it was charging to the EAGF the sum which it had to pay to Saint-Louis Sucre, that is to say, EUR 10659 055.85, from which it was necessary to deduct, first, the sum of EUR 1026 617.52, being the 20% retained by the Kingdom of Belgium from the sum of EUR 5133 087.54 under Regulation No 595/91, and, secondly, the amount relating to court costs in the sum of EUR 30 818.48. Accordingly, the disbursement of EUR 9601 619.85 was charged to the EAGF as assigned negative revenue when the accounts for 2012 were cleared.
24 In the annual return for that year, the BIRB thus included a positive adjustment in the sum of EUR 9601 619.85.
25 By Commission Implementing Decision C(2016) 1543 final of 17 March 2016 on the clearance of the accounts of certain paying agencies in Belgium and Germany as regards expenditure financed by the EAGF for the 2012 financial year, that adjusted amount, after the accounting checks were carried out, was taken into account by the European Union in the 2012 financial year and was therefore paid to the Kingdom of Belgium.
26 After the sum of EUR 9601 619.85 was charged to the EAGF, the Commission, by letter of 27 March 2013, initiated a conformity clearance procedure. It challenged the request for the EAGF to bear the charge on two points: first, the decision not to use all possible remedies, in this instance by lodging an appeal on a point of law, to recover the sum at issue from Saint-Louis Sucre, and secondly, the charging of interest after 1997.
27 By letter of 23 May 2013, the BIRB contested both those points relying on the fourth subparagraph of Article 32(5) of Regulation No 1290/2005. In that regard, the BIRB argued that any appeal on a point of law would not automatically involve a reference to the Court of Justice for a preliminary ruling, since the case-law of the Court of Justice accepts that such a reference need not be made, in particular where the doctrine known as ‘acte clair’ applies. In addition, the BIRB cited the negative opinion of the lawyer authorised to act before the Cour de cassation (Court of Cassation) and explained the special role of those lawyers within the Belgian system. The BIRB concluded that it was not the case that there was a choice whether or not it was appropriate to lodge an appeal on a point of law, but that it was not possible to lodge such an appeal.
28 After holding a bilateral meeting with the BIRB on 13 October 2014, and after several exchanges of correspondence, the Commission, by communication of 12 June 2015, pursuant to Articles 10 and 11 of Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Regulation No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (OJ 2006 L 171, p. 90), maintained its position that the Kingdom of Belgium had not complied with the requirements of EU law for the 2012 financial year, on the ground that the Belgian authorities had not exhausted all possible remedies in order to recover the sum in question which would have made it possible for the Court of Justice to consider the reference for a preliminary ruling concerning Saint-Louis Sucre and, therefore, the BIRB was not entitled to recover from the EAGF the payments made as export refunds under Article 32(8)(a) of Regulation No 1290/2005. Accordingly, that communication stated that it would be proposed that the sum of EUR 9601619 be excluded from EU financing.
29 On the basis of the summary report of 22 February 2016, the Commission adopted, on 17 March 2016, the decision at issue, excluding that sum from EU financing in relation to the Kingdom of Belgium.
30 By application lodged at the Registry of the General Court on 30 May 2016, the Kingdom of Belgium brought an action seeking annulment of the decision at issue.
31 In support of its action, the Kingdom of Belgium relied on two pleas in law. The first plea alleged infringement of Article 31(1) and Article 32(8) of Regulation No 1290/2005 on the ground that the Commission had failed to show that the expenditure incurred by the BIRB was not compatible with EU law and that the failure to recover or the unlawfulness was caused by an irregularity or negligence attributable to the BIRB. The second plea, raised in the alternative, alleged infringement of Article 31(2) of Regulation No 1290/2005 and of the principle of proportionality on the ground that the amount excluded from EU financing by the decision at issue did not correspond to the extent of the lack of conformity found and that the financial loss caused to the European Union was not taken into account.
