C-14/88
ECLI:EU:C:1989:284
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ITALY v COMMISSION
OPINION OF MR ADVOCATE GENERAL VAN GERVEN * delivered on 4 July 1989
Mr President, must be satisfied by those organizations in Members of the Court, order to qualify for that aid, which is 3 known as start-up aid. Article 14 empowers the Member States to grant such aid. Pursuant to Article 36(2) the Member States are reimbursed for that start-up aid at the rate of 50% by the EAGGF, Guidance 1. Under Article 173 of the EEC Treaty the Section. Italian Government seeks a declaration that the Commission's decision of 5 November 1987 on the reimbursement to the Italian Republic by the European Agricultural Guidance and Guarantee Fund (hereinafter Let us proceed to a closer examination of referred to as 'the EAGGF'), Guidance Article14(1), on which the issue turns. It Section, of aid granted to organizations of reads: producers of fruit and vegetables in respect of 1984 is partially void. 1 The Italian Government's complaint against the decision is that only the amount of LIT 700 924 892 was allowed to be charged 'Member States may grant aid to producers' to the EAGGF in respect of the aid, organizations, during the three years although Italy had submitted a request for following the date on which they are estab the reimbursement of LIT 2 935 382 400. lished, to encourage their formation and to facilitate their operation, provided that the organizations furnish adequate guarantees as regards the duration and effectiveness of their activities. The amount of such aid shall not exceed, for the first, second and third The legislative background years respectively, 3, 2 and 1% of the value of production marketed under the auspices of the producers' organization. In respect of each year, the value of production marketed shall be calculated on a standard basis, 2. The dispute between the parties is namely: centred on Article 14(1) of Regulation (EEC) No 1035/72 of the Council of 18 May 1972 on the common organization of the market in fruit and vegetables. 2Title II of that regulation, of which Article 14 forms (i) members' average marketed production part, introduces a system of aid for organiz during the three calendar years ations of producers of fruit and vegetables. Article 13 sets out the conditions which
* Original language: Dutch. 3 — See the judgment of the Court of 28 January 1986 in Case 129/84 Italy v Commisson [1986] ECR 309, together with 1 — The number of the contested decision is C (87) 2027 the Opinion of Sir Gordon Slynn at pp 312 to 319, with 2 — OJ, English Special Edition 1972 (II), p. 437 particular regard to Article 13
OPINION OF MR VAN GERVEN — CASE 14/88
immediately preceding the year in lation (EEC) No 1035/72 in 1978, 4Article which they became members; 14(1)a. 5 Article 14(1)a provides for the grant of aid whose amount is to be determined in a different manner: not as a single sum calculated on the basis of production marketed by member producers before their membership, but on the basis of (ii) average producer prices obtained by production marketed under the auspices of those members over the same period.' the organization, not exceeding the actual cost of formation and administrative costs of the organization. A second departure from the system laid down by Article 14(1) is to be found in the second subparagraph of The phrase in that article which constitutes Article 14(1)a, in which it is provided that the nub of the dispute between the parties 'the aid shall be paid during the seven years is: 'may grant aid to producers' organiz following the date of establishment ations, during the three years following the (emphasis added). At the hearing a date on which they are established ... '. representative of the Commission pointed out that the new system introduced by Article 14(1)a was used exclusively in France, whereas the former system provided for in Article 14(1) on which the outcome of this dispute turns was used exclusively in 3. The dispute which is described in the Italy. France and Italy are therefore the pleadings exchanged between the parties only Member States in which use is made of relates to the refusal by the Commission to one of the two systems. charge to the EAGGF aid paid by Italy more than three years after the formation of the organization in question or, as regards aid relating to the third year, more than four years after the date of formation.
