Opinion of Advocate General

Mr President,

Members of the Court,

1. By the present action the Federal Republic of Germany seeks partial annulment of the Commission decision of 30 November 1990 (C (90) 2337 final) on the clearance of the accounts of the Member States in respect of the expenditure for 1988 of the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the financial year 1988.

2. The specific causes of the irregularities of each transaction were, as usual, made in clear in bilateral contacts preceding the decision on the clearance of accounts and were subsequently set out in a summary report forwarded to the German authorities.

A — Absence of export licences: DM 104909.63 (paragraph 4.1.3.2 of the summary report)

3. The German Government takes exception, first, to the statement in the summary report to the effect that a financial adjustment was made necessary by the export of a quantity of intervention cereals set against the tolerance erroneously granted on an export refund advance-fixing certificate. The German Government contends in particular that it had no knowledge of any such case and that in any event the decision on the matter did not contain an adequate statement of the grounds on which it was based.

4. As regards the alleged inadequacy of the statement of reasons, I would point out first of all that, according to settled case-law, the scope of the obligation to state reasons laid down in Article 190 of the EEC Treaty depends on the nature of the measure in question and the circumstances in which it was adopted; in particular, a decision on the clearance of the accounts in respect of expenditure financed by the EAGGF, refusing to charge to the latter part of the expenditure declared, does not call for a detailed statement of reasons since the government involved was closely associated with the process of drawing up the decision and should therefore know the reasons for which the Commission considers that a particular amount cannot be charged to the EAGGF.

5. However, as is apparent from the documents before the Court (see Annexes 1 and 2 to Chapter III of the defence), the transaction at issue involved the export to the Soviet Union of cereals stored in intervention agencies' warehouses; the attention of the German authorities was drawn to the transaction on several occasions, the number of the contested document being specifically indicated. In particular, by letter of 23 May 1990, the Commission stated that it considered that the tolerance of 1500000 kg allowed on licence No 239195065 was unjustified.

6. Nor, in my opinion, may the Court examine the evidence produced in the course of the proceedings to justify the transaction at issue. If, as indicated earlier, the Commission objected in due time to the infringement of the Community legislation by the German authorities, the latter could and should have presented the relevant documents before 30 June 1990, the deadline set by the Commission pursuant to Article 1(3) of Commission Regulation (EEC) No 1723/72 on making up accounts for the European Agricultural Guidance and Guarantee Fund, Guarantee Section.

B — Exports for which the declaration was presented only after the goods had left Community territory: DM 18037338.54 (paragraph 4.1.3.3 of the summary report)

7. The German Government contests the Commission's statements to the effect that on various occasions export refunds were granted even though the declarations relating to them were presented to the competent customs offices only after the vessels had proceeded to sea, thereby making it impossible for the necessary checks to be carried out.

8. A few details of the legislation governing the Community export procedure will help to clarify the point at issue.

9. As the Commission correctly points out, it is clear from those provisions, first, that an export declaration must be made in writing, in particular so that the information provided by the exporter can be checked against the goods presented for export; and, secondly, that the declaration may be lodged before the goods are presented but certainly not after they have left the customs territory.

10. As is apparent from the report of 4 May 1990 from the Oldenburg Principal Customs Office (annexed to Chapter IV of the Commission's defence), in the cases objected to by the Commission the export procedure was not carried out with the requisite diligence. And indeed, as far as the export declarations accepted on 30 March 1988 are concerned, it appears that the five control copies at issue were not drawn up until the day after the vessel had sailed and that the goods had not undergone any check as to quantity and specifications. Moreover, in the report it is merely assumed that the prescribed declaration was made before commencement of the loading operations.

11. In view of those irregularities and the lack of reliable evidence to show that the prescribed export declaration was submitted in due time, it would not seem that much credence can be attached to the German Government's statement that the exported products were in fact declared before loading commenced; nor is there any basis in Community law for the applicant's contention that a check was unnecessary because the goods concerned were cereals in the warehouses of the intervention agencies.

