Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. In this case the Government of the Federal Republic of Germany (hereinafter referred to as the applicant) seeks the partial annulment of Commission Decision 87/541/EEC of 21 October 1987 amending Decisions 87/468/EEC and 87/469/EEC on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1984 and 1985. The contested section of the decision withholds Community financing from expenditure incurred by the applicant under Commission Regulation No 124/82 of 19 May 1982 laying down detailed rules implementing the system of premiums for maintaining stickler cows and Commission Regulation No 3007/84 of 26 October 1984 laying down detailed rules for the application of the premium for producers of sheepmeat; the expenditure disallowed by the Commission amounted to DM 1904356.86 in relation to 1984 and DM 1779570.95 in relation to 1985.
2. In respect of the financial year 1984 the amount of DM 1904356.86 disallowed by the Commission consisted on the one hand of premiums in the amount of DM 1681908.64 to sheepmeat producers in the area covered by the Rhineland Chamber of Agriculture in the Land of North Rhine-Westphalia, and, on the other hand, of premiums amounting to DM 222376.22 for the maintenance of the suckler cow herd paid by the applicant or its agencies in the areas covered by the Rhineland Chamber of Commerce (DM 100434.60), Bavaria (DM 79355.74) and the Stuttgart government of Baden-Württemberg (DM 42585.88). The amount of DM 1779570.95 disallowed in respect of 1985 consisted as to DM 1596934.47 of premiums to sheepmeat producers in the area covered by the Rhineland Chamber of Agriculture, and of premiums amounting to DM 99882.52 for the maintenance of the suckler cow herd in that area and amounting to DM 82753.96 in Bavaria.
Scope of the dispute
3. This is not the first time that the Court has been confronted with an application for the partial annulment of a Commission decision on the clearance of EAGGF accounts. However, the present case displays a number of features which distinguish it from many previous cases. Central to the dispute are not only specific provisions of the agricultural regulations relevant to the sectors in question (governing the substantive and formal conditions for the grant of the premiums and supervision thereof) but also, in a more explicit manner than in other cases, Articles 8 and 9 concerning supervisory and control measures, contained in Council Regulation (EEC) No 729/70 of 21 April 1970, which is the basic regulation on the common agricultural policy. The novelty of this case is to be found in the fact that the dispute does not concern so much the Commission's conclusions from its analysis of individual cases, but rather the consequences drawn by it from an examination of the administrative implementation of a part of the common agricultural policy in certain areas of the Member State in question.
4. The first ground of refusal is that the Federal Government should have given instructions to the Bundesamt für Ernährung und Forstwirtschaft (Federal Office for Food and Forestry) and/or should have established a system of supervision for the two premiums in question. In respect of both premium systems, they were unable to supply the Commission with data on the number of applications, on the manner in which they were examined, on the sources of errors found, and on the number of decisions to recover monies. The second ground of refusal is the inadequacy, the lack of, or the incorrectness, of instructions given by the Länder to the lower level administrative authorities responsible for implementation as regards the administrative controls and on-the-spot checks to be carried out. The third ground of refusal is the inadequacy of the actual supervision by the competent Länder or regions of the lower administrative levels responsible for implementation. The fourth ground of refusal is stated to be the absence of administrative controls and on-the-spot checks in the areas where financing was refused with the consequence that even a superficial investigation by Commission officials revealed irregularities in an abnormally large number of cases. The fifth ground of refusal is the absence of written reports on the carrying out of on-the-spot inspections in the agricultural concerns.
Lack of interest on the part of the federal authorities
5. Since a reason for refusal framed too broadly would elicit the reply from the applicant that it has to observe its federal constitutional structure, the defendant formulated the first ground of refusal in the following manner. Under the German Constitution the federal authorities in one of their manifestations could have formulated the recommendations or general guidelines for discussion with the subordinate authorities competent under the constitution. In that way it would have been possible to satisfy the requirement of Community law that Community rules must be applied in a uniform manner and that there must be efficient supervision. However, the Commission's inspectors are said to have encountered a total lack of interest on the part of the federal authorities, which in its turn is an adequate indication that Community law is being applied incorrectly.
