Case T‑31/17

Portuguese Republic

v

European Commission

(EAGF — Expenditure excluded from financing — Specific measures for the outermost regions — Article 12(c) of Regulation (EC) No 247/2006 — Technical assistance — Control activities — Procedural safeguards — Legitimate expectations)

Summary — Judgment of the General Court (Ninth Chamber), 22 November 2018

1.      Agriculture — Financing by the EAGF — Clearance of accounts — Elaboration of decisions — Written communication by the Commission to Member States of the results of its checks — Content — Minimum requirements

(Council Regulation No 1290/2005, Art. 31; Commission Regulation No 885/2006, Art. 11)

2.      Agriculture — Financing by the EAGF — Specific measures for the outermost regions — Eligibility of operations and expenses — Technical assistance operations — Definition — Control activities performed by the Member States — Not included

(Council Regulations No 1290/2005, Arts 5(a) and 11, and No 247/2006, Art. 12(c))

3.      EU law — Principles — Protection of legitimate expectations — Conditions — Invocation by a Member State — Lawfulness

4.      Agriculture — Financing by the EAGF — Specific measures for the outermost regions — Eligibility of operations and expenses — Approval by the Commission of an overall programme put forward by a Member State — Consequences — Definitive view taken as to the eligibility of the expenditure concerned for European Union financing — Absence

(Council Regulations No 1290/2005, Art. 31, and No 247/2006, Art. 24; Commission Regulation No 793/2006, Art. 49)

1.      In the context of the clearance of the accounts of the EAGF, the Commission’s written communication, as provided for in the first subparagraph of Article 11(1) of Regulation No 885/2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD, must inform the Member State concerned fully about the Commission’s reservations as to the conformity of the expenditure concerned with EU rules, so that it can fulfil the warning function given to it by the provision. It follows that Article 11(1) of Regulation No 885/2006 requires that the irregularity which the Member State concerned is alleged to have committed should be stated with sufficient precision in the written communication provided for in the first subparagraph of that provision.

Furthermore, where the same ground of ineligibility is given for a category or group of expenditure, the Commission may use only general reasoning for all the expenditure concerned.

(see paras 29, 30, 36)

2.      The technical assistance operations referred to in Article 12(c) of Regulation No 247/2006 laying down specific measures for agriculture in the outermost regions of the Union and provided for in a support programme for an outermost region are, in principle, eligible for European Union financing, provided, inter alia, that they relate to the preparation, implementation or adaptation of support measures. However, Regulations Nos 247/2006 and 793/2006 laying down certain detailed rules for applying Regulation 247/2006 do not specify whether or not the technical assistance operations referred to in Article 12(c) of Regulation No 247/2006 include the control activities performed by the national authorities. Moreover, it appears, within EU law and in particular in relation to the EAGF, firstly, that there is no general and transversal definition of the concept of ‘technical assistance’ which may be transposed in that context and, secondly, that, the expression ‘technical assistance’ does not necessarily designate a series of measures including control measures.

Article 12(c) of Regulation No 247/2006 should be interpreted taking into account not only the wording of that provision but also the context in which it occurs and the objectives pursued by the legislation of which it is part. In that regard, first, neither that provision nor the other relevant provisions of Regulations Nos 247/2006 and 793/2006 mentions evaluation, audit and control measures. Second, as far as concerns the EAGF, the words ‘technical assistance’ may not refer, in certain circumstances and in particular within the context of Article 5(a) of Regulation No 1290/2005 on the financing of the common agricultural policy, to a series of measures including control activities, but rather designate merely administrative and technical support measures stricto sensu. Third, pursuant to Article 11 of Regulation No 1290/2005 payments relating to the financing provided for under that regulation are, save provision to the contrary, to be disbursed in full to the beneficiaries. It is clear from those provisions that the appropriations assigned to the EAGF, and in particular those allocated to the Member States, must, in principle, be used to finance operational expenditure by means of payments to the beneficiaries. It follows that, save otherwise provided, those appropriations cannot be use to assist national authorities to perform administrative activities for which they are ordinarily responsible, such as the grant of aid and premiums.

In those circumstances, it follows from a literal, systematic and teleological interpretation of Article 12(c) of Regulation No 247/2006 that the ‘technical assistance operations relating to the … implementation [of support measures]’ to which it refers do not include the control activities performed by the national authorities.

(see paras 47, 48, 61, 62, 66-71, 74)

3.      See the text of the decision.

(see paras 85-87)

4.      It is clear from Article 24 of Regulation No 247/2006 laying down specific measures for agriculture in the outermost regions of the Union and Article 49 of Regulation No 793/2006 laying down certain detailed rules for applying Regulation 247/2006 that approval by the Commission of the support measures contained in the overall programmes put forward by the Member States under Article 24 is an essential pre-requisite for the financing of those measures under the EAGF.

However, overall programmes are provisional in nature, with the result that, by approving them, the Commission is not, in principle, taking a definitive view on the compatibility of the measures contained therein with all the applicable rules of EU law and, therefore, on the eligibility of those measures for European Union financing. Accordingly, it cannot be inferred from the Commission simply approving an overall programme that the eligibility of those measures for European Union financing can no longer be called into question by the Commission, in particular as part of the conformity clearance procedure provided for in Article 31 of Regulation No 1290/2005 on the financing of the common agricultural policy.

(see paras 92, 93)