Commission Decision

of 27 June 2003

on the financial treatment to be applied, in the context of clearance of expenditure financed by the European Agricultural Guidance and Guarantee Fund Guarantee Section, in certain cases of irregularity by operators

(notified under document number C(2003) 1968)

(Only the Spanish, Danish, German, Greek, English, French, Dutch and Portuguese texts are authentic)

(2003/481/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy(1), as last amended by Regulation (EC) No 1287/95(2),

Having regard to Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with financing of the common agricultural policy and organisation of an information system in this field and for repealing Regulation (EEC) No 283/72(3), and in particular Article 5(2) thereof,

After consulting the Fund Committee,

Whereas:

(1) Under Article 8(1) of Regulation (EEC) No 729/70 Member States are to take action to prevent and deal with irregularities and recover sums lost as a result of irregularities or negligence. Article 8(2) specifies that in the absence of total recovery the financial losses consequent on irregularities or negligence are to be met by the Community unless the irregularities or negligence are attributable to administrative authorities or other bodies of the Member States.

(2) Articles 3 and 5(1) of Regulation (EEC) No 595/91 require Member States to notify the Commission of irregularities discovered, proceedings instituted and amounts recovered.

(3) Article 5(2) of Regulation (EEC) No 729/70 and Article 8(1) and (2) of Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for application of Council Regulation (EEC) No 729/70 regarding the procedure for clearance of the accounts of the EAGGF Guarantee Section(4), as last amended by Regulation (EC) No 2025/2001(5), provide that the Commission is to make the necessary verifications, inform the Member State of its findings, consider the Member State's observations, initiate bilateral discussions in the aim of reaching agreement with it and formally communicate its conclusions to the Member State, referring to Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of clearance of the accounts of the European Agricultural Guidance and Guarantee Fund (EAGGF) Guarantee Section(6), last amended by Decision (EC) No 2001/535/EC(7).

(4) The verifications made and the bilateral discussions have shown that in certain cases Member States have not taken all the necessary steps to protect the Community's financial interests and that this failure has meant that unduly paid amounts have not been recovered. It must be taken into account in this connection that in the Court of Justice's view(8) four years is to be considered a reasonable period of time within which Member States ought to start proceedings to recover sums unduly paid from the EAGGF in the context of irregularities committed by operators.

(5) The financial impact arising from the impossibility of recovery in such cases should therefore not be borne by the EAGGF Guarantee Section.

(6) In cases where the impossibility of recovery cannot be ascribed to the Member State's negligence the financial impact accordingly is to be borne by the EAGGF Guarantee Section.

(7) The Commission has informed the Member States in a summary report of the amounts to be excluded under this Decision for non-conformity with Community rules.

(8) This Decision is without prejudice to the financial implications the Commission may attach to judgments of the Court of Justice in the cases before it at 31 May 2002 relating to the matters to which this Decision relates,

HAS ADOPTED THIS DECISION:

Article 1

The expenditure by the approved paying bodies of the Member States charged to the EAGGF Guarantee Section indicated in Annex I to this Decision is to be met by the Member State concerned.

It is to be deducted from the expenditure advances for the second month following notification of this Decision to the Member States concerned.

Article 2

The expenditure by the approved paying bodies of the Member States charged to the EAGGF Guarantee Section indicated in Annex II is to be met by it.

Article 3

This Decision is addressed to the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland.

Done at Brussels, 27 June 2003.

For the Commission

Franz Fischler

Member of the Commission

(1) OJ L 94, 28.4.1970, p. 13.

(2) OJ L 125, 8.6.1995, p. 1.

(3) OJ L 67, 14.3.1991, p. 11.

(4) OJ L 158, 8.7.1995, p. 6.

(5) OJ L 274, 17.10.2001, p. 3.

(6) OJ L 182, 16.7.2001, p. 45.

(7) OJ L 193, 17.7.2001, p. 25.

(8) Case C-34/89, Italy v Commission [1990] ECR I-3603.

ANNEX I

Amounts to be charged to the national budget

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ANNEXE II

Amounts to be charged to the EAGGF Guarantee Fund

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