5. Nor ought I to overlook Council Regu lation (EEC) No 3284/83 of 14 November It is clear from the fact that the Commission 1983. 6That amending regulation proceeds also takes into consideration a fourth year on the basis that the provision contained in for certain aid that its approach is not based Article 14(1)a limiting the costs to the actual solely on the aforementioned Article 14(1). cost of formation and administrative costs is In fact, over the years the Commission has the only one which is to be definitively allowed the rules to be relaxed in view of maintained. 7 The provision contained in the difficulties experienced in applying the Article 14(1) was to remain in force for a legislation. 4 — Council Regulation (EEC) No 1154/78 of 30 May 1978 amending Regulation (EEC) No 1035/72 on the common organization of the market in fruit and vegetables (OJ 1978, L 144, p. 5). 5 — Mentioned in the Report for the Hearing in the summary of the letter from the Italian Minister of 18 July 1986. 4. In order to place the applicable regu 6 — Amending Regulation (EEC) No 1035/72 on the common organization of the market in fruit and vegetables, OJ lation in its context I should not omit to 1983, L 325, p. 1. refer to the new provision added to Regu 7 — Third recital in the preamble.
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limited period. In the new Article 14, as it coincides to a considerable extent with the appears in Regulation (EEC) No 3284/83, second submission and for the rest forms the former Article 14(1)a is reproduced in part of the alternative submission. paragraph 1, whilst the provision contained in the original Article 14(1) is reproduced in paragraph 2.
In the alternative submission it is argued that, even if the contested decision was not There are also certain substantive modifi wrong in applying a mandatory deadline for cations which are of importance in assessing the payment of aid, that period ought the case before the Court. First, Article nevertheless to begin to run from the date 13(1)(c) provides for an additional of recognition of the organizations and not condition for the grant of aid to an organ from the date of formation, on the basis of ization, namely that it must be recognized, a legitimate expectation aroused by the and Article 13(2) prescribes a system of Commission in its letter No 12.060 recognition by the Member States. addressed to Italy on 30 July 1980. In Secondly, both provisions stipulate the seeking to gain acceptance of recognition commencement date for the period of rather than formation as the point of payment as indeed running from the date of departure, the Italian Government is also recognition. able to base itself on the argument of consistency: in similar systems of aid to farmers' organizations, 8and also in the new system examined at paragraph 5 above, one goes without exception by the date of The arguments of the parties recognition as the reference date. 9
6. The Italian Government divided its application into three principal arguments, and also put forward an alternative It appeared at the hearing that the submission. The first submission goes to the Commission accepted that the alternative inadequacy of the statement of reasons on submission was well founded. Except in the which the contested decision is based. The conclusion I will therefore not revert to the Italian Government's second submission, arguments on that point. which is by far the most important, alleges that Article 14 of Regulation (EEC) No 8 — See in particular the system for the hop sector (mentioned by the Commission in the written procedure) (Council 1035/72, taken together with Article 36 Regulation (EEC) No 1696/71 of 26 July 1971, OJ, English Special Edition 1971 (II), p. 634), the common thereof, has been infringed and misapplied. organization in the fisheries sector (Council Regulation The nub of its argument is that the (EEC) No 100/76 of 19 January 1976, OJ 1976, L 20, p 1, Article6(1)(2)) and the system governing various Commission is wrong to regard Article 14 sectors simultaneously in three Member States in Regu- as stipulating a period for the payment, as lation (EEC) No 1360/78 (OJ 1978, L 166, p 1, Article 10) opposed to the grant, of aid. The third 9 — Admittedly, in such cases a recognition procedure under argument put forward by the Italian Community law is provided for (see paragraph 5 above) Moreover, the argument based on consistency, in Government as a principal submission conjunction with the wording of Article 14, could justify alleges a misuse of powers. That submission the opposite conclusion. In fact, the system originally used in France in that sector went by the dale of formation See will not be dealt with separately since it paragraph 4 above
OPINION OF MR VAN GERVEN — CASE 14/88
The allegation that the statement of reasons The allegation that Article 14 was infringed was inadequate
