C-263/98

OPINION OF MR ALBER — CASE C-263/98

OPINION OF ADVOCATE GENERAL ALBER delivered on 15 March 2001 1

I — Introduction Belgium sought to have that decision annulled; the Court dismissed the applica- tion in its judgment of 18 May 2000. 4

1. In these proceedings Belgium seeks the annulment of Commission Decision 98/358/EC of 6 May 1998 on the clearance 3. Belgium's present application is founded of the accounts presented by the Member on a blanket reference to its submissions in States in respect of the expenditure for Case C-242/97, and on a number of 1994 on the Guarantee Section of the additional submissions. The Commission, European Agricultural Guidance and Guar- in presenting its defence, has adopted a antee Fund ('the EAGGF), 2in so far as similar approach. that decision disallows, in respect of Bel- gium, Community financing for the sum of BEF 382 208 436 by way of expenditure incurred for the advance payment of export refunds. 4. There is, I think, no need for the submissions in the earlier case to be revis- ited in extenso; I shall accordingly confine myself to those issues which were not resolved by the earlier judgment. 2. The Decision was based on checks of the Belgian control system carried out in 1993 and 1994. The Commission considered that the checks disclosed serious deficiencies; these had already led to Commission Deci- sion No 97/333/EC of 23 April 1997 on 5. This Opinion is therefore limited to: the clearance of the accounts presented by the Member States in respect of the expen- diture for 1993 on the Guarantee Section of the European Agricultural Guidance and Guarantee Fund. 3As in the present case, — the question whether an application is properly made if an applicant, instead 1 — Original language: German. 2 — OJ 1998 L 163, p. 28 (notified as C(1998) 1124). 3 — OJ 1997 L 139, p. 30. 4 — Case C-242/97 Belgium v Commission [2000] ECR I-3421.

6. For other matters, such as the legal context, and the issues which have already been resolved, reference may be made to — the Belgian Government's assertion the judgment in Case C-242/97, and to my that three officials in addition to the Opinion in that case. checker had been responsible for the controls in the beef and veal sector at 7 — Sec judgment m Case C-242/97 (cited in footnote 4), paragraph 42, and the Opinion (cited in footnote 5), point 70. 5 — See the iiidgment in Case C-242/97 (cited in footnote 4), 8 — See judgment in Case C-242/97 (cited at footnote 4), paragraphs 109 and 114, and mv Opinion of 21 October paragraph 53 et seq., and the Opinion in that case (cited 1999 [20001 ECU 1-3426, point 164. at footnote 5), point 90 et seq. 6 — See judgment m Case C-242/97 (cited in footnote 4), 9 — See judgment in Case C-242/97 (cited at footnote 4), paragraphs 110 and 115, and the Opinion (cited in footnote paragraph 50 et seq., and tlie Opinion in that case (cited 5), point 169 et seq. at footnote 5), point 87 et seq.

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II — Forms of order sought 2. to order Belgium to pay the costs.

7. In its application, received at the Court on 17 July 1998, the Kingdom of Belgium asks the Court I I I— Legal assessment

1. to annul Commission Decision 98/358/ A — Admissibility of the application EC of 6 May 1998 on the clearance of the accounts presented by the Member States in respect of the expenditure for 1994 on the Guarantee Section of the European Agricultural Guidance and 9. The first issue to address is whether in Guarantee Fund (EAGGF), in so far as these proceedings the Court should enter- that decision disallows, in respect of tain the Belgian Government's blanket Belgium, Community financing for the reference to its submissions in Case sum of BEF 382 208 436 by way of C-242/97. expenditure incurred for the advance payment of export refunds, and

Submissions of the parties

12. In principle, I agree with the Court of First Instance, though it must be under- stood that a court's own organisational arrangements — matters such as the assignment of cases to Chambers and rapporteurs — can have no bearing at all 14. Belgium argues that the Commission's on the effect of anything done by any party. checks were specifically described as relat- In principle, if two actions are sufficiently ing to the 1992 and 1993 financial years, closely related, a reference to other plead- but not to 1994. At the hearing, the Belgian ings should be permitted. In the present Government's representative contended case there is indeed such a relationship: the that the checks were not capable of reveal- decisions challenged in the two cases fol- ing irregularities in the 1994 financial year: lowed what was essentially a single admin- it was therefore not open to the Commis- istrative procedure — the checks, the cor- sion to base any corrections in respect of respondence, the unsuccessful conciliation that financial year on them. process. Moreover, the parties are the same in both cases. It is therefore only logical for the two actions to be founded on the same arguments; the fact that they were not brought on the same day is, by comparison, a minor issue. 15. The Commission points out that its checks were carried out in September and November 1994: they also covered the Belgian authorities' administrative practice in the 1994 financial year. The fact that only 1992 and 1993 were mentioned in the 13. It follows that the Belgian Govern- subject-line of the letters in question did ment's reference to its pleadings in Case not alter the fact that in 1994, as in the C-242/97 is admissible; the same must other two years, Belgian administrative

17. This plea must therefore be rejected. 20. It must be remembered that Commis- sion Decision C(97) 515 final set 28 Feb- ruary 1997 as the deadline for the submis- 11 — I considered similar complaints by the Netherlands in my Opinion in Case C-278/98 Netherlands v Commission [2001] ECR I-1501, point 97. My assessment in that Opinion of other objections raised by the Netherlands Government may in principle be applied to the present 12 — See the judgment in Case C-242/97 (cited in footnote 4), case. In its judgment (paragraph 84 et seq.), the Court paragraph 114, and my Opinion (cited in footnote 5), affirmed the view expressed in the Opinion. point 164.

