Judgment of the General Court (Second Chamber) of 10 October 2012 — Greece v Commission

(Case T‑158/09)

EAGGF — ‘Guarantee’ section — Expenditure excluded from financing — Clearance of accounts of the paying agencies of Member States concerning expenditure financed by the EAGGF — Negligence of the Member State in the recovery of sums wrongly paid — Liability of the Member State for the financial consequences of failure to recover

1.                     Agriculture — Common agricultural policy — EAGGF financing — Principles — Member States’ duty of diligence in recovering amounts wrongly paid (Art. 10 EC; Council Regulations No 729/70, Art. 8(1) and (2), and No 1290/2005) (see paras 46-49)

2.                     Acts of the institutions — Statement of reasons — Obligation — Scope — Decision relating to the clearance of accounts in respect of expenditure financed by the EAGGF (Art. 296 TFEU) (see paras 56-60)

3.                     Agriculture — Common agricultural policy — EAGGF financing — Obligations of the Member States — Adoption of measures capable of enduring the regularity of expenses — Scope (Council Regulations No 729/70, Arts 2, 3 and 8(1), No 1258/1999, Arts 2, 3 and 8(1), and No 1290/2005, Arts 3 and 9(1)) (see paras 63-65)

4.                     Agriculture — EAGGF — Clearance of accounts — Disallowance of expenses flowing from irregularities in the application of EU legislation — Challenge by the Member State concerned — Burden of proof — Allocation between the Commission and the Member State (Council Regulations No 729/70, Art. 5(2)(c), and No 1258/1999, Art. 7(4)) (see para. 66)

5.                     Actions for annulment — Jurisdiction of the EU judicature — Commission decision withdrawing EU financial assistance — No power to substitute another decision for the contested decision or to vary the latter (Art. 261 TFEU) (see para. 176)

6.                     EU own resources — Regulation concerning protection of the financial interests of the EU — Scope — Inapplicability to infringements of provisions of EU law arising from an act or omission of a Member State (Council Regulation No 2988/95) (see para. 183)

7.                     European Union law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities (see paras 184-186)

8.                     Agriculture — EAGGF — Clearance of accounts — Disallowance of expenses flowing from irregularities in the application of EU legislation — No breach of the principle of legal certainty (Council Regulations No 729/70, Arts 5(2)(c) and 8(2), No 1258/1999, Arts 7(4), fifth para., and 8(2), and No 1290/2005, Arts 31(4) and (5), and 32) (see paras 186-192)

9.                     Agriculture — Common agricultural policy — EAGGF financing — Accounts clearance procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — Consequences (Council Regulations No 1258/1999, Art. 7(4) and No 1290/2005, Art. 31(3)) (see paras 193-202)

Re:

ACTION for annulment or variation of Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of accounts in respect of expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF), ‘Guarantee’ Section, in certain cases of irregularity by operators, in so far as that decision excludes from Community funding, and imposes on the Hellenic Republic liability for, a sum of EUR 13 348 979.02.

Operative part

The Court:

1. Annuls Commission Decision C(2009) 810 final of 13 February 2009 on the financial treatment to be applied, in the context of clearance of expenditure financed by the European Agricultural Guidance and Guarantee Fund (EAGGF) ‘Guarantee’ Section, in certain cases of irregularity by operators, in so far as it closes the files EL/1993/01 and EL/1994/031 and in that regard imposes on the Hellenic Republic liability for the sums of EUR 519 907 and EUR 300 914.99;

2. Dismisses the action as to the remainder;

3. Orders the Hellenic Republic to bear four fifths of its own costs and to pay four fifths of the costs of the European Commission;

4. Orders the Commission to bear one fifth of its own costs and one fifth of the costs of the Hellenic Republic.