32 By the judgment under appeal, the General Court dismissed both pleas and, accordingly, the action in its entirety.
33 By its appeal, the Kingdom of Belgium asks the Court to: - set aside the judgment under appeal; - annul the decision at issue, in so far it excludes from EU financing the sum of EUR 9601619; and - order the Commission to pay the costs.
34 The Commission contends that the Court should: - dismiss the appeal; and - order the Kingdom of Belgium to pay the costs.
35 In support of its appeal, the Kingdom of Belgium relies on a single ground alleging that the General Court misinterpreted Article 32(8)(a) of Regulation No 1290/2005, now in essence Article 54(5)(c) of Regulation No 1306/2013. That ground of appeal is divided into two parts.
36 By the first part of its single ground of appeal, the Kingdom of Belgium claims that the General Court was wrong to find, in paragraph 56 of the judgment under appeal, that the Belgian authorities, by not lodging an appeal on a point of law against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, did not exhaust all domestic remedies. The General Court did not take into account the extraordinary nature of the appeal on a point of law or the specific role of lawyers authorised to act before the Cour de cassation (Court of Cassation) under Belgian rules of procedure.
37 In doing so, it gave an interpretation that was contrary to the one adopted by the European Court of Human Rights in the decisions of 5 December 2002, Vogl v. Germany (CE:ECHR:2002:1205DEC006586301, paragraph 2), and of 5 March 2013, Chapman v. Belgium (CE:ECHR:2013:0305DEC003961906, paragraph 33). That court has consistently recognised the specific nature of the role played by the lawyer authorised to act before the Cour de cassation (Court of Cassation) in the Belgian legal system and his mandatory involvement. Thus, in the latter decision, having stated that ‘the applicant, in order to comply with the Belgian judicial rules governing the initiation of proceedings before the Court of Cassation, contacted a lawyer at that court’, that ‘the lawyer at the Court of Cassation took the view that there was no reasonable prospect of success’ and that ‘on the basis of that negative opinion, the applicant decided not to proceed with an appeal on points of law’, the European Court of Human Rights considered that, ‘having regard in particular to the preventive role of the lawyer at the Court of Cassation, in the interest both of that court and of potential litigants, … in the present case, the applicant did everything that could reasonably be expected of him to exhaust domestic remedies’.
38 The Commission contends that the first part of the single ground of appeal is inadmissible, on the ground that it raises an argument which was not advanced before the General Court and is, in any event unfounded.
39 With regard to the admissibility of the first part of the single ground of appeal, it should be recalled that, according to the settled case-law of the Court of Justice, its jurisdiction in an appeal is limited to a review of the findings of law on the pleas argued before the General Court. Consequently, a party cannot put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 50 and the case-law cited).
40 However, an argument which was not raised at first instance does not constitute a new plea that is inadmissible at the appeal stage if it is simply an amplification of an argument already developed in the context of a plea set out in the application before the General Court (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 51 and the case-law cited).
41 As the General Court stated in paragraph 54 of the judgment under appeal and contrary to what the Commission contends, the Kingdom of Belgium, by its first plea raised in its application at first instance, essentially denied any irregularity or negligence on its part based on the fact that the Belgian authorities did not exhaust all possible remedies. In that regard, that Member State asserted that there was no possibility of lodging an appeal on a point of law against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012 as a result of the negative advice provided by the lawyer authorised to act before the Cour de cassation (Court of Cassation), instructed by the BIRB in relation to the lodging of such an appeal.
42 Although it is true that, as the Commission submits, the Kingdom of Belgium did not rely on, before the General Court, the misinterpretation of the case-law of the European Court of Human Rights cited in its appeal, such an argument is intended to show that the General Court was wrong to find that that Member State had not exhausted all domestic remedies. Thus, it is simply an amplification of an argument already developed in the context of the first plea raised in the application at first instance.
43 Therefore, the plea of inadmissibility raised by the Commission must be rejected and the first part of the single ground of appeal must be declared admissible.
