1BY AN APPLICATION LODGED ON 2 FEBRUARY THE GOVERNMENT OF THE NETHERLANDS SOUGHT THE PARTIAL ANNULMENT UNDER THE FIRST AND THIRD PARAGRAPHS OF ARTICLE 173 OF THE EEC TREATY OF COMMISSION DECISIONS 76/145 AND 76/151 OF 2 DECEMBER 1975 CONCERNING THE DISCHARGE OF THE ACCOUNTS IN RESPECT OF THE EUROPEAN AGRICULTURAL GUIDANCE AND GUARANTEE FUND , GUARANTEE SECTION , EXPENDITURE FOR 1971 AND 1972 ( OFFICIAL JOURNAL NO L 27 OF 2 FEBRUARY 1976 , P . 11 AND P . 23 ).
2THE APPLICANT GOVERNMENT COMPLAINS THAT THE COMMISSION FAILED TO CHARGE TO THE EAGGF THE AMOUNT OF HFL 590 072.67 IN RESPECT OF THE RELEASE OF SECURITIES LODGED TO GUARANTEE THE EXPORT , WITHIN A FIXED PERIOD , OF INTERVENTION BUTTER SOLD AT A REDUCED PRICE IN 1971 AND TWO AMOUNTS OF HFL 968 643.33 AND HFL 12 148.73 IN RESPECT OF THE GRANT OF EXPORT REFUNDS FOR LACTALBUMIN IN 1971 AND 1972 RESPECTIVELY .
3IN CONTESTING THE LEGALITY OF THE DECISIONS ADOPTED BY THE COMMISSION , THE APPLICANT GOVERNMENT CITES , APART FROM THE PROVISIONS OF THE SPECIFIC REGULATIONS APPLICABLE TO THE PRODUCTS IN QUESTION , CERTAIN GENERAL RULES SET OUT IN REGULATION NO 729/70 OF THE COUNCIL OF 21 APRIL 1970 ON THE FINANCING OF THE COMMON AGRICULTURAL POLICY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( I ), P . 218 ), IN PARTICULAR THE FIRST SUBPARAGRAPH OF ARTICLE 8 ( 2 ) WHICH IS WORDED AS FOLLOWS :
' ' IN THE ABSENCE OF TOTAL RECOVERY , THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE SHALL BE BORNE BY THE COMMUNITY , WITH THE EXCEPTION OF THE CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE ATTRIBUTABLE TO ADMINISTRATIVE AUTHORITIES OR OTHER BODIES OF THE MEMBER STATES . ' '
4THE GOVERNMENT ARGUES THAT THAT PROVISION MUST BE INTERPRETED AS MEANING THAT THE FINANCIAL CONSEQUENCES OF AN INCORRECT APPLICATION OF A COMMUNITY PROVISION BY A NATIONAL AUTHORITY MUST BE BORNE BY THE COMMUNITY IN ALL CASES WHERE THE ERROR COMMITTED IS NOT THE FAULT OF THE ADMINISTRATIVE AUTHORITIES OR OTHER BODIES OF THE MEMBER STATE CONCERNED BUT IS THE RESULT OF AN INTERPRETATION WHICH , ALBEIT OBJECTIVELY INCORRECT , WAS ADOPTED IN GOOD FAITH .
IN FACT , IN THE OPINION OF THE APPLICANT GOVERNMENT , BY PROVIDING THAT THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE , WITH THE EXCEPTION OF IRREGULARITIES OR NEGLIGENCE ATTRIBUTABLE TO THE MEMBER STATES , SHALL BE BORNE BY THE COMMUNITY , ARTICLE 8 ( 2 ) SIGNIFIES THAT A MEMBER STATE IS OBLIGED TO BEAR THE FINANCIAL CONSEQUENCES ONLY IN CASES WHERE THE INCORRECT APPLICATION OF A COMMUNITY PROVISION IS THE RESULT OF WRONGFUL ACTION ON THE PART OF A NATIONAL DEPARTMENT OR BODY .
5THE COMMISSION , ON THE OTHER HAND , DENIES THAT ARTICLE 8 ( 2 ) IS RELEVANT TO THE SOLUTION OF THE PROBLEMS IN QUESTION , ARGUING THAT THAT PROVISION RELATES TO IRREGULARITIES AND NEGLIGENCE ATTRIBUTABLE TO INDIVIDUALS AS PERSONS IN RECEIPT OF EAGGF EXPENDITURE AND THAT IT RELATES TO NEGLIGENCE OR IRREGULARITIES WHICH ARE ATTRIBUTABLE TO THE MEMBER STATES ONLY IN THE EXCEPTIONAL CASE OF IRREGULARITIES OR NEGLIGENCE ON THE PART OF OFFICIALS IN THE PUBLIC SERVICE ACTING IN BREACH OF THEIR PROFESSIONAL DUTY .
