C-242/96

Commission of the European Communities, represented by E. de March, Legal Adviser, and P. Ziotti, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for the annulment in part of Commission Decision 96/311/EC of 10 April 1996 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1992 of the Guarantee Section of the European Agri- cultural Guidance and Guarantee Fund (EAGGF) and in respect of certain expen- diture for 1993 (OJ 1996 L 117, p. 19),

* Language of the case: Italian.

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gives the following

Judgment

1 By application lodged at the Court Registry on 11 July 1996, the Italian Republic brought an action under the first paragraph of Article 173 of the E C Treaty for the annulment in part of Commission Decision 96/311/EC of 10 April 1996 on the clearance of the accounts presented by the Member States in respect of the expen- diture for 1992 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and in respect of certain expenditure for 1993 (OJ 1996 L 117, p . 19, 'the contested decision'), in so far as it related to Italy.

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2 The application seeks the annulment of that decision in so far as the Commission declared that the following amounts could not be charged to the E A G G F :

The correction with regard to the unlawful tender procedure

3 The basic rules for the common organisation of the market in beef and veal are contained in Regulation (EEC) N o 805/68 of the Council of 27 June 1968

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(OJ, English Special Edition 1968 (I), p. 187). Article 6 of that regulation authorises the Commission to intervene with a view to maintaining prices on the Community markets. Regulation N o 805/68 was amended in particular by Council Regulation (EEC) N o 571/89 of 2 March 1989 (OJ 1989 L 61, p . 43), the version as thus amended (hereinafter 'Regulation N o 805/68') being that applicable to the relevant period in the present case (1992).

4 Until 1989, there was a system of automatic intervention buying when prices fell below certain thresholds, with the result that very large quantities were purchased by the intervention agencies at prices exceeding the market price.

9 Under Article 6(6), tender procedures must ensure equality of access for all persons concerned and those procedures are opened on the basis of specifications.

10 In accordance with Article 6(7), the procedures implementing the intervention system are adopted by the Commission, which also decides on the opening and suspension of tender procedures after consulting a management committee. During the period to which the present case relates, those procedures were defined by Commission Regulation (EEC) N o 859/89 of 29 March 1989 laying down detailed rules for the application of intervention measures in the beef and veal sector (OJ 1989 L 91, p . 5).

1 1 Article 7 of Regulation N o 859/89 provides that the decision to open buying-in by invitation to tender is to be published in the Official Journal of the European Com- munities on the Saturday or the Tuesday before the first deadline for the submis- sion of tenders. Under Article 8, during the period in which the invitation to tender is open, the deadline for the submission of tenders is 12 noon (Brussels time) on the second and fourth Wednesday of each month.

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12 Article 9 of Regulation N o 859/89, which lies at the centre of the dispute, provides:

(d) the intervention centre or centres to which the tenderer intends to deliver the product.

...'

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13 Under Article 9(4)(c) of that regulation, tenderers must prove that they lodged a security for the tender by the final date for submission of tenders and, in accor- dance with Article 9(5) and (6), tenders may not be withdrawn after the deadline for their submission and are to be confidential.

1 4 It follows from Article 7 of Regulation N o 859/89 that, at the opening of the invita- tion to tender, a minimum price may be fixed below which tenders are not accepted and from Article 8 that intervention agencies are to notify the Commission of the tenders they have received within 24 hours of the expiry of the time-limit for their submission.

18 The requirement that a security be lodged was introduced in order to put an end to the practice of inflated tenders.

19 Article 12(2) of Regulation N o 859/89 provides that rights and obligations arising from the invitation to tender are not to be transferable. Under Article 15 the inter- vention agency is to pay the successful tenderer the price indicated in his tender.