44 As to the substance, it must be pointed out first that, as the General Court stated in paragraph 56 of the judgment under appeal and as the Kingdom of Belgium acknowledged in its appeal, in the present case it was not impossible for the Belgian authorities to lodge an appeal on a point of law against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012.
45 In those circumstances, that Member State cannot criticise the General Court for having found, in paragraph 56 of the judgment under appeal, that the Belgian authorities had not exhausted all remedies under Belgian law in order to recover the sums at issue.
46 Secondly, in so far as the Kingdom of Belgium claimed, in essence, that the General Court misconstrued the decision of the European Court of Human Rights of 5 December 2002, Vogl v. Germany (CE:ECHR:2002:1205DEC006586301, paragraph 2), it must be pointed out that that argument is not supported in any way and therefore cannot succeed.
47 To the extent that that Member State claims that the General Court’s interpretation was contrary to the one given by the European Court of Human Rights in the decision of 5 March 2013, Chapman v. Belgium (CE:ECHR:2013:0305DEC003961906, paragraph 33), it must be recalled that that decision concerns the condition laid down in Article 35(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, according to which the European Court of Human Rights may only deal with a case after all domestic remedies have been exhausted.
48 As the Advocate General stated in points 75 and 76 of his Opinion, the purpose of that condition is to afford the States that are parties to that convention the opportunity of preventing or redressing alleged violations of the convention before those allegations are submitted to the European Court of Human Rights (ECtHR, 28 July 1999, Selmouni v. France, CE:ECHR:1999:0728JUD002580394, paragraph 74, and ECtHR, 6 January 2011, Paksas v. Lithuania, CE:ECHR:2011:0106JUD003493204, paragraph 75), while the obligation laid down in Article 9(1)(a) of Regulation No 1290/2005, now in essence Article 58(1) of Regulation No 1306/2013, according to which Member States are required to take all measures necessary to recover sums lost as a result of irregularities or negligence, is intended to protect the financial interests of the European Union. Thus, both those obligations concern different sets of legal rules, so that the abovementioned case-law from the European Court of Human Rights has no bearing on the interpretation of the conditions for applying Article 32(8)(a) of Regulation No 1290/2005, now in essence Article 54(5)(c) of Regulation No 1306/2013, and in particular on the interpretation of the notion of negligence referred to in both those provisions.
49 Therefore, the arguments of the Kingdom of Belgium alleging a misinterpretation of the case-law of the European Court of Human Rights do not demonstrate an error of law on the part of the General Court in the interpretation and application of those provisions of EU law.
50 The first part of the single ground of appeal must therefore be rejected as unfounded.
51 By the second part of its single ground of appeal, the Kingdom of Belgium claims, in essence, that the General Court erred in law in finding, in paragraphs 55 to 62 of the judgment under appeal, that that Member State failed to act with sufficient diligence in recovering the sums at issue and was therefore negligent on the ground that, by failing to lodge an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012 when it had the opportunity to do so, that Member State made it entirely impossible for the Cour de cassation (Court of Cassation) to refer questions to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 3665/87 and did not take all the measures at its disposal for the purposes of recovery.
52 The Kingdom of Belgium claims, first of all, that in doing so the General Court made an inaccurate analysis of the conduct of the Belgian authorities.
53 According to that Member State, although in theory it was not impossible for those authorities to lodge an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, there was no prospect that such an appeal would be upheld by the Cour de cassation (Court of Cassation) in view of the negative opinion of the lawyer authorised to act before the Cour de cassation (Court of Cassation), instructed by the BIRB, bearing in mind the specific role as a filter conferred on those lawyers by the Belgian legislature, who must advise against their clients filing an appeal which has no reasonable prospects of success, in order to avoid that court being congested by manifestly unfounded or inadmissible applications.
