C-170/00

OPINION OF MR GEELHOED — CASE C-170/00

OPINION OF ADVOCATE GENERAL GEELHOED delivered on 20 September 2001 1

I — Introduction 21 April 1970 on the financing of the common agricultural policy.3 Article 3(1) thereof provides for the financing of meas- ures by the EAGGF.

1. In the present case the Finnish Govern- ment seeks the annulment of the Commis- sion Decision of 1 March 2000 2 excluding from Community financing certain expen- diture incurred by the Member States. The 3. Article 5 of that Regulation, as amended expenditure in question is the sum of FIM 7 by Council Regulation (EC) No 1287/95 of 270 885.97, which the Finnish authorities incurred in respect of meat premiums in the 22 May 1995, 4 provides as follows: 1996 and 1997 financial years, and which it subsequently declared to the European Agricultural Guidance and Guarantee Fund (hereinafter 'EAGGF'). The Commission contends that the action should be dis- missed. '...

2. The Commission, after consulting the Fund Committee: I I — The legal framework

2. The financing of the common agricul- tural policy is governed by Regulation (EEC) No 729/70 of the Council of

Before a decision to refuse financing is taken, the results of the Commission's checks and the replies of the Member State concerned shall be notified in — of irregularities as referred to in writing, after which the two parties Article 8(2); shall endeavour to reach agreement on the action to be taken.

— concerning national aids, or infringements, for which the pro- If no agreement is reached, the cedures referred to in Articles 93 Member State may ask for a procedure and 169 of the Treaty have been to be initiated with a view to mediating initiated.

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3. Detailed rules for the application of this After expiry of the period allowed for Article shall be adopted in accordance with reply, the Commission shall initiate a the procedure laid down in Article 13. bilateral discussion, and both parties shall Those rules shall cover in particular the endeavour to come to an agreement as to attestation of the accounts referred to in the measures to be taken. The Commission paragraph 1 and the procedures relating to shall then formally communicate its con- the decisions referred to in paragraph 2.' clusions to the Member State, referring to Commission Decision 94/442/EC.

4. C o m m i s s i o n R e g u l a t i o n (EC) 2. The d e c i s i o n s r e f e r r e d to in No 1663/95 of 7 July 1995 laying down Article 5(2)(c) of Regulation (EEC) detailed rules for the application of Council No 729/70 shall be taken after an examin- Regulation (EEC) No 729/70 regarding the ation of any report drawn up by the procedure for the clearance of the accounts Conciliation body according to the provi- of the EAGGF Guarantee Section 5 was sions laid down in Directive 94/442/EEC. introduced for the application of, inter alia, Article 5(3) of Regulation No 729/70. Article 8 provides as follows:

organisation of the market in beef and veal and 1997. It based this decision on its and amending that Regulation. 6 findings that the relevant controls had not been carried out in accordance with the rules, as was also clear from the results of its checks, which the Commission had appended in an annex to its letter. In the final paragraph of the letter the Commis- 6. On 20 May 1997 the Commission sent sion gave the Finnish Government two the Finnish authorities 7 a document in months in which to reply, after which, Finnish drawing the Finnish Government's and after examining any reply received, it attention to deficiencies in the system of would organise a bilateral meeting before controls which it had identified during the reaching any conclusions. on-the-spot checks. The Commission stated that it reserved the right to decide sub- sequently on the Community financing of expenditure relating to the premiums for bulls paid in 1995 and 1996. It asked for a reply within two months of receipt of the 9. The annex to which the letter referred document. The document was sent in the was not attached. Following a request from form of a telex rather than a letter. The the Finnish Government the Commission Finnish Government states that it also forwarded the annex on 11 December received the document by fax. 1998, together with a covering letter repeating the final paragraph of the letter of 17 September 1998.

