C-121/87
ECLI:EU:C:1988:369
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OPINION OF SIR GORDON SLYNN - CASE 121/87
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 6 July 1988
a schedule for deliveries to producers and My Lords, the price to be paid to producers. A minimum price was to be fixed to be paid to producers and the amount of aid being such as to make up the difference between the prices of Community products and those of products from third countries. In each Council Regulation (EEC) No 516/77 of 14 Member State the aid was to be paid as March 1977 (Official Journal 1977, L 73, soon as the designated body had estab p. 1) on the common organization of the lished, first, that the processor had paid the market in products produced from fruit and producer a price not less than the minimum vegetables, as amended by Council Regu price; second, that the products under lation (EEC) No 1152/78 of 30 May 1978 contract had been processed and third, that (Official Journal 1978, L 144, p. 1) set up a such products after processing complied system of production aids to enable with the quality standards in force (Article specified processed products to be manu 3b (5)). Those three requirements are factured at a price lower than that which clearly conditions of entitlement to aid. would result from the payment of a remunerative price to producers for the fresh products in order to enable them to compete with processed products emanating from third countries. By Article 3c it was provided that detailed rules for the applications of Article 3a and 3b should be adopted in accordance with Article 20 — namely by the Commission after consulting the management committee. By Council Regulation (EEC) No 1639/79 of 24 July 1979 (Official Journal 1979, L 192, p. 3) cherries preserved in syrup falling under CCT subheading ex 20.06 B were added to the list of products subject to the system of production aids. Commission Regulation (EEC) No 1530/78 of 30 June 1978 (Official Journal 1978, L 179, p. 21), as subsequently amended by Regulation (EEC) No 1348/80 of 30 May 1980 (Official Journal 1980, L 135, p. 66), laid down rules for the application of the system of aids. That regulation recited that The system of aids set up by Article 3a to 3c in order to ensure the correct application of of Regulation No 516/77 (as amended) was the system the agency designated by the to be based on contracts binding between Member State should both make random producers and processors, which contracts, checks of the weight and quality of the concluded for a minimum period to be products delivered to the processing under specified, were required to specify the quan taking and verify the stock accounts of the tities of raw materials to which they related,
BAYERNWALD FRÜCHTEVERWERTUNG v GERMANY
undertaking which 'must contain minimum Bayernwald Früchteverwertung GmbH information necessary for verifying the claimed production aid in respect of 55 processing of the products covered by the tonnes of sweet cherries processed in 1980 contracts'. under six contracts. The appropriate authority refused the payment on the basis that there were discrepancies between In addition to requiring that the contract delivery notes, invoices and calculations and should be in writing and that quantities and that there were not regular stock accounts qualities should be verified, the Commission complying with Article 4 (2) of the regulation, in Article 4, provided that: Commission regulation. On an application to the Verwaltungsgericht, the validity and scope of that article were put in issue and the court has referred the following '2. The processing undertaking concerned question: shall keep stock accounts showing:
(a) for each of the periods referred to in Article 1 (2):
'Is Article 4 (2) of Commission Regulation (i) the consignments of raw materials (EEC) No 1530/78 of 30 June 1978 bought and entering the under (Official Journal 1978, L 179, p. 21) a rule taking each day, consignments imposing an additional condition for the covered by processing contracts or grant of production aid which the endorsements and the numbers of Commission of the European Community any receipts which may be drawn was empowered to enact without exceeding up in respect of these consignments its legislative powers, or is the abovemen- being shown separately, tioned provision merely a rule prescribing that only the stock accounts are admissible in evidence?'
(ii) the weight of each consignment entering the undertaking and, in the case of consignments covered by the said contracts, the name and address of the other contracting party;, The first point taken is that by Article 4 (2) the Commission is purporting to add another condition to those laid down by the Council in Article 3b (5) of Regulation 516/77 and that it has no power to do so.