54 At the hearing before the Court of Justice, the Kingdom of Belgium stated, in essence, that, under the Belgian rules of procedure, a notice of appeal must be signed by a lawyer authorised to act before the Cour de cassation (Court of Cassation) and that a litigant wishing to lodge such an appeal must first seek the advice of such a lawyer on the prospects of a successful outcome to that appeal. Although that litigant may disregard the negative advice of the lawyer instructed and request that he lodge, on the litigant’s behalf, a notice of appeal which, as the case may be, the litigant has drafted himself, such a practice is in fact rarely used. In such a situation, the lawyer must state on the notice that it was lodged ‘sur réquisition et sur projet’ (on request and as a draft), thereby signalling to the Cour de cassation (Court of Cassation) that he does not endorse its contents. In addition, by doing so, the potential litigant runs the risk of being ordered to pay an indemnity for abuse of the court process. Furthermore, although, in the case of a negative opinion being provided by the lawyer authorised to act before the Cour de cassation (Court of Cassation), nothing prevents the litigant concerned from seeking a second opinion from another lawyer at the Cour de cassation (Court of Cassation), in practice it is very rare that the latter would provide an opinion that contradicts the first opinion.
55 In the present case, the lawyer instructed by the BIRB provided a clearly negative opinion following an in-depth, careful analysis, in particular of the case-law of the Court of Justice. By refraining from lodging an appeal on a point of law as a result of that opinion, the Belgian authorities did what any reasonable and prudent litigant would have done.
56 Next, in so far as the General Court considered in paragraph 57 of the judgment under appeal that, by refraining from lodging an appeal on a point of law against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, the Kingdom of Belgium made it entirely impossible for the Cour de cassation (Court of Cassation) to refer questions to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 3665/87, that Member State submits, first, that the specific role as a filter conferred on lawyers authorised to act before the Cour de cassation (Court of Cassation) contributes to the proper administration of justice. That role does not, however, transfer to those lawyers the competence of the Cour de cassation (Court of Cassation) to refer questions to the Court of Justice for a preliminary ruling, since, if the litigant is in doubt, he can refer the matter to the Cour de cassation (Court of Cassation).
57 Secondly, that Member State submits that not all appeals automatically lead to a reference to the Court of Justice for a preliminary ruling, since in certain instances not making a referral may be justified in accordance with the principles laid down in the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 21).
58 In the present instance, the lawyer authorised to act before the Cour de cassation (Court of Cassation), instructed by the BIRB, examined the case-law of the Court of Justice and explained how the solution adopted in the judgment of 11 January 2007, Vonk Dairy Products (C‑279/05, EU:C:2007:18), should apply to the present case.
59 Finally, the Kingdom of Belgium is doubtful whether automatically lodging an appeal where it will clearly fail in view of the negative, and informed, opinion provided by a lawyer authorised to act before the Cour de cassation (Court of Cassation), who is a seasoned professional in that particular procedure, is a sufficient illustration of the level of diligence required by Article 32(8)(a) of Regulation No 1290/2005. On the contrary, such a practice appears excessive and is a step that would prolong unnecessarily the recovery procedure, with no guarantee of an effective outcome.
60 In response, the Commission, as a preliminary point, highlights the irrefutably undue nature of the export refunds granted to Saint-Louis Sucre. By failing to lodge an appeal on a point of law against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, the Belgian authorities acted negligently.
61 In that respect, the Commission first of all submits that the national authorities could have lodged such an appeal, notwithstanding the negative opinion provided by the lawyer authorised to act before the Cour of cassation (Court of Cassation), instructed by the BIRB, or sought a second opinion from another lawyer.
62 Finally, the procedural autonomy of the Member States to organise access to their supreme courts, in particular through preliminary opinions from specialist lawyers, must be consistent with the principles of equivalence and effectiveness. Thus, that autonomy may not be relied on, in particular, to escape the obligation of the supreme courts to make a reference to the Court of Justice for a preliminary ruling, provided for in Article 267 TFEU. In that regard, the Commission argues that it is not for the lawyers authorised to act before the Cour de cassation (Court of Cassation) to decide whether questions of EU law raised by a case have already been dealt with by the Court of Justice, for the purposes of the case-law arising from the judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335), or whether the Cour de cassation (Court of Cassation) must make the order for reference, and thus filter access to that legal remedy by preventing appeals on a point of law from being lodged. The position taken by the Kingdom of Belgium is tantamount to conferring on the lawyers authorised to act before the Cour de cassation (Court of Cassation) a role which is incumbent on that court alone.