THE COMMISSION NEVERTHELESS RECOGNIZES THAT ACCORDING TO GENERAL LEGAL PRINCIPLES IT IS FOR THE COMMUNITY TO BEAR THE FINANCIAL CONSEQUENCES OF AN INCORRECT APPLICATION OF COMMUNITY LAW WHERE THAT APPLICATION IS ATTRIBUTABLE TO AN INSTITUTION OF THE COMMUNITY .
6THE TEXT OF ARTICLE 8 IN THE DIFFERENT LANGUAGE VERSIONS , CONSIDERED IN THE LIGHT OF THE ORIGINS OF THE PROVISION AND THE PREPARATORY DOCUMENTS , ON WHICH THE PARTIES HAVE BASED THEIR ARGUMENTS IN THE COURSE OF THE PROCEEDINGS , CONTAINS TOO MANY CONTRADICTORY AND AMBIGUOUS ELEMENTS TO PROVIDE AN ANSWER TO THE QUESTIONS AT ISSUE .
IN ORDER TO INTERPRET THAT PROVISION , THEREFORE , IT IS NECESSARY TO CONSIDER ITS CONTEXT AND THE OBJECTIVE OF THE RULES IN QUESTION .
7IN THIS RESPECT IT SHOULD BE NOTED , FIRST , THAT ARTICLE 8 DEFINES THE PRINCIPLES IN ACCORDANCE WITH WHICH THE COMMUNITY AND THE MEMBER STATES ARE TO ORGANIZE MEASURES TO COMBAT FRAUD AND OTHER IRREGULARITIES IN CONNEXION WITH THE OPERATIONS FINANCED BY THE EAGGF .
IT MAKES PROVISION BOTH FOR MEASURES FOR THE RECOVERY OF SUMS WRONGLY PAID AND FOR ADMINISTRATIVE AND JUDICIAL PROCEDURES AGAINST THE PERSONS RESPONSIBLE .
8IN CASES WHERE , VIEWED OBJECTIVELY , COMMUNITY LAW HAS BEEN INCORRECTLY APPLIED ON THE BASIS OF AN INTERPRETATION ADOPTED IN GOOD FAITH BY THE NATIONAL AUTHORITIES IT IS NOT POSSIBLE AS A GENERAL RULE , EITHER UNDER COMMUNITY LAW OR UNDER MOST OF THE NATIONAL LEGAL SYSTEMS , TO RECOVER SUMS PAID IN ERROR FROM THE RECIPIENTS AND IT IS NOT POSSIBLE TO UNDERTAKE ADMINISTRATIVE OR JUDICIAL PROCEDURES AGAINST THOSE RESPONSIBLE .
CONSEQUENTLY SUCH A SITUATION CANNOT FALL UNDER ARTICLE 8 BUT MUST , ON THE CONTRARY , BE EXAMINED IN THE LIGHT OF THE GENERAL PROVISIONS OF ARTICLES 2 AND 3 OF THE SAME REGULATION , ACCORDING TO WHICH REFUNDS GRANTED AND INTERVENTION UNDERTAKEN ' ' IN ACCORDANCE WITH THE COMMUNITY RULES ' ' WITHIN THE FRAMEWORK OF THE COMMON ORGANIZATION OF AGRICULTURAL MARKETS ARE TO BE FINANCED BY THE EAGGF .
THOSE PROVISIONS PERMIT THE COMMISSION TO CHARGE TO THE EAGGF ONLY SUMS PAID IN ACCORDANCE WITH THE RULES LAID DOWN IN THE VARIOUS SECTORS OF AGRICULTURAL PRODUCTION WHILE LEAVING THE MEMBER STATES TO BEAR THE BURDEN OF ANY OTHER SUM PAID , AND IN PARTICULAR ANY AMOUNTS WHICH THE NATIONAL AUTHORITIES WRONGLY BELIEVED THEMSELVES AUTHORIZED TO PAY IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKETS .
9THAT STRICT INTERPRETATION OF THE CONDITIONS UNDER WHICH EXPENDITURE IS TO BE BORNE BY THE EAGGF IS NECESSARY , MOREOVER , IN VIEW OF THE OBJECTIVES OF REGULATION NO 729/70 .
