Conclusions
OPINION OF ADVOCATE GENERAL
MISCHO
delivered on 3 October 2002 (1)
Case C-329/00
Kingdom of Spain
v
Commission of the European Communities
((EAGGF – Expenditure excluded from Community financing – Compensatory aid for bananas – Annulment of Decision 2000/449/EC))
1. The Kingdom of Spain is applying to the Court of Justice for the annulment of Commission Decision 2000/449/EC of 5 July 2000
excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the EAGGF
(2)
(
the contested decision) in so far as it provides for a financial adjustment in respect of expenditure declared by the Kingdom of Spain by way of
compensatory aid for bananas for the 1995 and 1996 marketing years.
I ─ Legal background
2. Article 5(2)(b) of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy
(3)
provides: The Commission, after consulting the Fund Committee referred to in Article 11, ...
(b) shall, before the end of the following year, on the basis of the documents referred to in paragraph 1(b), make up the accounts
of the authorities and bodies.
3. Article 5(2)(b) and (c) of the same regulation, as amended by Council Regulation (EC) No 1287/95 of 22 May 1995,
(4)
provides: The Commission, after consulting the Fund Committee:...
(b) shall, before 30 April of the year following the financial year concerned, on the basis of the information referred to in
point (b) of paragraph 1, clear the accounts of the paying agencies. The accounts clearance decision ... shall not prejudice the adoption of a subsequent decision pursuant to point (c);
(c) shall decide on the expenditure to be excluded from the Community financing referred to in Articles 2 and 3 where it finds
that expenditure has not been effected in compliance with Community rules. ... The Commission shall evaluate the amounts to be excluded having regard in particular to the degree of non-compliance found.
The Commission shall take into account the nature and gravity of the infringement and the financial loss suffered by the Community.
A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication
of the results of those checks to the Member State concerned. ...
4. Article 2 of Regulation No 1287/95 reads as follows:
1. ...[This Regulation] shall apply from the financial year beginning on 16 October 1995.
2. Refusal to grant financing as referred to in Article 5(2)(c) of Regulation (EEC) No 729/70 may not relate to expenditure claimed
against a financial year prior to 16 October 1992, but without prejudice to decisions regarding the clearance of the financial
years preceding the entry into force of this Regulation.
5. The Commission's guidelines on financial adjustment were laid down in document VI/5330/97 of 23 December 1997. Where information
provided by an inquiry is inadequate for assessing the losses sustained by the Community a flat-rate adjustment may be envisaged.
The adjustment rates applicable are 2%, 5% or 10% depending on the extent of the risk of loss; in some cases the rate may
be 25% or even higher, rising to 100% in exceptional cases.
6. The regulations governing the sector concerned include in particular Council Regulation (EEC) No 404/93 of 13 February 1993
on the common organisation of the market in bananas
(5)
and Commission Regulation (EEC) No 1858/93 of 9 July 1993 laying down detailed rules for applying Council Regulation (EEC)
No 404/93 as regards the aid scheme to compensate for loss of income from marketing in the banana sector.
(6)
7. Regulation No 404/93 provided for compensation to be granted to producers for any loss of income following the introduction
of the common organisation of the market in bananas.
8. Article 12(1), (2), (3), (4), (5) and (7) of Regulation No 404/93 provides:
1. Compensation for any loss of income shall be granted to Community producers who are members of a recognised producers' organisation
which is marketing in the Community bananas complying with the common standards laid down. ...
2. The maximum quantity of bananas produced in the Community and marketed for which compensation may be paid shall be fixed at
854 000 tonnes (net weight) to be broken down as follows for each producer region in the Community:
(1) 420 000 tonnes for the Canary Islands,
...
3. Compensation shall be calculated on the basis of the difference between:
─
the
flat-rate reference income for bananas produced and marketed within the Community, and
─
the
average production income obtained on the Community market during the year in question for bananas produced and marketed within the Community.
4. The
flat-rate reference income shall be:
─
the average price of bananas produced in the Community and marketed during a reference period prior to 1 January 1993 to be
determined in accordance with the procedure laid down in Article 27;
─
less the average cost of transport and delivery fob.
...
5. The
average production income for Community bananas shall be calculated each year from:
─
the average price of bananas produced in the Community and marketed during the year in question,
─
less the average cost of transport and delivery fob.
...
7. Advances may be paid, against a security, on the basis of compensatory aid granted in the previous year.
9. Article 4(1), (3) and (5) of Regulation No 1858/93 provides:
1. Applications for advances may be submitted in accordance with the timetable laid down in Article 7(2)....
3. Payment of the advance shall be subject to the lodging of a security together with the application. The amount of this security
shall be fixed at 50% of the advance....
5. The security shall be released as soon as the definitive aid is paid by the competent authority.
II ─ Facts and pre-litigation procedure
10. During an inspection visit to the Canary Islands in January 1997 Commission officials found that invoices relating to a significant
quantity of bananas intended for the Canary Islands market, drawn up by a number of producers' organisations contained prices
which could only be called token prices (ESP 1, 2 or 5/kg).
11. The explanations given to the Commission officials showed that the checks on those operations had been made at a purely administrative
level, so the Commission considered that there was a genuine risk that those invoices related either to bananas which had
not actually been marketed, or to bananas which were of poor quality. The Commission inspectors considered that the Spanish
authorities should have carried out additional checks.
12. The Commission sent its findings to the Kingdom of Spain by letter of 8 July 1997.
13. A further visit was made by Commission officials in November 1997.
14. At a bilateral meeting held on 31 March 1998 the Commission gave its agreement to the authorities of the Autonomous Community
of the Canaries for it to conduct an audit within those undertakings which had bought bananas at a low price during the 1996
financial year. The audit took place in May 1998. The audit report sent to the Commission on 2 July 1998 did not reveal any
consignment which had been placed on the marketed at under ESP 10/kg.