22 December 1996, that is to say 24 15. The Commission does not concur with months before the date of receipt of the the Finnish Government's view that the annex (22 December 1998). The disputed 2 4 - m o n t h p e r i o d referred to in expenditure amounts to FIM 7 270 885.97. Article 5(2)(c) of Regulation No 729/70 ran until 22 December 1998. On the contrary, in the contested decision it cor- rectly considered that the 24-month period ran until 20 May 1997, the date on which it sent the document in the form of a telex or fax. It was therefore entitled to exclude from financing expenditure incurred in the 12. Nevertheless, on 1 March 2000 the period from 20 May 1995 to 20 May 1997. Commission adopted a decision excluding It substantiates its position by asserting that from Community financing expenditure in the document of 20 May 1997 satisfies the the amount of FIM 7 270 885.97. requirements of Community law. In the alternative the Commission claims that the English version of the letter of 17 September 1998 is decisive. Finally, the Commission disputes that the letter of 11 December 1998 was not received by the Finnish Government until 22 December 1998. 13. The present application against that decision was lodged with the Court by the Finnish Government on 9 May 2000. The parties elucidated their views at a hearing on 4 July 2001. 16. In its application the Finnish Govern- ment provides a detailed calculation of the sums deducted. The Commission does not dispute those calculations. The sums are therefore not relevant to the proceedings before the Court.

18. The first question concerns the content of the communication: what requirements 20. However, before I examine those ques- does the Regulation impose concerning the tions, I shall look more generally at cooper- content, and more particularly what is the ation between the Commission and the relationship between this communication Member States in implementing the com- and the communication referred to in mon agricultural policy. Article 8 of Regulation No 1663/95? I shall then examine the significance of the formal requirements associated with Article 5(2)(c), before moving on to consider the require- ment under Article 5(2)(c) for the com- munication to be in writing: does that mean that it must take the form of a letter, or is a telex or fax sufficient? That question is B — Preliminary observations related to other more general questions concerning the legal force of faxes and other modern communications media, where they are used as a substitute for a letter. My opinion on whether the notice of 20 May 1997 is to be regarded as a written 21. The common agricultural policy is communication within the meaning of implemented by the Commission and the Article 5(2)(c) will be based on those Member States, working closely together. elements. Both parties must be guided by the prin- ciple of Community loyalty, as expressed in Article 10 EC. 8 The Member States imple- ment the common agricultural policy in their territory using funding provided by the Community. In doing so they are required to assist the Commission as much 19. In the alternative — should the Court as possible in the performance of its task, take the view that the notice of 20 May particularly in so far as it involves monitor- 1997 does not meet the relevant require- ing the efficient use of the Community ments and that the Finnish Government's funding. Without the Member States' help action cannot be dismissed — I shall con- sider whether Regulation No 729/70 allows 8 — In its case-law on the common agricultural policy the Court the communication to be in English rather also talks about the Member State being under a general than in the language of the Member State. obligation to use due diligence. See, for example, the judgment in Case C-54/95 Germany v Commission [1999) Also in the alternative, I shall consider the ECR I-35.

24. I take the view that the nature of the relationship between the Commission and a Member State changes as soon as the 22. The close cooperation between the Commission takes legal steps against that Commission and the Member State is Member State. In a case such as the present characterised, among other things, by that is the point at which the Commission intensive communication between the two. complains that the Member State is imple- Because of the frequency and rapidity with menting the common agricultural policy which communications need to be made, incorrectly or incompletely, and indicates the formal requirements for such communi- that this will have financial consequences. cations cannot be too demanding. That From that moment on cooperation no applies both to the means used — fax and longer forms the focus of the relationship e-mail will often be a more efficient way of between the Commission and the Member exchanging information than a letter State. An adversarial phase has begun in through official channels — and to the which the Commission and the Member language of the communications, particu- State oppose each other as parties to a larly where only a small number of the dispute. Their relationship has become a Commission's staff can speak the language legal one; the Member State can and will of the Member State concerned. then act primarily according to its pro- cedural position, and can more readily rely on failure to comply with formal require- ments or other procedural defects. The case-law of the Court also recognises that the procedure for clearing EAGGF accounts is adversarial in nature, so that the rights of the defence are guaranteed.9 23. The need for close cooperation between the Commission and the Member State means that their relationship is different from that between the Commission — or any other administrative authority — and an individual. An individual is more readily 25. It is not absolutely clear from Regu- able than a Member State to rely on a lation No 729/70 and its implementing formal error by the Commission in order to obtain a procedural advantage. What that means is not that the Commission can 9 — See the judgment in Case C-247/98 Greece v Commission ignore the formal requirements laid down [2001] ECR 1-1.