IN FACT THE MANAGEMENT OF THE COMMON AGRICULTURAL POLICY IN CONDITIONS OF EQUALITY BETWEEN TRADERS IN THE MEMBER STATES REQUIRES THAT THE NATIONAL AUTHORITIES OF A MEMBER STATE SHOULD NOT , BY THE EXPEDIENT OF A WIDE INTERPRETATION OF A GIVEN PROVISION , FAVOUR TRADERS IN THAT STATE TO THE DETRIMENT OF THOSE IN OTHER STATES WHERE A STRICTER INTERPRETATION IS APPLIED .
IF SUCH DISTORTION OF COMPETITION BETWEEN MEMBER STATES ARISES DESPITE THE MEANS AVAILABLE TO ENSURE THE UNIFORM APPLICATION OF COMMUNITY LAW THROUGHOUT THE COMMUNITY IT CANNOT BE FINANCED BY THE EAGGF BUT MUST , IN ANY EVENT , BE BORNE BY THE MEMBER STATE CONCERNED .
IT MUST THEREFORE BE CONCLUDED THAT THE PROVISIONS OF ARTICLE 8 OF REGULATION NO 729/70 ARE NOT APPLICABLE TO THE OPERATIONS IN QUESTION .
10THE APPLICANT GOVERNMENT FURTHER ARGUES THAT THE EXPENDITURE CANNOT BE CHARGED EITHER TO THE COMMUNITY OR TO A MEMBER STATE ON THE OCCASION OF THE DISCHARGE OF THE ACCOUNTS OF THE NATIONAL AUTHORITIES AND BODIES UNDER ARTICLE 5 ( 2 ) ( B ) OF REGULATION NO 729/70 BUT MUST BE ATTRIBUTED BY MEANS OF A SEPARATE PROCEDURE .
IN THIS RESPECT THE GOVERNMENT REFERS TO A JOINT STATEMENT MADE BY THE COUNCIL AND COMMISSION AND RECORDED IN THE MINUTES OF THE COUNCIL MEETING HELD ON 8 DECEMBER 1971 .
IT APPEARS FROM THAT STATEMENT THAT IF THE COMMISSION TAKES THE VIEW , CONTRARY TO THAT OF THE MEMBER STATE CONCERNED , THAT THE FINANCIAL CONSEQUENCES OF IRREGULARITIES OR NEGLIGENCE SHOULD NOT BE BORNE BY THE COMMUNITY IT MUST CONTACT THAT MEMBER STATE AND THEN INITIATE AN EXCHANGE OF VIEWS WITHIN THE FUND COMMITTEE REFERRED TO IN ARTICLE 11 OF REGULATION NO 729/70 .
IT FURTHER APPEARS FROM THE STATEMENT THAT THE COMMISSION IS TO MAKE A REPORT TO THE COUNCIL IN THE LIGHT OF KNOWLEDGE ACQUIRED IN THAT WAY AND , WHERE NECESSARY , IS TO PROPOSE SOLUTIONS TO BE ADOPTED BY THE COUNCIL IN ORDER TO RESOLVE DIFFERENCES OF THAT KIND .
11IT SHOULD BE NOTED THAT THAT STATEMENT WAS ISSUED WITH REGARD TO A REGULATION ( REGULATION NO 283/72 OF 7 FEBRUARY 1972 , OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 90 ) WHICH WAS ADOPTED UNDER ARTICLE 8 OF REGULATION NO 729/70 AND THAT ITS SCOPE IS CONSEQUENTLY LIMITED TO THE FINANCIAL CONSEQUENCES OF IRREGULARITIES AND NEGLIGENCE REFERRED TO BY THAT ARTICLE , WHICH IS NOT RELEVANT HERE .
12IT IS MOREOVER ESTABLISHED THAT UP TO THE PRESENT NO SPECIFIC PROCEDURE FOR ATTRIBUTING LIABILITY HAS BEEN LAID DOWN BY COMMUNITY LAW FOR THE PURPOSE 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 TO THE MEMBER STATE CONCERNED .
13IT IS CLEAR FROM ARTICLE 5 ( 2 ) OF REGULATION NO 729/70 THAT THE COMMISSION ' S DECISION IS TO BE ADOPTED ONLY AFTER THE CONSULTATION WITH THE FUND COMMITTEE REFERRED TO IN ARTICLE 11 , BUT THAT THE SPECIAL PROCEDURE DEFINED IN ARTICLE 13 IS NOT APPLICABLE .