6. My evaluation of this point is as follows. There is rightly no dispute between the parties that the internal constitutional arrangements of the Member States are not in principle directly influenced by Community law but that, on the other hand, those arrangements are not and cannot be a pretext for a lesser degree of compliance with Community obligations, including the obligations flowing from Article 5 of the Treaty. The question therefore remains whether the defendant was entitled to base a decision to disallow expenditure, albeit partial, on the fact that on an inspection by its officials no evidence was provided or indication given of discussions or coordination organized at federal level by the Member State or by concertation between the Länder for the purpose of implementing Community law in the matter. This is what may be shortly termed a lack of interest.
7. It follows from the arguments exchanged by the parties in the written procedure and at the oral hearing that even in the Commission's view a lack of interest manifested at federal level or between the Länder cannot constitute a separate ground for refusal of financing. In so far as this ground of refusal is maintained it merges into the other grounds mentioned above, in particular inadequate supervisory rules adopted by, and in concertation with, the competent Länder in the Federal Republic and inadequate supervision of the officials responsible for carrying out checks at local level.
Sheepmeat premium
8. The point of departure for the Commission is constituted by the substantive and formal conditions for the grant of the premium in favour of sheepmeat producers. During the material period of time the following substantive conditions for the grant of premiums were applicable pursuant to Council Regulation (EEC) No 1837/80, Council Regulation (EEC) No 872/84 and Commission Regulation (EEC) No 3007/84 (see also paragraph 6 of the Report for the Hearing):
9. In addition to the formal and substantive conditions. for granting the premiums, Article 5 of Regulation No 3007/84, mentioned above, is also relevant in connection with the supervisory obligations of the Member States in relation to the year 1985:
10. On the basis of the substantive and formal conditions mentioned above and Article 8(1) of the basic regulation the defendant maintains that the system of control in the area of the Rhineland Chamber of Commerce did not satisfy the following minimum requirements either in 1984 or in 1985: firstly, the existence of rules for calculating the number of ewes kept on the farm by the official inspectors, and, secondly, a written report on the results of on-the-spot inspections.
11. With regard to the fulfilment of those minimum requirements in the area covered by the Rhineland Chamber of Agriculture the defendant is categorical. On the occasion of a visit to Bonn by Commission inspectors, of which three weeks notice was given, it appeared that it was not possible to obtain any information from senior officials as to the methods of dealing with the applications, or the number of any on-the-spot inspections, or whether any written reports on those inspections were drawn up, nor could information be obtained on any exchange of information between senior officials and inspectors. Even later, no such information was obtained either on the existence of a system of administrative control or as to on-the-spot inspections. According to the Commission, it was therefore impossible to ascertain to what extent the grants paid out in that area were lawfully made and whether to refuse Community financing could be justified on those grounds.
12. The applicant does not dispute the factual allegations. It merely submits that notice of the Commission's visit was received too late by the relevant department, that is to say there was a failure in the internal organization which, according with the Court's settled case-law, it cannot rely on as an excuse and which does not explain why the information requested by the Commission could not be provided subsequently. Nor does the applicant dispute that the Member States have a general obligation to provide, through the medium of their competent organs, supervisory rules and practices which are laid down by express Community provisions and cause them to be applied by the relevant officials. In relation to the ewe premium relevant to this case, however, no such express provisions were disregarded by the competent authorities in the area concerned.
13. In my opinion the facts mentioned in paragraph 11 above in relation to the sheepmeat premium in the Rhineland are such that Artide 9 alone of Regulation No 729/70 (quoted in paragraph 9 above relating to the Commission's right to make inspections) in itself justifies the withholding of financing for the years 1984 and 1985. In that connection Member States cannot plead the absence of specific supervisory provisions in Community law. The wording of Article 9 of Regulation No 729/70 is perfectly explicit and there is a manifest infringement thereof when there is a total lack of information as to the manner in which it was operated in the relevant area which makes it impossible for the Commission to check (or even to make an approximate assessment) whether the aid was granted in accordance with the relevant Community criteria. In such a case the Court's case-law requires, in order to ensure a correct apportionment of the financial burden of the common agricultural policy implemented by the Member State, the exclusion of the expenditure in its entirety from Community financing. I will come back to this point further on (see paragraph 28, etc. below).
