EUR-Lex -  61999CC0373 - EN - Opinion of Mr Advocate General Tizzano delivered on 12 July 2001. - Hellenic Republic v Commission of the European Communities. - EAGGF - Clearance of accounts - 1995 financial year - Fruit and vegetables - Arable crops. - Case C-373/99.

Opinion of the Advocate-General

I - Introduction

1. By application dated 7 October 1999 brought under Article 230 EC, the Hellenic Republic is seeking the partial annulment of Commission Decision 1999/596/EC of 28 July 1999 amending Decision 1999/187/EC on the clearance of accounts presented by the Member States in respect of the expenditure for 1995 of the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) (notified under document number C(1999) 2476 final) (OJ 1999 L 226, p. 26; hereinafter Decision 99/596 or the contested decision).

2. In both decisions the Commission applied financial corrections to the clearance of accounts presented by the Member States in respect of the expenditure for 1995 for the reasons set out in Summary Report No VI/6462/98 of 12 January 1999 on the results of inspections concerning the clearance of the EAGGF Guarantee Section accounts for 1995 (the 1995 summary report) and in the supplement to that report of 7 June 1999 (the supplement to the 1995 summary report). Greece is making an application for the annulment of certain parts of Decision 99/596, in particular those stating that certain sums relating to the fruit and vegetable and arable sectors are not chargeable to the EAGGF. Greece is also applying for annulment of the financial corrections relating to the olive oil, cotton, and beef and veal sectors, introduced, at least in part, under Decision 99/187 and which the subsequent Decision 99/596 merely consolidated and amended.

3. I would, however, point out that, by order of 8 March 2001, the Court declared the application by the Greek Government manifestly inadmissible in so far as concerns financial corrections in respect of olive oil, cotton and beef and veal, and held that Decision 99/187 provided for the final clearance of accounts relating to those sectors and that the contested decision contained nothing new in this respect. It only remains, therefore, to consider the pleas regarding the financial corrections in the fruit and vegetable and arable sectors.

4. For fruit and vegetables, those corrections amount to GRD 6 276 374 640 (consisting of GRD 278 157 985 for citrus fruits and GRD 5 998 216 655 for peaches and nectarines), for irregularities in the system of recognition and in the functioning of producers' organisations, as well as in the withdrawal system, and GRD 816 097 399 for irregularities in the free distribution of products withdrawn from the market.

5. For arable crops, the financial corrections in the contested decision amount to GRD 2 281 284 896, that figure being arrived at from deduction of a flat-rate of 2% from the expenditure declared by Greece, based on deficiencies in the management and control by the Greek authorities, and GRD 2 333 442 867, corresponding to the sums withheld by the agricultural cooperative associations (the ACAs) when the aid was paid to recipients.

II - Legal framework

A - General rules

6. Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218) states at Article 1(2)(b) that the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (the EAGGF) shall finance in particular intervention intended to stabilise the agricultural markets.

7. Under Article 1(4) of the Regulation:

Expenditure relating to administrative costs and personnel borne by Member States and by recipients of aid from the Fund shall not be taken over by the Fund.

8. Article 3(1) of Regulation No 729/70 provides that:

Intervention intended to stabilise the agricultural markets, undertaken according to Community rules within the framework of the common organisation of agricultural markets, shall be financed under Article 1(2)(b).

9. It should be pointed out in that regard that, as regards interventions declared by the Member States, of which account must be taken for the purpose of their clearance within the framework of the EAGGF financial year, the last indent of Article 7(1) of Regulation No 296/96 provides that:

For a year "n", account shall be taken of expenditure declared by the Member States in accordance with the present paragraph from 16 October of year "n - 1" to 15 October of year "n".

10. Pursuant to Article 5(2)(c) of Regulation No 729/70 as amended by Council Regulation (EC) No 1287/95 of 22 May 1995 (OJ 1995 L 125, p. 1):

The Commission, after consulting the Fund Committee:

...

(c) shall decide on the expenditure to be excluded from the Community financing referred to in Articles 2 and 3 where it finds that expenditure has not been effected in compliance with Community rules.

Before a decision to refuse financing is taken, the results of the Commission's checks and the replies of the Member State concerned shall be notified in writing, after which the two parties shall endeavour to reach agreement on the action to be taken.

If no agreement is reached, the Member State may ask for a procedure to be initiated with a view to mediating between the respective positions within a period of four months, the results of which shall be set out in a report sent to and examined by the Commission, before a decision to refuse financing is taken.

The Commission shall evaluate the amounts to be excluded having regard in particular to the degree of non-compliance found. The Commission shall take into account the nature and gravity of the infringement and the financial loss suffered by the Community.

A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication of the results of those checks to the Member State concerned. However, this provision shall not apply to the financial consequences:

- of irregularities as referred to in Article 8(2);

- concerning national aids, or infringements, for which the procedures referred to in Articles 93 and 169 of the Treaty have been initiated.

11. Article 8(1) of that Regulation provides that:

1. The Member States in accordance with national provisions laid down by law, regulation or administrative action shall take the measures necessary to:

- satisfy themselves that transactions financed by the Fund are actually carried out and are executed correctly;

- prevent and deal with irregularities;

- recover sums lost as a result of irregularities or negligence.

The Member States shall inform the Commission of the measures taken for those purposes and in particular of the state of the administrative and judicial procedures.

12. As regards, in particular, the abovementioned Article 5(2)(c) of Regulation No 729/70 as amended, it must be noted that provisions subsequent to that regulation are of direct importance in this case.

13. That is true especially of Article 2(1) of Regulation No 1287/95 which states that the regulation applies from the financial year beginning on 16 October 1995, while Article 2(2) provides that refusal to grant financing as referred to in Article 5(2)(c) of Regulation No 729/70 may not relate to expenditure claimed in respect of a financial year prior to 16 October 1992 but without prejudice to decisions regarding the clearance of the financial years preceding the entry into force of the regulation.

14. Articles 8(1) and (2) of Commission Regulation (EC) No 1663/95 of 7 July 1995 laying down detailed rules for the application of Council Regulation (EEC) No 729/70 regarding the procedure for the clearance of the accounts of the EAGGF Guarantee Section (OJ 1995 L 158, p. 6) are also relevant in that respect, providing:

1. When, as a result of any enquiry, the Commission considers that expenditure was not effected according to Community rules, it shall communicate to the Member State concerned its findings, the corrective measures to be taken to ensure future compliance, and an evaluation of any expenditure which it may propose to exclude pursuant to Article 5(2)(c) of Regulation (EEC) No 729/70. The communication shall make reference to this regulation. The Member State shall reply within two months, and the Commission may modify its position in consequence. In justified cases the Commission may agree to extend this period for reply.

After expiry of the period allowed for reply, the Commission shall initiate a bilateral discussion, and both parties shall endeavour to come to an agreement as to the measures to be taken. The Commission shall then formally communicate its conclusions to the Member State, referring to Commission Decision 94/442/EC.