C — The dispute itself

27. However, the significance of this find- ing for the present case should not be The content of the communication overstated. First of all, the administrative procedure after the communication referred to in Article 8 of Regulation No 1663/95 still involves certain elements of cooperation, in that the article requires both parties to endeavour to come to an 29. According to the Finnish Government agreement. Secondly, the written communi- the communication referred to in

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30. The Commission rebuts the Finnish Government's arguments concerning the link between Article 5(2)(c) of Regulation No 729/70 and Article 8 of Regulation No 1663/95. It argues that there is no link 33. The communication referred to in the between the two provisions, since the legal implementing regulation also relates to basis of Regulation No 1663/95 is those results, but is only issued when, as a Article 5(3), not Article 5(2), of Regulation result of an enquiry, the Commission No 729/70. In its reply the Finnish Govern- considers that expenditure was not effected ment states that the Commission's argu- according to Community rules. The com- ment is irrelevant given that Article 5(3) munication also contains an evaluation of specifically refers to decisions taken on the the expenditure which the Commission basis of Article 5(2)(c). proposes to exclude from EAGGF financ- ing. It may therefore be inferred that the communication referred to in Regulation 10 — OJ 1999 L 273, p. 5. No 1663/95 is issued at a later stage in the 11 —The Dutch text was not substantially amended on this point. procedure.

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FINLAND v COMMISSION

35. The length of that period is determined 37. The wording of the two regulations by Article 5(2)(c) of Regulation No 729/70 also supports my view that the written and Article 8(1) of Regulation No 1663/95. communication pursuant to Article 5 of Those provisions relate to the exchange of Regulation No 729/70 and the communi- various written documents and also pro- cation pursuant to Article 8 of Regulation vide for oral consultation and the involve- No 1663/95 are not the same. ment of a conciliation body set up under Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the EAGGF Guarantee Section. 12 Against that background the Finnish Gov- ernment also refers to the Commission 38. It should be noted that the two regu- Guidelines of 23 December 1997 13 for lations use different terms in the Dutch the calculation of financial consequences language version. Regulation No 729/70 when preparing the decision regarding the refers to a 'schriftelijke mededeling', while clearance of EAGGF Guarantee Section Regulation No 1663/95, which lays down accounts. The guidelines state that the implementing provisions for Regulation No 729/70, refers to a 'kennisgeving'. The English version too uses two different 12 —OJ 1994 L 182, p. 45. terms, 'notify' and 'communicate' respect- 13 — Document IV/5330/97 final. ively, and the Finnish version also uses

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different terminology. However, I do not 41. That said, I consider the notice of attach too much importance to this dif- 20 May 1997 to be the (written) communi- ference, since the French and Italian ver- cation of the results of the checks provided sions, among others, use the same term in for in Article 5(2)(c) of Regulation both regulations. No 729/70.

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FINLAND v COMMISSION

request to do so from a Member State. 15 I permanent representation and to the quote from paragraph 31 of the judgment representatives on the Committee. in Germany v Commission: 'That require- ment for the document to be sent separately to the offices of the Permanent Represen- tatives of the Member States and to their representatives on the Committee, taken — The technically complex nature of the together with the fact that there is no documents. That factor is also relevant possibility for shortening the period of to the question of whether an English notice, is a sufficient indication of the version of the text is acceptable. intention to ensure that Member States should have the time necessary to study these documents, which may be particu- larly complex and require considerable contact and discussion between different — The importance of the requirement: a administrative authorities, or consultation minimum period is necessary for the of experts in various fields or of profes- consultation of various parties con- sional organisations'. It is also relevant that cerned. English versions of the documents in that case had been sent in good time.