Suckler cow premium
14. In respect of the premium for the maintenance of the suckler cow herd, the following conditions could be inferred at the material time from Regulation (EEC) No 1357/80, as amended by Regulation (EEC) No 1417/81 (see paragraph 2 of the Report for the Hearing):
15. In respect of the supervisory obligations of the Member States, Article 4(1) of Regulation No 1244/82 is also relevant:
16. On the basis of these conditions for the grant of premiums (see paragraph 14 above) and the supervisory provision (see paragraph 15 above), in conjunction with Articles 8 and 9 of Regulation No 729/70, the defendant states that the system of supervision in the Member States must satisfy the following minimum requirements:
17. 2. The second minimum requirement laid down by the defendant for the system operated by the Lander is a reliable system for identifying suckler cows, in particular by ear marks or other unmistakable means. Such a system should exist, at any rate for suckler cows in Baden-Württemberg within which the government presidency of Stuttgart falls.
18. 3. Thirdly, the defendant infers from the regulatory provisions relating to the conditions for the grant of the premium that the guidelines operated by the Lander ought to have included rules concerning the manner in which the number of stickler cows kept on a farm should be calculated on the spot. In particular, not only the intensity of the on-the-spot checks to be carried out should be provided for (percentage of on-the-farm checks, criteria for the choice of holdings to be visited, and the frequency of visits), but provision should be made for the number of animals on the holding to be compared with the number sold in the preceding year, so that, if there is a substantial reduction in number there will be a presumption that the minimum period during which they must be kept has not been observed, and provision ought at least to be made for the times when on-the-spot checks should take place. On this last point the defendant states that in certain cases the rules should provide for a second visit in order to encourage compliance with the period of six months by a certain fear of being caught.
19. It seems to me that on the basis of the foregoing the defendant was in fact entitled to take the view that the system of supervision in control in the three regions concerned was inadequate as regards the requirement to keep the same number of animals for a period of six months. However, two more fundamental questions remain open. First, whether the defendant may rely on the absence of a control system in a given region as a reason, in general, for withholding EAGGF financing in connection with the expenditure incurred in that region and, secondly, whether in this case there is an adequate causal link between the absence of a control system, on the assumption that that may be relied on as a reason for withholding financing, and the expenditure excluded from Community financing. The second question which is more concrete will be examined region by region, but having regard all the time to the six control requirements I have mentioned (see paragraph 30 below). I shall deal with the more general first question straight away: it comes down to this: is the Commission in its stated requirement going too far — in inferring supervisory requirements inherent in the regulations and their context — in the direction of the unilateral imposition on the Member States (or harmonization) of detailed rules of supervision. In this connection, particular attention must be paid to the question of mimimum percentages for on-the-spot checks.
20. In its rejoinder, the defendant stated that the principle of equality, not merely between Member States but also between different parts of a federal Member State such as the Federal Republic, required a certain mimimum percentage of cases to be covered by on-the-spot checks; the defendant mentioned the figure of 100% for Ireland, 25% for the United Kingdom and 5% for Italy and the Netherlands, and, on the basis of the equality argument mentioned above together with the requirement that the checks must have a minimum degree of efficiency, put forward the figure of 5% as the absolute minimum.
21. The applicant's point of departure is the protection afforded to the Member States in their relationship with the Commission by the principle of legal certainty which, it is argued, in this case prohibits the retroactive imposition of control requirements. Although it is not my purpose to deny that legal certainty also plays a role as between the Member States and the Commission, I wish to emphasize that the starting point for the mutual relationship is constituted by the obligation under Article 5 of the Treaty to cooperate. As regards supervision of the implementation of the agricultural policy, this general obligation, which is laid down in basic Regulation No 729/70 and in the specific regulations in the sector concerned, entails specific obligations both for Member States and for the Commission. The Community task of the Commission and the Member States is the correct and proper utilization of Community resources and the framework within which that task is fulfilled is the clearance of EAGGF accounts, whereby the Member States are involved both in bilateral contacts and by way of a management committee.
22. When the Commission applies an implied provision in the field of controls on the clearance of accounts, legal certainty comes into operation in order to protect the Member States to a degree which is variable according to whether the provision is more or less self-explanatory. When the Commission bases a decision to withhold financing on the total absence of a system of supervision, or the absence of a system enabling answers to be given to the Commission's questions in the context of Article 9(1) of the basic regulation, which in my opinion was the case when the sheep premiums were disallowed — dealt with at paragraph 13 above —, the Member State cannot rely on the retroactive or unexpected nature of the decision as a defence. It is otherwise in cases where the Commission completes a provision, whose objectives and criteria are clear, by choosing one of many possibilities as regards the reasonable period or the adequate number of on-the-spot inspections. As in Case C-10/88 and as in Case 14/88 Italy v Commission, the reasonable period actually chosen may only be applied to clearances of accounts after notification to Member States (and after discussion with them).