15. The Commission officials considered that that report confirmed their own views.
16. By letter of 15 June 1999 the Commission proposed a financial adjustment based on the difference between the compensatory
aid paid to Spanish producers and the compensatory aid which would have been paid to them if the quantities concerned and
the relevant prices had been excluded, in whole or in part, from the calculation of the average Community aid.
17. By letter of 4 August 1999 the Spanish authorities applied for the conciliation procedure to be initiated.
18. The Conciliation Body set up by Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context
of the clearance of the accounts of the European Agricultural Guidance and Guarantee Fund (EAGGF) Guarantee Section
(7)
(
the Conciliation Body) delivered its final report on 4 February 2002. It states that it is extremely difficult to settle the dispute between the
parties since their positions are based on assumptions rather than confirmed facts. It mentions that the evidence in its possession
gives no reason to exclude the fact that the quality of the bananas in question was below standard, but it is unlikely that
all the quantities concerned were of poor quality. It is also possible that frauds were committed in connection with the qualities
actually sold, but no specific evidence was submitted to it to that effect.
19. According to the Conciliation Body, the reasoning of the Spanish authorities was therefore also plausible. In particular,
it was possible that small quantities of bananas complying with the standards were disposed of at prices below the cost price,
since selling them would have enabled the producers to receive compensatory aid which they would otherwise have lost. Such
a practice is not prohibited.
20. The Conciliation Body concludes that it was unable to reach a compromise between the views of the two parties. It nonetheless
requests the Commission to check the basis for its proposed financial adjustment in the light of the observations it made
to it.
21. On 15 May 2000 the Commission adopted its consolidated report. It concluded that the Spanish authorities did not manage to
show that the contested sales at extremely low prices had actually been made or that they met the conditions specified. The
Commission stated that it was proposing a financial adjustment based on withdrawal of an amount equivalent to 100% of the
compensatory aid relating to the quantities of bananas marketed at below ESP 5/kg and of an amount equivalent to 25% in the
case of quantities of bananas marketed at between ESP 5 and 10/kg; that adjustment also meant recalculating the amount of
compensation by subtracting the said goods in order to determine the average ex-warehouse processing price and prevent the
assumed
sales from having an impact on the final amount of compensatory aid. The total amount of the adjustment was ESP 428 882 534.
22. The procedure ended on 5 July 2000 with the adoption of the contested decision imposing the financial adjustment stated in
the consolidated report.
III ─ Forms of order sought
23. The Kingdom of Spain claims that the Court should annul the contested decision in so far as it refers to compensatory aid
for bananas in Spain and order the Commission to pay the costs.
24. The Commission contends that the application should be dismissed and the applicant ordered to pay the costs.
IV ─ Assessment
25. The Spanish Government puts forward three pleas.
26. First, by refusing to finance expenditure effected during the 1995 financial year the Commission committed an error and infringed
the principles of legitimate expectations and legal certainty.
27. Second, the Commission made an error in the data it used in order to calculate the financial adjustment and drew incorrect
conclusions from its findings.
28. Third, the contested decision fails to state adequate grounds.
A ─
First plea: error in extending the adjustment to expenditure in 1995
29. The Spanish Government contends that it was incorrect for the contested decision to apply also to expenditure effected in
1995, since that expenditure had already been cleared by another decision, namely Commission Decision 1999/187/EC of 3 February
1999 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1995 financed by the
EAGGF.
(8)
The only exceptions to the clearance as regards Spain related to so-called
disallowed expenditure listed in paragraph 1(f) of the annex to that decision and to the so-called
excluded quantities listed in paragraph 1(c) of that annex.
30. The payments relating to bananas do not form part of the excluded quantities but of the recognised expenditure and were therefore
cleared.
31. By refusing to finance that expenditure the Commission is infringing the principle of legitimate expectations to the detriment
of the Spanish administration and of the individual recipients of compensatory aid.
32. The Commission is also infringing the principle of legal certainty. The Spanish Government observes that it is essential that
the Community institutions respect the intangible nature of the measures they have adopted.
33. The Commission considers that the first plea relied on by the Spanish Government is unfounded. It contends that Decision 1999/187
did not clear the amounts paid by way of the compensatory aid in question.
34. According to the Commission, the payments made to producers during the 1995 marketing season, from 1 January 1995 to 31 December
1995, were merely advances on the final amounts of compensatory aid. The aid cannot be regarded as being finally received
until the balance of the aid has been paid and the security released, which took place during the 1996 financial year, from
16 October 1995 to 15 October 1996, and not during the 1995 financial year.
35. The Commission states that in order to be able to consider that there is entitlement to the aid, as provided in Regulation
No 1858/93, as amended by Commission Regulation (EC) No 796/95 of 7 April 1995,
(9)
it must have at its disposal all the data relating to the annual reference period, corresponding to the marketing season,
which, in the case of bananas, corresponds to the calendar year. It is only once it is in possession of that data, at the
end of the year, that the Commission ascertains whether the circumstances justifying payment of the aid exist, in the sense
that production income was less than the reference income, and fixes the amount of the aid. Only then can the balance be paid
and the securities released. The amounts paid previously must be regarded just as provisional payments on account open to
subsequent revision. Until then there is no entitlement to aid, it is not possible to calculate the amount of any aid and
hence consider that there is a particular amount to be cleared.
36. The Commission therefore contends that, as regards the bananas marketed in 1995, since the aid was only finally paid in 1996,
Decision 1999/187 relating to the 1995 financial year, could not clear the amounts paid by way of the aid in question.
37. I support the Commission's position that Decision 1999/187 does not cover the expenditure adjusted by the contested decision.