2. The decisions referred to in Article 5(2)(c) of Regulation (EEC) No 729/70 shall be taken after an examination of any report drawn up by the Conciliation Body according to the provisions laid down in Decision 94/442/EC.

15. Under Article 10 of Regulation No 1663/95, the regulation applies from the financial year beginning 16 October 1995, that is to say the 1996 financial year.

16. Commission Decision 94/442/EC of 1 July 1994 setting up a conciliation procedure in the context of the clearance of the accounts of the EAGGF Guarantee Section (OJ 1994 L 182, p. 45) set up a Conciliation Body with the duty, in particular, to endeavour to reconcile the divergent positions of the Commission and the Member State concerned (Article 1(1)(b)).

17. As regards financial consequences in the context of the clearance of accounts of the EAGGF guarantee section resulting from deficiencies in the controls carried out by the Member States, a Commission inter-service group drew up a document setting out the guidelines to be followed in such cases. That document (document No VI/216/93 of 1 June 1993; the Belle Report) was approved by the Commission and subsequently communicated to the Member States through the EAGGF management committee, where the report was favourably received. The guidelines in the Belle Report draw on established practice by the Commission. The Court has held that the application of flat-rate financial corrections was admissible and takes account of such corrections in carrying out its own assessments.

18. In addition to three main methods of calculation, Annex 2 of the Belle Report provides, in complex cases, for three categories of flat-rate financial corrections:

A. 2% of expenditure - where the deficiency is limited to parts of the control system of lesser importance, or to the operation of controls which are not essential to the assurance of the regularity of the expenditure, such that it can reasonably be concluded that the risk of loss to the EAGGF was minor;

B. 5% of expenditure - where the deficiency relates to important elements of the control system or to the operation of controls which play an important part in the assurance of the regularity of the expenditure, such that it can reasonably be concluded that the risk of loss to the EAGGF was significant;

C. 10% of expenditure - where the deficiency relates to the whole of or fundamental elements of the control system or to the operation of controls essential to assuring the regularity of the expenditure, such that it can reasonably be concluded that there was a high risk of widespread loss to the EAGGF.

19. The report also states that it is possible to refuse the whole of the expenditure and that, therefore, a higher rate of correction may be held appropriate in exceptional circumstances.

20. Following the adoption of the Belle Report, Article 5(2) of Regulation No 729/70 was amended by Regulation No 1287/95, and subparagraph (c) reworded as set out above.

B - Rules governing the fruit and vegetable sector

21. The fruit and vegetable sector is governed by Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organisation of the market in fruit and vegetables (OJ, English Special Edition Series 1972 (II), p. 437).

22. Article 13 of the Regulation, as amended by Council Regulation (EEC) No 3284/83 of 14 November 1983 (OJ 1983 L 325, p. 1) provides for the creation, on the initiative of producers of fruit and vegetables, of producers' organisations for the purpose of promoting the concentration of supply and the regularisation of prices at the producer stage in respect of one or more of the products referred to by Regulation No 1035/72 and of making suitable technical facilities available to producer members for presenting and marketing the relevant products.

23. Under Article 13(2) of that regulation, Member States may grant recognition to the organisations concerned only on condition that there is sufficient evidence as regards the duration and effectiveness of their activities, in particular the tasks for the purpose of which they were constituted, and that, from the date of recognition, they keep specific accounts in respect of the activities for which recognition was sought. It follows that a Member State must refuse recognition to, or withdraw recognition from, any organisation of producers which, for example, does not have adequate technical facilities for presenting and marketing the products concerned.

24. Article 15 of Regulation No 1035/72 provides, in particular, that to benefit from market withdrawal measures - which give rise to payment of compensation to producers by the organisations of which they are members, such compensation being subsequently refunded by the authorities of the Member States from funds chargeable to the EAGGF - the products not offered for sale must conform to the quality standards although they need not comply with marketing rules. According to indents 2 to 4 of Article 15(1), as consolidated by Council Regulation (EEC) No 1154/78 of 30 May 1978 (OJ 1978 L 144, p. 5):

...

If marketing rules aimed at limiting the volume of the supply of products listed in Annex II are applied, the producers' organisations may decide not to put on sale products which, while conforming to the quality standards, do not comply with the marketing rules referred to above. In that case the producers' organisations or the appropriate associations of such organisations shall grant members compensation, calculated on the basis of the withdrawal price, for the quantities that remain unsold. Detailed rules for the application of this paragraph shall be adopted as necessary in accordance with the procedure laid down in Article 33.

The disposal of products thus withdrawn from the market shall be determined by producers' organisations in such a way as not to interfere with normal marketing of the product in question.

To finance these withdrawal measures, producers' organisations shall establish an intervention fund, maintained by contributions assessed on quantities offered for sale.

25. It should be recalled that the provisions of Article 15(1) of Regulation No 1035/72 are intended to limit the quantity of products withdrawn and thus, in the final analysis, to limit EAGGF interventions.

26. Article 18(1) of Regulation No 1035/72, as amended by Council Regulation (EEC) No 325/79 of 19 February 1979 (OJ 1979 L 45, p. 1) provides that:

Member States shall grant financial compensation to producers' organisations which intervene pursuant to the provisions of Article 15 and 15a, provided that ... .

27. Article 21(1) and (3) of Regulation No 1035/72 provides that:

1. Products withdrawn from the market under Articles 15b and 18 or brought in under Articles 19 and 19a shall be disposed of in one of the following ways:

(a) for all products:

- free distribution to charitable organisations and foundations and to persons whose right to public assistance is recognised by their national laws, in particular because they lack the necessary means of subsistence.

- ...

- ...

- ...

- ...

- free distribution to children in schools, Member States ensuring that the quantities thus distributed are supplementary to the quantities normally bought by school canteens;

- ...

...

3. It shall be the responsibility of Member States to organise the free distribution provided for in Article 21(1)(a), first, sixth and seventh indents ... .

C - Rules governing the arable sector

28. With regard to the arable sector, a new system for administration and control of Community aid by the Member States, the integrated administration and control system (IACS), was established under Council Regulation (EEC) No 3508/92 of 27 November 1992 (OJ 1992 L 355, p. 1) for certain Community aid schemes including the EAGGF for the purpose of improving effectiveness and usefulness of those schemes (see third recital). Article 1(1)(a) of Regulation No 3508/92 provides that:

1. Each Member State shall set up an integrated administration and control system, hereinafter referred to as the "integrated system", applying:

(a) in the crop sector:

- to the support system for producers of certain arable crops established by Regulation (EEC) No 1765/92.

29. Under Article 2 of the Regulation, the integrated system must, in each Member State, comprise in particular a computerised data base, an alphanumeric identification system for identification of agricultural parcels and aid applications by producers and an integrated control system.