IT IS ESTABLISHED THAT THE FUND COMMITTEE WAS CONSULTED IN THE PRESENT INSTANCE AFTER THE APPLICANT GOVERNMENT HAD BEEN INFORMED OF THE ITEMS WHICH THE COMMISSION CONSIDERED ITSELF UNABLE TO CHARGE TO THE EAGGF AND AFTER IT HAD HAD THE OPPORTUNITY OF MAKING ITS POSITION ON THE MATTER CLEAR .
14IT IS EVIDENT FROM THE FOREGOING THAT THE ARGUMENT BASED ON THE ALLEGED FAILURE TO COMPLY WITH THE PRESCRIBED PROCEDURE CANNOT BE UPHELD .
15IT IS THEREFORE NECESSARY TO EXAMINE WITH REGARD TO EACH OF THE ITEMS AT ISSUE WHETHER THE EXPENDITURE WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF WAS INCURRED IN ACCORDANCE WITH THE COMMUNITY PROVISIONS APPLICABLE IN THE SECTOR IN QUESTION .
SALE AT REDUCED PRICES OF BUTTER FROM PUBLIC STOCKS FOR EXPORT
16CERTAIN OF THE AMOUNTS WHICH THE COMMISSION REFUSED TO CHARGE TO THE EAGGF CONSTITUTE EXPENDITURE INCURRED BY THE APPLICANT GOVERNMENT IN RESPECT OF THE SALE OF BUTTER FROM PUBLIC STOCKS AT REDUCED PRICES UNDER REGULATION NO 1308/68 OF THE COMMISSION OF 28 AUGUST 1968 ( JOURNAL OFFICIEL NO L 214 OF 29 AUGUST 1968 , P . 10 ).
UNDER ARTICLE 3 OF THAT REGULATION BUTTER COVERED BY THAT OPERATION WAS TO BE EXPORTED WITHIN 30 DAYS ' ' AFTER SALE ' ' BY THE INTERVENTION AGENCY , AND COMPLIANCE WITH THAT CONDITION WAS GUARANTEED BY THE LODGING OF A SECURITY UNDER ARTICLE 4 .
REGULATION NO 1308/68 WAS REPEALED BY ARTICLE 5 OF REGULATION NO 1893/70 OF THE COMMISSION OF 18 SEPTEMBER 1970 ON THE SALE OF BUTTER FROM PUBLIC STOCKS ( JOURNAL OFFICIEL NO L 208 OF 19 SEPTEMBER 1970 , P . 13 ) BUT IT REMAINED APPLICABLE TO BUTTER SOLD UNDER THE REGULATION WHICH HAD BEEN REPEALED .
17THE APPLICANT GOVERNMENT CONTENDS THAT THE REDUCED PRICE IS APPLICABLE AND THE CONDITION LAID DOWN IN ARTICLE 3 IS SATISFIED IN CASES WHERE THE CONTRACT OF SALE WAS CONCLUDED PURSUANT TO THE REGULATION WHICH WAS REPEALED AND WHERE THE BUTTER WAS EXPORTED WITHIN 30 DAYS OF ITS REMOVAL FROM STORAGE , EVEN IF THAT TOOK PLACE AFTER 22 SEPTEMBER 1970 , THE DATE ON WHICH REGULATION NO 1893/70 ENTERED INTO FORCE .
THE COMMISSION , ON THE OTHER HAND , TAKES THE VIEW THAT THE PERIOD OF 30 DAYS REFERRED TO IN ARTICLE 3 MUST BE CALCULATED FROM THE DATE OF THE CONCLUSION OF THE CONTRACT OF SALE AND NOT FROM THAT OF THE REMOVAL OF THE BUTTER FROM STORAGE .
18IN SUPPORT OF THE INTERPRETATION ADVOCATED BY THE APPLICANT GOVERNMENT IT IS ARGUED IN PARTICULAR , ON THE ONE HAND , THAT ONLY THAT INTERPRETATION ENABLES FORWARD SALES AND SALES EFFECTED OVER RELATIVELY LONG PERIODS TO BENEFIT FROM THE REDUCED PRICES AND , ON THE OTHER , THAT IT DOES NOT OPEN THE WAY TO ABUSES , SINCE UNAUTHORIZED USE OF THE BUTTER IS EXCLUDED WHILE THE BUTTER IS STILL IN THE INTERVENTION AGENCY ' S STORE .