63 Whilst acknowledging that not all appeals necessarily lead the Cour de cassation (Court of Cassation) to refer a matter to the Court of Justice for a preliminary ruling, the Commission adds that, by refraining from lodging an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, the Belgian authorities definitively deprived the Cour de cassation (Court of Cassation) from being able to make such a reference. In the present case, since the undue nature of the export refunds was irrefutable and the present case raised legal questions involving an interpretation of the provisions of Regulation No 3665/87, the Kingdom of Belgium had, in the opinion of the Commission, a duty to lodge an appeal against that judgment so as to enable the Cour de cassation (Court of Cassation) to make such a referral. In that regard, it follows from the settled case-law of the Court of Justice that Member States may not exercise discretion as to the expediency of demanding repayment of aid unduly paid.
64 Finally, in the present case, as the Commission argued before the General Court, the opinion provided by the lawyer authorised to act before the Cour de cassation (Court of Cassation), instructed by the BIRB, is wrong and incomplete, both as regards the interpretation of the case-law of the Court of Justice and the need to refer questions for a preliminary ruling. Thus, this is not a case of an ‘informed preliminary’ opinion based on an ‘in-depth analysis’ by a ‘seasoned’ professional, as the Kingdom of Belgium claims.
65 In order to rule on the second part of the single ground of appeal, it is necessary, in the first place, to recall that, in accordance with Article 32(8)(a) of Regulation No 1290/2005, now in essence Article 54(5)(c) of Regulation No 1306/2013, the Commission may decide to exclude from EU financing sums charged to the EU budget where it finds that the lack of recovery is due to negligence attributable to the authorities of a Member State.
66 As regards the obligations of those authorities in that context, Article 9(1)(a) of Regulation No 1290/2005 provides that the Member States are to take all measures necessary to ensure effective protection of the financial interests of the European Union, in particular in order to recover the sums lost as a result of irregularities or negligence. Article 58(1)(e) of Regulation No 1306/2013, which essentially reproduces the former provision, adds that the Member States are to take the necessary measures to initiate court proceedings, where appropriate, in order to recover those sums.
67 Article 9(1), reproduced essentially in Article 58(1), by requiring Member States to ensure the protection of the European Union’s financial interests and to recover sums unduly paid, expresses, as regards the financing of the common agricultural policy, the duty of general diligence laid down in Article 4(3) TEU (see, to that effect, judgments of 21 February 1991, Germany v Commission, C‑28/89, EU:C:1991:67, paragraph 31; of 21 January 1999, Germany v Commission, C‑54/95, EU:C:1999:11, paragraphs 66 and 177; and of 13 November 2001, France v Commission, C‑277/98, EU:C:2001:603, paragraph 40). That duty, which applies throughout the procedure for the recovery of those sums, means that the national authorities are to effect recovery promptly and in good time, and are to make use of the means of verification and recovery at their disposal in order to ensure that those interests are protected.
68 However, those provisions do not lay down the specific measures which must be adopted for that purpose, in particular the court proceedings which must be initiated in order to recover those sums.
69 Since the EAGF’s financing is managed primarily by the national administrative authorities responsible for ensuring that the EU rules are strictly observed, and which have the necessary geographical proximity for that purpose (see, to that end, judgments of 24 January 2002, France v Commission, C‑118/99, EU:C:2002:39, paragraph 37, and of 7 July 2005, Greece v Commission, C‑5/03, EU:C:2005:426, paragraph 40), then, as the Advocate General stated in point 93 of his Opinion, the Member States are best placed to recover the sums unduly paid or lost as a result of irregularities or negligence and to determine the most appropriate steps to be taken in that respect.