The agency designated in each Member State was required to make random checks and to verify the 'stock records' which (since the French and German versions use the same word in Article 4 (2) and Article It is clear that the Commission cannot add 4 (3)) I take to be the same thing as 'stock to or alter the substantive conditions accounts', of each processing undertaking prescribed by the Council as determining (Article 4 (3)). the right to aids. On the other hand, the
OPINION OF SIR GORDON SLYNN — CASE 121/87
Commission is specifically empowered by In the present case it seems to me that in the Council to adopt detailed rules for the order to enable Member States to make the application of Article 3a and 3b, the necessary checks, and to be satisfied that aid Council's regulation not containing any is due, and in order so far as possible to such rules. It seems to me that, as was said have the same categories of information of different but comparable legislation in available in each Member State, it was Case 121/83 (Zuckerfabrik Franken [1984] reasonable and within its competence for ECR 2039), 'that provision must be the Commission to require that the 'stock understood as meaning that the Commission accounts' should be kept, it being is authorized to adopt all the measures understood that they need only contain the which are necessary or appropriate for the minimum information necessary for implementation of the basic legislation, verifying the processing of the products provided that they are not contrary to such covered by the contracts in question. The legislation or to the implementing legislation details required to be given'in the stock adopted by the Council' (paragraph 13). accounts do not seem to me to go beyond what was legitimately required.
Rules as to the content of an application form and as to the keeping of the necessary documentation, in order to make it possible to ensure that the system of aid is properly applied and is not abused, seem to· me clearly to fall prima facie within that Although the precise form of the stock delegated authority. Such rules do not go to accounts is not laid down, so that there is the substantive entitlement to the aid but to room for some flexibility, a Member State the method of establishing the right to aid. may refuse aid if these accounts containing the specified items of information are not kept at all or if they are so incomplete or inaccurate that they cannot fairly be described as stock accounts containing the prescribed information. In this sense the The question remains as to what is the keeping of stock accounts is a condition of scope of the provision and whether it is the granting of aid, even though, as counsel disproportionate in its requirements. for Bayernwald contends, the requirement is not expressed to be 'a condition'. They must be kept and be available for inspection.
There are obviously cases where, in order to ensure that the objectives of legislation are attained and fraud avoided, the Commission is entitled to lay down precise procedures which must be strictly adhered to (e. g. Case 18/76 Germany v Commission [1979] ECR 343 and Case 819/79 Germany v Commission [1981] ECR 21). It may thus On the other hand, since the object of the require physical checks or the production of exercise is to make it possible to check the original documents, conditions which have precise quantities in respect of which aid is to be complied with. due, it does not follow that no other
BAYERNWALD FRÜCHTEVERWERTUNG v GERMANY
documents can be looked at in order to accurate in respect of the information decide whether aid is due. Thus, if doubts specified in Article 4 (2) should be kept. are raised as to the accuracy of the figures in the stock accounts, the appropriate This approach, I recognize, leaves a grey authority can require other documents to be area between the case where no stock produced to verify whether the stock accounts are kept (and where there is no accounts are accurate. So also, it seems to entitlement to aid) and the case where me, can the producer provide other minor, easily correctable errors can be documents to answer such doubts, to remedied (and where aid is granted). In correct discrepancies which may have crept such cases the burden on the undertaking in, or to complete items inadvertently which has not kept accurate accounts may omitted. Although such errors may cast be particularly heavy and is only to be doubts as to the entitlement to aid, and may discharged by the production of primary mean that the burden of proof is not documents such as invoices or delivery notes discharged by the producer, it would in my where these exist. It is a matter for the view be going too far to deny aid in toto national court or authority in each case to because of some minor error or omission decide whether the accounts which are kept which could readily be corrected by the can be remedied with sufficient clarity and primary documents. What is essential is that certainty in order to establish that aid is due stock accounts which are substantially in respect of specific transactions.
I would accordingly answer the question referred on the lines that:
'Article 4 (2) of Commission Regulation (EEC) No 1530/78 which requires that stock accounts shall be kept showing the matters specified has not been shown to be invalid as being outside the legislative powers of the Commission conferred by Article3c of Council Regulation (EEC) No 516/77, as amended by Council Regulation (EEC) No 1152/78: the keeping of such accounts in a substantially accurate form is a precondition to establishing entitlement to aid, albeit errors may be corrected or omissions rectified by reference to other documents.'
The costs of the parties to the main dispute fall to be dealt with by the national court, the costs of the Commission are not recoverable.