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sion of new facts relating to the clearance evidence, none the less failed to do so by of the accounts for the 1994 financial year. the deadline set by the Commission. 14

22. Accordingly the Commission may 25. Moreover, the Commission has stated, decline to finance export refunds if Bel- without being challenged, that Amylum, a gium, though it did submit the necessary company where the Commission carried out checks, exported common wheat. At the hearing, the Commission's representa- 13 — Regulation on the clearance or EAGGF accounts, in the version contained in Commission Regulation (EEC) No 422/86 of 25 February 1986 (OJ 1986 L 48, p. 31), amending Regulation (EEC) No 1723/72 on making up accounts for the European Agricultural Guidance and 14 — See the Opinion in Case C-27/94 Netherlands v Commis- Guarantee Fund, Guarantee Section, repealed by Article 9 siom [1998] ECR I-5581, points 38 et seq., followed, as to of Commission Regulation (FC) No 1663/95 of 7 July its conclusion, without reasoning, in the judgment at 1995 laying down detailed rules for the application of paragraph 29; likewise the earlier judgments in Case Council Regulation (FF.C) No 729/70 regarding the pro- C-197/90 Italy v Commission |1992| ECR I-1, paragraph cedure for the clearance of the accounts of the EAGGF 9, Case C-54/91 Germain v Commission [1993] ECR Guarantee Section (OJ 1995 L 158, p. 6). However, it I-3399, paragraph 13 f., Cíase C-41/94 Germain· v Com- continued to apply to tne clearance of accounts up to and missi»» 11996| ECR I-4733, paragraph 23, Case C-61/95 including 1995. Moreover, Article 4(3) of Regulation Greece v Commission [1998] ECR I-207, paragraph 45, No 1663/95 is couched in verv similar terms to Arti- and Case C-59/97 Italy v Commission [1999] ECR I-1683, cle 1(3) of Regulation No 1723/72. paragraph 37.

27. In my Opinion in Case C-242/97 I described Belgium's submissions on the correction of the clearance in respect of the advance financing for warehousing in the cereals sector in the following terms:

29. However, the Commission has already demonstrated — in its rejoinder in Case C-242/97 — that two of the undertakings 'Thirdly, the Belgian Government claims (in the alternative) in its application that it had already, during the conciliation procedure, 15 — Cited in footnote 5, point 169. pointed out that a correction in the cereals 16 — See the judgment in Case C-242/97, cited in footnote 4, paragraph 115, and the Opinion, cited in footnote 5, sector should not be applied to expenditure point 171.

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investigated had also participated in the bursement dated 25 September 1996; how- system of advance payment for warehous- ever, it is not apparent why that document ing, and that the investigations had exten- should have been known to the Commis- ded to cover that system; Belgium has not sion. rebutted those claims. It follows that the extension of the corrections to the system of advance payment for warehousing was justified in principle.

32. Consequently that plea must also be rejected.

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that Belgium had already indicated, in a 37. That plea must therefore likewise be communication dated 22 May 1995, that a rejected. supervisory official had been present at Dendermonde in addition to the checker.

F — The system of checks at Sivafrost (Beef and Veal Sector) in 1994

35. On that point, it should first be observed that, the communication of 22 May 1995 not only does not support 38. The judgment in Case C-242/97 states: the submission made in the application — it actually contradicts it. The claim that there was an additional supervisory official working at Dendermonde in no way negates the Commission's finding that the actual checking was performed by a single checker. Indeed, it accords with the Com- 'Sixth, the Belgian Government denies that mission's initial finding that one female the only means of identifying the different official was responsible for checking the boxes stored in the Sivafrost store was a three biggest Belgian beef and veal expor- sheet of paper attached to a pallet, showing ters, and that her assistant weighed and the numbers of the payment declarations, counted the boxes. and that it was therefore possible to replace on the spot the boxes stocked in that store. It asserts that the boxes stored there had labels showing the nature, weight and number of the goods. In addition, since 1994 the Sivafrost store had used storage lists showing the same details as the labels, which made it possible to check whether the boxes had left the store.

36. Moreover, the claim in the application that three further officials were engaged in checking was first raised after 28 Febru- ary 1997, and was therefore out of time. 20 The Belgian Government has not succeeded Accordingly it cannot be considered. in showing that the findings on which the Commission's decision is based are incor- rect. In particular, as that Government has 20 — See above, points 20 et seq. not claimed that it had used the system of

40. On this point, it should first be observed that Belgium has not indicated when exactly in 1994 storage lists were instituted. We only know that lists were kept in the Sivafrost store when the Com- mission checks were being carried out. However, the system was apparently not 42. Even if use of the storage lists had introduced throughout Belgium until 1995. significantly improved the supervision at There is therefore no reason to presume the Sivafrost store, that concerned only one that storage lists were kept throughout of eleven individual points in the beef and Belgium during the whole of the 1994 veal sector. Proving that the Commission financial year. had erred on that point would still not make it necessary to reduce the financial correction. As the Court has consistently held, the Commission may even disallow all the EAGGF expenditure in question if it finds that there are no adequate control procedures. 23 It follows that this plea must be rejected. 41. Moreover, in its rejoinder in Case C-242/97, the Commission emphasised 22 — On the issue of the payment declarations, see my Opinion m Case C-242/97 (cited m footnote 5), point .10. 23 —Judgment in Case C-242/97 (cited in footnote 4). para- 21 — Cited in footnote 4; paragraphs 53 et seq. graph 122.

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G — The inaccuracy in the summary 45. Thus, as in the earlier case, there are no report grounds for allowing Belgium's application either in whole or in part. More particu- larly, there is no need to reduce the flat-rate reductions applied by the Commission in the cereals or beef and veal sectors.

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V — Conclusion

49. For the reasons given above, I propose that the Court should:

(1) Dismiss the application;

(2) Order the Kingdom of Belgium to pay the costs of the proceedings.