19HOWEVER , IN THE CONTEXT OF THE REGULATION IN QUESTION THERE IS NO REASON WHY THE TERM ' ' SALE ' ' USED IN ARTICLE 3 SHOULD BE GIVEN A MEANING DIFFERENT TO THAT WHICH IT HAS IN ORDINARY LEGAL LANGUAGE AND WHICH CORRESPONDS , MOREOVER , TO THAT ASSIGNED TO IT IN OTHER PROVISIONS OF THE REGULATION .
20THE PERIOD OF 30 DAYS LAID DOWN IN ARTICLE 3 MUST THEREFORE BE CALCULATED FROM THE DATE OF THE CONCLUSION OF THE CONTRACT OF SALE AND NOT FROM THE DATE WHEN THE BUTTER LEFT THE STORE .
21AS THE EXPENDITURE CONSIDERED IN THIS CONNEXION WAS NOT THEREFORE INCURRED IN ACCORDANCE WITH COMMUNITY LAW THE COMMISSION ' S REFUSAL TO CHARGE IT TO THE EAGGF IS JUSTIFIED .
EXPORT REFUNDS FOR LACTALBUMIN
22THE DISPUTED ITEMS RELATING TO EXPORT REFUNDS FOR LACTALBUMIN CONCERN REFUNDS PAID BY THE COMPETENT NETHERLANDS AGENCY ON THE BASIS OF PROVISIONS OF COMMUNITY REGULATIONS PROVIDING FOR THE GRANT OF EXPORT REFUNDS FOR OVALBUMIN , ON THE ONE HAND , AND THE APPLICATION OF AN IDENTICAL METHOD OF CALCULATION FOR OVALBUMIN AND LACTALBUMIN , ON THE OTHER .
23AS THE COURT RULED IN ITS JUDGMENT OF 13 DECEMBER 1973 IN CASE 150/73 (( 1973 ) 2 ECR 1633 ), THE PROVISIONS IN QUESTION WERE NOT TO BE INTERPRETED AS IMPLYING THAT EXPORT REFUNDS FOR OVALBUMIN , A PRODUCT IN THE EGG SECTOR , WERE TO APPLY TO LACTALBUMIN , A PRODUCT IN THE MILK AND MILK PRODUCTS SECTOR , IN THE ABSENCE OF A SPECIAL PROVISION ADOPTED IN THE CONTEXT OF THE COMMON ORGANIZATION OF THE MARKET IN THE LATTER SECTOR .
24THE APPLICANT GOVERNMENT RECOGNIZES THAT THE INTERPRETATION ADOPTED BY THE NETHERLANDS AUTHORITIES WAS OBJECTIVELY INCORRECT BUT IT NEVERTHELESS CLAIMS THAT IT IS NOT GUILTY OF AN ERROR IN THIS RESPECT FOR WHICH IT MAY BE HELD LIABLE .
25IT IS EVIDENT FROM THE INTERPRETATION OF REGULATION NO 729/70 ADOPTED ABOVE THAT THE COMMISSION WOULD BE OBLIGED TO BEAR THE EXPENDITURE IN QUESTION ONLY IF THE INCORRECT APPLICATION OF COMMUNITY LAW COULD BE ATTRIBUTED TO A COMMUNITY INSTITUTION .
26EVEN IF IT IS ACCEPTED THAT THE PROVISIONS RELATING TO THE REFUNDS IN QUESTION MIGHT GIVE RISE TO DOUBTS AS TO THEIR EXACT SCOPE , NONE OF THE EVIDENCE PRODUCED BY THE PARTIES IN THE COURSE OF THE PROCEEDINGS , INCLUDING IN PARTICULAR THE DISCUSSIONS OF THE RELEVANT MANAGEMENT COMMITTEE , ENABLES IT TO BE SAID THAT THE INCORRECT INTERPRETATION OF THE PROVISIONS MAY BE ATTRIBUTED TO THE COMMISSION ' S CONDUCT .
27THE COMMISSION ' S REFUSAL TO CHARGE THE AMOUNTS CONSIDERED IN THIS CONNEXION TO THE EAGGF IS THEREFORE JUSTIFIED .
28THE APPLICATION MUST , THEREFORE , BE DISMISSED IN ITS ENTIRETY .
COSTS
29ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR THE SUCCESSFUL PARTY ' S PLEADING .
30THE APPLICANT GOVERNMENT HAS FAILED IN ITS SUBMISSIONS .
IT SHOULD THEREFORE BE ORDERED TO PAY THE COSTS .
ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT GOVERNMENT TO PAY THE COSTS .