9. Italy's second argument, that Article 14 of Regulation (EEC) No 1035/72 was 7. In its first submission the Italian infringed, is in two parts. The first part is to Government alleges that the contested the effect that Article 14 stipulates no period decision is based on an inadequate for payment as distinct from the grant of statement of reasons, even if the penultimate aid. The three-year period mentioned in recital in the preamble to the decision in Article 14 is merely intended to serve as a question refers to Commission memo point of reference in order to determine the randum No 61.000 of 17 July 1987, in amount of aid. The second part of the which the Commission finally brought to a argument is that even if it is appropriate for conclusion the exchange of correspondence the payment to be made as rapidly as with the Italian Government. possible that does not mean that it must take place within a specific period of, for example, three years, since payment at a later date is also capable of facilitating the The Commission replies to that argument attainment of the objective of the with a reference to the Court's case-law, Community rules. from which it is clear that a succinct statement of reasons supporting EAGGF decisions may be regarded as sufficient where the government concerned has been By requiring the strict observance of a closely involved in the process by which the period for payment which is not provided contested decision was made and was for in the Community rules, the therefore aware of the reason for which the Commission misinterpreted and misapplied Commission considered that the disputed those rules. amount might not be charged to the EAGGF. 10
At the hearing, the representative of the Italian Government nevertheless conceded 8. It seems to me that the case-law cited by that it was necessary to require that aid be the Commission 11 is decisive in the present paid within a reasonable period. That is a case, and that the Italian Government's concession which is of major importance in submission cannot therefore be accepted. In assessing the case, as will be shown below. a recent judgment of 24 March 1988, the Court held that EAGGF decisions need not set out in extenso all the grounds and 12 reasoning on which they are based. 10. The Commission deploys four arguments against the allegation that there 10 — Judgment of 14 January 1981 in Case 819/79 Germany v Commission [1981] ECR 21 , paragraphs 19 to 21. was an infringement of Article 14. First, the 11 — See to the same effect the judgment of 27 January 1981 in only means whereby the objectives pursued Case 1251/79 Italy v Commission [1981] ECR 205, para by Regulation (EEC) No 1035/72, namely graphs 20 and 21. 12 — In Case 347/85 United Kingdom v Commission [1988] ECR the encouragement of the formation of 1749, paragraphs 59 and 60; see also paragraph 78 of the producers' organizations and the facilitation Opinion of Mr Advocate General Mischo of 1 October 1987 delivered in that case. of their functioning, may be achieved is to
ITALY v COMMISSION
pay aid as rapidly as possible during the The fourth argument relied on by the initial phase of such organizations' Commission to refute the allegation of an existence. infringement of Article 14 is the principle of equal treatment as between Member States, 14 and as between economic 15 operators in the different Member States, an argument which has lost much of its force since the Commission's representative made clear at the hearing that the system is applied in that form only in Italy (see above, Secondly, the Commission points out that, at paragraph 4). in the practical application of the rules, it did indeed take account of the difficulties encountered by Italy in observing the period of three years following formation for the payment of aid. The Commission's flexible approach consisted in accepting that aid in respect of the third year of functioning The implementation of provisions in the should be paid during the fourth year and 'inter-administrative relationship' that aid in respect of the first two years could also be paid during the third year. The Commission adopted that more flexible approach in its letter No 12.060 of 30 July 1980, which was drawn up after a number of years' experience of the system and of 11. The question raised by the Italian the difficulties encountered, particularly in Government relates to the Commission's Italy, in its application. power as the administrator of the
16 EAGGF, when applying a payment period provided for in a Council Regulation, informally to specify the detailed manner in which it is to be applied. In other words the question is whether in fact a power of inter pretation, or more broadly a power of defi nition, is conferred on the Commission (as The third argument relied on by the on anyone entrusted with the implemen Commission is that its policy of reimbursing tation of a policy) and which is to be distin only aid paid during the three or four years guished from the power of implementation following the formation of the organiz itself inasmuch as it is limited to supple ations is based on the Court's case-law menting or completing the applicable legal relating to 'reasonable periods'. 13 More 17 provisions. I shall briefly examine the specifically, the Commission alleges that the nature and limits of such a power. period envisaged by Italy, which would result in aid from Community funds being 14 — Judgment of 27 May 1981 in Cases 142 and 143/80 Essevi granted to certain organizations seven or and Salengo[198l] ECR 1413 eight years after their formation, is un 15 — Judgment of 27 February 1985 in Case 56/83 Italy v Commission [I985J ECR 713, on this point at reasonable. paragraph 31. 