23. 4. The fourth control requirement laid down by the defendant is that a written report should be drawn up following on-the-spot inspections. That would enable Commission officials, on visiting the Lander, to establish what percentage of farms have been subjected to on-the-spot inspections, the frequency of inspections on the same farm, etc.
24. y According to the defendant, rules should also be laid down at Länder level in order to verify that the undertaking not to sell milk or milk products to a dairy during a period of 12 months has been complied with. The applicant replies that no such express control requirement can be inferred from the rules, in view of the fact that it is an easy matter for officials in the course of on-the-spot inspections to verify, for example, from the absence of milk equipment or refrigeration plant, that a holding in receipt of a suckler cow premium is selling no milk during the relevant period. The defendant insists that, for example, provision must be made for delivery lists of neighbouring dairies to be inspected in order to catch possible infringers. Before giving my assessment on this fifth requirement (see paragraph 26 below) I shall now discuss the sixth and final requirement, closely related from the point of view of supervision.
25. 6. The defendant states that there should be rules in order to verify compliance with the requirement that the major part of income must be derived from farming. In that connection the defendant suggested that oral requests should be made for information from farmers or local authorities and that use should be made of sources of information represented by third parties, that is to say other sources than the declaration by the applicant himself.
26. It seems to me that the defendant, as regards the Rhineland Chamber of Commerce in Bonn and the Free State of Bavaria, was entitled to regard the last two control requirements (see paragraphs 24 and 25 above) as not having been complied with. In the first area, there was, however, no indication at all as to how the income condition and the undertaking not to sell were verified, or as to any on-the-spot inspections, which could have ensured detection and acted as a deterrent. Nor are any such indications to be found in the dossiers opened by the Commission officials. The same situation prevailed in Bavaria.
27. The discussion of the control requirements in relation to the suckler cow premiums (paragraphs 16 to 26) may now be summarized. The Commission itself has abandoned the first control requirement, as regards the assessment whether the suckler cows belong to a given breed (see paragraph 16 above). As regards the second control requirement with regard to the means of identifying the suckler cows, I have come to the conclusion that the Commission has been unable to prove the existence of this requirement. The third requirement that there should be on-the-spot inspections to ensure that the same number of animals are kept during six months, has in my opinion been correctly applied by the Commission, but there are doubts as to whether in the case of the Stuttgart Regierungspräsidium this requirement was breached to the extent of entailing financial consequences (paragraph 17 to 22). The failure to comply with the fourth requirement that a written report should be kept of on-the-spot inspections was correctly invoked against all of the three regions concerned (paragraph 23). With regard to the fifth and sixth requirements — verification of compliance with the obligation not to sell milk products and the income conditions — the Commission was entitled to regard these as not having been complied with in the case of Rhineland and Bavaria, whilst as regards the Stuttgart Regierungspräsidium noncompliance, with the third requirement too, was less clear cut (paragraphs 24 to 26).
Disallowance of expenditure by the EAGGF as a weapon in the hands of the Commission
28. I now come to a question which, as regards sheep premiums, I regard as having been answered by the Court in its earlier case-law (see paragraph 13 above). To what extent may the Commission attach financial consequences in the form of the disallowance of expenditure to noncompliance with minimum requirements as to verification of the expenditure of Community resources, which are implicitly inherent in specific regulations or may be deduced from the division of competences in the accounts clearance procedure instituted by the basic regulation? This question which I have already referred to as a causality question is concerned with the relationship between the failings found by the Commission to exist in the system of control and the expenditure excluded from Community financing. It is in essence a question of evidence, more particularly a question as to the burden of proof.
29. A somewhat special feature in this case is the largely implied nature of the rules of Community law which the Commission says have been infringed (see paragraphs 21 and 22 above). In such a case, is the Commission entitled to extrapolate from the defective method of granting aid applied, and the not inconsiderable number of files thereby found to be irregular, to the whole region in which the defective method was applied? Or is the Member State's burden of proof, or its duty to state its case, less onerous?