20 After the facts in the present case arose, Regulation N o 859/89 was repealed and replaced by Commission Regulation (EEC) N o 2456/93 of 1 September 1993 laying down detailed rules for the application of Regulation N o 805/68 as regards the general and special intervention measures for beef (OJ 1993 L 225, p. 4). In place of Article 9 of Regulation N o 859/89, there was a new detailed provision concerning the persons eligible to submit tenders, Article 11 of Regulation N o 2456/93, which provides that:

' 1 . Only the following may submit tenders:

(a) slaughterhouses for bovine animals approved in accordance with Directive 64/433/EEC, and not enjoying a derogation under Article 2 of Directive 91/498/EEC, whatever their legal status, and

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Where there are serious indications to the contrary or that tenders are not in line with economic facts, tenders shall be deemed admissible only where the tenderer presents suitable evidence of compliance with the second subparagraph.

Where it is established that a tenderer has submitted more than one tender, all the tenders from that tenderer shall be deemed inadmissible.

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4. ...'

21 Finally, Article 8(1) of Regulation (EEC) N o 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edi- tion 1970 (I), p. 218) requires Member States to satisfy themselves that transactions financed by the E A G G F are executed correctly and are actually carried out, to prevent and deal with irregularities and to recover sums lost as a result of irregulari- ties or negligence. Article 8(2) provides that the financial consequences of irregulari- ties or negligence attributable to administrative authorities or other bodies of the Member States are not to be borne by the Community.

i. e. the association receives offers from its members and submits them all at the same time to AIMA, the paying agency.

The Italian authorities, when criticised by the E A G G F on this point, volunteered the information that an association may even submit in its own name an overlap- ping global offer on behalf of those of its members which had not submitted indi- vidual offers.

Such practices are contrary to Article 9(6) of Regulation N o 859/89 requiring Member States to guarantee the confidentiality of offers and negates the expected advantages of a genuine adjudication because it clearly reunites the interests of the supposed competitors.

The E A G G F also established in several instances links between tenderers by com- paring the standard information (e. g. names, addresses, bank accounts, signatures, etc.).

Financial corrections are proposed at a flat rate of 2 % applicable to expenditure declared for 1992.'

24 According to the Commission, those practices were expressly prohibited by the applicable Community rules and totally incompatible with the purpose of the inter- vention scheme. In its summary report, it found that, apart from failure to observe Article 9(6) (obligation to ensure the confidentiality of tenders), there had been infringement of Article 9(2) (submission of a single tender per tenderer in response to each invitation to tender), Article 12(2) (non-transferability of rights and obliga- tions arising from the invitation to tender), Article 9(4)(c) (lodging of a security by the tenderer himself) and Article 15(1) (payment of the price to the tenderer) of Regulation N o 859/89.

29 The first point to be borne in mind here is the need to ensure legal certainty, which means that rules must enable those concerned to know precisely the extent of the obligations which they impose on them (see, to that effect, Case 348/85 Denmark v Commission [1987] E C R 5225, paragraph 19). The Commission thus cannot choose, at the time of the clearance of E A G G F accounts, an interpretation which

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departs from and is not dictated by the normal meaning of the words used (see, to that effect, Case 349/85 Denmark v Commission [1988] ECR 169, paragraphs 15 and 16).

30 In this regard, the last sentence of Article 9(2) of Regulation N o 859/89 merely provides that interested parties may submit one tender only per category in response to each invitation to tender. That wording cannot therefore provide any support for the interpretation claimed by the Commission that, on account of the differ- ence in meaning between the words 'interested party' and 'tenderers', the latter may submit one tender only in response to an invitation to tender where they are part of a single group.

31 It is only since the entry into force of Regulation N o 2456/93 that the Community rules have contained provisions on interconnections between tenderers. To uphold the interpretation of Article 9(2) of Regulation N o 859/89 suggested by the Com- mission would be tantamount to applying Article 11 of Regulation N o 2456/93 retroactively.

36 In view of the foregoing considerations, the present plea in law must be rejected.

The corrections with regard to the public storage of beef

37 As noted above, the basic rules governing the intervention system are defined in Article 6 of Regulation N o 805/68 and the detailed rules for the application of that system were contained, at the material time, in Regulation N o 859/89. The beef eligible for buying-in in Italy was that included in the category defined in Article 3(1) of Council Regulation (EEC) N o 1208/81 of 28 April 1981 determining the Community scale for the classification of carcases of adult bovine animals (OJ 1981 L 123, p. 3), that is to say, meat from uncastrated young male animals of less than two years of age.