16 — This management function is recognized in Anide 11 of basic Regulation (EEC) No 729/70 of the Council of 21 13 — The Commission refers to the judgment of the Court of 3 April 1970 on the financing of the common agricultural March 1982 in Case 14/81 Alpha Steel [1982]ECR 749, policy, OJ. English Special Edition 1970 (I), p 218 paragraph 10, and to the judgment of 21 September 1983 in Joined Cases 205 to 215/82 Deutche Milchkontrol [1983] 17 — J. Schwarze, in Europaisches Verwaltungsrecht, 1988, ECR 2633, it is perhaps alluding to paragraph 33. which is p 425, describes the 'Durchfuhrungsrccht' of the of little relevance in this context Commission as 'ergänzende Rechtsetzung'
OPINION OF MR VAN GERVEN — CASE 14/88
12. First of all, I wish to point out that the 13. Inter-administrative relations between present case concerns not the relationship the Commission and national adminis between the Commission and economic trations must be based on the principle of operators — although what I am about legality. When the Commission lays down to say applies mutatis mutandis to that rules to be observed by Member States in relationship as well — but rather the the context of EAGGF accounts it must relationship between the Commission as the evidently be able to base itself on a clear Community administrative authority and the provision which confers on it the power to national administrations entrusted with the lay down implementing measures. Of implementation of Community law. That relevance in this connection is Article 7 of inter-administrative relationship is dealt with the basic regulation, Regulation (EEC) 18 only schematically at Community level. No 729/70 on the financing of the common 22 However, the Court has stated that the agricultural policy, in which the most serious gaps must be filled with the aid Commission is given the power to 19 of two fundamental principles. The first 'determine the detailed rules for the fundamental principle, derived from Article application of each of the common 5 of the Treaty, emphasizes the need measures'. Article 36 of Regulation (EEC) for genuine cooperation between the No 1035/72, which is at issue in this case, Community and national authorities in takes a different line as far as the rules for order to ensure the correct implementation the application of aid mentioned in Article of Community law in favour of the 14(1) of the regulation are concerned. In 20 citizens. A second basic principle, which is that case the power is conferred on the mentioned expressly in Article 40(3) of the Council, which used that power to adopt EEC Treaty as regards agricultural policy, Regulation (EEC) No 449/69 of 11 March 23 lays down the principle of equality between 1969, enacted in pursuance of the regu the economic operators in the different lation preceding Regulation (EEC) No 21 Member States. In the relationship 1035/72. between the Commission and one or several Member States no elements may supervene which give rise to unequal treatment.
18 — In legal doctrine proper to federal systems of law such as that of the Federal Republic of Germany much attention is paid to these relationships. See inter alia R. Boest: Die Agrarmärkte im Recht der EWG, 1984; J. Scherer: 'Das Rechnungsabschlußverfahren — Ein Instrument zur Durch setzung europaischen Verwaltungsrechts?' Europareckt 1986, at pp. 52 to 72; J. Schwarze: Europäisches Verwal- What is at issue in this case, however, is in tungsrecht, 1988. my view not the power to implement Article 19 — These fundamental principles are considered together in paragraph 17 of the judgment of 21 September 1983 in 14(1) but, as has been pointed out, rather Joined Cases 205 to 215/82 Deutsche Milchkontor [1983] ECR 2633. As regards recognition of the need to resolve the power of application or definition which certain problems of administrative law which are not speci the Commission enjoys, a power which is in fically covered by the Treaty by drawing inspiration from the rules common to the law of the Member States, in fact a variant of the power to interpret an order to avoid a denial of justice, I may refer to the ambiguous provision of the law, in this judgment given by the Court on 12 July 1957 in Joined Cases 7/56 and 3 to 7/57 Algera and Others v Common particular case (as is explained in more Assembly of the ECSC [1957] ECR 39, at p. 55 (Law, A, detail in paragraph 14, below) the wording III, 5th paragraph). 20 — The fact that the requirement imposed on a Member State of Article 14(1), which provides for a to observe a 'reasonable period' may be derived from the three-year period for the grant of aid. The obligation to cooperate laid down in Article 5 of the EEC Treaty is borne out by the judgment of the Court of 6 July Commission's power of interpretation 1971 in Case 59/70 Netherlands v Commission [1971] ECR 639 in the context of Article 86 of the ECSC Treaty which is analogous to Article 5. 22 — Regulation cited in footnote 16. 21 — See footnote 15. 23 — OJ, English Special Edition 1969 (I), p. 101.
