C-354/95

OPINION OF MR LÉGER — CASE C-354/95

OPINION OF ADVOCATE GENERAL LÉGER delivered on 6 March 1997 *

1. The High Court of Justice of England and texts in detail when examining the replies to Wales, Queen's Bench Division, (hereinafter be given to the questions referred to the 'the High Court') has asked the Court to Court for a preliminary ruling by the High interpret and assess the validity of Article 9 Court. of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes 1 (hereinafter 'Regulation No 3887/92' or 'the contested regulation'). 3. In 1992 the Common Agricultural Policy (hereinafter 'the CAP') underwent consider­ able reforms, which included the creation or modification of a number of aid schemes. The primary objective pursued by the Com­ munity legislature was to control the increas­ The Court is asked, essentially, whether the ing financial cost of the CAP. Furthermore, penalties laid down for farmers who inno­ 2 it sought to avoid overproduction. cently overstate areas by more than 20% when making declarations in their aid appli­ cations are in conformity with Community law.

4. In order to achieve the first objective defined above, the Community legislature Community law sought to replace the previous price support schemes, whereby artificially high prices were maintained by intervention mecha­ nisms, with new schemes based on the

2. The presentation of the relevant rules in 2 — Second recital in the preamble to Council Regulation (EEC) this part of my Opinion will be deliberately No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (OJ 1992 L 181, p. 12); succinct. I shall return to each of the specific first and fourth recitals in the preamble to Council Regu- lation (EEC) No 2066/92 of 30 June 1992 amending Regu- lation (EEC) No 805/68 on the common organization of the market in beef and veal and repealing Regulation (EEC) No 468/87 laying down general rules applying to the special pre- mium for beef producers and Regulation (EEC) No 1357/80 * Original language: French. introducing a system of premiums for maintaining suckler 1 — OJ 1992 L 391, p. 36. cows (OJ 1992 L 215, p. 49).

6. To ensure the proper functioning of the aid schemes in question, the Community leg­ islature established an integrated administra­ tion and control system. In order to obtain aid, farmers must comply with a number of requirements, in particular that of complet­ ing declarations concerning the surface area 8. Eligibility for the aid schemes in question 6 for which aid is claimed. The effectiveness is conditional on compliance with certain of the integrated administration and control requirements concerning land use. In par­ system is dependent on the accuracy of the ticular, in connection with payments linked data supplied by farmers concerning those to arable crops or set-aside ('area aid'), a areas. The Community legislature accord­ minimum area of land must be left fallow or used for non-food purposes. Similarly, in connection with premiums for livestock ('livestock aid'), a minimum forage area per 3 — Second recitals in the preambles to Regulations No 1765/92 animal is required in order to avoid over- and 2066/92. 4 — Thirteenth recital in the preamble to Regulation No 1765/92. intensive grazing. 5 — Tenth recital in the preamble to Regulation No 2066/92. 6 — Seventh recital in the preamble to Council Regulation (EEC) No 3508/92 of 27 November 1992 establishing an integrated administration and control system for certain Community aid schemes (OJ 1992 L 355, p. 1); third and fourth recitals in 7 — First recital in the preamble to Regulation No 3508/92; ninth the preamble to the contested regulation. recital in the preamble to Regulation No 3887/92.

Commission Regulation (EEC) No 9 3886/92 11. This regulation establishes a support sys­ tem for producers of certain arable crops. It was introduced in 1992 and entered into force from marketing year 1993/94, and its 10. This regulation lays down detailed rules aims are to ensure better market balance by for the application of the premium schemes approximating the Community prices of cer­ tain arable crops to prices on the world mar­ kets, to compensate the loss of income 8 — Regulation (EEC) No 805/68 of 27 June 1968 on the com­ caused by the reduction of the institutional mon organization of the market in beef and veal (OJ, English prices by a compensatory payment for Special Edition 1968 (I), p. 187.) 9 — Regulation (EEC) No 3886/92 of 23 December 1992 laying down detailed rules for the application of the premium schemes provided for in Council Regulation (EEC) No 805/68 on the common organization or the market in beef and repealing Regulations (EEC) No 1244/82 and (EEC) No 10 — That is to say, aid under the scheme linked to declaration of 714/89 (OJ 1992 L 391, p. 20). the surface area of agricultural parcels.