38. It is clear from the annex to the contested decision that the adjustments disputed by the Kingdom of Spain concern expenditure
relating to financial years 1996 and 1997. However, Decision 1999/187 clears the accounts for financial year 1995. As regards
other financial years, Decision 1999/187 does not relate to the expenditure covered by the contested decision.
39. The Spanish Government submits, however, that some of the expenditure adjusted by the Commission relates in actual fact to
financial year 1995.
40. It considers, in particular, that
the Commission should have taken into account solely amounts paid by way of compensatory aid for bananas during financial
year 1996 and not taken into consideration
payments made during financial year 1995 , which ... had already been settled.
(10)
41. That argument cannot be accepted, however.
42. As the Commission rightly observes,
payments made during financial year 1995 are, in the context of Regulations Nos 404/93 and 1858/93, regarded as advances.
43. In that regard, it is appropriate to refer to Article 7(2) of Regulation No 1858/93, which reads: [a]pplications shall be submitted:
(a) in the case of
advances , in the first ten days of March, May, July, September and November
in the case of bananas actually marketed during the two-month period preceding the month of application ; ...
(b) in the case of
payment of the balance of the aid, in the first ten days of January of the year following that in respect of which the aid
is applied for . The balance shall comprise:
- ─
the aid for bananas marketed during November and December, and
- ─
where applicable, the adjustment to the amounts paid for bananas marketed during the periods referred to in (a), on the basis
of the definitive amount of aid
.
(11)
44. It is clear from that provision that the marketing of bananas gives rise, during the year in which it takes place, to payment
of an advance to the producer. The producer does not receive the balance of the aid until the following year.
45. That interpretation is also confirmed by the sixth recital in the preamble to Regulation No 1858/93, to which the Commission
refers, which provides:... in view of the fact that the compensatory aid for a given year cannot be determined and paid until the beginning of the
following year, it is necessary to grant advances in order to maintain normal disposal of Community produce and achieve the
measure's objective; whereas, however, these advances must be paid subject to a security to cover the possibility of the aid
eventually paid being less than the total of the advances.
46. Thus, if the Commission found irregularities in the marketing of bananas during 1995 and 1996, the producers had only received
advances in respect of such marketing during those years. The balance of the aid, however, was not paid until 1996 and 1997,
respectively.
47. The Commission observes, quite rightly, that since the amount of aid was not determined finally until 1996 and 1997 that aid
was cleared during the procedures relating to financial years 1996 and 1997, and not during the procedure relating to financial
year 1995, which was the subject of Decision 1999/187.
48. The procedure for the clearance of accounts relates, as the title of Decision 1999/187 confirms moreover, to
expenditure financed by the EAGGF.
49. There is no expenditure to be financed by the EAGGF until the aid has become final and the security has been released. Up
until then it is in fact uncertain whether there is any such expenditure and the amount paid by way of an advance can always
be recovered through forfeiture of the security if no aid proves to be due.
50. The Spanish Government also wonders why in that case the Commission did not make clear in Decision 1999/187 that it was not
including the expenditure relating to compensatory aid for bananas on the grounds that the final payment had not been made
before 1996, although it had expressly made that clear in that decision with regard to aid for producers of certain herbaceous
crops.
51. I am, however, of the view that the only fact that the Commission referred to herbaceous crops but not to bananas in the recitals
in the preamble to Decision 1999/187 is insufficient to conclude that that decision cleared the amounts paid by way of advances
to banana producers in 1995. The existence of expenditure to be financed by the EAGGF depends on the regulations in force
and not on one of the recitals in the preamble to a Commission decision.
52. The Spanish Government also considers that the point of view that the payments made in 1995 must be regarded as advances is
not consistent if one takes account of Article 7(4), fourth subparagraph, (b), of Council Regulation (EC) No 1258/1999 of
17 May 1999 on the financing of the common agricultural policy,
(12)
which relates to aid for rural development.
53. According to the Spanish Government, the European legislature introduced a distinction between the aid to rural development
referred to in that Article 7 and other aid. As regards rural development aid, payments preceding the final payment only constitute
advances. However, in the case of other types of aid such as compensatory aid for bananas, the various payments up to the
final payment should not be regarded as advances. Those payments form part of the compensatory aid granted and could be settled.
In this case they were settled by Decision 1999/187 relating to financial year 1995.
54. In that regard, it is appropriate to point out that Article 7(4), fourth subparagraph, of Regulation No 1258/1999 provides: [a] refusal to finance may not involve:
(a) expenditure referred to in Article 2 effected prior to 24 months preceding the Commission's written communication of the results
of those checks to the Member State concerned;
(b) expenditure for a measure or action referred to in Article 3 in respect of which the final payment was effected prior to 24
months preceding the Commission's written communication of the results of those checks to the Member State concerned.
55. As the Commission rightly observes, Regulation No 1258/1999, which replaces Regulation No 729/70, applies, under Article 20,
only to expenditure effected from 1 January 2000. It does not apply to the expenditure at issue in this case and it therefore
appears difficult to deduce from it an interpretation which affects it.
56. For the rest, the fact that, as regards aid for rural development, the period of twenty-four months runs from the final payment,
does not yet mean that, in the case of the aid referred to in the said Article 7(4), fourth subparagraph (a), every payment,
whether final or not, must be regarded as
expenditure which triggers the start of the period of twenty-four months.
57. As the Commission rightly points out,
the fact that the part payments are regarded as expenditure to be cleared or that payment of the balance is awaited depends
exclusively on the characteristics of the aid and the sector, and on the rules governing it.
58. It is therefore by reference to Regulation No 1858/93 that it is appropriate to define the term
expenditure for the purposes of Article 7(4), fourth subparagraph, (a), of Regulation No 1258/1999 and not by reference to Article 7(4),
fourth subparagraph, (b), of that regulation.
59. In the light of this, I am of the view that the expenditure adjusted by the contested decision does not relate to financial
year 1995, which was the subject of Decision 1999/187.