30. Pursuant to Article 7 of Regulation No 3508/92:

The integrated control system shall cover all aid applications submitted, in particular as regards administrative checks, on-the-spot checks and, if appropriate, verification by aerial or satellite remote sensing.

31. According to Article 8 of Regulation No 3508/92:

1. Member States shall carry out administrative checks on aid applications.

2. Administrative checks shall be supplemented by on-the-spot checks covering a sample of agricultural holdings. For all these checks, Member States shall draw up a sampling plan.

3. Each Member State shall designate an authority responsible for coordinating the checks provided for in this Regulation.

4. National authorities may, under conditions to be laid down, use remote sensing to determine the area of agricultural parcels, identify crops and verify their status.

5. ... .

32. So far as concerns checking of applications for aid, Article 6(1) to (4) of Commission Regulation (EEC) No 3887/92 of 23 December 1992 laying down detailed rules for applying the integrated administration and control system for certain Community aid schemes (OJ 1992 L 391, p. 36) provides that:

1. Administrative and on-the-spot checks shall be made in such a way as to ensure effective verification of compliance with the terms under which aids and premiums are granted.

2. The administrative checks referred to in Article 8(1) of Regulation (EEC) No 3508/92 shall include cross-checks on parcels and animals declared in order to ensure that aid is not granted twice in respect of the same calendar year without justification.

3. On-the-spot checks shall cover at least a significant percentage of applications. The significant percentage shall represent at least:

- 10% of "livestock" aid applications or participation declarations,

- 5% of "area" aid applications. However, this percentage shall be reduced to 3% for area aid applications numbering more than 700 000 per Member State in the calendar year.

...

4. Applications subjected to on-the-spot checking shall be selected by the competent authority on the basis of a risk analysis and an element of representativeness of the aid applications submitted. The risk analysis shall take account of:

- the amount of aid involved,

- the number of parcels and the area or number of animals for which aid is requested,

- changes from the previous year,

- the findings of checks made in past years,

- other factors to be defined by the Member States.

33. Pursuant to Article 12 of Regulation No 3887/92:

Every inspection visit must be the subject of a report setting out, in particular, the reasons for the visit, the persons present, the number of parcels visited, those measured, the measuring methods used, the number of animals of each species found and, where applicable, their identity numbers.

It will be open to the farmer or his representative to sign the report. He may either merely attest his presence at the inspection or also add his observations.

34. In accordance with Article 19, Regulation No 3887/92 is applicable from 1 February 1993.

35. So far as concerns the entry into force of the integrated system, Article 13(1) of Regulation No 3508/92 provides that:

The integrated system shall apply :

(a) from 1 February 1993 as regards aid applications, an alphanumeric system of identification and registration of bovine animals and the integrated control system referred to in Article 7;

(b) from 1 January 1996 at the latest as regards the other elements referred to in Article 2.

36. The 13th recital in the preamble to Regulation No 3887/92 states that the integrated system is applicable in its entirety only from 1 January 1996 and that, without prejudice to the obligations arising from Article 8(1) of Regulation (EEC) No 729/70, it is therefore indispensable to oblige the Member States to avoid any lack of administration or control meanwhile by adopting the necessary measures at national level.

37. Finally, by virtue of Article 1(3) of Regulation No 2466/96, the entry into force of the integrated system, as regards the elements referred to in Article 2 of Regulation No 3508/92, is deferred to 1 January 1997.

38. Article 17(1) of Regulation No 3887/92 provides that:

In cases where by virtue of Article 13 of Regulation (EEC) No 3508/92 certain features of the integrated system are not yet in application each Member State shall take whatever administrative and control measures are necessary to ensure compliance with the terms on which the aids concerned are granted.

39. Under Article 15(3) of Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops (OJ 1992 L 181, p. 12):

The payments referred to in this Regulation are to be paid over to the beneficiaries in their entirety.

III - Legal analysis

A - Introduction

40. As I mentioned above, following the order of the Court of 8 March 2001 which ruled that the action by Greece was inadmissible in part, the purpose of these proceedings is confined to the financial corrections concerning the fruit and vegetable and arable sectors. I should add that many of those corrections concern irregularities similar to those identified by the Commission in the context of the clearance of accounts for 1994 which were subject to financial corrections similar to those decided for 1995; the action brought, on that occasion also, by the Greek Government under Article 230 EC was dismissed by the Court in its judgment in Case C-247/98 Greece v Commission [2001] ECR I-1.

B - Financial corrections in the fruit and vegetable sector

41. Taking first the fruit and vegetable sector, the submissions raised in that respect by the Greek Government may be subdivided into two groups, one for each type of correction: on the one hand, submissions relating to irregularities in the system of recognition and the functioning of producers' organisations; and on the other hand, those relating to the free distribution of products withdrawn from the market.

1. Irregularities in the system of recognition and the functioning of producers' organisations

42. Corrections requested by the Commission in that connection were based on irregularities or deficiencies concerning:

- the system of recognition of producers' organisations as referred to in Article 13 of Regulation No 1035/72 (see paragraph 22 above). Some of those organisations, particularly because they lacked the necessary technical facilities for selling their members' produce, should not have been recognised, and should not therefore have received financial compensation for withdrawing their products from the market;

- the functioning of those organisations, some of which had not established rules on the marketing of products of their members, or had been set up for the sole purpose of collecting fruit and vegetable products to be withdrawn, without making any attempt to adapt supply to the requirements of the market;

- technical means and adequate intervention funds available to those organisations.

43. As it considered that those irregularities did not comply with the provisions of Articles 13 and 15 of Regulation No 1035/72, the Commission proposed in its 1995 summary report that similar financial corrections should be applied to those decided for 1994 on the grounds set out in Summary Report No IV/7421/97 of 8 June 1998 on the results of checks undertaken for the clearance of accounts of the guarantee section of the EAGGF for the 1994 financial year (hereinafter the 1994 summary report). What it proposed in detail was to apply a flat-rate correction for 1995 equal to 10% of the total expenditure for withdrawals from the peach, nectarine and citrus fruit markets in all districts of Greece, with the exception of Pella where the situation was more serious and for which a correction of 20% of total expenditure was therefore proposed. In view of subsequent progress, however, it was proposed that for 1996, the financial correction for Pella on expenditure declared for the withdrawal of peaches and nectarines should be limited to 10%.

44. The Greek Government requested the partial annulment of Decision 99/596 so far as concerns various aspects of the irregularities identified by Commission inspectors, on the basis of a number of grounds which I shall now examine analytically.