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producers who cultivate such products and producers must set aside a predetermined per- to avoid over-production. The area eligible is centage of their arable area ...'; 'the set- to be restricted to the area down to arable aside requirement should be fixed initially at crops or publicly funded set-aside in the 15% of the land of the holding for which 1 16 past. 1 claims for payments are made ...'.

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gives entitlement, in the same way as a crop, Community legislature, were to take the 17 21 to a compensatory payment and secondly, form of a system of graded sanctions. its existence is a condition of the farmer's entitlement to aid for arable crops.

Council Regulation (EEC) No 3508/92

II — General legislation concerning the detailed application of the aid schemes

21. This regulation applies, inter alia, to the support system for producers of certain 18. In order to simplify the administration arable crops established by Regulation No 18 19 of those aid schemes and to avoid fraud, 1765/92 and to the system of premiums for Regulations Nos 3508/92 and 3887/92 estab­ producers of beef and veal established by lished an integrated administration and con­ Regulation No 805/68. Article 6 provides trol system inter alia for the aid schemes at that in order to be eligible under one or issue in the present case. more Community schemes, each farmer is to submit, for each year, an 'area' aid applica­ tion indicating the agricultural parcels, including areas under forage crops, covered by a set-aside measure for arable land and those laid fallow.

24. This regulation lays down detailed rules for applying the integrated administration and control system for certain Community 26. Article 5 lays down the requirements aid schemes. Its primary aim is to enable the with which any 'livestock' aid application reform of the CAP to be implemented effi­ must comply. ciently and, in particular, to solve the admin­ istrative problems caused by the reform having introduced several area-linked aid 22 schemes. The Community legislature also indicated that specific provisions should be adopted to achieve that end, specifically pro­ visions to prevent and penalize irregularities 27. The rules concerning the monitoring of and fraud effectively, having regard to the compliance with the terms relating to the specific features of the various schemes. grant of aid and premiums are set out in Title 24 IV of Regulation No 3887/92.

33. Regulation No 1648/95 subsequently amended Article 9(2) and (4) of the contested 25 regulation. Commission Regulations Nos 229/95 and 26 1648/95

30. Article 9 of Regulation No 3887/92 has been the subject of a number of amend­ 34. As the fourth recital in the preamble to ments. Regulation No 1648/95 makes clear, the pur­ pose of the regulation is to amend the sanc­ tions imposed on arable crop producers if they make an innocent mistake in their dec­ larations of set-aside areas: 31. The first amendment was made by Regu­ lation No 229/95. Article 9(4) of the con­ tested regulation was replaced by a new Article 9(4)(a) and (b).

Facts and procedural background to the dis- pute in the main proceedings 39. By letter of 22 February 1995, the United Kingdom authorities wrote to the Commission suggesting that the penalty of denying any compensatory payment on linked arable crops was disproportionate to the gravity of the irregularity. The Commis­ 37. The National Farmers' Union (hereinaf­ sion replied that the penalty provisions in ter 'the NFU' or 'the applicant in the main question were not unduly harsh, adding that proceedings') is the trade association for it had drawn up a modified proposal farmers in England and Wales. After receiv­ enabling farmers to receive compensatory ing numerous complaints regarding the pen­ payments in respect of their arable crops on alties imposed by the Ministry of Agricul­ a pro rata basis corresponding to the set- ture, Fisheries and Food (hereinafter 'the 30 aside area found. MAFF') on farmers who had made innocent mistakes in their applications for 'area' aid, the NFU and 120 individual farmers applied to the High Court of Justice, Queen's Bench Division, for judicial review of MAFF's application of Article 9 of Regulation No 3887/92.