45. In the present case the Court must 44. It is to be inferred from the passage decide to what extent the requirements cited from the judgment in Germany v imposed on the communication referred to Commission that the Court in that case in Article 5(2)(c) of Regulation No 729/70 considered the following factors relevant in are to be regarded as essential formal determining whether a requirement was an requirements. This relates first to the essential procedural requirement: demand that the communication be in writing, which is stated in the article itself, but in addition I regard the demand that the communication be given in the lan- guage of the Member State as a formal — The explicit nature of the formal requirement, whether or not it is essen- requirement. In the case in question tial. 16 no exceptions could be made to the requirement to meet the deadline for sending documents.

requirements which Regulation No 729/70 48. In my opinion the classification of the (and Regulation No 1663/95) imposes on formal requirements in the present proceed- the written communication. It considers ings is directly bound up with the particular that a fax does not satisfy the formal nature of the written communication requirements, nor does a letter in English. referred to in Article 5(2)(c) of Regulation It contends that it derives entitlement to No 729/70. On the one hand the com- compliance with those procedural rules munication has financial consequences the from the Community legislation, thereby scale of which must be made clear to the classifying the requirements as essential Finnish Government. The Finnish Govern- formal requirements. The Commission, as ment may have an interest here, such as in I understand it, takes the opposite view. setting aside funding to cover the financial According to the Commission, it is not the loss. It may also contest the accuracy of the formal presentation of the document that is substance of the communication. On the decisive, but the purpose it serves as a other hand it is a communication of facts warning. That purpose was served with the observed in the past. The Finnish Govern- document of 20 May 1997. The Commis- ment cannot take steps to limit the scale of sion points out that an excessively formal its financial loss given that the expenditure application of the rules would allow the to which the communication relates has Member States to delay the collection of already been effected. Nor can the Finnish information by the Commission of their Government do anything to prevent the own accord, which would have a detri- communication from having the legal effect mental effect on the system. of interrupting the 24-month period.

have been made clear and their application 53. The Finnish Government refers to this foreseeable for the party concerned, in in its reply, asserting that the Finnish other words the Finnish Government. As authorities may generally have replied to the Court found in its judgment in Den- the informal contacts from the Commission mark v Commission, 17 'That requirement as a matter of courtesy, but that action does of legal certainty must be observed all the not deprive the Finnish Government of its more strictly in the case of rules liable to right to demand compliance with pro- entail financial consequences, in order that cedural rules in connection with the calcu- those concerned may know precisely the lation of an important legal time-limit. In extent of the obligations which they impose essence the Finnish Government thus con- on them'. In the present case the require- tends that the fact that it did not always ment of clarity was met, as can be seen insist on compliance with the requirement from the fact that the Finnish Government does not mean that it forfeited its right to responded in its letter of 21 July 1997 to rely on it. the substance of the document sent to it on 20 May 1997.

54. In the judgment in Germany v Com- mission 18 the Court attached importance to the fact that the German Government 51. I have therefore concluded on this point had formally applied for the vote to be that it has not been established that the postponed on account of the late arrival of requirements imposed on the communi- the documents. It thereby lodged an early cation referred to in Article 5(2)(c) of objection to the failure to satisfy an essen- Regulation No 729/70 are to be regarded tial formal requirement, which might have as essential formal requirements breach of had the effect of limiting the damage which renders the communication void. caused by that breach. The requirement of clarity must, however, be met, which is the case here.