(a) Failure to take account of progress achieved as a result of new administrative measures concerning recognition of producers' organisations

45. The Greek Government maintains in particular that the financial correction in question (which is, I repeat, similar to the figure for 1994) is based on an incorrect assessment of the facts by the Commission which did not take account of progress made by Greece during the 1995 financial year. The Greek authorities informed the Commission by letter No 421142 of 1 November 1994 of a number of administrative measures it had adopted that year to tighten checks on the recognition of producers' organisations which, they claimed, had clearly achieved positive results from the beginning of the 1995 financial year such as to guarantee the lawfulness of payments to recipients of Community aid. The applicant claims that the progress brought about by the 1994 measures were such as to persuade the Commission not to apply financial corrections for the 1992 and 1993 financial years when the same irregularities had also been found. The Commission, the applicant submits, therefore wrongly maintained the financial corrections in question for the 1994 and 1995 financial years.

46. For its part, the Commission argues in particular that the reasons which led it to make the financial corrections for 1994 still persisted during the following financial year. According to the Commission's inspectors, the favourable effects of the 1994 measures became apparent from May to June 1995, even though the delay between a marketing year and the financial year in which the relevant financial compensation is paid means that they took effect only from the time when the accounts for the 1996 financial year were cleared, especially as regards peaches and nectarines. The 1995 financial year includes only financial compensation granted to producers' organisations up to 15 October 1995, while that relating to market withdrawals effected in the period July-September 1995 was paid to Member States within the 1996 financial year since it was issued to producers' organisations only from November 1995. As regards the alleged difference in treatment with respect to the 1992 and 1993 financial years, the Commission replies that the leniency applied in respect of those years does not confer any right on the Hellenic Republic to claim that no financial corrections should be applied in subsequent years.

47. For my part, I would first of all point out that the Greek Government does not contest the findings of the checks carried out by the Commission inspectors, nor did it contest those findings at the time of the checks or, subsequently, within the forum of the Conciliation Body where differences of opinion with the Commission services exclusively concerned identifying the financial year in which to take account of progress due to the 1994 measures mentioned above. Nor does the Greek Government put forward objections concerning the delay between a marketing year and the financial year in which the related payments are made. It is apparent from the abovementioned final report of the Conciliation Body of 4 January 1999 that, unlike the case of other Member States, late applications for aid by Greek producers have never allowed the Hellenic Republic to change compensation to the same financial year as that in which the marketing took place.

48. On the other hand, there is no doubt that the Commission did take account of the progress referred to by the Greek Government; however, it did so in the context of the clearance of accounts for 1996. It is clear from the abovementioned documents (see footnote 7) that, on the basis of that progress, financial corrections for the 1996 financial year for the withdrawal of peaches and nectarines in the district of Pella (the only district for which a financial correction for the 1996 financial year was proposed) was reduced from 20% to 10% of expenditure declared by Greece.

49. Finally, it should be observed that the applicant has merely described the measures adopted in 1994, without, however, furnishing any proof that such measures had already had an effect in the context of the clearance of accounts for the 1995 financial year.

50. Turning to the alleged difference in the assessment regarding financial corrections for the 1992 and 1993 financial years, it should be noted that any leniency shown by the Commission with regard to irregularities emerging in one financial year does not prevent the Commission from behaving otherwise in subsequent financial years. As the Court has held, where the Commission did not carry out the correction due in respect of a previous year, but tolerated the irregularities on grounds of fairness, the Member State does not acquire any right to demand that the same position be taken with regard to the irregularities with respect to the following financial year by virtue of the principle of legal certainty or the principle of protection of legitimate expectations. Thus, although on the basis of the efforts made by the Greek authorities, the Commission withdrew the reservations which it had expressed for those two financial years, that did not confer any right on Greece in respect of subsequent financial years. The rule here remains that only expenditure incurred in conformity with the Community rules is to be charged to the Community budget. Consequently, once it discovers the existence of an infringement of Community provisions in payments effected by a Member State, the Commission is required to correct the accounts presented by that Member State. In the present case, the results of the inspections carried out by the Commission, which are not disputed by the Greek Government, constituted sufficient justification for the financial corrections for 1995, as confirmed, moreover, by the judgment in Case C-247/98 Greece v Commission in which the Court considered similar corrections applied in the 1994 financial year for the same irregularities to be entirely justified (paragraph 46).

51. On that basis it appears to me that the Greek Government has not shown that the corrections decided by the Commission result from an incorrect assessment of the facts and that, therefore, the arguments under consideration must be rejected.

(b) Alleged infringement of the fourth indent of Article 5(2)(c) of Regulation No 729/70

52. The Greek Government notes that, under the fourth indent of Article 5(2)(c) of Regulation No 729/70, the Commission is required to evaluate the amounts to be excluded from EAGGF financing having regard in particular to the nature and gravity of the infringements of Community law. On the basis of those parameters and of the findings of the checks carried out by the Commission, a financial correction of 10% applied to all expenditure declared by it for fruit and vegetables is, in the view of that government, arbitrary and excessive because it assumes that there is a risk of generalised losses for the EAGGF whereas in reality the figure is based on the results of on-the-spot checks of a sample of regions which are not representative of the general picture. That sample, the applicant submits, besides being excessively restricted (one district out of a total of 52 for oranges and two for peaches and nectarines) included in particular producers' organisations for which the Greek authorities had already noted problems and where it could therefore be expected that there would be a greater number of irregularities; if, instead, the checks had been carried out in any other part of the country, it would have been seen that Community rules were fully observed.

53. The Commission argues that the checks were carried out on a fully representative sample. These involved, for peaches and nectarines, the producers' organisations covering 95% of the total production of those fruits in Greece and 93.5% of compensation for market withdrawals; in the case of citrus fruits the checks covered an area which receives 74% of the compensation granted by Greece. As regards the alleged lack of objectivity of the checks, the Commission replies that they were carried out on all the agricultural holdings of the districts selected.

54. I would merely point out that the data provided by the Commission (and, again, not contested by the Greek Government) are identical to those on which a similar financial correction of 10% for 1994 was based. In Case C-247/98 Greece v Commission, cited above, the Court's reply to the Greek Government which, relying on the same arguments as submitted in these proceedings, had challenged that correction, was that, having regard to the figures provided by the Commission, the representative nature of the inspections could not reasonably be doubted. In view of the similarity of the situations, I see no reason to come to any different conclusion.

55. By the same token, I also take the view that the challenge by the Greek Government regarding the objectivity and the restrictive nature of the sample of agricultural holdings subjected to inspections is unfounded. Extending the geographical area of the inspection would, in my view, have been of minor significance given that in the agricultural holdings of the remaining 50 to 51 Greek districts the cultivation of fruit and vegetables and the related compensatory payments are of a marginal nature.

(c) Irregularities in the functioning of producers' organisations

56. Turning to the submissions concerning the irregular functioning of producers' organisations, the Greek Government claims that the financial correction in question is based on an incorrect assessment of the facts and on misuse of powers. In actual fact, the national authorities had forwarded all the instructions needed to enable checks to be carried out correctly and effectively, particularly as regards the functioning of producers' organisations and procedures for withdrawal from the market and for free distribution. To that end, a computer file listing members of producers' organisations has been created in order better to monitor their production and commercial activities. The Greek Government also states that those measures were applied from 1994 and strengthened in 1995 as confirmed by the improvements at all levels as revealed in inspections carried out by the Commission in the summer of 1995.