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38 The provisions of Article 4(2) and (3) of Regulation N o 859/89 specify the condi- tions under which meat could be bought in. In particular, those applicable in the present case concern Community origin, compliance with health regulations, pre- sentation in accordance with Annex III to the regulation, classification in accor- dance with the Community scale provided for in Regulation (EEC) N o 1208/81 and markings.

43 Finally, account must be taken of the Commission's Belle Group Report, which lays down guidelines to be followed when financial corrections must be applied to a Member State. In addition to three principal calculation techniques, the Belle Group Report also sets out three categories of flat-rate corrections for difficult cases:

'A.2% of expenditure — where the deficiency is limited to parts of the control system of lesser importance, or to the operation of controls which are not essential to the assurance of the regularity of the expenditure, such that it can reasonably be concluded that the risk of loss to the E A G G F was minor.

B.5% of expenditure — where the deficiency relates to important elements of the control system or to the operation of controls which play an important part in the assurance of the regularity of the expenditure, such that it can reasonably be con- cluded that the risk of loss to the E A G G F was significant.

C.10% of expenditure — where the deficiency relates to the whole of or funda- mental elements of the control system or to the operation of controls essential to assuring the regularity of the expenditure, such that it can reasonably be concluded that there was a high risk of widespread loss to the EAGGF.'

44 The guidelines further provide that, where there is doubt as to the correction to be applied, the following points are to be taken into account as mitigating factors:

'— whether the national authorities took effective steps to remedy the deficiencies as soon as they were brought to light;

47 In those circumstances and taking into account the fact that it was impossible to determine with any certainty the quantum of the damage suffered by the EAGGF, the Commission decided to apply a flat-rate financial correction of 10% of the expenditure financed by the E A G G F in respect of 1990 and 1991.

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ITALY v COMMISSION

48 The Italian Republic disputes the allegations made and considers that the correc- tion applied is excessive.

The existence of the conduct complained of

49 The Italian Government points out first of all that the purchasing operations are monitored by employees of the relevant provincial offices of the AIA and by clas- sifiers approved by the Comitato Bovini ('beef' committee) of the Ministry of Agri- culture and Forests, who work directly with the AIA. Moreover, both are required to follow clear rules and are directly answerable to the AIA and the Comitato Bovini.

54 The Italian Government also complains that the findings and assessments made by the Commission rely, in part, on purely subjective parameters (the presence of pelvic fat, inadequate jugular trimming, muscle development, degree of fat cover etc.). It submits that the national authorities had not found any of the irregularities complained of or, at least, not on the scale described by the Commission.

55 So far as concerns the inadequacies in wrapping, the Italian Government observes that Article 6(4) of Regulation N o 859/89 does not describe the characteristics of the 'stockinettes'. In any event, the use of too light a stockinette or no stockinette at all would be detrimental for the AIMA, the AIA and the approved centres inas- much as it would exacerbate the reduction in weight of the meat by nearly 0.5%. Given that the penalty provided for by the E A G G F for a reduction in weight beyond the tolerated level is more than twice the cost per kilo of the stockinette, the need to minimise the purchase price is largely cancelled out by the need to use a sufficiently resistant material.

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ITALY v COMMISSION

56 Next, with regard to the irregularities found upon the removal from storage of goods intended for export to Bulgaria, the former Soviet Union and Brazil, the Italian Government contends that the sales in question were never formally objected to either by the recipients of the aid or by the purchasers.

57 Finally, the Italian Government complains of the E A G G F ' s delay (of more than two years) in notifying it of the irregularities found during the investigation.

61 Secondly, the Italian authorities have not provided any evidence of any instruc- tions given by the AIMA in order to ensure that the intervention operations were fully in accordance with Community rules. Neither have they stated whether on-the-spot inspections were made in order to verify the methods employed by the AIA in carrying out and administering buying-in operations or, if so, how many, how frequently or on what criteria those inspections were carried out. They have made no mention of the measures implemented to ascertain whether the product was properly stored. Finally, they have provided no particulars concerning the results of such monitoring.