40. Taking the view that it could not reach a decision on the application without first obtaining clarification as to the interpreta­ 38. According to the national court, pursu­ tion of the relevant rules of Community law ant to that article, the MAFF does not grant and their validity, the High Court of Justice

29 — See points 75 to 89 of this Opinion. 30 — p. 9 of the order for reference.

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Replies to the questions that a further regulation, No 2988/95, has entered into force since the order for refer­ ence was made.

I — Question 1

44. The Court decided to request written observations from the interveners on the subject of the effect of that reform on the replies to be given to the questions submit­ 41. The first question concerns the interpre­ ted. Although all agreed that that reform tation of Article 9(2) to (4) of Regulation No settles the problem raised by the national 3887/92, read in conjunction with the provi­ court in its first question, opinions differ on sions concerning the aid schemes applicable the question whether it applies retrospec­ to arable crops and set-aside before the entry tively to the case before the High Court. into force of Regulation No 1648/95.

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OPINION OF MR LÉGER — CASE C-354/95

46. I will deal first with Question 1 as drawn aid application, the area declared shall be up by the national court, before going on to used for calculation of the aid. examine the scope of the amendments intro­ duced by the 1995 regulations.

A — Interpretation of Article 9(2) to (4) of Regulation No 3887/92 before the entry into 2. If the area actually determined is found to force of Regulation No 1648/95 be less than that declared in an "area" aid application, the area actually determined on inspection shall be used for calculation of the aid. However, except in cases of force majeure, the area actually determined on inspection shall be reduced:

47. I must first make a point regarding the wording of the first paragraph of Article 9(4) of Regulation No 3887/92. It is common ground that the initial English version of that text contains an error and that it should be understood in the sense of the terms — by twice the difference found if this is employed in the other language versions. more than 2 % or two hectares but not That provision should, therefore, be read as more than 10% of the determined area, providing that 'The areas determined in accordance with the provisions of paragraphs 1 to 3 of this article ...' and not 'paragraphs 1 and 3'. That error was, moreover, corrected by Regulation No 229/95 and the English version is now the same as the other lan­ guage versions. — by 30% if the difference found is more than 10% but not more than 20% of the determined area.

48. Article 9 is worded as follows:

4. The areas determined in accordance with the provisions of paragraphs 1 to 3 of this article for aid calculation purposes shall be used:

These reductions shall not be applied if the farmer can show that his determination of the area was accurately based on information recognized by the competent authority. — where set-aside provisions are involved, for the calculation of the maximum area eligible for compensatory payments to arable crop producers,

Where a farmer has not met all the obliga­ — for calculation of the limit on the premi­ tions incumbent on him in regard to parcels ums referred to in Articles 4g and 4h of fallowed for non-food production purposes Regulation (EEC) No 805/68, as well as these shall, on the occasion of inspection for for the compensatory allowance.

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OPINION OF MR LÉGER — CASE C-354/95

However, in the cases mentioned in para­ set-aside will have and, if there is a difference graph 2, first subparagraph, first and second of more than 20% between the area of set- indents, the calculation of the maximum area aside determined on inspection and the eligible for the payment of compensatory declared area of set-aside, the effect on the allowances to arable producers shall be made calculation of 'arable crop' area aid. It should on the basis of the area of set-aside actually be remembered that the farmer may also determined. claim 'compensation' for the set-aside which 34 he has had to implement.

33 — Articles 2 and 7. 34 — Ibid., second subparagraph of Article 2(5).

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the farmer. They base their interpretation on 56. Article 9(3) specifies that in the calcula­ the aims of Article 9 and on its wording con­ tion of an eligible area (for the purposes of sidered in the legislative context. applying Article 9(1) and (2)) forage areas, set-aside areas and each arable crop area for which a different aid rate is applicable are to be treated exclusively and separately.