57. In my view, however, the Commission is very much in the right when it replies that in this matter the progress claimed by the Greek Government and actually observed in summer 1995 began to produce effects only from the time of the financial corrections of the following summer 1996 as the Commission's inspectors noted. This argument of the Greek Government's should therefore, in my opinion, also be rejected since in issue in these proceedings is a decision on the clearance of accounts for the financial year 1995.

(d) Absence of technical facilities and intervention funds available to producers' organisations

58. Finally, as I stated earlier, the Greek Government also rejects the allegation concerning the lack of technical facilities and intervention funds for producers' organisations which the Commission considered to be in breach of the provisions of Regulation No 1035/72. It may be observed, however, that the statement of reasons adduced in this respect by the Commission for 1995 is identical to that invoked for the previous year (the 1995 report in fact refers back to that of 1994) and the applicant raises objections on this matter which are very similar to those raised, and dismissed, in Case C-247/98 cited above. As no new fact has been adduced in these proceedings, there is no reason, therefore, to diverge from the views of the Court in the previous case mentioned above nor to accept in this case, for the 1995 financial year, the claims that were dismissed then in respect of the previous year.

2. Free distribution of products withdrawn from the market

59. I shall now turn to the arguments advanced by Greece regarding the second category of financial corrections in the fruit and vegetables sector, based on irregularities in the free distribution of products withdrawn from the market. It must be observed that there have been no unequivocal indications either in the case-files nor at the hearing as to whether those financial corrections were made within the context of the clearance of accounts for 1995 or for the following year. If the second hypothesis were true, the arguments put forward by Greece would at the outset be redundant, given that this action is concerned with the annulment of a decision affecting the 1995 financial year only; as, however, the first hypothesis has not been ruled out, I should examine the arguments by the applicant on this point.

60. Amongst the irregularities mentioned in the 1995 summary report, some concern the free distribution of fruit and vegetable products withdrawn from the market and concern in particular the fact that some recipients failed to meet the requirements of Article 21 of Regulation No 1035/72. Of those irregularities I shall consider here only those relating to free distribution to large families and school pupils, as Greece makes submissions only in relation to those irregularities.

61. On the matter of free distribution to large families, the Commission points out that the Greek authorities were too generous in their application of the first indent of the abovementioned Article 21(1)(a), first indent. Although that provision is intended to restrict the group of recipients of aid under consideration to persons whose right to public assistance is recognised by their national laws, in particular because they lack the necessary means of subsistence, free distribution was authorised under the legislation in force at the time to all large families, those with at least four children (three in the case of single-parent families), irrespective of their level of income.

62. As regards school pupils, they enjoyed free distribution which did not comply with the sixth indent of Article 21(1)(a) of Regulation No 1035/72 which, to avoid market imbalances, stipulates that in those cases the quantities of fruit and vegetables should not substitute, but should be supplementary to, the quantities normally bought by school canteens. In particular, the Commission maintains that the fruit distributed in schools was mainly consumed at home and not at school, because the schools rarely have a canteen: thus the fruit substituted that which pupils' families would otherwise have bought on the market.

(a) Free distribution to large families: arguments of the parties and assessment

63. In reply to the Commission's remarks, the Greek Government cites two circulars from the Ministry of Agriculture of 18 January and 11 December 1996 respectively which, according to that government, in codifying an already existing practice, allowed the quantities distributed freely to be reduced to a minimum, limiting them in particular to persons with a certificate proving their entitlement to public assistance.

64. The Commission once again maintains, however, that the corrective measures adopted in 1996 by the Greek authorities had no effect on expenditure, the clearance of which is the subject of the contested decision relating to the 1995 financial year. The Commission goes on to add that the financial correction is also based on findings from enquiries carried out into four associations for large families showing that in some cases, considered by the Greek Government to be completely isolated, the fruit was distributed to families whose children were already grown up, had even started their own families or were already in employment.

65. I feel there is no need to return to the Commission's first remark after what I have consistently stated above. As regards the irregularities identified by a number of associations for large families, I must observe that, even if they were isolated, as the Greek Government claims, the correction applied at the 10% flat rate remains justified, all the more so as it is also, and even essentially, based on the fact that all large families benefited from the free distribution: that is not contested by the Greek Government.

(b) Free distribution to school pupils: arguments of the parties and assessment

66. On this matter, the Greek Government advances three kinds of argument to contest the lawfulness of the financial correction concerning payments connected with the free distribution of fruit and vegetables to school pupils. Indeed, it is claimed, such distribution is preferable to the destruction of the fruit, for the same reasons that led the Community legislature, in adopting Regulation No 2200/96 which replaced Regulation No 1035/72, to delete the requirement that the quantities should be supplementary, as discussed above (paragraph 62). Secondly, in a country such as Greece where there are very few school canteens, the principle that such quantities should be supplementary is difficult to apply. Finally, as the Conciliation Body recognised in its own final report, the measures adopted in 1994 in the fruit and vegetable sector significantly improved the system of controls on Community aid with positive results already apparent in 1995.

67. The Commission defends the contested decision citing, first, the precise wording of the sixth indent of Article 21(1)(a) of Regulation No 1035/72 and stating, secondly, that during the inspections conducted in November 1996, the Greek authorities were unable to provide a clear indication of the measures adopted to ensure compliance with the provision.

68. On this point, too, I must agree with the Commission's position. Indeed, the wording of the sixth indent of Article 21(1)(a) of Regulation No 1035/72 is very clear, as are the reasons which, at least until Regulation No 2200/96 came into force, led the Community legislature to require compliance with the principle that the quantities should be supplementary. Arguable as the issue of destruction of fruit may be, especially in the case of a country which does not have school canteens, I must point out that in this case it is not the merits of that provision of Regulation No 1035/72 which are in issue, but the breach of the article by the Greek authorities. As to the fact that the Conciliation Body acknowledged significant improvements in the system of controls introduced in 1995, I need merely point out that in reality that body did not comment on the irregularities in issue here, but on those relating to the system of recognition and functioning of producers' organisations considered above.

C - Financial corrections in the arable sector

69. The applicant government goes on to raise different arguments relating, first, to financial corrections concerning deficiencies in the administration and control system for agricultural expenditure in Greece and, second, to the retention of administration costs for managing Community aid.