62 Since with regard to many of the allegations the Italian Government has confined itself to stating that inspections were carried out, and in certain cases has not even denied the allegations (in particular with regard to the affixing of counterfeit stamps) or relies on the fact that no complaint was made, the first plea in law must be rejected.

Infringement of the guidelines Uid down in the Belle Group Report

63 By its second plea in law, the Italian Government claims that, if the Commission had made proper use of its discretion, it would have decided upon a reduction of only 5 % .

6 4 First, the checks carried out by the Commission are not representative. Secondly, the Italian Republic made improvements to the system, which are moreover

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The corrections with regard to the ewe premium

69 Article 5 of Council Regulation (EEC) N o 3013/89 of 25 September 1989 on the common organisation of the market in sheepmeat and goatmeat (OJ 1989 L 289, p. 1) provides for the granting of a premium to sheepmeat and goatmeat producers to the extent necessary to offset an income loss in the Community during a mar- keting year.

70 The summary report analyses in detail the deficiencies found by E A G G F staff, in the course of inspections to verify the applications for premiums in respect of 1992 in the control procedures introduced by the Italian authorities with a view to ensuring the proper application of the system. In particular, the E A G G F found that the application files were inadequately checked, certain inspection files were unreli- able and that there was no cross-checking of data contained in the applications with the findings arising from on-the-spot inspections.

71 Those inspections followed the audits conducted in Italy from 1988 and entailing, in previous years, significant financial corrections applied to the expenditure charged to the Community budget (up to 30% of national expenditure for 1991).

76 So far as concerns any increased rigour demonstrated by the national authorities from 1992, it should be noted that, as the Advocate General rightly observed at point 119 of his Opinion, such improvements are to be taken into account only where there are doubts concerning the three flat-rate corrections to be applied. In this case, however, there was no such uncertainty. Because of the seriousness and scale of the irregularities found, and of the extent to which supervision was largely ineffective, the E A G G F remained, in all events, exposed to a serious financial risk.

77 The reforms referred to by the Italian Government were introduced only as from 1993, and may thus not be taken into account in the context of the clearance of the accounts for 1992.

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78 Since the 10% correction decided upon by the Commission does not therefore appear unjustified, the present plea in law must be rejected.

The correction with regard to public storage of cereals

si According to the summary report, the E A G G F commenced an audit of public storage arrangements for cereals in Italy as part of the 1991 accounts clearance, supplemented by an inquiry concerning intervention stocks in 1993. That inspec- tion revealed serious shortcomings in the administration and control system put in place to that end by the national authorities, which were essentially attributable to the fact that all the cereal purchase and storage operations were entrusted to 'organ- ismi assuntori', private undertakings under contract to the AIMA; however, the intervention agency exercised no control over their activity or over proper perfor- mance of the contract. The inspections also brought to light the inadequacies of control of stocks which were kept in what proved to be often poor conditions, resulting in storage costs being charged to the E A G G F to no purpose. Finally, the summary report points out that collaboration between the AIMA and the other competent national authorities was almost non-existent.

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82 In those circumstances, the Commission applied a financial correction of 10% of the expenditure declared as technical costs and financial charges and 5% of the expenditure declared as other costs, amounting to ITL 10 082 336 246.

83 The Italian Government observes that, since it does not have its own facilities for storing products delivered into intervention, the Ente per gli Interventi nel Mercato Agricolo (the amended designation of the Italian intervention agency in the agri- cultural sector, hereinafter 'the EIMA') called on external operators to carry out intervention operations. It entered into a specific contract with them laying down the conditions for the provision of storage services.