30. My decision is that the Commission can and must withhold Community financing, not only when, in relation to a region, there is no indication whether, if at all, a minimum standard of supervision exists over the expenditure of money in the name of the Community — the case of the sheep premium in the Rhineland Chamber of Agriculture —, but also when several significant control requirements have not been fulfilled in a region, which inter alia may be apparent from a considerable number of defective dossiers. It is for the Member State to cast doubt on the Commission's statement of reasons, which is inevitably based on suppositions and extrapolations, and to suggest that it is not supported by concrete facts with regard to the supervisory situation in question. The Member State must therefore put forward substantiated and detailed items of evidence. The Member States may also in an appropriate case be allowed to show that a much lower standard is applied towards other Member States or regions.
Conclusion
31. On the basis of the foregoing I propose that the Court declare Commission Decision 87/541/EEC void in the amount of DM 42585.88, that is the premium for the maintenance of the suckler cow herd in the area covered by the Stuttgart Regierungspräsidium, and to dismiss the remainder of the application.
1 Original language: Dutch.
2 OJ 1987, L 324, p. 32.
3 OJ 1982, L 143, p. 20.
4 OJ 1984, L 283, p. 28.
5 OJ, English Special Edition 1970 (I), p. 218.
6 The term directives is placed between quotation marks because the instruments in question current in the German legal order have no connection with the Community law concept contained in Anide 189(3) of the EEC Treaty.
7 Minutes of meetings in the Bundesministerium für Ernährung, Landwirtschaft und Forsten (Federal Ministry for Food, Agriculture and Forestry) of stock and meat representatives of the Länder.
8 Judgment of 7 February 1979 in Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraphs 7 and 8.
9 Council Regulation (EEC) No 1837/80 of 27 June 1980 on the common organization of the market in sheepmeat and goat meat (OJ 1980, L 183, p. 1).
10 Council Regulation (EEC) No 872/84 of 31 March 1984 laying down general rules for the granting of premiums to sheepmeat producers and repealing Regulation (EEC) No 2643/80 (OJ 1984, L 90, p. 40).
11 Commission Regulation (EEC) No 3007/84 of 26 October 1984 laying down detailed rules for the application of the premium for producers of sheepmeat (OJ 1984, L 283, p. 28).
12 Article 3(5) of Regulation (EEC) No 1837/80 provides that the sales year snail commence on the first Monday of April.
13 Article l(l)(a) of Regulation No 872/84.
14 Article 1(2) of Council Regulation (EEC) No 2643/80 of 14 October 1980 laying down general rules governing the granting of the premium for the benefit of sheepmeat producers (OJ 1980, L 275, p. 6), as amended with effect from the beginning of the sales year beginning in 1984 by the aforementioned Regulation No 872/84.
15 Articles 2 and 3(2) of Regulation (EEC) No 3007/84.
16 Regulation (EEC) No 3007/84 mentioned in the previous footnote did not however apply to the 1984 sales year. In the earlier Regulation (EEC) No 2660/80 of 17 October 1980 (OJ 1980, L 276, p. 16), there was no condition as to the period of time for which the sheep had to be kept.
17 Article 3(2) of Regulation (EEC) No 3007/84.
18 Article 2(1) of Regulation (EEC) No 3007/84.
19 For 1984 the only substantive condition which applied was the condition with regard to the number of animals, in addition to Article 8 of the basic regulation. The fact that as from 1985 (following the entry into force of Regulation (EEC) No 3007/84) there was a more explicit obligation on Member States to carry out on-the-spot checks (inier alia in connection with the requirement introduced at the same time to keep ewes during a given period) does not of course mean that the Member States did not previously have to carry out controls on whether the condition as to the number of ewes was satisfied; see on this point Article 4 of Regulation (EEC) No 2660/80, mentioned above in footnote 15, in which the words if necessary precede the mention of on-the-spot inspections but on the other hand the general rule is repeated in Article 5 that the Member States must adopt the necessary provisions in order to recover premiums which have been paid in error. As regards trie condition as to the number of ewes, the only condition in 1984, it is moreover difficult to draw a sharp distinction between the organization of administrative supervision and the organization of on-the-spot checks and it is difficult to see how such controls can be arranged otherwise than with the assistance of at least sampling checks on the spot. See two footnotes further on.