53. The NFU does not share that view. It states that such a construction has extremely serious, unjust and disproportionate conse­ quences for farmers who have made an inno­ cent mistake. It suggests another construc­ tion, which would enable the drastic effects 57. Thus in the case of my earlier example 35

(loss of 'set-aside' aid and 'arable crop' sup­ the farmer must declare the area of set-aside port) of such an error to be limited. A rule and cropped land separately, specifying in should apply to the effect that calculation of particular the type of crop grown, and veri­ the maximum area eligible for compensatory fication of the accuracy of the data provided payments for arable farmers should be made will be undertaken separately. on the basis of the area actually determined and on a pro rata basis for each crop con­ cerned. The NFU adds that the area deter­ mined must mean that actually verified on inspection, without any account being taken of the penalties provided for in Article 9(2) of Regulation No 3887/92.

40 62. To return to my previous example, since the farmer has made an error of more than 20% in his 'set-aside' area declaration, he will be deemed not to have set aside any — determination of the actual area on land. As that data is necessary for the calcu­ inspection; lation of the eligible area for 'arable crop' aid, it will not be possible to grant him that aid because the eligible area cannot be deter­ mined. In consequence he loses entitlement to specific arable crop aid and the corre­ sponding set-aside aid, although the error of — calculation of the difference between that more than 20% which he made in good faith area and the area declared in the aid related to the 'set-aside' area alone. That is a application (hereinafter 'D'); perfect illustration of the twofold function of 41 the set-aside obligation.

37 — Ibid., Article 9(2), first paragraph (second sentence), first and second indents, and second paragraph, first, and Article 9(2), third paragraph, first and second indents, secondly. 39 — Ibid., second paragraph of Article 9(2).

38 — Ibid., Article 9(2), first paragraph (second sentence), first 40 — Point 50 of this Opinion. and second indents, and second paragraph. 41 — Sec points 14 to 17 of this Opinion.

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66. The second paragraph of Article 9(4) is stated as an exception to the principle, again introduced by the adverb 'however'. It estab­ — on the other hand, if the declaration is lishes the rules for calculating the aid solely intentionally false, a penalty of the same in cases where the difference resulting from nature as those for false declarations as a an error made innocently is between 3 % and result of serious negligence is imposed, 20%. Those provisions must be read in con­ together with exclusion from all aid junction with the first and second indents to schemes in the integrated system for the the second sentence of the first paragraph of following year, in respect of an area equal Article 9(2). The words 'area actually deter- to that for which his aid application was mined' of set-aside contained in that provi­ rejected (that is to say the area he had sion must mean the area determined on 44 declared). inspection and after the penalties provided for in the first and second indents to the first paragraph of Article 9(2) have been applied; were it otherwise the reference to those pro­ visions dealing with eligible area after appli­ cation of the penalties would be meaningless.

64. Article 9(4) defines the method for calcu- lating the aid where there is a difference between the area declared and the area deter­ mined on inspection.

67. No provision is made for other cases of error (innocent error of more than 20 %, 42 — First and second indents to the third paragraph of Article serious negligence, intentionally false decla­ 9(2) of Regulation No 3887/92. ration) since, in those cases, the second and 43 — Ibid., first indent to the third paragraph of Article 9(2). 44 — Ibid., second indent to the third paragraph of Article 9(2). third paragraphs of Article 9(2) apply. The

'in the interests of simplification of the "area" and "livestock" sanctions the provi- sions with regard to their application should be amended; ... as the rules concerning set- 72. The amendment to Article 9 suffices to aside have been modified since the adoption establish that, before the entry into force of of Commission Regulation (EEC) No Regulation No 1648/95, where the area of 3887/92, as amended by Regulation (EC) No set-aside land as declared in the aid applica­ 229/95, in particular with the adoption of tion was more than 20% greater than that provisions allowing the transfer of the set- found on inspection, there was no determi­ aside obligation from producer to producer nation of set-aside land and, in consequence, and of voluntary set-aside, it is appropriate the farmers in question were not eligible for to amend the sanctions...'. 45 compensatory payments on a pro rata basis for their arable crops.