60. The premise on which the Spanish Government bases its first plea, which is essentially that there is an overlap between Decision
1999/187 on the one hand and the contested decision on the other is not therefore correct.
61. It follows that Decision 1999/187 could not create any legitimate expectations that the expenditure at issue in the contested
decision would never be adjusted. Since the rules are logical and consistent there was no breach of the principle of legal
certainty either.
62. Those findings are sufficient to propose that the Spanish Government's first plea should be rejected.
63. In order to be exhaustive, it is appropriate, however, to consider also the argument put forward as an alternative claim by
the Commission that even if financial year 1995 were to be regarded as the relevant year, Decision 1999/187 would not have
cleared all the expenditure effected during that year.
64. In particular, the Commission refers to the last recital in the preamble to Decision 1999/187, which states that the decision
is without prejudice to any financial consequences drawn by the Commission, during a subsequent accounts clearance procedure,
from current investigations under way at the time of this Decision ..., that is to say 3 February 1999.
65. The Commission states that the inquiries into the contested compensatory aid had not been concluded on that date, if only
because it had not yet notified the Spanish Government of the final result.
66. In addition, the Commission refers to the twelfth recital in the preamble to Decision 1999/187, which states that
Article 5(2)(c) of Regulation (EEC) No 729/70 [as amended by Regulation No 1287/95] provides that the Commission may refuse
to finance expenditure effected within a period of 24 months preceding its written communication of the results of its checks
to the Member States concerned; whereas the Commission has communicated the results of certain checks to the Member States
concerned between May and September 1997; whereas financial consequences may arise from these checks and that these consequences
may affect expenditure declared in the financial year 1995; whereas this Decision does not prejudice the Commission's right
to exclude by subsequent Decision from Community financing expenditure effected in the financial year 1995 for which it finds
as a result of the aforementioned checks that this expenditure was not in compliance with Community rules.
67. In that regard, it is appropriate in the first place to refer to paragraph 30 of the judgment in Case C-61/95
Greece v
Commission ,
(13)
in which the Court held:[T]he 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.
(14)
68. In my view it is clear from this that the Commission can indeed retain the possibility of making adjustments as part of a
later clearance operation if some information is lacking, for example, due to the fact that inquiries are still in progress.
69. Second, contrary to what the Spanish Government contends, the fact that the Commission adopted Decision 1999/187 has not deprived
the Commission of the opportunity of making further adjustments affecting expenditure for financial year 1995.
70. Specifically, the Spanish Government considers that Article 5(2)(c) of Regulation No 729/70, as amended by Regulation No 1287/95,
on which the contested decision is based, could not apply to expenditure effected in 1995 because, under Article 2(1) of Regulation
No 1287/95, Article 5(2)(c) of Regulation No 729/70 did not enter into force until financial year 1996.
71. However, as the Commission rightly observes, the Spanish Government's view is contradicted by the case-law of the Court.
72. In Case C-278/98
Netherlands v
Commission
(15)
the Court held that
[i]n order to give Article 2(2) of Regulation No 1287/95 a useful sense, the correction procedure must be taken to apply to
financial years subsequent to 16 October 1992 which were not the subject of a clearance decision prior to the entry into force
of that regulation.
73. Moreover, in Case C-373/99
Greece v
Commission
(16)
the Court inferred that
... as far as the clearance of accounts for 1994
[Tr. Note: French text reads 1995] is concerned, the Commission was required to implement the procedure referred to in Article 5(2)(c) of Regulation No 729/70[,
as amended by Regulation No 1287/95].
74. The Spanish Government's response, however, is that if it were to be accepted that the adjustment procedure could nonetheless
cover expenditure relating to financial year 1995 the period of twenty-four months provided for in Article 5(2)(c), fifth
subparagraph, of Regulation No 729/70, as amended by Regulation No 1287/95 would apply.
75. Specifically, according to the Spanish Government, that period should be calculated from the letter of 8 July 1997, which
was the date on which the Commission first communicated the results of its inspections to the Kingdom of Spain. Expenditure
prior to 8 July 1995 cannot therefore be taken into account for the adjustment.
76. At that date a good part of the expenditure for financial year 1995 relating to the harvests for that year had already been
effected, according to the Spanish Government.
77. I share the Spanish Government's view that the period of twenty-four months provided for in Article 5(2)(c) of Regulation
No 729/70, as amended by Regulation No 1287/95, applies in this case.
78. The contested decision is, in fact, based on Article 5(2)(c), the fifth subparagraph of which lays down the period of twenty-four
months, as follows:A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication
of the results of those checks to the Member State concerned. ...
79. The significance of the period of twenty-four months, which, according to the sixth recital in the preamble to Regulation
No 1287/95, is designed to determine
the maximum period to which the consequences to be drawn from the checks on conformity [carried out by the Commission] may
be applied, has already been stated in the case-law of the Court.
(17)
80. Thus, in paragraph 133 of Case C-130/99
Spain v
Commission , cited above, the Court held that
[t]he purpose of that limitation is to protect Member States against the absence of legal certainty which would exist if the
Commission were able to call into question expenditure incurred several years before the adoption of a compliance decision.
81. It follows that, if the expenditure adjusted by the contested decision did relate to financial year 1995 it could no longer
be the subject of an adjustment since it was effected before 8 July 1995.
82. The parties do not dispute the fact that the communication in writing, within the meaning of Article 5(2)(c), fifth subparagraph,
of Regulation No 729/70, as amended by Regulation No 1287/95, was made on 8 July 1997. The period of twenty-four months therefore
extended to 8 July 1995.
83. The effect of the foregoing is that the subsidiary argument put forward by the Commission based on the recitals in the preamble
to Decision 1999/187 is only partly valid.