20 At the beginning of the written procedure it seemed that the defendant also required a reliable system for the identification of ewes. In the rejoinder it however acknowledged that the identification of sheep by earmarks is practically impossible. That factor increases the importance of on-the-spot inspections.
21 I would observe in this connection that in the case of a condition such as the one under discussion it is difficult to draw a distinction between administrative controls and on-the-spot inspections (see above, footnote 18).
22 Sec the Opinion of Mr Advocate General Capotorti of 5 December 1978 in Joined Cases 11/76, 15/76, 16/76 and 18/76 Netherlands v Commission [1979] ECR 286, it p. 319.
23 Judgment of 7 February 1979 in Joined Cases 15/76 and 16/76 France v Commission of the European Communities [1979] ECR 321, paragraphs 28, 32 and 35.
24 The fact that the administrative provisions of North Rhine-Westphalia laid down a requirement for 10 or seven ewes only in August 1985 and not April 1984, as was required by the amendment to the Council Regulation dealt with in footnotes 11 and 12, another ground for the Commission's decision to disallow the expenditure, does not therefore need to be dealt with separately.
25 Council Regulation (EEC) No 1417/81 of 19 May 1981 amending Regulation (EEC) No 1357/80 introducing a system of premiums for maintaining suckler cows (OJ 1981, L 142, p. 4).
26 Articles 1 and 5(1 )(a) of aforementioned Regulation No 1357/80 and Article 3 of Directive 72/159/EEC (OJ 1972, L 96, p. 1).
27 Article 2(1) and (2) of aforementioned Regulation (EEC) No 1357/80.
28 Article 5(4) of aforementioned Regulation (EEC) No 1357/80 as amended by Regulation (EEC) No 1417/81.
29 Article 2(2) of aforementioned Regulation (EEC) No 1357/80.
30 Commission Regulation (EEC) No 2795/83 of 6 October 1983 waiving the date in Regulation (EEC) No 1244/82 for submitting applications for premiums for maintaining suckler cows for 1983/84 (OJ 1983, L 274, p. 20).
31 Commission Regulation (EEC) No 3442/84 of 6 December 1984 waiving the date in Regulation (EEC) No 1244/82 for submitting applications for premiums for maintaining suckler cows tor 1984/85 (OJ 1984, L 318, p. 30).
32 First subparagraph of Article 1(2) of Regulation (EEC) No 1244/82.
33 For Baden-Württemberg the assessment is less negative. Some indications were given in the administrative provisions.
34 It appears from this last-mentioned factor that the Commission was too hasty in invoking this requirement with regard to the government presidency in Stuttgart.
35 The defendant also refers to other Community regulations in which a minimum percentage of 5% for checks is expressly laid down. This is Article 5 of Commission Regulation (EEC) No 2835/77 of 19 December 1977 laying down detailed rules for aid for durum wheat (OJ 1977, L 327, p. 9) and Article 4(2) of Commission Regulation (EEC) No 3061/84 of 31 October 1984 on the detailed rules for the application of a system of production aid for olive oil (OJ 1984, L 288, p. 52). According to a press report (Agence Europe of Friday 15 December 1989, No 5154) the Council of Agriculture Ministers accepted a proposal for a minimum percentage of checks by customs officers of 5% in connection with the financially very significant export refunds.
36 See my Opinion of 4 July 1989 in Case 14/88 Italy v Commission [1989] ECR 3677, paragraph 15, and the judgment of 14 November 1989 in the same case, paragraph 19.
37 Same Opinion, paragraphs 11 to 13, and judgment, paragraph 20.
38 See the Opinion of Mr Advocate General Capotorti of 5 December 1978 in Cases 11/76, 15/76 and 16/76 and 18/76 Netherlands v Commission [1979] ECR 286, 294 and 295.
39 See inter alia my Opinion in Case 262/87 Netherlands v Commission [1989] ECR 225, paragraph 12. For these reasons the comparison made at the hearing with the relationship between a prosecuting authority and a private person committing a parking offence is not to the point.
40 Set the judgment of 19 October 1989 in Joined Cases 258/87, 337/87 and 338/87, Italy v Commission [1989] ECR 3359, paragraph 18, in which the Court departed from paragraph 46 of Advocate General Lenz's Opinion of 7 July 1989.