1. Deficiencies in the administration and control system

(a) Observations by the EAGGF

70. It is apparent from the 1995 summary report that inspections carried out by the Commission revealed a series of lacunae and deficiencies in the integrated administration and control system (IACS) described above in detail (see paragraph 28), entailing a failure to fulfil the requirements laid down in Regulations Nos 729/70, 3508/92 and 3887/92. Such lacunae and deficiencies, according to the 1995 summary report, concern in particular:

(a) administrative supervision:

(i) internal supervisory system. Indeed, it was found that the agency responsible for payment, DIDAGEP, exercises minimal supervision over the regional head offices of the Ministry of Agriculture, which in their turn exercise insufficient supervision over the agronomic engineers responsible for administrative checks and on-the-spot checks who work at the local offices: in particular, the administration had no access to the data banks of the integrated system. For example, at Alexandroupolis, one of the areas where the Commission carried out checks, the local office of the Ministry of Agriculture and the agronomists were unable to provide information even on the number of on-the-spot checks carried out in 1994;

(ii) supervision of agricultural cooperative associations (ACAs) which enjoy very considerable powers within the framework of the administration of Community aid. The regional administration was not in a position to supervise their activities, in part because it did not have the necessary instruments available, such as an electronic data base in order to gain access to ACA data;

(iii) checks comparing information contained in the applications for aid which, moreover, were carried out in 1994 only after payment of Community aid;

(b) on-the-spot checks:

(i) percentage of on-the-spot checks and methodology applied in order to carry out those controls. In Alexandroupolis again, for example, the local authorities were unable to explain the methodology used to choose the sample of agricultural undertakings to be checked, while analysis of the reports on controls showed that the sample was insufficient and that there had in fact been no checks on applications concerning certain types of crops. Furthermore, there was no preliminary risk analysis as needed in order to determine, taking into account the representativeness of the aid applications submitted, which of the applications should be subject to checking (Article 6(4) of Regulation No 3887/92);

(ii) increase in the minimum rate of on-the-spot checks by the Greek authorities which, pursuant to the second indent of Article 6(3) of Regulation No 3887/92, the EAGGF had requested should be increased from 5% to 10% due to insufficient progress in implementing the IACS as revealed during inspections conducted in 1993 and 1994. That rate had reached only 9.3% and it was found, indeed, that the administrators of the regional office in Alexandroupolis had not even been informed of the requirement to increase it;

(iii) quality of reports on checks carried out. The documents, which were not even drafted on a number of occasions, often did not contain the data, the purpose of the checks and precise information on the results of measurements of agricultural parcels and the number of parcels measured.

71. The 1995 summary report states that some of those deficiencies (in particular those concerning supervision of ACAs by regional offices, selection of agricultural holdings to be checked and reports on the checks carried out) concern elements of the system of controls which are the responsibility of the Member States and which, besides being indispensable for effective management of the aid, are immediately applicable. Therefore, although the final deadline for the IACS to become applicable was postponed until 1 January 1997, those deficiencies were considered unacceptable. The 1995 summary report went on to emphasise that those deficiencies were not limited to the regions where the Commission's services had carried out investigations, but applied to the entire national system.

72. In mitigation of the seriousness of the irregularities mentioned, the 1995 summary report takes account of the difficulties faced by Greece, pointing out the following: in 1994, the marketing year in issue, the implementation of the IACS was still in a period of transition; at that time Greece faced particular problems given that it had no land register; none the less, the on-the-spot checks showed improvements, increasing from 5% to 9.3%, not far short of the threshold of 10% set, as stated above, by the Commission's services; the negative aspect of the deficiencies observed was, however, mitigated by the fact that there exists in Greece a kind of public control effected by displaying copies of aid applications at the offices of the local authority; checks by the Commission had not revealed major anomalies.

73. In view of the abovementioned factors which, furthermore, were not contested by the Greek authorities and the fact that it was not possible to quantify precisely the loss incurred, the 1995 summary report proposed the application of a flat-rate financial correction of 2%, the minimum such rate listed in the Belle Report (see above, paragraph 17). In its final report of 25 February 1999 the Conciliation Body accepted that proposal.

(b) Arguments of the parties

74. The Greek Government submits that the financial correction should be less than 2% and that the increase is in fact based on an incorrect assessment of the facts and constitutes a misuse of powers by the Commission. In support of that view the applicant relies on the following arguments.

75. First of all, if I have correctly understood its position, it considers the financial correction based on deficiencies and lacunae in the supervisory system in Greece as unjustified in that 1994/1995 was a transition year. For that year, therefore, it could not be required that Greece already fully implement the integrated system, particularly given that it had until 1 January 1997 to do so.

76. Secondly, the applicant mentions a number of factors in order to prove the existence of a reliable supervisory system in Greece. In particular, it points out the following: in the financial year in question the selection of the sample of agricultural holdings where on-the-spot checks were carried out was made by regional offices of the Ministry of Agriculture on the basis of detailed instructions from the central administration defining the risk criteria in accordance with Regulation No 3887/92; although the system was characterised by deficiencies (due to the complexity of the integrated system, however), a system of comparative checks had, nevertheless, been organised; cooperation between the ACAs and the Ministry of Agriculture had allowed the latter to maintain an adequate level of supervision.

77. Finally, according to the Hellenic Republic, a number of factors should have led the Commission to show more leniency with the lacunae found. Those factors are: the specific difficulties with which the Greek authorities had to deal because of the particular situation, such as the large number of producers (around 300 000) and, because they were so widely distributed, the even greater number of agricultural parcels declared; the abovementioned lack of a land register in the period under consideration; the increase of the rate of on-the-spot checks from 5% to 9.3% which should be considered satisfactory if one considers that the rise took place at a time when the rate initially expected had been reached; the fact that no major anomalies were revealed by the Commission's checks (as can be seen in the 1995 summary report itself); efforts made by the Greek authorities to meet both the requirements of the integrated system and those of the Commission's agents in charge of the checks which led to a significant improvement in the situation.

78. The Commission replies first and foremost that the arguments put by the applicant government to the Court are merely a repetition of those already examined by the Conciliation Body and not considered by that body sufficient to justify opposing the proposal of a financial correction of 2%. The Commission continues, moreover, by stating that the deficiencies in the supervisory system in Greece were so great and so numerous as to justify by themselves application of a financial correction of 5%; the Commission's services restricted this figure to 2%, however, precisely to take account of the fact that the clearance of accounts for 1995 had, nevertheless, displayed progress in the number of on-the-spot checks and that, in practice, in the actual payments no major anomalies had been noted. Finally, the Commission observes that the financial corrections in question are not in any way dictated by failure to apply the integrated system, but by deficiencies which invalidate the whole supervisory system in Greece and by inefficiencies in the management of Community aid by the national authorities.

(c) Assessment

(i) Introduction

79. Firstly, certain essential aspects of the matter under consideration should be noted. In particular, it is well known that the EAGGF finances only those interventions made in accordance with Community provisions within the framework of the common organisation of agricultural markets and that the purpose of the procedure to clear accounts is to guarantee that the funds made available to Member States should be used in accordance with the rules in force in the context of the common organisation of markets.