C — Date of acceptance of the export declaration by the customs authorities: DM 251803.64 (paragraph 4.1.3.5 of the summary report)

12. The German Government challenges the Commission's statement that the German customs administration's practice of allowing traders to choose the date of acceptance of the export declaration, and thereby the rate of refund, is contrary to Community law. According to the applicant, the Community legislation does not indicate which day is to be treated as the date of acceptance of the export declaration.

13. Let me say immediately that, contrary to the applicant's assertion, it does not seem to me that the relevant Community legislation allows the customs authorities, still less traders, to choose the date of acceptance of the export declaration.

14. Pursuant to Directive 81/177/EEC, the competent authorities must be informed in the prescribed manner that the goods are present in a customs office or other place designated by them (Article 5(3)) and the requisite notification involves lodging the declaration at the customs office at which the goods have been presented (Article 5(1) and (2)).

15. It is apparent from those provisions that the export declaration must be accepted as soon as it has been checked as regards form, content and conformity with the goods to be exported.

D — Production refunds for starch and sugar: DM 6200360.76 (paragraphs 4.2.4.1 and 4.5.1.4 of the summary report)

16. The German Government challenges the Commission's statement that the administrative procedure followed by the German authorities regarding those products makes physical checks impossible and, more generally, constitutes an infringement of Commission Regulation (EEC) No 2169/86 of 10 July 1986 laying down detailed rules for the control and payment of the production refunds in the cereals and rice sectors and Regulation No 1729/78 of 24 July 1978 laying down detailed rules of application in respect of the production refund for sugar used in the chemical industiy.

17. Contrary to the view expressed by the German Government, it seems to me that a procedure of that kind is not in conformity with either the spirit or the letter of the relevant Community provisions.

18. The German procedure, which allows the application for a refund to be lodged after processing, seems clearly to run counter to the abovementioned provisions and also makes it impossible for any physical checks of the goods to be carried out.

19. In fact, as is apparent in particular from the applicant's reply, the German Government appears to concede that that procedure does not meet the requirements of the abovementioned provisions; it stresses, however, that the course of action followed is consonant with the spirit of the Community legislation and also ensures that the controls are effective.

20. In that connection, and without considering the merits of the applicant's assertions, I shall merely observe, first, that it is settled law that where a regulation lays down specific control measures, the Member States are required to apply them, there being no need to consider the soundness of their arguments that a different supervision system would be more effective, and, secondly, that the Member States cannot seek to justify practices contrary to Community legislation by criticizing the appropriateness of that legislation.

Costs

21. The German Government abandoned its pleas concerning export refunds in the cereals and sugar sectors following the adoption of Commission Decision 91/583/EEC of 31 October 1991, which charged the amounts at issue to the EAGGF. However, it claims that the costs concerning that matter should be paid by the Commission since the contested refunds were in fact correctly granted ab initio.

22. In the light of the foregoing considerations, I therefore suggest that the Court:

1 Original language: Italian.

2 Published as Decision 90/644/EEC, OJ 1990 L 350, p. 82.

3 Case 819/79 Germany v Commission [1981] ECR 21, paragraphs 19 to 21.

4 OJ, English Special Edition, Second Series, Part III, p. 109. The paragraph referred to was added by Commission Regulation (EEC) No 422/86 (OJ 1986 L 48, p. 31). See also the judgment in Case C-197/90 Italy v Commission [1992] ECR I-1.

5 OJ 1981 L 83. p. 40.

6 OJ 1987 L 351, p. 1.

7 OJ 1986 L 189, p. 12.

8 OJ 1978 L 201, p. 26.

9 See the third recital in the preamble to both Regulation No 1729/78 and Regulation No 2169/86.

10 Case 819/79 Germany v Commission, cited above, paragraph 10. 10 — OJ 1991 L 314, p. 47.

11 OJ 1991 L 314, p. 47.