41 In Case C-10/88 Italy v Commission [1990] ECR I-1229, concerning birth premiums for cows, in which I delivered my Opinion on 16 January 1990, I said that the Commission was not entitled to withhold the financing of expenses by reliance on a reasonable period for payment laid down by it because it only notified that period to the Member States after the year to which the relevant sums related. For Case 14/88 I refer to footnote 35 above.
42 This interpretation follows from the judgment of 21 September 1989 in Case 68/88 Commission v Greece [1989] ECR 2965, and in this respect, from the words in any event in paragraph 24. See also Mr Advocate General Darmon's Opinion of 29 November 1988, paragraph 10 (Case 94/87 Commission v Germany [1989] ECR 175), and paragraph 12 of the judgment of 2 February 1989 in the same case.
43 [19801 ECR 31.
44 More serious still, in one of these cases it was stated on the application form that the applicant was a farmer and employee, but he had nevertheless been in receipt of the benefits for years. Only by chance, (a telephone conversation) did it come to light that he earned more than half of his income as an employee. Even then conclusions were slow to be drawn.
45 Judgments of 7 February 1979 in Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 12, and in Case 18/76 Germany v Commission [1979] ECR 343, paragraph 12: it is moreover established that up to the present no specific procedure for attributing liability has been laid down by Community law for the purposes of settling differences between the Community and the Member States. The discharge of the accounts by the Commission thus necessarily entails the attribution of expenditure either to the Commission or the Member Sute concerned.
46 Judgment of 7 February 1979 in Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 25. For an example of a decision refusing financing for failure to comply with evidence requirements I would refer to the judgments of 27 February 1985 in Cases 55/83 and 56/83 Italy v Commission [1985] ECR 683 and 705, paragraph 21. The Court has rejected the subsequent regularizaron of evidential formalities, as also the replacement of prescribed evidential formalities by others: judgments of 7 February 1979 in Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 11, and in Case 18/76 Germany v Commission [1979] ECR 343, paragraphs 20 and 22. See also in this connection the Opinion of Mr Advocate General Mischo of 1 October 1987 in Case 347/85 United Kingdom v Commission [1988] ECR 1749, paragraph 46. That expenditure may be disallowed even when it is clear that no substantive irregularity has taken place was confirmed in the judgment of 25 February 1988 in Case 327/85 Netherlands v Commission [1988] ECR 1065.
47 Opinion of 5 December 1978 Netherlands v Commission [1979] ECR 286, at p. 292. Emphasis added.
48 See for example the judgment of 25 November 1980 in Case 820/79 Belgium v Commission [1980] ECR 3537, paragraph 15: consequently the applicant has not estabished that the incorrect application of the provisions of ... by the Belgian authorities should be attributed to the Commission. Sec also paragraph 19 of the judgment of 21 February 1989 in Case 214/86 Greece v Commission [1989] ECR 367.
49 Judgment of 12 July 1984 in Case 49/83 Luxembourg v Commission [1984] ECR 2931, paragraphs 29 to 32, where issue is uken with the Opinion of Advocate General Darmon based on earlier case-law, see p. 2950.
50 See judgment of 5 October 1989 in Case 290/87 Commission v Netherlands [1989] ECR 3083, paragraphs 16 to 20, and the Opinion of Mr Advocate General Lenz of 11 July 1989, ECR 3091, paragraph 40.
51 Commission v Greece [1988] ECR 4875. Since the Greek Government submitted no evidence to the Court on this point, the Court held that the facts had to be deemed to be established.
52 I refer here to the France v Commission judgment, cited above in footnote number 7.
53 Paragraph 19, and paragraphs 30 to 33 of Advocate General Lenz's Opinion of22 November 1988.
54 That does not mean to say that the disallowance of expenditure is a sanction imposed on the Member State. In contradistinction to a judgment under Article 171 of [he Treaty no moral reproach is implied. The clearance of EAGGF accounts is therefore no more than a decision as to the allocation of a financial burden as between two authorities.
55 In this case no such argument going to equality was put forward by the applicant. The defendant on the other hand adduced evidence giving the impression that other regions of the same Member Sute were tested against the same yardstick and found to be satisfactory, whilst some other Member States for the same reasons related to supervision had to accept the disallowance of expenditure in the same sectors.
56 See footnote 48 above.