56. I take the view that a Member State sequence in law that the period referred to cannot rely before the Court on a breach of in Article 5(2)(c) could also have been an essential formal requirement by the interrupted shortly after 20 May 1997. Commission, having earlier acquiesced in non-compliance with that requirement. Reliance on such a plea is contrary to Article 10 EC. 59. Finally, I do not think it necessary, for the purpose of the present proceedings, to examine in detail the operation of the principle of legal certainty. In view of the particular nature of the written communi- cation referred to in Article 5(2)(c) of 57. In the present case it has been estab- Regulation No 729/70, which communi- lished that the Finnish Government cates facts as to matters which have responded in its letter of 21 July 1997 to occurred in the past, that principle plays a the substance of the document sent to it on very limited role. Nevertheless, it does flow 20 May 1997 without objecting to the fact from that principle — as I described in that the document had not been sent in the point 50 — that it had to be clear with form of a letter. It follows from this that the certainty to the Finnish Government that Finnish Government regarded the docu- the notice it had received was the com- ment as the written communication munication referred to in Article 5(2)(c). referred to in Article 5(2)(c) of Regulation No 729/70. It cannot then subsequently object before the Court to the form in which it received the document. In addi- tion, it may be inferred from the fact that the Finnish Government replied two The requirement for the communication to months later that it had not suffered be in writing damage as a result of the failure to comply with the formal requirement.

65. Electronic communication is also 62. The answer to this question depends becoming increasingly important in legal first of all on the interpretation of the term correspondence between the Commission 'written'. The issue is whether that term and the Member States. In procedures such means 'not oral', or whether it implies a as the present, at any event, it is now usual letter or some other paper document. In my to send an advance copy, the Commission view, what is decisive here again is the preceding a formal letter with a fax or interest that the Community legislature e-mail with the same content, thus giving intended to protect in imposing the require- the Member State more time to reply. Fax ment that the communication be in writing. and e-mail are also used for the frequent communications that form part of the cooperation between the Member States and the Commission during the procedure for the clearance of the accounts of the EAGGF Guarantee Section.

63. Before I answer the question, I would draw attention to the increased importance, and acceptance, in legal correspondence of the use of alternative means of communi- cation instead of a letter. I would simply point out that when the relevant text of 66. The Court also recognises — albeit to Article 5(2)(c) of Regulation No 729/70 a limited extent — the use of fax and was adopted in 1995, e-mail was not yet a e-mail in its procedures. Parties can agree widely used phenomenon to which legal to have procedural documents served by effect was given. fax or e-mail, though they are still lodged only through the normal post. 20

67. On the other hand in its decisions the 69. A communication is usually required to Court is sometimes reluctant to accept that be in writing because it has to provide faxes are equivalent to original paper certain safeguards for those concerned. The documents. Only recently the Court, in its obligation to reduce a matter to writing is judgment in Netherlands v Commission, 21 intended to protect parties by providing rejected the use of faxes for lodging pay- certainty about the authenticity of a docu- ment declarations relating to subsidies to be ment, its contents and the date when it was financed by the EAGGF because of the risk produced. At other times, although not in of fraud: 'The Netherlands authorities' the present case, the requirement for a practice of accepting a fax is clearly not communication in writing serves a broader compatible with that provision. 22 It cre- purpose, such as the prevention of fraud, 23 ated a risk of unlawful payment of sub- the protection of an economically weaker sidies making it possible, after an inaccur- party to an agreement or the protection of acy had been found during a customs check third parties. On this last point, it should be made on the basis of a fax, for the trader to pointed out that in the present case the lodge another declaration containing the correspondence between the Commission correct information.' In my opinion the and the Member State is not public and Court's reluctance here is connected to the third parties cannot therefore derive rights prevention of fraud which is the specific from it. In the present case the requirement purpose of the requirement for a communi- that the communication be in writing has cation in writing, and does not constitute a merely a probative function in relations rejection of electronic media in general. between the Commission and the Member State.