The correction with regard to set-aside of arable land

88 The aid scheme to encourage the set-aside of arable land was introduced by Article la of Council Regulation (EEC) N o 797/85 of 12 March 1985 on improving the efficiency of agricultural structures (OJ 1985 L 093, p. 1), as inserted by Council Regulation (EEC) N o 1094/88 of 25 April 1988 (OJ 1988 L 106, p . 28). Under that provision, the scheme covers all arable land, irrespective of the crops grown, pro- vided that the land has in fact been cultivated for a reference period to be deter- mined. The measure therefore consists in withdrawing from cultivation agricultural land previously used as arable land.

89 The detailed rules for the application of the scheme are contained in Commission Regulation (EEC) N o 1272/88 of 29 April 1988 (OJ 1988 L 121, p. 36). Article 2(1) provides, in particular, that arable land should be taken to mean the types of land listed in section D of the Annex to Regulation (EEC) N o 571/88 of 29 February 1988 on the organisation of Community surveys on the structure of agricultural holdings between 1988 and 1997 (OJ 1988 L 56, p. 1) with the exception of land intended to be laid fallow (point D/21 of the Annex). In addition, under Article 3 of Regulation N o 1272/88, the reference period during which arable land was effec- tively cropped — out with which the land cannot benefit from the aid to encourage the set-aside of arable land — was to span not less than one marketing year between 1 July 1985 and 30 June 1988. For Italy, that period was the 1987/88 marketing year.

93 The Italian Republic challenges the lawfulness of the financial correction. It argues that the traditional practice of laying land fallow was replaced, with effect from the reference marketing year, by the practice of 'green fallow'. That practice, which is associated with such autumn/spring early crops as leguminous plants grown as a forage, broad beans, chickpeas and potatoes, consists in keeping the land under cultivation for limited periods and then as usual preparing the ground by ploughing in the crops produced (green manuring of fallow ground).

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94 It should first of all be observed that the Italian Republic does not deny having failed to check whether the land allegedly set aside had in fact previously been cultivated or, at least, whether it had been cultivated in the context of bastard fallow.

95 Furthermore, it did not adduce any evidence that the traditional fallowing practice had been replaced by 'green fallow'.

96 O n the contrary, the data collected through the network for the collection of farming accountancy data at Community level (Regulation N o 79/65/EEC of the Council of 15 June 1965 setting up a network for the collection of accounting data on the incomes and business operation of agricultural holdings in the European Economic Community (OJ, English Special Edition, 1965-66, p . 70)) show that that was still the practice in 1986 and 1987. Moreover, according to a letter from the E A G G F dated 2 August 1994, during farm inspections the farmers directly concerned had contradicted, at least in so far as concerns Sicily, the Italian authori- ties' claim that traditional fallowing was no longer farming practice.

99 The rules are laid down in Council Regulation (EEC) N o 1358/77 of 20 June 1977 laying down general rules for offsetting storage costs for sugar and repealing Regu- lation (EEC) N o 750/68 (OJ 1977 L 156, p. 4). Article 2 of that regulation specifies who is to be reimbursed and Article 3 provides that reimbursement is to be made by the Member State in whose territory the sugar is stored: those concerned are any sugar manufacturer to whom a basic quota has been allocated, any interven- tion agency, and also any specialised and approved sugar refiner, manufacturer of powdered, lump or candy sugar or sugar trader. Reimbursement is made to them provided that they are the owners of the sugar or of the syrups held in store. More- over, since reimbursement cannot be granted unless some measure of control is pos- sible, Article 3 provides for the prior approval of the stores by the State in which they are located.

100 Articles 4 and 5 of Regulation N o 1358/77 specify the manner in which the reim- bursement is to be calculated and fixed: in particular, the calculation must be car- ried out based on monthly returns of quantities in store, established by calculating the arithmetic mean of the quantities held in store at the beginning and at the end of the month in question; the amount of the reimbursement is then fixed, financing, insurance and specific storage costs being taken into consideration.

101 In accordance with the principle of financial neutrality which underlies the system (see the third recital in the preamble to Regulation N o 1358/77), Article 6(1) of that regulation provides that the levy to be collected from each sugar manufacturer in respect of the quantities produced is to be so fixed that, for any sugar marketing year, the estimated total of the levies should be equal to the estimated total of the reimbursement. Article 6(2) provides that, when, for any sugar marketing year, the total of levies collected is not equal to the total of the reimbursement made, the

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105 Finally, Article 19 requires Member States to take all measures necessary for the application of the regulation. In particular, they are to establish all the necessary control measures.

