Judgment of the Court (Fourth Chamber) of 4 October 2012 —
ED & F Man Alcohols
(Case C-669/11)

Protection of the financial interests of the European Union – Regulation (EC, Euratom) No 2988/95 – Scope ratione materiae – Meaning of ‘detriment to the financial interests of the European Union’ – Individual invitation to tender for the export of vinous alcohol held by intervention agencies – Export of quantities of alcohol outside the European Union after the expiry of the prescribed time-limit – Retention of the performance guarantee – Administrative measures – Administrative penalties – Regulation (EC) No 360/95 – Regulation (EC) No 1623/2000 – Retroactive application of a less severe penalty

1.                     Own ressources of the European Union – Regulation on the protection of the financial interests of the Union – Irregularity – Notion – Infringement, by an operator having obtained quantities of alcohol by invitation to tender, of the obligation to export those quantities outside of the European Union within the prescribed time-limit – Included (Council Regulation No 2988/95, Art. 1; Commission Regulation No 360/95) (see paras 35-38, operative part 1)

2.                     Own ressources of the European Union – Regulation on the protection of the financial interests of the Union – Administrative penalty – Notion – Loss in whole or in part of the performance guarantee provided by an exporter in order to ensure compliance with its obligations, such as export within the time-limit allowed – Included (Council Regulation No 2988/95, Art. 5; Commission Regulations No 360/95, Art. 5(5) and No 1623/2000, Art. 91(12)) (see paras 40, 41, 43, operative part 2)

3.                     Agriculture – Common organisation of the markets – Wine – Individual sales by invitation to tender for the export of vinous alcohol outside the European Union – Administrative penalties in the event of a failure to export within the prescribed time-limit – Loss of the performance guarantee – Legal basis – Whether possible to impose a penalty on the sole basis of Article 5 of Regulation No 2988/95 – Requirement to base a penalty on Article 5(5) of Regulation No 360/95 (Council Regulation No 2988/95, Art. 5; Commission Regulation No 360/95, Art. 5(5)) (see paras 46-49, operative part 3)

4.                     Agriculture – Common organisation of the markets – Wine – Individual sales by invitation to tender for the export of vinous alcohol outside the European Union – Irregularity leading to a penalty – No retroactive applicability of less severe fines resulting from the combined provisions of Regulation No 2988/1995 and No 1623/2000 – Application of Regulation No 360/95 as a special law concerning only certain exports to Brazil (Council Regulation 2988/95, Art. 2(2); Commission Regulations No 2220/85, Art. 23, No 360/95, Art. 5(5) and No 1623/2000, Arts 91(2), 12, 13 and 100) (see paras 53, 57-60, operative part 4)

Re:

Operative part