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enables it (evidently subject to review by the infringe essential procedural requirements Court) to supplement provisions of and it must be exercised by way of general Community law, whose general purport is instructions which are established after uncontested, by means of interpretative consultation with the interested parties and communications in the form of circulars, are notified to them in due time. The general notes and the like. The fact that we instructions must be clear and must not have are dealing in the present case with a been laid down in an arbitrary manner. provision of that kind, whose general scope moreover, like the Commission's im plementing power, is not contested, is borne out by the acceptance by the Italian Government of the need for a reasonable Assessment of the lawfulness of the payment period for the payment of aid as well (see period laid down in the present case paragraph 9, above).
14. Against this general background I will now consider the payment period actually imposed by the Commission on Italy.
It goes without saying that such implementing power exists only within narrow limits. Like any power of interpre tation of which it is, as I have said, a In a working document of 13 December 24 variant, it must not go beyond the scope 1977, the Commission initially required of the relevant provision in content and may that, to be eligible for Community not run counter to other mandatory financing, aid to organizations must not provisions. It can, or even must, be applied only be granted during the course of the especially in the relationship between three years following the formation of the Community and national administrations in organization, but must also be paid within order to ensure the observance by Member that period. Regard being had to the States of certain general principles of law objective of the aid in question and the such as those mentioned above (correct and terms of Article 14(1) of Regulation (EEC) proper application of Community law in the No 1035/72, that was a reasonable view. It interests of the citizen, equal treatment as is, after all, clear from the aforementioned 25 between economic operators ). As regards article that the aid in question is intended to the form which the exercise of the implementing power must take, it must not 26 — See Anicie 7(1), cited above, of Regulation (EEC) No 729/70 to which Article 36 of Regulation (EEC) No 1035/72 refers. It is not disputed that the Commission 24 — It is in fact a variant, of a general nature, of the power of followed the procedure which is there stipulated (see the interpretation vested in anyone who applies a legal last recital in the preamble to the contested decision) and, provision. When the interpretation given is applied in moreover, that it was constantly in contact with Italy over regard to different persons it is normal for it to be inserted the fixing of the period in question. Incidentally, I would in an interpretative document of a general nature. observe that both paragraphs of Article 7 require the Fund 25 — Although the interpretation of Community rules by the Committee to be consulted but that that article, applicable Commission is not binding on national authorities (sec in to the Guidance Section, is drafted less precisely as regards that connection the judgment of the Court of 27 March the nature or the form of the 'provisions' which are 1980 in Case 133/79 Sucnmex [1980) ECR 1299, para- referred to therein than the corresponding Anieles 2 to 5 graphs 16 and 22, and the judgment of 10 June 1982 in for the Guarantee Section. That circumstance, which is Case 217/81 Interagra11982] ECR 2233, paragraph 8) it is aggravated by the absence of case-law of the Court on very important (sec tne judgment of tnc Court of 25 Article 7, may be explained in my view by the fact — which November 1980 in Case 820/79 Belgium v Comimmoii is also apparent in this case — that in the Guidance Section [1980] ECR 3537. paragraphs 13 and 15), and is more it is less frequently that operators are granted direct aid. It persuasive when it expresses general principles of law which is therefore more often a purely inter-administrative arc themselves binding. relationship in which a more flexible approach is justified.