70 This means in particular that it falls to the national authorities, subject to compliance with the duty of diligence referred to in paragraph 67 above, to choose the remedies which they deem most appropriate in order to recover the sums in question, having regard to the particular circumstances of the case (see, to that effect, judgment of 21 July 2005, Greece v Commission, C‑370/03, not published, EU:C:2005:489, paragraph 44).
71 As the Advocate General stated in points 101 and 102 of his Opinion, a Member State’s decision not to exhaust all remedies, including extraordinary remedies, may arise in a broad range of situations and be due to a variety of reasons. Therefore, the view cannot be taken, without having regard to those circumstances, that exhausting those remedies is, in any case, necessary in order to protect the financial interests of the European Union and that not exhausting those remedies amounts to negligence.
72 In those circumstances, the view must be taken, as was submitted, in essence, by the Kingdom of Belgium, that the duty of diligence set out in paragraph 67 above does not necessarily mean that the Member States must systematically exhaust, regardless of the particular circumstances of the case, all remedies available under their national law for the purposes of recovering the sums unduly paid.
73 In the second place, in paragraphs 57 to 60 of the judgment under appeal, the General Court found that the Kingdom of Belgium had acted negligently on the ground that, by refraining from lodging an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, which refused to refer questions to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 3665/87, that Member State made it entirely impossible for those questions to be submitted to the Court of Justice by the Cour de cassation (Court of Cassation).
74 In that regard, it must be recalled that, in accordance with the third paragraph of Article 267 TFEU, where a question of EU law arises before it, the Cour de cassation (Court of Cassation), as a court against whose decisions there is no judicial remedy under national law, is in principle required to make a request to the Court of Justice for a preliminary ruling on such a question.
75 That being so, as the Advocate General stated in essence in points 111 to 113 of his Opinion, negligence on the part of the Kingdom of Belgium may not be inferred solely from the fact that, by refraining from lodging an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, that Member State deprived the Cour de cassation (Court of Cassation) of the possibility of referring questions to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 3665/87.
76 First, what is important, in order to establish the existence of such negligence, is to determine whether the Belgian authorities took all the necessary measures to protect the financial interests of the European Union, and in particular, whether, by not lodging such an appeal, those authorities refrained from using a legal remedy which would have enabled them, with reasonable probability, to recover the sums at issue. It is in the context of that examination, which, as is apparent from the considerations set out in paragraphs 71 and 72 above, must be carried out in the light of all the particular circumstances of the case, that account must be taken of the fact that the lodging of an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012 could have led the Cour de cassation (Court of Cassation) to set that judgment aside in the light of the replies given by the Court of Justice to any questions referred for a preliminary ruling on the interpretation of the relevant provisions of EU law.
77 Secondly, it is apparent from the settled case-law of the Court of Justice that the obligation, recalled in paragraph 74 above, on the part of the Cour de cassation (Court of Cassation) to make a request for a preliminary ruling to the Court of Justice, where a question of EU law is raised before it, the Cour de cassation (Court of Cassation) is not under such an obligation when it finds that the question raised is irrelevant, that the provision of EU law in question has already been interpreted by the Court of Justice or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt, and the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the European Union (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraph 21; of 9 September 2015, Ferreira da Silva e Brito and Others, C‑160/14, EU:C:2015:565, paragraphs 38 and 39; and of 4 October 2018, Commission v France (Advance payment), C‑416/17, EU:C:2018:811, paragraph 110).
78 Having regard to that case-law, the view cannot be taken, irrespective of the circumstances of the case, that, if an appeal on a point of law had been lodged against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012, the Cour de cassation (Court of Cassation) would necessarily have made a reference to the Court of Justice for a preliminary ruling or that a reference for a preliminary ruling would necessarily have led the Court of Justice to interpret EU law in such a way as to induce the Cour de cassation (Court of Cassation) to then set aside the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012.
79 It follows from the considerations set out in paragraphs 71 to 78 above that negligence attributable to the Kingdom of Belgium for the purposes of Article 32(8)(a) of Regulation No 1290/2005, now in essence Article 54(5)(c) of Regulation No 1306/2013, had to be established in the light of all the circumstances of the case.
