C-281/89

6. In the present case, on 7 June 1985 the 3. Regulation (EEC) No 2794/83 1 lays Commission decided to reimburse the down detailed arrangements for placing on expenditure for colouring on the basis of the internal market, for use in animal feed, standard amounts set at the rate of ECU 450 000 tonnes of common wheat of bread- 1.17 per tonne of cereal treated, although making quality held by the Italian inter­ the Italian intervention agency had vention agency. determined at ECU 6.15 per tonne the expenditure incurred on the colouring operation required by Regulation No 2794/83 and applied for reimbursement on that basis from the EAGGF. The Italian Government brought an action before the 4. In particular, the second paragraph of Court which, by judgment of 4 February Article 5 provides that in order to facilitate 1988, 2annulled the decision of 7 June 1985 verification of use in animal feed in so far as it fixed a standard amount for the reimbursement of the expenditure * Original language: French. 1 — Commission Regulation (EEC) No 2794/83 o( 6 October incurred for colouring. 1983 on the sale on the internal market of 450 000 tonnes of common wheat of bread-making quality held by the Italian intervention agency and amending Regulation 2 — Case 256/85 Italian Republic v Commission [1988] (EEC) No 1687/76 (OJ 1983 L 274, p. 18). ECR 521.

I-354

ITALY v COMMISSION

10. It states that the Coun then definitively settled the question of the expenditure in respect of the colouring operations prescribed by Regulation No 2794/83. It 13. I am also prevented from accepting the contends that it is well established that the applicant's view by the fact that I consider principle of res judicata applies not only to that the problem resolved by the Court in the submissions made in the case concerned that case was entirely different. The issue but also to those which could have been was whether, having regard to the general made, including the one on which the rules governing the financing of intervention Commission is relying in the present case, under the common agricultural policy, the namely that minimum expenditure must expenditure concerned could be regarded as be incurred. Any other approach to falling within the category of expenditure that principle would allow parties to capable of being reimbursed by means of recommence their actions ad infinitem. standard amounts or whether, on the contrary, it should be reimbursed in full.

3 — See the Opinion of Mr Advocate General Roemer in Case 14/64 Gualco nee Barge v High Authority and the judgment 11. The parties agree that paragraph 18 of in that case at [1965] KCR 51, from which it is apparent that questions in respect of which the Court made no the judgment to which I have just referred is express reservation arc rei judicata

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15. The applicant claims that the Commission should have given precise and detailed proof of the minimum expenditure 18. Moreover, such a solution would not that could actually have been achieved in only be contrary to the principle actori the particular circumstances prevailing in incumbit probatio but would also require the Italy or at least should have indicated Commission to furnish negative evidence precisely why the information provided by which would be very difficult to obtain, Italy was unacceptable. whereas it may reasonably be expected that a defendant Member State, being ex hypothesi familiar with the conditions under which it arranged for the operations in 16. It may well be true that, according to question to be carried out, would be in a previous decisions of the Court, 4 it is position to produce positive evidence in that incumbent on the Commission to prove a regard. breach of the rules on the common organ­ ization of the agricultural market, whereupon the Member State must, if appropriate, prove that the Commission 19. Moreover, in the present case the made an error concerning the financial Commission has produced such copious and consequences thereof. In the present case, varied evidence that it must be considered that would mean that the Commission was that, by all appearances, the applicant does not have a good case and that this 4 — Case 347/85 United Kingdom v Commission [1988] adduction of evidence would, if necessary, ECR 1749, paragraph 14. Sec also Case 262/87 Netherlands v Commission [1989] ECR 225, paragraph 21, bring about a reversal of the burden of and Case C-335/87 Hellenic Republic vCommission [1990] ECR I-2875. proof.

20. It is therefore certainly incumbent upon cannot be relied on to justify an Italy to prove that its method was the least infringement of a Community regulation. costly possible. It must be stated that the Italian Government, although having proved that it incurred certain expenditure, has not shown that such expenditure represented the 23. It is also true that account must be actual cost of the operations in question and taken of the existence of differing situations still less that that was the lowest possible in the Member States. However, that

21. It must also be emphasized that the States. Finally, it must be emphasized that applicant government has not produced the the existence of differing situations in the slightest evidence to allow a comparison to Member States in no way releases the be made between the various ways of carry Italian authorities from the obligation to out the colouring operation. The keep expenditure to a minimum, having Commission rightly stresses that the very regard to the circumstances prevailing in fact that the second paragraph of Article 5 Italy. of Regulation No 2794/83 requires the colouring operation to be carried out 'at minimum expense' presupposes that a comparative analysis must be undertaken, something which the Italian authorities did 24. As we have seen, the Italian authorities not do in the present case. have produced no evidence to give the impression that such a comparative analysis, required by Article 5 of Regulation No 2794/83, was undertaken.

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incurred or else to accept only part of it, as of making a reimbursement to the Member it is entitled to do by virtue of previous States on the basis of a standard amount (a decisions of the Court. 5 decision declared void by the Court) that has now re-emerged to be used as a basis for an ex gratia reimbursement for Italy 26. Having opted for the latter course of (and France). action, should the Commission have applied, in Italy's case, the highest amount 28. Should the Commission have worked allowed for another Member State, in this out a fresh weighted average, based on case Belgium, namely ECU 2.00 per tonne? more recent information, and used it for In its preparatory working document of those Member States which failed to show 6 March 1985, it followed that method and that they had carried out the colouring estimated the costs incurred by the Italian operations 'at minimum expense'? authorities by reference to those incurred in the Member State in which, after Italy, the 29. I do not think so. It is apparent from costs had been highest, namely Germany. It previous decisions of the Court that, in the thus arrived at an estimated figure of absence of evidence to the contrary from ECU 1.38 per tonne. the Member States, the Commission has considerable latitude in estimating the expenses to be charged to the EAGGF, the 27. However, that amount was then incor­ calculation involved being necessarily hypo­ porated in the calculation of a weighted thetical. 6 In the last analysis, therefore, I average for the whole Community which, consider that the Commission cannot be initially, was ECU 1.14 per tonne but was criticized for adopting the figure of then raised, on the basis of fresh infor­ ECU 1.17 per tonne, a figure which had mation, to ECU 1.17 per tonne. It is that the advantage of corresponding to the figure, determined in 1985 for the purpose expenditure already charged to the EAGGF.