45 — Fourth recital in the preamble to Regulation No 1648/95, my emphasis. 46 — See point 53 of this Opinion.

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73. Lastly, Article 9(2) to (4) of the con­ but not more than 20% of the determined tested regulation seeks to achieve the objec­ area. tives laid down by the Community legisla­ 47 ture by ensuring compliance with the obligations to set aside a certain area of land, which is a necessary precondition for the grant of 'arable area' compensatory pay­ 48 ments, for the declaration of parcels of land and the elimination of irregularities and 49 fraud relating to those obligations.

77. Thus the sanctions which existed under 80. The aims of Regulation No 2988/95 are the former text in a case of innocent mistake not only to protect the Community's finan­ as to the area of 'set-aside' no longer include cial interests and to combat fraud affecting 54 application of the penalties provided for in those interests, but also to ensure that the the first and second indents of the last sen­ measures adopted comply with the general tence of the first paragraph, and the second principle of equity and the principle of pro­ 55 paragraph, of Article 9(2) of Regulation No portionality. 3887/92, as amended by Regulation No 1648/95, whatever the extent of the mistake. In those cases, calculation of the maximum eligible area for the determination of the amount of 'arable crop' aid is to be carried out on the basis of the area of set-aside land actually determined on inspection and on a pro rata basis for each crop concerned. Thus the term 'area of set-aside land actually 81. Article 2(2) provides: 'No administrative determined' must be understood as designat­ penalty may be imposed unless a Commu­ ing the area determined on inspection, with­ nity act prior to the irregularity has made out taking penalties into account, failing provision for it. In the event of a subsequent 53 which the reform would be purposeless. amendment of the provisions which impose administrative penalties and are contained in Community rules, the less severe provisions 56 shall apply retroactively. '

78. In accordance with Article 2 of Regu­ lation No 1648/95, those provisions entered into force at a date subsequent to the events giving rise to the case before the national 82. Under Article 1(2) 'irregularity' is court. defined for the purposes of the regulation as: 'any infringement of a provision of Commu­ nity law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets man­ aged by them, either by reducing or [by] los­ ing revenue accruing from own resources collected directly on behalf of the Commu­ 79. However, the entry into force of Regu­ nities, or by an unjustified item of expendi­ lation No 2988/95 may well provide the ture.' national court with useful clarification.

85. I share the view of the Commission and 88. Secondly, the contested provision the NFU , essentially for two reasons. appears in Title I of Regulation No 2988/95, headed 'General principles'. It must be understood as seeking to transpose into the specific area of Community provisions, the purpose of which is to protect the financial interests of the Communities, the principle that exists in the great majority of the Mem­ ber States that more lenient penal or admin­ 86. First, the construction they propose cor­ istrative sanctions should have immediate responds to the aim of the Community leg­ application. islature. In the tenth recital in the preamble to the regulation it is stated that '... not only under the general principle of equity and the principle of proportionality but also in the light of the principle of non bis in idem, appropriate provisions must be adopted while respecting the acquis communautaire 89. In conclusion, in so far as the reform and the provisions laid down in specific introduced by Regulation No 2988/95 can Community rules existing at the time of provide useful material for resolving the case entry into force of this regulation, to prevent any overlap of Community financial penalties and national criminal penalties 57 — My emphasis.