80 The circumstances to be taken into account include, as the Advocate General stated in points 105 to 109 of his Opinion, in the first place, the recovery measures available under national law and those already taken by that Member State to recover the sums at issue, which are mentioned in paragraphs 10 to 13 of the judgment under appeal and in paragraphs 11 to 14 above, the claims already made by that Member State for those purposes and the outcome of those claims.
81 In particular, account must also be taken of the fact that, in the present case, the Kingdom of Belgium used all ordinary remedies under national law against Saint-Louis Sucre and that both the tribunal de première instance de Bruxelles (Brussels Court of First Instance) and the cour d’appel de Bruxelles (Brussels Court of Appeal), in its judgment of 3 May 2012, ordered that Member State to repay those sums to that company, together with the applicable default interest, court interest and costs, and that the latter court held that there was no need to refer any questions to the Court of Justice for a preliminary ruling.
82 In the second place, consideration must be given to the procedural steps taken by the Kingdom of Belgium following that judgment with a view to a possible appeal on a point of law, that is to say, the fact, referred to in paragraph 19 of the judgment under appeal and recalled in paragraph 20 above, that the BIRB, as is required by the Belgian rules of procedure, sought an opinion of a lawyer authorised to act before the Cour de cassation (Court of Cassation) on the prospects of that appeal being upheld.
83 In the third place, the existence of any negligence on the part of the Kingdom of Belgium as a result of its decision not to lodge such an appeal must, as is apparent from the considerations set out in paragraphs 76 to 78 above, be examined having regard to the evaluation carried out by that Member State, in the circumstances set out in the two preceding paragraphs, of the prospects of success of the appeal which could have been brought following the negative opinion provided by the lawyer authorised to act before the Cour de cassation (Court of Cassation) and, in that context, of the probability that the Cour de cassation (Court of Cassation) would, in the light of the replies given by the Court of Justice to any questions referred for a preliminary ruling on the interpretation of the relevant provisions of EU law, set aside the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal).
84 In the fourth place, the existence of any negligence on the part of the Kingdom of Belgium must be assessed by taking into account the costs associated with the recovery proceedings and with lodging an appeal on a point of law compared with the sums to be recovered.
85 Although the General Court stated in paragraph 55 of the judgment under appeal that the existence of negligence attributable to the Kingdom of Belgium, for the purposes of Article 32(8) of Regulation No 1290/2005, now in essence Article 54(5)(c) of Regulation No 1306/2013, had to be examined having regard to the circumstances of the case, it did not carry out a proper examination of those circumstances, in particular those referred to in paragraphs 83 and 84 above.
86 Thus, in paragraphs 56 to 62 of the judgment under appeal, the General Court inferred negligence from the mere fact that that Member State refrained from lodging an appeal against the judgment of the cour d’appel de Bruxelles (Brussels Court of Appeal) of 3 May 2012 when it had the opportunity to do so, and thus made it impossible for the Cour de cassation (Court of Cassation) to refer questions to the Court of Justice for a preliminary ruling on the interpretation of Regulation No 3665/87, from which it concluded that that Member State had not taken all the measures at its disposal to recover the sums at issue.
87 Therefore, the General Court erred in law.
88 Consequently, the second part of the single ground of appeal must be upheld and the judgment under appeal must be set aside.
89 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, the Court of Justice may, after setting aside a decision of the General Court, refer the case back to the General Court for judgment or, where the state of the proceedings so permits, itself give final judgment in the matter.
90 In the present case, the resolution of the dispute entails a new assessment of the circumstances of the case, in view of the considerations set out paragraphs 80 to 84 above, an assessment which the General Court is better placed to carry out, after the parties have been given the opportunity to state their positions in that regard.
91 The case should therefore be referred back to the General Court.
92 Since the case has been referred back to the General Court, the costs relating to the present appeal proceedings must be reserved.