OPINION OF MR VAN GERVEN —CASE 14/88
encourage the start-up, that is to say the Those are the questions to which I must formation and initial functioning, of such now reply. organizations. That purpose can be achieved only if aid is not only granted at the outset but is also actually made available to the organizations concerned. Strictly speaking, 15. As regards the first question it seems to the expression 'grant aid' used in the first me that when it appeared that owing to sentence of Article 14(1) encompasses the practical difficulties it was not possible to
27 grant and the payment of aid. observe scrupulously a strict interpretation of Article 14(1), the Commission was never theless entitled to adjust the payment period informally. That is in fact an illustration of what I have referred to above as the exercise of an implementing power in respect of which the Commission was When it appeared that the strict application entitled to rely in this case on one of the of that period was causing practical diffi abovementioned general principles — not so culties, the Commission, in the letter which much the principle of equal treatment it addressed on 30 July 1980 to the Italian 29 (although that too ), since it was estab authorities, relaxed the Community rules lished at the hearing that the system in and in fact extended by one year the period question is applied only in Italy, but rather for payment (see paragraph 10 above). In the principle of genuine cooperation that way account was taken, as the Italian between the Community and national Government representative argued at the administrations with a view to the correct hearing, moreover, of the time needed for implementation of Community law in the the administrative processing of data interests of the citizen. In pursuance of that relating to certain producers who had principle, the administrations must ensure joined the organizations towards the end of that the objective of the Community aid the three-year period for the grant of aid. 28 scheme, which in the present case is a scheme for providing start-up aid, is achieved in the best manner possible, and that the recipients of aid are as rapidly as possible put in possession of the aid granted
to them. The fixing of a short payment period answers that objective. It is Did the specific manner in which the significant that the Italian government also Commission determined the payment acknowledges that principle, even if it period, thereby relaxing the strict interpre contests the duration of the period tation of the provision, constitute an stipulated. unlawful exercise of regulatory power as regards the Member State concerned? And, if that question is answered in the negative, was the payment period unreasonable? It is certainly necessary, as I have stressed in 27 — In a passage of ils memorandum of 30 July 1980 the general considerations set out above, for reproduced in the Report for the Hearing, the Commission that 'informal' system of payment periods to spoke in the authentic Italian version of 'la concessione' (the grant) and 'il pagamento' (payment), two actions which are covered by the term 'accordare' (grant) used in 29 — The principle of equal treatment is in fact not entirely the first sentence of Article 14(1). irrelevant if only one Member State operates the system 28 — See paragraph 2 above for the method of calculating aid on under examination. In its judgment of 3 May 1978 in Case the basis in particular of members' production in tne three 112/77 Töpfer [1978] ECR 1019, paragraph 20, the Court calendar years preceding the year in which they became in fact discussed equal treatment in terms of preventing members. 'privileged positions from becoming established'.
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be of general application and laid down in depends on the nature of the inquiry which advance after discussions with the adminis the Member State must make in order to trations concerned, and for the latter to be calculate the aid for a specific organization. notified thereof at the appropriate time. In In that connection Article 14(1) provides that connection no criticism can be levelled that the basis for the calculation is the at the Commission. Even in its working production marketed by member producers document of 13 December 1977, which was during the three calendar years preceding transmitted to all the Member States, the the year of their membership of the organ problem of payment within the stipulated ization (for the wording of that paragraph periods was mentioned in general terms and see paragraph 2, above, and for the practical subsequently discussed with the Italian auth difficulties arising in connection therewith, 30 orities, and in the letter based on that paragraph 14). It seems to me that the working memorandum which was sent to figures for each producer joining should be the Italian Government on 30 July 1980, the available either at the time of joining or Commission allowed a sufficient period of shortly thereafter and that an extra year (in time for an adjustment to be made to the the case of aid for the first year of func timetable contained therein which, it is not tioning even two extra years) is a reasonable contested, would also have applied to other period for administrative processing. The Member States if they had been in the same Italian Government has not in any event situation (quod non). produced any evidence to cast doubts on this supposition.
Reasonableness of the stipulated period
Secondly, as regards the point at which time 16. The question remains whether the begins to run, and irrespective of the period allowed by the Commission was question of the legitimate expectation reasonable and was laid down in a manner aroused by the Commission, which is the which was not arbitrary. In the context of subject of the alternative submission put that assessment it is not for the Court to forward by the Italian Government, did the substitute itself for the Commission. I shall Commission act arbitrarily in persisting in merely set out the following considerations. having regard to the date of formation, notwithstanding that in its letter of 30 July 1980 it admitted that it was preferable to take account of the date of recognition, specifically on grounds of harmonization First, as regards the length of the period, with other rules? 31 I do not think so. As were the three years (in respect of the first long as Article 14(1) had not been amended, two years of functioning) or four years (in as it was subsequently (see paragraph 5, respect of the third year of functioning) above), the Commission was bound to have allowed for payment following formation of regard to the date of formation and it is the organization sufficient time in the case also that date which is decisive for the of Italy? The answer to this question clearance of EAGGF accounts. In my opinion, the Commission cannot be 30 — See in particular the reference to a letter from the competent Italian ministry made in the abovcmentioned letter of 30 July 1980. 31 — See footnote 8.