84. Despite the reservations expressed by the Commission in those recitals with regard to adjustments which could still affect
the expenditure relating to financial year 1995, the Commission would not have been authorised to adjust expenditure effected
before 8 July 1995.
85. The simple fact of expressing reservations in the recitals in the preamble to a clearance decision does not free the Commission
from the obligation to comply with the period of twenty-four months provided in Article 5(2)(c), fifth subparagraph, of Regulation
No 729/70.
86. I would point out, however, that the Commission's subsidiary argument is not relevant as regards resolving the dispute since
to my mind it has been established that the contested decision does not cover expenditure relating to financial year 1995.
87. I therefore propose that the first plea relied on by the Spanish Government should be rejected.
B ─
Second plea: error in the data used and error of interpretation
88. The Spanish Government's second plea divides essentially into two limbs. The Government accuses the Commission, on the one
hand, of taking incorrect data as its basis and, on the other hand, of drawing incorrect conclusions from that data.
As regards the use of incorrect data
89. The Spanish Government contends that the Commission incorrectly used marketing data relating to financial years 1996 and 1997
and applied them to the 1995 and 1996 marketing seasons, which are calendar years and do not coincide with the financial years
concerned. That practice is not only illogical, it is also incorrect.
90. The Spanish Government claims that when the Commission officials asked the Spanish authorities to provide that data the terms
they used were
years 1995 and 1996, the term
year corresponding, as regards the settlement of accounts, to the financial year. It states that when the Spanish authorities
provided the figures they expressly indicated the two months of aid applications corresponding to each of the EAGGF financial
years so that there could be no confusion. At no time, however, did the Commission officials indicate that the data supplied
to them was incorrect.
91. The Commission replies that it used the data which the Spanish authorities sent it and contends that it suggested to those
authorities on a number of occasions that they should provide more specific data, indicating that it was prepared to redo
the calculations. The Commission mentions in that regard its letter of 15 June 1999 and the suggestion it made subsequently
and which the Conciliation Body mentions in its report.
92. In that regard, it should be pointed out that the adjustment is based on the findings made by the Commission that, during
the years 1995 and 1996, significant quantities of bananas taken into account for the calculation of the compensatory aid
had been sold on the local market in the Canary Islands at extremely low prices, of below ESP 10/kg and even as little as
the token price of ESP 1/kg.
93. Even if the irregularities which the Commission inferred from this affect, for reasons already explained above, expenditure
relating to financial years 1996 and 1997, the substantive data providing the basis for the conclusion that an irregularity
exists relate to the years 1995 and 1996.
94. It is clear in particular from the abovementioned letter of 15 June 1999 that the Commission was in fact guided by the substantive
data relating to the years 1995 and 1996. Thus, in that letter, it refers to average prices for those years.
95. For the rest, as the Commission rightly observes, that letter enabled the Spanish Government to correct the data it used.
Thus, as footnote 1 to the annex to that letter mentioned:
[i]f the Spanish administration has more specific data for this calculation it is requested to send it to us.
96. The Spanish Government does not, therefore, show that the Commission used incorrect data or misled the Spanish authorities
as regards the data to be provided.
97. In my view, therefore, the first limb of the second plea is unfounded.
As regards the incorrect interpretation of the data
98. The Spanish Government also considers that the findings made by the Commission during its inspections do not justify the contested
adjustments.
99. The Spanish Government rejects the Commission's conclusions based on the finding of an extremely low selling price. It denies
that the Spanish authorities limited themselves to purely administrative checks and that there is a genuine risk that the
invoices issued relate either to bananas which were not actually marketed, or to bananas which were of poor quality.
100. First, the Spanish Government states that the
low prices relates only to very small quantities. The quantities of bananas sold at prices of between ESP 1 and 5/kg, and between ESP
5 and 10/kg represent 0.48% and 0.4%, respectively, of the total volume of bananas in respect of which compensatory aid was
applied for during financial year 1995, and 0.9% and 0.5%, respectively, of the same volume for financial year 1996.
101. Second, the Spanish Government contends that compliance with quality standards is ensured under the provisions of Commission
Regulation (EC) No 2898/95 of 15 December 1995 concerning verification of compliance with quality standards for bananas
(18)
and by various sample checks. Other checks were carried out following short-term problems and complaints or on the basis
of evidence of irregularity. In addition, an
automatic alarm system was introduced, involving specific checks where reports drawn up by the competent authorities indicate that prices
have fallen below the established threshold.
102. In addition to those checks, the Intervención General de la Administración del Estado and the Servicio de Inspección Financiera
de la Comunidad Autónoma de Canarias carry out ex post checks with the recipients of compensatory aid.
103. As regards the EAGGF financial year 1995, checks were thus made with Coplaca, Félix Santiago Melián and Compañía Agrícola
de Tenerife SA, which are some of the recipient producers.
104. During the EAGGF financial year 1996 members of the Sociedad Cooperativa San Lorenzo (COSLO) and various recipients from SAT
Plátanos Taburiente were inspected.
105. Both Coplaca and SAT Plátanos Taburiente submitted invoices at
low prices in respect of the period being checked. All the inspection reports indicate that the commercial transactions were indeed
carried out during the reference period. Those transactions were correctly listed in the undertakings' accounts. The quantity
of bananas supplied and packaged coincide with the quantity of bananas in respect of which aid was received. The quality checks
are confirmed in writing. Lastly, the relevant supporting documents establish that the volume of bananas for which aid was
sought was indeed marketed on the Canaries market and on the Iberian peninsula.
106. Thirdly, the Spanish Government refers to the observation by the Conciliation Body that it is unlikely that substandard bananas
were put on sale in a situation where there is excess supply.
107. Fourthly, the low level of prices on the island market might be due to a number of reasons: there was excess supply on the
continental market; other substitute fruit offered at lower prices appeared on the market; non-Community bananas were penetrating
the Spanish market to an excessive extent; certain climatic factors were behind an increase in supply on the market.