80. Secondly, it is, I believe, useful to point out that Article 8(1) of Regulation No 729/70 requires Member States to take the measures necessary to guarantee that transactions financed by the EAGGF are actually carried out and are executed correctly. That provision, which places on the sector under consideration the familiar obligations of Article 5 of the EC Treaty (now Article 10 EC), defines, according to the Court's case-law, the principles on which the Community and the Member States must base both the implementation of Community decisions on agricultural intervention financed by the EAGGF and the fight against related fraud and irregularities.

81. It should also be noted that it is the task of the Commission to prove the existence of an infringement of the rules on the common organisation of agricultural markets and that, when the Commission refuses to charge certain expenditure to the EAGGF because of such an infringement, it must justify the decision alleging that inspection procedures operated by the Member State in question are lacking or inadequate. However, the Commission is required not to demonstrate exhaustively that the checks carried out by the Member States are inadequate but to adduce evidence of serious and reasonable doubt on its part regarding the checks carried out by the national authorities. The reason for this mitigation of the burden of proof is that it is the State which is best placed to collect and verify the data required for the clearance of EAGGF accounts and, therefore, it is for the State to adduce the most detailed and comprehensive evidence that its own checks or its own data are reliable and, if appropriate, that the Commission's assertions are incorrect. It should be borne in mind, finally, that, according to the Court's case-law, the Member State whose controls are considered to be non-existent or insufficient by the Commission may not rebut the Commission's findings without supporting its own allegations by evidence of a reliable and operational supervisory system.

82. That having been said, I shall now consider the arguments of the Greek Government set out above.

(ii) Irregularities in the supervisory system

83. As I mentioned above, the applicant government contests in particular the financial corrections based on the deficiencies of the integrated system in Greece prior to 1 January 1997. I must, however, point out that, as the Commission has stated in these proceedings and as is also clear from the 1995 summary report, the financial correction imposed by virtue of the contested decision does not in any way rest on the continued incompleteness of the integrated system. It is based rather on deficiencies of a general nature which invalidate the entire supervisory system in Greece and which make the administration of Community aid by the national authorities inefficient. The arguments of the Greek Government on this point cannot, therefore, be upheld.

84. It also remains to consider, however, whether the financial correction of 2% in respect of the minor nature of the irregularities found at a time when the integrated system was still being developed is not an excessive amount. In order to rule out that conclusion, it is sufficient to observe that the requirement on Member States to implement and manage an effective supervisory system to prevent and to take action against irregularities does not arise under Regulation No 3508/92. The regulation lays down provisions for the sole purpose of strengthening that system, although it was the task of Member States, before the integrated system was fully implemented, to guarantee a sufficient level of supervision over EAGGF payments. In confirmation of that observation, the 13th recital of Regulation No 3887/92 laying down detailed rules for applying the integrated system in which the time-limit for the system to be fully applicable was first put back to 1 January 1996 states, it is therefore indispensable to oblige the Member States to avoid any lack of administration or control meanwhile by adopting the necessary measures at national level (emphasis added), whilst Article 17(1) of the Regulation provides, [i]n cases where ... certain features of the integrated system are not yet in application each Member State shall take whatever administrative and control measures are necessary to ensure compliance with the terms on which the aids concerned are granted (emphasis added). While true, then, that in the period 1994-1995, Member States were not obliged to apply the integrated system fully, it is equally true that there was a duty placed on them at the time to check very carefully that their own supervisory systems met a qualitative standard which would ensure compliance with Community rules on EAGGF aid. The correction in issue is justified, therefore, on the basis of the deficiencies in the Greek supervisory system: those deficiencies were still in evidence in 1994/1995, both at administrative and local level, affecting essential aspects of those controls, given that they concerned supervision of the ACAs (which play an important role in the management and payment of Community aid) by the regional offices of the Ministry of Agriculture, the selection of agricultural holdings to be checked and reports drafted by Greek officials on those checks. It is, in my view, particularly serious that in 1994/1995 the Commission again found the abovementioned deficiencies.

85. In those circumstances, I do not consider excessively severe the 2% financial correction which, it should be observed, is the minimum flat-rate figure listed in the Belle Report and the minimum normally applied by the Commission based on deficiencies and irregularities of the type which I have described.

(iii) Alleged reliability of the supervisory system

86. In spite of the fact that the Commission adduced evidence of numerous deficiencies in the supervisory system, the Greek Government, as has been shown, maintains that the system was reliable. I should point out, however, that the Greek authorities were not able to demonstrate that the findings of the Commission were incorrect and that they did not even contest the factual conclusions of the Commission's agents following the inspections carried out in Greece. By merely making assertions and in failing to provide the Court with any concrete evidence (as it moreover failed to do during the attempts at conciliation carried out within the Conciliation Body), the Greek Government has not, therefore, met the requirement incumbent on it of furnishing detailed and comprehensive evidence that the Commission's findings were incorrect.

(iv) Mitigating factors

87. As regards the mitigating claims made, which the Greek Government complains the Commission failed to take into account or did not do so sufficiently, I would merely observe that, as shown above (see paragraph 72), these were expressly mentioned in the 1995 summary report and gave rise to the decision that the financial corrections should be at the minimum flat-rate of 2%, normally applied, as we read in the Belle Report, where the deficiency is limited to parts of the control system of lesser importance, or to the operation of controls which are not essential to the assurance of the regularity of the expenditure (emphasis added).

88. In conclusion, it is my opinion that the submissions by the applicant concerning the financial correction based on the deficiencies in the Greek system of administration and control should be rejected.

2. Retentions for administrative costs of managing the aid

89. In setting out the grounds for the financial correction corresponding to retentions made by the ACAs, the 1995 summary report refers to the detailed explanation of the same matter in the report of the previous year. It is apparent from the report that in Greece the ACAs are required to take part in the management and payment of compensatory arable aid given that they are responsible for the computerised processing of applications and for making out the payments for all recipients, whether or not they are members of the ACAs. Pursuant to a national agreement, the ACAs retain around 2% of the aid by way of expenses, contrary to Article 1(4) of Regulation No 729/70 and Article 15(3) of Regulation No 1765/92, which provide that the aid should be paid in full to the recipients. The annex to the 1995 summary report makes clear that the Conciliation Body found that it had already had the opportunity to consider the same issue in previous proceedings and that the present case contained no new factors.

90. The Greek Government maintains that the contested decision is based on an incorrect assessment of the nature of the retentions made by the ACAs and relies on pleas in law which are identical to those dismissed by the Court in Case C-247/98 Greece v Commission, cited above, regarding the clearance of accounts for the 1994 financial year. However, as stated above, it has not been able in the present case to furnish new or different pleas based on fact or in law different from those examined by the Court in Case C-247/98. Once again, therefore, there is no reason to diverge from the Court's arguments in that case, and I therefore propose that the arguments advanced by the Greek Government on that point should be rejected.