72. I am of the opinion that the document received by the Finnish Government on 20 May 1997 by telex and/or fax must be regarded as a written communication 74. The Finnish Government refers to within the meaning of Article 5(2)(c) of Council Regulation No 1 of 15 April 1958 Regulation No 729/70. In my view the determining the languages to be used by the written communication is not the same European Economic Community, 25 as document as the communication referred to amended on the accession of Austria, Fin- in Article 8(1) of Regulation No 1663/95. land and Sweden. Article 3 of that Regu- The Finnish Government cannot rely before lation states that '[d]ocuments which an the Court on the fact that the communi- institution sends to a Member State or to a cation was not sent by letter even if the person subject to the jurisdiction of a transmission by telex and/or fax was indeed Member State shall be drafted in the a breach of an essential formal require- language of such State'. ment, since the Finnish Government raised no earlier objection to this form of trans- mission. Furthermore, a 'written' com- munication can be sent electronically. The action must therefore be dismissed.

76. In the judgment in Germany v Com- Court of First Instance's recent judgment in mission 26 the Court interpreted Article 3 of Kik v OHIM, 28where the Court states that Regulation No 1 strictly, deeming it inad- the choice of language may — in some equate for the Commission to send the cases — be limited to a language which is German authorities documents in English. more widely known within the European The documents in question, as I indicated Union. The case in question concerned the in point 44 of this Opinion, were technical language regime in the Office for Harmon- ones on which the Standing Committee on isation in the Internal Market (Trade Construction had to base a decision. Marks and Designs). Under that regime communications are partly in German, English, French, Spanish or Italian. The Court of First Instance thus dismisses a complaint of discrimination from a national of a country where a different Community language is spoken. 77. In my view the Court's strict interpre- tation must be seen in the light of the special nature of the documents concerned, which were technical documents that had to be able to serve as the basis for a decision. Advocate General Ruiz-Jarabo 79. I take the view that sending documents Colomer stated in that regard: 'While the in English does not always render them Commission may assume that officials void on the ground of failure to comply from the Permanent Representation of with an essential procedural requirement. Germany have good knowledge of English, However, the Member State concerned is I think that it would be going too far to entitled to receive documents in its own presume the same for the two represen- language. In order to assert that right it tatives of that country on the Committee, must, where appropriate, inform the Com- or indeed for the experts'. 27 In any event, mission that it is not satisfied with a the Member State's authorities had to be document in English. In my opinion it is able to discuss the documents with those not compatible with the cooperation that concerned in their own country, both takes place between the Commission and a public bodies and individuals. In order to Member State for that Member State to do so they needed documents to be avail- invoke the absence of a version in the able in German in good time. correct language only before the Court. As is apparent from point 56 of my Opinion, I regard such conduct by a Member State as, at the very least, inconsistent with Article 10 EC.

understand the Commission's position cor- — by reproducing, in the covering letter rectly, that the date of 10 July 1998, when of 11 December 1998 sent with the the document in English was sent, is not annexes, the last paragraph of the letter decisive. That document was an advance of 17 September 1998, the Commission copy of the letter of 17 September 1998. deprives the latter of any legal effect. Therefore, the Commission contends, the letter in Finnish of 17 September 1998 is material, because even though the annexes were missing, they had been sent to the Finnish Government earlier in English. The Finnish Government, however, regards it as crucial that there were no annexes in Finnish. It informed the Commission of this, and the Commission subsequently sent The date of the communication the annexes on 11 December 1998. Those annexes were accompanied by a letter in which the Commission reproduced the final paragraph of the earlier letter and once again mentioned the period referred to in Article 8(1) of Regulation No 729/70.

86. Should the Court support the Finnish Government's view that the date of receipt by the Ministry in Helsinki is decisive, rather than receipt by the permanent rep- resentation, the effect might be that the 84. The Finnish Government recognises Commission will subsequently refrain from that the permanent representation received sending copies directly to the relevant a copy on 14 December 1998. However, authorities in the capital city, which would the original was addressed to the Ministry adversely affect cooperation. of Agriculture and Forestry in Helsinki and arrived there on 22 December 1998. The Finnish Government regards the date of receipt of the original as decisive.

87. The letter of 11 December 1998 must therefore be deemed to have been received by the Finnish Government on 14 December 1998.