108. Fifthly, the Spanish Government mentions another comment made by the Conciliation Body, namely that it is perfectly possible
that small quantities of bananas complying with quality standards were marketed at prices below the cost price (harvesting,
packaging and transport) since their sale would have enabled producers to receive compensatory aid which they could not have
received otherwise.
109. In its reply, the Spanish Government refers to the weekly lists of prices charged by wholesalers on the Canaries market, which
it had previously submitted to the Conciliation Body, and a graph showing the trend in fruit prices. Those documents, annexed
to its reply, make it possible to assess the huge variations which take place over the year, variations which are perfectly
compatible with actual production activity.
110. The Spanish Government also refers to an internal audit report relating to the 1996 season, submitted as an annex to its reply,
which concludes that the sales were genuine and were eligible for compensatory aid.
111. Lastly, as regards the level of the adjustment, the Spanish Government contends that the flat-rate adjustment criteria set
out in document VI/5330/97 are by no means met in the present case.
112. The Commission rejects the Spanish Government's argument that the financial adjustment was not justified given that adequate
checks had been made and that the extremely low prices could be due, in particular, to short-term factors.
113. The Commission submits that the need for a financial adjustment stems from the conclusions reached by its officials after
carrying out a random check on a sample of over 100 payment files. Some of the prices found ─ those which were under ESP 5
or between ESP 5 and 10/kg ─ could, according to the Commission, be called
token prices. The Commission points out that, in comparison, the average annual marketing price for bananas was ESP 16/kg in 1995
and ESP 22.7/kg in 1996; on a weekly basis the lowest average was ESP 10/kg in 1995 and ESP 18/kg in 1996, although during
the fourteenth week a fall of up to ESP 9.47/kg was observed.
114. The explanations provided by the Canaries authorities revealed that the checks on sales transactions did not go beyond a purely
administrative and superficial level. Furthermore, the information checked revealed that the inspection capabilities available
to the regional agricultural authorities had not been used very often for that type of transaction.
115. The Commission mentions that, in the light of that information, it considered that the token prices related to fictitious
sales or to sales of sub-standard products, whilst accepting that reasonable doubt might exist regarding the quantities marketed
at between ESP 5 and 10/kg, but that there could be no doubt regarding the quantities marketed at under ESP 5/kg.
116. The Commission submits that the applicant was unable to provide evidence that that fruit had actually been marketed. The Commission
states that, at a bilateral meeting, it agreed to the Canaries authorities organising an audit in order to compare purchases
of bananas by intermediaries and their subsequent sales of such bananas. The report prepared at the end of that audit relating
to the months of July and August 1996, a period during which prices tend to fall, revealed that prices of second grade bananas,
in other words, those of inferior quality, remained within a range of ESP 10 to 50/kg. Consequently, the report did not, in
the Commission's view, show that sales had been made at under ESP 10. Details on that report, supplied subsequently by the
Kingdom of Spain, did not provide evidence that the sales were genuine, which is why the Commission decided to stay with its
initial conclusions and apply the proposed adjustment.
117. The Commission then responds to the five observations made by the Spanish Government.
118. First, the Commission states that it shares the Spanish Government's view that the quantities of bananas sold at abnormally
low prices were
very small. It adds, however, that it is precisely for that reason that the adjustment is small and only relates to those quantities.
119. Second, as regards the quality of the checks, the Commission observes that the fact that bananas were marketed at abnormally
low prices did not lead to additional on-the-spot checks. The so-called
automatic alarm system did not come into effect until 1997, whereas the seasons which were the subject of clearance covered the years 1995
and 1996 and were therefore over by then.
120. Third, the Commission dismisses the Spanish Government's argument that it is improbable that there were any sales of poor
quality bananas on the ground that intermediaries would have no commercial interest in making such sales. It considers that,
on the contrary, one of the intermediaries' main commercial criteria is the price which might prompt them to make such sales.
121. Fourth, the Commission considers that the explanation for such low prices lies neither in excess supply, nor the presence
on the market of substitute products, nor climatic reasons.
122. Fifth, the Commission recognises that some producers might wish to sell their products at any price in order to receive compensatory
aid which they would otherwise have lost. It adds, however, that such a sale should at any rate be genuine and concern bananas
of monitored quality. At the prices which were recorded, the Commission does not consider it possible that those two conditions
were met.
123. In its rejoinder the Commission contends that its arguments are by no means rebutted by the price statistics which the Spanish
Government attached to its reply. Those statistics show the significant fluctuations in the price of bananas from the Canary
Islands but do not explain the exceptionally low selling prices that the Commission found.
124. Moreover, the price graph submitted by the applicant shows wholesale prices, whereas the adjustment is based on the prices
at which producers sold the bananas to the wholesalers.
125. The Commission considers that the Kingdom of Spain had the opportunity to show that the sales were genuine but failed to do
so, merely providing statistics and documentation regarding sales by intermediaries and the prices charged to retailers and
not those relating to sales and prices between producers and intermediary purchasers. The same criticism applies to the internal
audit report which the Spanish Government produced with its reply.
126. Lastly, as regards the method used to determine the financial adjustment, the Commission considers that, despite what the
Spanish Government contends, it was not incorrect.
127. The Commission submits that the references made by the applicant to certain criteria laid down in document VI/5330/97 are
irrelevant because they only relate to flat-rate adjustments, an option which the Commission did not use in this case because
it was able to assess the damage actually sustained.
128. What is one to think of those arguments?
129. It is appropriate to begin the assessment with a reference to Case C-373/99
Greece v
Commission , cited above, in which the Court ruled as follows on the division of the burden of proof between the Commission and the Member
State concerned regarding the existence of an infringement of the rules on the common organisation of the agricultural markets:
10. It is for the Commission to prove an infringement of the rules on the common organisation of the agricultural markets. Accordingly,
the Commission is obliged to give reasons for its decision finding an absence of, or defects in, inspection procedures operated
by the Member State in question (see, in particular, Case C-247/98
Greece v
Commission [2001] ECR I-1, paragraph 7, and the case-law cited there).