D - Lack of competence ratione temporis of the Commission

91. The last plea in law advanced by the Greek Government is based on the fifth indent of Article 5(2)(c) of Regulation No 729/70 as amended which, as has been seen (see paragraph 10 above), stated inter alia: A refusal to finance may not involve expenditure effected prior to twenty-four months preceding the Commission's written communication of the results of those checks to the Member State concerned. The Greek Government argues that the contested decision infringes that article since the Commission imposed financial corrections for expenditure made more than 24 months prior to the written communication of the results of the checks.

92. The Commission, albeit in its reply, contends however that the communications in question are governed by Article 8(1) of Regulation No 1663/95 laying down detailed rules for the application of Article 5 of Regulation No 729/70 (see paragraph 14 above). Under Article 10, Regulation No 1663/95 applies only from the 1996 financial year and therefore cannot affect the 1995 financial year which is the subject of the contested decision. In any case, with regard to the 1995 financial year, the Commission points out that it sent a letter to the Greek authorities setting out the results of checks conducted by its own services in January 1996 and the conclusions thereof (letter of 8 July 1996 No VI/27548). The letter stated that any financial consequences deriving from the findings of the checks made would be assessed following the reply of the Greek authorities; it follows that the expenditure under consideration in the contested decision was the subject of a communication to the Greek authorities before expiry of the 24-month period referred to in the fifth indent of Article 5(2)(c) of Regulation No 729/70.

93. In order to determine whether the objection of the Greek Government is well founded, it must be ascertained whether a refusal to finance within the context of the clearance of accounts for 1995 is subject to the obligations under Article 5(2)(c). It will be recalled, in that regard, that the current wording of that provision was inserted by Regulation No 1287/95 which, by virtue of Article 2(1), is applicable from the start of the 1996 financial year. Article 2(2) in turn provides that any refusal to grant financing as referred to in Article 5(2)(c) may not relate to expenditure claimed against a financial year preceding 16 October 1992, but without prejudice to decisions regarding the clearance of the financial years preceding the entry into force of [Regulation No 1287/95]. In interpreting that provision, the Court, in a recent ruling, clarified that the procedure for applying financial corrections under Article 5 of Regulation No 729/70 may be applied also for financial years after 16 October 1992 (and, of course, before 1996) which are not already the subject of a clearance decision before entry into force of Regulation No 1287/95. Since the contested decision in these proceedings is dated 28 July 1999, it follows that the Commission was required to implement the procedure referred to in Article 5(2)(c) of Regulation No 729/70 for the clearance of accounts for 1995.

94. Moreover, as I stated above, the Commission argued that the procedures relating to the written communications in issue are governed by Article 8 of Regulation No 1663/95 and apply, with certainty, only from the 1996 financial year. The Commission, however, says nothing directly as regards the application, in the present case, of Article 5(2)(c) of Regulation No 729/70 but merely states that it met its obligations under that provision within the time-limit; nor, naturally, does the Commission give its view as to the judgment of the Court cited on that point, given that the ruling was made only subsequently. From the brief observations it makes on the issue, however, it appears to me that the Commission does not contest the scope, including the temporal scope, of the obligations with regard to communication under Article 5(2)(c), but denies the applicability of the detailed rules implementing Article 5(2)(c), as defined by Article 8(1) of Regulation No 1663/95, before the 1996 financial year. In other words, the requirements relating to written communication apply before 1996, but the detailed rules are not obliged, until then, to meet the requirements of Article 8(1) of Regulation No 1663/95.

95. As I have said, I have deduced this line of reasoning only indirectly from the written pleading of the Commission; in my view, however, whether or not it reflects the Commission's arguments, it is consistent with the intricate development of the legislation mentioned above, and in particular it is easily reconcilable with the Court's judgment cited above.

96. If that is the case, as I believe it is, it is necessary to ascertain whether the Commission respected the requirement in this case to communicate to Greece in the form prescribed at the material time the results of checks carried out in respect of the clearance of accounts for 1995. As I mentioned just above, the Commission invokes to this effect its letter of 8 July 1996 in which it lists the results of the checks carried out in January 1996. On closer examination, however, that letter only partly discharges the obligation to provide information referred to in the fifth indent of Article 5(2)(c) of Regulation No 729/70 in that it relates only to the fruit and vegetable sector and not to the arable sector; it also records the results of checks which relate only in part to irregularities relevant to the clearance of accounts for 1995, and it mentions irregularities which are not entirely co-extensive with those that gave rise to the application of financial corrections to the fruit and vegetable sector contained in the decision contested in the present case (for example, no mention is made of irregularities in the free distribution to school pupils).

97. Moreover, careful analysis of the case-file which, unfortunately, does not enable swift, reliable verification shows that, regarding the point at issue, there was further correspondence between the Greek authorities and the Commission's services. I refer, by way of example, to a letter dated 8 March 1996 which is mentioned in the final report of the Conciliation Body on the arable sector (paragraph 8), in which the Commission's services set out the grounds for their proposal for a reduction equal to the amount retained by the ACAs when aid was paid to recipients. Concerning the arable sector again, the Commission appended to its written pleading a copy of a letter dated 24 July 1995, No VI/28405, in which detailed observations by the EAGGF were transmitted to the Greek authorities on the results of checks carried out by the Commission's services in April 1995 for the purpose of verifying whether the Greek system of management and control of Community aid was lawful.

98. Regarding the fruit and vegetable sector, the Greek Government appended to its application a copy of a Commission letter dated 3 December 1995 (No VI/74155) containing a series of specific observations concerning both citrus fruits and peaches and nectarines. Those observations, which are, to a large extent, the same as those which provided grounds for the corrections at issue in these proceedings, also include a report on the results of checks carried out by the Commission's services during August 1995. That letter of 3 December 1995, moreover, mentions a previous letter of 21 August 1995 (No 31631) in which the issue of irregularities in the fruit and vegetable sector in general and peaches and nectarines in particular was dealt with. Finally, Commission Communication No VI/25315 of 24 June 1998, appended to its pleading, mentions previous communications by the Commission dated 3 July (No VI/26774) and 6 August 1997 (No VI/31822) following a series of checks in Greece.

99. This information is clearly indirect and fragmentary to which I cannot but refer on account of the incomplete documentation available. In the final analysis, in any event, that information, together with the information produced at the hearing and, on the other hand, reasonable deductions following usual practice in such matters lead me to conclude that in all probability the obligation under Article 5(2)(c) of Regulation No 729/70, albeit in the simplest manner permissible under that article, was in the present case met in substance and that, therefore, the submission in this respect by the Greek Government is unfounded.

100. In conclusion, it is my view that none of the arguments relied upon by the Greek Government in support of the annulment of Decision 99/596 may be upheld and that, therefore, the present action should be dismissed.

IV - Costs

101. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the Commission has asked for costs to be awarded in its favour and in view of my considerations concerning determination of the action, I consider that the application for costs should be granted.

V - Conclusion

102. On the basis of the above considerations I therefore propose the Court should declare that:

(1) The application is dismissed.

(2) The Hellenic Republic is ordered to pay the costs.

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