Action brought on 14 April 2009 - Hellenic Republic v Commission

(Case T-158/09)

Language of the case: Greek

Parties

Applicant: Hellenic Republic (represented by: V. Karra, I. Khalkias and S. Papaioannou)

Defendant: Commission of the European Communities

Form of order sought

annul or alter Commission Decision C(2009) 810 of 13 February 2009 relating to the financial treatment in the context of clearance of expenditure financed by the EAGGF in certain cases of irregularities committed by operators, in so far as it concerns the Hellenic Republic;

refund to the applicant the 50% which has been deducted pursuant to Article 32(5) of Regulation No 1290/2005 in the instances where there is no irregularity, numbered 3, 4 and 6 to 13 (except 7), or the debtor is insolvent, the case numbered 2;

order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

By Decision C(2009) 810 of 13 February 2009 relating to the financial treatment in the context of clearance of expenditure financed by the EAGGF in certain cases of irregularities committed by operators, the Commission imposed financial corrections on the applicant amounting to EUR 13 348 979.02 on account of the negligence which, according to the Commission, was displayed by the Greek authorities over a four-year period from the primary finding of the irregularity, and on account of the fact that they did not recover sums which had been wrongly paid to five undertakings operating in the wine-making, cotton and other sectors and to eight mass-production undertakings which participated in the aid regime for olive oil consumption.

The Hellenic Republic contends by its first general plea for annulment that there is no valid legal basis for imposing the correction in any of the 13 cases examined because the Commission misinterpreted and misapplied the provision, relied upon as applicable, in Articles 31(1) and 32(8) of Regulation (EC) No 1290/2005. ¹ The applicant submits in the alternative that the Commission made a manifest fundamental error and misappraised the factual circumstances that relate to the acts of the competent Greek authorities and, in the further alternative, that the statement of reasons in the contested decision, which is based on the mistaken presumption that nothing was done in the four-year period from the primary finding of the irregularity and that the recovery procedure or a valid recovery procedure was not begun, does not meet the requirement of Article 253 EC because it is defective, insufficient and vague, failing to rebut the arguments which Greece put forward in the course of the bilateral consultations and of the procedure before the Conciliation Body.

By the second plea for annulment, the applicant contends that the Commission mistakenly did not apply the fifth paragraph of Article 32(5) and Article 32(6)(a) and (b) of Regulation (EC) No 1290/2005 instead of Article 32(1) and (8) in four cases, with the result that it charged the expenditure in question to the applicant instead of its being taken on by the EAGF.

By the third plea for annulment, the applicant maintains that Article 32 of Regulation (EC) No 1290/2005, which lays down a period of one year from the primary administrative or judicial finding for the initiation of all administrative and judicial procedures laid down by national legislation with a view to recovery, concerns only irregularities occurring after the regulation began to apply and cannot concern irregularities which took place decades ago, when a different legal regime was in force which did not lay down a corresponding time-limit, the control being restricted to the observance of a reasonable period.

By the fourth plea for annulment, the applicant submits that the Commission's claim that the sums should be charged to the applicant, after the passing of 15 to 20 years from the irregularity relied upon, is time-barred because of the excessive duration of the procedure, or in the alternative the principle of legal certainty has been infringed.

Finally, by the fifth plea for annulment, the applicant submits that, since there is no irregularity in cases 3, 4, 6 and 8 to 13, the 24-month rule in Article 31(4) of Regulation (EC) No 1290/2005 applies in respect of any instance of recovery, and therefore the charging of the corresponding sums which are referable to a period far in excess of 24 months from notification of the inspection findings is misconceived and must be annulled.

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¹ - Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).