11. However, the Commission is not required to demonstrate exhaustively that the inspections carried out by the national authorities
are insufficient, or that the data submitted by them are irregular, but to
adduce evidence justifying serious and reasonable doubt on its part regarding those inspections or data (see Case C-54/95
Germany v
Commission [1999] ECR I-35, paragraph 35, Case C-28/94
Netherlands v
Commission [1999] ECR I-1973, paragraph 40, and
Greece v
Commission , cited above, paragraph 8).
12. The reason for this mitigation of the burden of proof on the Commission is that it is the Member State which is best placed
to collect and verify the data required for the clearance of EAGGF accounts and,
consequently, it is for that State to adduce the most detailed and comprehensive evidence that its inspections or figures are accurate and, if appropriate,
that the Commission's statements are incorrect (
Germany v
Commission , cited above, paragraph 35,
Netherlands v
Commission , cited above, paragraph 41, and
Greece v
Commission , cited above, paragraph 9)
.
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130. In the light of that case-law, I am of the view that the Commission adduced
evidence justifying serious and reasonable doubt on its part regarding compliance with the rules of the common organisation of the market in bananas and, in particular, Article 12(1)
of Regulation No 404/93, which provides:[c]ompensation for any loss of income shall be granted to Community producers who are members of a recognised producers' organisation
which is marketing in the Community bananas complying with the common standards laid down. ... .
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131. If, as the Commission did, one compares the prices at issue, recorded during inspections, with the prices generally ruling
in the Canary Islands in 1995 and 1996, there is indeed
serious and reasonable doubt as to whether the prices at issue, which were extremely low, if not token prices, related to genuine sales of bananas complying
with established quality standards.
132. Moreover, the Spanish Government, for its part, does not adduce
the most detailed and comprehensive evidence ... that the Commission's statements are incorrect.
133. On the one hand, as the Commission rightly observes, the existence of bananas marketed at abnormally low prices did not lead
to additional on-the-spot checks or inspections during the seasons concerned, despite the suspicions of irregularity roused
by such prices.
134. In addition, one may question whether the ex post checks carried out by the Spanish authorities were exhaustive. As the Commission
explains in its rejoinder, the internal audit report to which the Spanish Government refers in its reply
solely records that [the sales] took place between intermediaries and retailers, and not between producers and intermediaries.
[It] wonders why the inspectors only checked the sales invoices and took no interest in the purchase data of those undertakings.
As the inspectors visited the undertakings it would not have caused them great difficulty and would have enabled the Kingdom
of Spain to have reliable data on the subject.
135. Since, under Article 12(1) of Regulation 404/93, aid is granted to banana producers, it is appropriate to establish whether
at that level, rather than at intermediary level, the bananas sold complied with the quality standards.
136. On the other hand, the Spanish Government does not rebut the Commission's explanations that: at a bilateral meeting with the Spanish authorities the Commission officials showed themselves willing to accept the evidence
which the authorities were able to provide them with and were even ready to accept as evidence the results of a check designed
to compare purchases of bananas by intermediaries and those intermediaries subsequent sales of bananas.Despite the fact that the inspection report was based on a two-month period (July-August 1996), during which there was a downward
trend in banana prices due to the increase in both the variety and quantity of supply, as stated in the report itself, the
report confirmed that
second grade banana prices, in other words, those of inferior quality, remained within a range of ESP 10 to 50.
137. The Commission in my view rightly infers that the audit report drawn up by the Spanish authorities themselves was unable to
show that sales had actually been made at below ESP 10.
138. The Spanish Government of course disputes that inference and refers to various short-term factors such as an excess supply
on the market or climatic factors which it contends could explain the level of the prices recorded.
139. I accept, with the Spanish Government, that the short-term factors it refers do influence the price and that it is precisely
because of such factors that prices fluctuate.
140. However, although short-term factors explain normal price fluctuations I share the Commission's view that such factors do
not justify prices falling to an abnormally low, even a token, level.
141. At most, such prices, if they did not conceal irregularities, might have been explained by an exceptional large-scale short-term
factor. The Spanish Government has, nonetheless, failed to state what that was. Moreover, it is doubtful that such a factor
could have gone unnoticed.
142. As for the Conciliation Body's observation that it is unlikely that substandard bananas were put on sale in a situation where
there was surplus supply, it must be pointed out, first, that
when the Commission makes its decision it is not bound by the findings of the Conciliation Body.
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143. Also, as the Commission rightly observes, since the price for purchases from the producers is sufficiently low, even a token
price, for bananas which do not comply with the quality standards, some intermediaries may feel inclined to market them even
if there is a surplus supply of good quality bananas.
144. I now come to the Conciliation Body's other comment, that
it is quite possible that some, albeit only a few, quantities of bananas which met the standards were disposed of at prices
which did not cover the picking and packaging costs or harbour expenses, since selling them enabled the producers to receive
compensatory aid which they would otherwise have lost. That practice cannot be regarded as being prohibited by regulations
which do not provide for a minimum price and which includes a mechanism for putting a ceiling on quantities which might receive
compensatory aid.
145. In my view this is a consideration which carries a great deal of weight. The fact that the Community regulations do not provide
for a minimum price constitutes a manifest lacuna, but traders cannot be criticised for having taken advantage of it.
146. I think therefore that I can support the Commission's position that with such low prices it is more doubtful that the bananas
in question did meet the quality standards.
147. Lastly, it must be said that from 1997 onwards the Canaries Government introduced an
automatic alarm system which is triggered when prices fall below a specified threshold. It appears to be recognising in this way that the
presence of excessively low prices cannot be thought of merely as the expression of any particular short-term factor.