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before the national court, it is for that 92. In accordance with what was stated court to take into consideration the new ver­ above, there is only one area to declare in 60 sion of the second paragraph of Article that case — the forage area. Article 9(4) of 9(4)(a) of Regulation No 3887/92. Regulation No 3887/92 provides that the area thus determined is to be used 'for calcu­ lation of the limit on the premiums referred to in Articles 4g and 4h of Regulation (EEC) No 805/68'. Articles 4g and 4h of Regulation No 805/68, as amended by Regulation No 2066/92, provide that payment of the special premium and the suckler cow premium is to be limited by the application of a stocking II — Question 2 density on the holding. That stocking den­ sity is to be expressed in LU per unit of for­ age area of the holding used for the animals carried on it.

A — Alleged infringement of the principle of 96. Consequently I would suggest that the legal certainty Court reply to the second question in the affirmative. As a result of the replies given to Questions 1 and 2, the fourth question, con­ cerning a possible alternative interpretation of the contested text, becomes redundant. 99. The applicant in the main proceedings considers that the lack of clarity of the sec­ ond paragraph of Article 9(2), prior to the entry into force of Regulation No 1648/95, is such as to deprive it of its entitlement to the aid in question.

III — Questions 3 and 5

100. The Court has consistently held that the principle of legal certainty constitutes a 61 fundamental principle of Community law, 97. The third question referred to the Court which requires in particular that rules impos­ is a refinement of the fifth question. The ing charges on a taxpayer be clear and pre­ national court asks the Court to assess the cise so that he may be able to ascertain validity of Article 9(2) to (4) of Regulation unequivocally what his rights and obliga­ 62 No 3887/92, prior to the entry into force of tions are. Regulation No 1648/95, with regard, in par­ ticular, to the principles of legal certainty, non-discrimination and proportionality.

101. In this case, where the penalties involved apply to livestock farmers who

98. The applicant in the main proceedings 61 — See, to this effect, Joined Cases 205/82 to 215/82 Deutsche maintains that the penalties provided for in Milchkontor and Others [1983] ECR 2633. 62 — Case 169/80 Gondrand Frères and Garancini [1981] ECR Article 9(2) to (4) of Regulation No 3887/92, 1931; Joined Cases 92/87 and 93/87 Commission v France prior to the entry into force of Regulation and United Kingdom [1989] ECR 405, paragraph 22; and recently Case C-143/93 Van Es Douane Agenten [1996] No 1648/95, as regards farmers who inno­ ECR I-431, paragraph 27.

104. However, this area of law is intended 102. First, awkwardness in its drafting and for those involved professionally in the area, formal presentation make the text difficult to who are familiar with the subject-matter and read. For instance, I consider it clumsy to deal with it on a daily basis; what the uniniti­ have laid down a principle and an exception ated have difficulty in understanding will 64 to it in the same paragraph; conversely, it present fewer difficulties to the specialist. is regrettable that the different penalties for The second paragraph of Article 9(2) of errors committed innocently were not set Regulation No 3887/92 is no exception to 65 out in a single paragraph. Such drafting that rule and although it is not easily com­ certainly hinders rapid comprehension of the prehended if read rapidly and in isolation, if contested text, to the point that the NFU it is read painstakingly the sense and conse­ could justifiably question whether the prin­ quences of the application of the said provi­ ciple of legal certainty had been complied sions can be grasped without ambiguity. with. However, I do not think that those Moreover, at the hearing the Commission purely formal defects are sufficient to vitiate, indicated that they had been applied without for ambiguity, the content of the text. The apparent difficulty in most Member States. NFU does not, moreover, prove that to be the case, inasmuch as the interpretation which it proposes manifestly adds provisions which it does not contain.

63 — Sec points 92 to 96 of this Opinion. 64 — First paragraph of Article 9(2) of the contested regulation. 65 — The penalties imposed on a farmer who innocently makes a mistake in his area declaration appear in the first and sec- 105. I must therefore conclude that the claim ond indents to the second sentence of the first paragraph of that the principle of legal certainty has been Article 9(2) on the one hand and in the second paragraph of Article 9(2) of the contested regulation on the other. infringed should not be upheld.