106 The monitoring missions, in particular the on-the-spot inspections, carried out by the E A G G F in 1994 to check the systems applied in Italy in the context of the measures for reimbursement of storage costs for sugar, revealed that, until 31 Decem- ber 1992, the competent organisations in Italy (in particular the communes) had not carried out any checks on specialised traders or other approved independent stores. Moreover, the E A G G F also found that no checks on those beneficiaries had been carried out by the AIMA.

107 In view of the high degree of risk for the Community budget, the Commission applied a financial correction of 10% to the payments to operators in those cat- egories in respect of the 1991/92 marketing year, amounting to ITL 391 281 020.

108 The Italian Government claims first of all that the periods to which the Commis- sion's financial corrections refer — that is to say 1992, but also 1993, which does not fall within the scope of the contested decision — were special transitional stages. From March 1991 the AIMA took over all the administrative aspects of the system, which until then had been the responsibility of the Cassa Conguaglio Zuc- chero, and, from 1 January 1993, after the abolition of the tax on manufacture, the supervisory function which had been carried out by the Uffici Tecnici Imposta di Fabbricazione (UTIF).

1 1 3It should be observed first of all that, by failing to carry out on-the-spot checks on specialised traders during the period scrutinised by the Commission, the Italian Republic has failed to fulfil its supervisory obligations under Community rules.

114 It cannot be contended that such an obligation is not expressly laid down in the relevant regulations. The Court has consistently held that it is apparent from Article 8(1) of Regulation N o 729/70 that Member States are under a general obliga- tion to take the measures necessary to satisfy themselves that the transactions financed by the E A G G F are actually carried out and are executed correctly, even if the specific Community act does not expressly provide for the adoption of par- ticular supervisory measures (see Case C-8/88 Germany v Commission, cited above,

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paragraphs 16 and 17, and Case C-2/93 Exportslachterijen van Oordegem v Bel- gische Dienst voor Bedrijfsleven en Landbouw [1994] E C R I-2283, paragraphs 16 to 18).

115 That requirement is, moreover, reiterated in Article 19 of Regulation N o 1998/78.

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119 Traders who pay the levy are not, moreover, necessarily the same as those who receive the reimbursement. The latter include specialised traders who are not liable for the levy. Moreover, even so far as concerns manufacturers, the two amounts, fixed according to the manufacturing quota allocated to them and to the duration of storage respectively, do not automatically coincide.

1 2 0That is why the Member States must introduce adequate inspection procedures in order to check whether the storage costs eligible for reimbursement have actually been incurred. The absence of such procedures, or deficiencies therein, could allow certain traders to obtain reimbursement for fictitious costs, which would obviously lead to distortions of competition, to the detriment in particular of traders in other Member States where the control system does conform to the requirements of the Community rules.

121 The objection raised by the Italian Government that no damage to the Community has been established fails to take account of the rules concerning the onus of proof.

122 As the Court has consistently held, Articles 2 and 3 of Regulation N o 729/70 permit the Commission to charge to the E A G G F only sums paid in accordance with the rules laid down in the various sectors of agricultural production, leaving the Member States to bear the burden of any other sum paid, and in particular any amounts which the national authorities wrongly believed themselves authorised to pay in the context of the common organisation of the markets (Case 11/76 Neth- erlnds v Commission [1979] E C R 2 4 5 , paragraph 8; Case 18/76 Germany v Com- mission [1979] E C R 3 4 3 , paragraph 7; and Case C-48/91 Netherlands v Commis- sion, cited above, paragraph 14).

Costs

127 Under the first sentence of Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the suc- cessful party's pleadings. Since the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

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O n those grounds,

T H E C O U R T (Fifth Chamber)

R. Grass C. Gulmann

Registrar President of the Fifth Chamber

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