148. I am therefore of the view that the Commission has provided enough evidence to prove infringement of the rules of the common
organisation of the market in bananas.
149. In the context of the second limb of the second plea, the Spanish Government, however, disputes not only the existence of
a breach of the rules of the common organisation of the market in bananas but also the level of the adjustment which the Commission
imposed.
150. In that respect, it should be pointed out that it is settled case-law that
whilst it is for the Commission to prove that there has been a breach of the rules governing the common organisation of agricultural
markets (see, for example, Case C-278/98
Netherlands v
Commission [2001] ECR I-1501, paragraph 39, and the case-law cited), it is for the Member State to demonstrate, if appropriate, that
the Commission erred as to the action called for, on the financial level, as a result of that breach (see Case C-235/97
France v
Commission [1998] ECR I-7555, paragraph 39).
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151. So far as disputing the level of the adjustment is concerned, the Spanish Government merely quotes certain passages from document
VI/5330/97.
152. However, as the Commission rightly observes, those passages concern the flat-rate adjustment, whereas in the present case
the Commission calculated the adjustment not on a flat-rate basis but on the basis of the irregular quantities.
153. I am, moreover, of the view that in any event the Commission did not commit an error in setting the level of the adjustment.
154. Although the Spanish authorities themselves did not find any prices below ESP 10/kg for second grade bananas, the Commission
did calculate a significant margin of plausibility of 75% for bananas marketed at between ESP 5 and 10/kg. The Commission
therefore adjusted an amount equivalent to 25% of the compensatory aid relating to quantities marketed at a price of between
ESP 5 and 10/kg. It is only for quantities marketed at under ESP 5/kg that the Commission adjusted an amount equivalent to
100% of the compensatory aid.
155. For all the above reasons I conclude that the second limb of the second plea relied on by the Spanish Government should be
rejected.
C ─
Third plea: insufficient grounds
156. The Spanish Government submits that the contested decision contains insufficient grounds. The Commission did not explain either
in the contested decision or during the procedure leading to its adoption the grounds on which the percentages of bananas
excluded from Community financing are, on the one hand, 100% as regards bananas marketed at a price below ESP 5/kg and, on
the other hand, 25% as regards bananas marketed at a price of between ESP 5 and 10/kg. The contested decision is totally lacking
in grounds on that point, which prevents the Spanish Government from ascertaining the justification for the measure.
157. The Commission disputes the plea put forward by the Kingdom of Spain. The Commission points out that case-law does not require
detailed grounds since the Member State is closely associated with the process of drafting the decision. It mentions that
in the present case the Kingdom of Spain knew from 15 June 1999, and even earlier, that the ground for the adjustment was
the exceptionally low level of the selling prices.
158. The Commission also points out that at no point in the proceedings did the Kingdom of Spain challenge the method of determining
the adjustment percentages and had always understood the grounds for that.
159. In that regard it is appropriate to point out that
according to the settled case-law of the Court, in the particular context of the preparation of decisions on the clearance
of accounts, the reasons for a decision must be considered adequate if the Member State to which the decision is addressed
was closely involved in the decision-making process and is therefore aware of the reasons why the Commission considered that
it was not required to charge the sum in dispute to the EAGGF (see Germany v Commission, cited above, paragraph 21).
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160. There can be no dispute, in the light of the facts set out above, that the Spanish authorities were closely involved in the
process of drafting the contested decision.
161. Furthermore, the Consolidated Report adopted by the Commission on 15 May 2000 contains clear explanations regarding the grounds
for the adjustment and for its calculation.
162. I therefore propose that the third plea be rejected.
V ─ Conclusions
163. In the light of the foregoing I propose that the Court:
- ─
dismiss the application;
- ─
order the Kingdom of Spain to pay the costs.
- 1 –
- Original language: French.
- 2 –
- OJ 2000 L 180, p. 49.
- 3 –
- OJ, English Special Edition 1970(I), p. 218.
- 4 –
- OJ 1995 L 125, p. 1.
- 5 –
- OJ 1993 L 47, p. 1.
- 6 –
- OJ 1993 L 170, p. 5.
- 7 –
- OJ 1994 L 182, p. 5.
- 8 –
- OJ 1999 L 61, p. 37.
- 9 –
- OJ 1995 L 80, p. 17.
- 10 –
- Emphasis added.
- 11 –
- Emphasis added. Regulation No 796/95 replaced, with effect from 8 April 1995, the text of the Article 7(2) quoted by another
text whilst maintaining the principle that advances are paid during year
x and the balance of the aid is paid during year
x +1.
- 12 –
- OJ 1999 L 160, p. 103.
- 13 –
- [1998] ECR I-207.
- 14 –
- See also Case C-130/99
Spain v
Commission [2002] ECR I-3005, paragraph 164.
- 15 –
- [2001] ECR I-1501, paragraph 82.
- 16 –
- [2001] ECR I-9619, paragraph 81.
- 17 –
- See Case C-130/99
Spain v
Commission , cited above, paragraphs 133 to 135 and Case C-158/00
Luxembourg v
Commission [2002] ECR I-5373, paragraphs 22 to 24.
- 18 –
- OJ 1995 L 304, p. 17.
- 19 –
- Emphasis added.
- 20 –
- Emphasis added.
- 21 –
- Case C-130/99
Spain v
Commission , cited above, paragraph 39. See also, Case C-374/99
Spain v
Commission [2001] ECR I-5943, paragraph 9, and Case C-44/97
Germany v
Commission [1999] ECR I-7177, paragraph 18.
- 22 –
- Case C-130/99
Spain v
Commission , cited above, paragraph 42.
- 23 –
- Case C-147/99
Italy v
Commission [2001] ECR I-8999, paragraph 57.