OPINION OF MR VAN GERVEN — CASE 14/88
criticized for seeking to relax the legal cation as to how the investigation by the framework, as I have described above Commission which ended in 1981 could (paragraph 14), regard being had to the have hindered the Italian Government in the difficulties encountered by Italy, nor can it payment of aid. be regarded as having acted arbitrarily. To apply a legal provision in a reasonable manner cannot in my view be assimilated to arbitrariness. The Italian Government's reply consists merely of a list of organizations to which, it is said, aid could not be paid in time on account of the investigation being conducted by the Commission.
The Italian 17. Finally, I would like to examine the Government added that, in the light of argument of the Italian Government that matters emerging in the course of that certain delays in the payment of aid were inquiry, it appeared to be necessary to attributable to a general inquiry by the obtain further information on the func Commission or to checks decided upon by tioning of the organizations, even those the Italian Government in order to see which had not been subject to the whether the organizations satisfied the Commission's inquiry. That reply does not, conditions of Article 14(1). however, contain the slightest actual evidence, and therefore does not constitute proof, of hindrance, not to mention negligent or unjustifiable conduct by the Commission which could have prevented Italy from properly carrying out its normal That argument must be taken seriously in task of implementing agricultural policy. view of the fact that the Court has held that if there is doubt as to whether an expense is justified it is not eligible for EAGGF
32 financing. It is thus evident that the Member States wish to grant aid only to My view is supported by the fact that in its undertakings, that is to say organizations, judgment of 28 January 1986 in Case which satisfy the conditions for the grant 34 129/84, the Court held that the Italian thereof set out in the Community Government's decision to require the organ provisions, in this case Article 13 of Regu 33 izations concerned to be 'recognized' by lation (EEC) No 1035/72; hence the national authorities, together with formal importance of the question put by the Court registration, was not a situation brought principally to the Italian Government, but about by Community law and accordingly also to the Commission, seeking clarifi that that decision could not affect the
35 application of Community law. In so far 32 — Judgments of 7 February 1979 in Case 11/76 Netherlands·) Commission [1979] ECR 245, paragraphs 8 and 9, and in as the investigation carried out by Italy Case 18/76 Germany v Commission [1979] ECR 343, para related to national recognition conditions, graphs 7 and 8. See also the judgment of 28 January 1986 in Case 129/84 Italy v Commission [1986] ECR 309, the delay attributable thereto may clearly paragraph 19. not be taken into consideration. 33 — It is not immediately clear why the need to check whether the organizations satisfy the conditions for the grant of aid may constitute an obstacle to the payment of aid within the period prescribed. Since that verification relates to the 34 — Judgment of 28 January 1986 mentioned in footnote 3, functioning of the organizations, that can be carried out at paragraph 20. any time and during the whole year. As an example of a 35 -— It is now otherwise: since 1 June 1984 the recognition of case relating to the conditions for the grant of aid I would organizations is prescribed by Community law (Regulation refer again to the judgment of the Court mentioned in (EEC) No 3284/83, examined above at paragraph 5, in footnote 3. particular Article 13(2) thereof).
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Conclusion
18. I have already pointed out (in paragraph 6) that the Commission has conceded the alternative submission made by the Italian Government. In view of that acceptance of principle, all that remains to be determined is the result in figures — in other words, the amount in respect of which the contested decision should be declared void. In a letter of 14 June 1989 the Commission stated that examination of the documentation submitted by Italy had resulted in full acceptance of the amount of LIT 158 524 650 vouched for by that documentation.
Having regard to the fact that, on the basis of the foregoing considerations, I have come to the conclusion that the Italian Government's main claim must be rejected, I propose that the Court should declare contested Decision C (87) 2027 of 5 November 1987 void only in the amount of LIT 158 524 650 and, in accordance with the terms of the first subparagraph of Article 69(3) of the Rules of Procedure, order each party to bear its own costs.