107. It claims that in the case of a farmer growing only one type of arable crop in 110. As the United Kingdom Government respect of which he applies for grant of a and the Commission point out, the condi­ single type of aid, or in the case of a cattle tions under which the penalties applicable to breeder who only carries on that type of the two different groups of farmers described activity, in respect of which he applies only above by the NFU are implemented are not for one particular 'livestock' aid, an innocent comparable. overstatement of more than 20% of the area of set-aside land or forage area will have the 66 same consequence as that imposed on an arable or livestock farmer who makes a false area declaration as a result of serious negli­ 67 gence. Those penalties take the form of refusal of 'area' or 'livestock' aid for the cal­ 111. According to the second paragraph of endar year in question, de facto for the Article 9(2) of Regulation No 3887/92, aid former, de jure for the latter. applied for by a farmer for a specific arable crop will be refused only if he overstates by

66 — Under the second paragraph of Article 9(2) of the contested regulation. 68 — See one of the recent judgments, delivered on 12 December 67 — Under the first indent to the third paragraph of Article 9(2) 1996, Case C-241/95 Accrington Beef [1996] ECR I-6699, of the contested regulation. paragraph 49.

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more than 20% the area of set-aside land or C — Plea of infringement of the principle of if that overstatement relates to the area of proportionality specific arable land. Similarly, a livestock farmer will only be refused specific 'live­ stock' aid if he overstates the area of forage by more than 20%.

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confine itself to examining whether it dis­ 121. Three types of blameworthy conduct closes manifest error or constitutes misuse of on the part of a farmer at the time when he power or a clear disregard of the limits of its makes his area declaration are involved: 71 discretion on the part of that institution. innocent error, serious negligence and false declaration made intentionally.

118. Is the penalty of refusal of all 'area' aid where the farmer has innocently overstated 122. It is indisputable that a farmer who in his declaration his area of set-aside land or makes an innocent mistake, that is to say forage area by more than 20% manifestly with no fraudulent intent, is not guilty of inappropriate to the objectives pursued? dishonest conduct and in that case, to impose on him one of the most severe penalties pro­ 73 vided for is incompatible with the objec­ tives pursued and therefore necessarily and manifestly inappropriate.

119. As regards the objectives pursued by the contested measure, it is apparent from the regulation in question that it is intended to penalize irregularities and fraud effectively and, to that end, the Community legislature has specified that there should be sanctions 123. Furthermore, by imposing the same graded according to the gravity of the irregu- penalties on farmers who have committed larity committed, going as far as total exclu­ irregularities that are different in nature, the sion from a scheme for the year in question 72 text is treating the honest farmer in the same and the year thereafter. way as a negligent farmer, or a farmer acting in bad faith. In other words, beyond a cer­ tain threshold of error, there is a presump­ tion of bad faith vis-à-vis an innocent farmer, 74 contradicting the actual terms of the text.

126. Lastly, it seems to me that other, equally effective but less stringent, measures 128. I would therefore suggest that the could have been implemented to achieve Court declare the second paragraph of those ends. For example, it could be pro­ Article 9(2) of Regulation No 3887/92 (prior vided that only a lump-sum aid, fixed at to the entry into force of Regulation No Community level, might be granted, if there 1648/95) invalid.

Conclusion

129. In the light of the foregoing observations , I propose that the Court give the following replies to the questions referred to it by the national court :

(1) Article 9(2) to (4) of Commission Regulation ( EEC ) No 3887 / 92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes , prior to the entry into force of Commission Regulation ( EC ) No 1648 / 95 of 6 July 1995 amending Regulation No 3887 / 92 , is to be interpreted as prohibiting all

75 — See, for comparison, a recent judgment of 17 September 1996 in Joined Cases C-246/94, C-247/94, C-248/94 and C-249/94 Cooperativa Agricola Zootechnica S. Antonio and Others [1996] ECR I-4373, paragraph 32.

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