Court of Justice of the European Communities (including Court of First Instance Decisions)

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1 . Agriculture - Common agricultural policy - Expenditure financed by the EAGGF - Decision relating to the clearance of accounts - Decision subject to reservations - Permissible in view of the fact that the time-limit for the Commission' s decision is not mandatory ( Council Regulation No 729/70, Art . 5(2)(b ) )
2 . Agriculture - EAGGF - Clearance of accounts - Refusal to accept expenditure arising from irregularities in the application of Community legislation - Calculation of the amounts to be deducted - Commission' s refusal to take account of sums paid to the fund in connection with the irregular transactions - Unjustified enrichment of the Community - Unlawfulness - Use of the clearance of accounts procedure to penalize conduct on the part of Member States which had no financial consequences - Not permissible
( Council Regulations Nos 729/70 and 3247/81, Art . 3(2 ) )

1 . Since no penalty is imposed for failure by the Commission to comply with the time-limit provided for by Article 5(2)(b ) of Regulation No 729/70 for the adoption of a decision on the clearance of accounts in respect of expenditure financed by the EAGGF it must be regarded as a merely formal limit, save where the interests of a Member State are affected ( see the judgment in Case 349/85 Denmark v Commission [1988] ECR 169 ). It follows that where it is not possible to reach a final decision on the financing of certain expenditure the Commission is entitled to express reservations in its decision on the clearance of accounts . It is immaterial in that respect that the decision contains reservations of a general nature and not specific reservations relating to each inspection which was carried out, since the Member States are closely associated with the procedure for clearing the accounts and are fully informed of any inspections .
Those reservations, which simply clarify the effects of the decision, may appear in the preamble alone, since the preamble is an integral part of the decision and may thus help to specify its objective and scope .
2 . Where agricultural products held by a national intervention agency have been the subject of irregular sales, they cannot be considered to have been sold pursuant to Community law, and in the absence of specific provisions relating to such irregularities the application by analogy of the rules provided by Article 3(2 ) of Regulation No 3247/81 in respect of lost products is justified .
However, where the Commission has sufficient information to establish the true position in relation to irregular sales and the amounts collected in respect of them and paid to the EAGGF, it cannot, without unjustly enriching the Community contrary to the general principles of Community law, refuse to take account of those amounts in calculating the correction to be made to the accounts of expenditure chargeable to the EAGGF submitted by the Member State in question .
The refusal to take such amounts into account cannot be justified by the refusal of the national authorities to produce the contracts relating to the irregular transactions, for the Commission may not use the means which it has at its disposal as part of the procedure for clearing accounts to penalize conduct by the Member States which it considers contrary to Community law, where such conduct has no influence upon the expenditure to be financed .

In Case C-259/87,
Hellenic Republic, represented by Panagiotis Mylonopoulos, lawyer in the Ministry of Foreign Affairs, Ilias Laios, Legal Adviser in the Ministry of Agriculture, and Meletis Tsotsanis, lawyer in the Ministry of Agriculture, acting as Agents, with an address for service in Luxembourg at the Greek Embassy, 117 Val Sainte-Croix,
applicant,
v
Commission of the European Communities, represented initially by Xenophon Yataganas, a member of its Legal Department, acting as Agent, then by Dimitrios Gouloussis, Legal Adviser, acting as Agent, and then by Théofanis Christoforou, a member of its Legal Department, assisted by Michaïl Vilaras, an assessor at the Greek Council of State on secondment to the Commission' s Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the annulment of Commission Decision 87/368/EEC of 19 June 1987 on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1983 ( Official Journal 1983 L 195, p . 43 ),
THE COURT
composed of : O . Due, President, Sir Gordon Slynn and C . N . Kakouris, ( Presidents of Chambers ), G . F . Mancini, T . F . O' Higgins, G . C . Rodríguez Iglesias and M . Díez de Velasco, Judges,
( The grounds of the judgment are not reproduced .)
hereby :

( 1 ) Declares void Commission Decision 87/368/EEC of 19 June 1987 on the clearance of the accounts presented by the Member States in respect of the European Agricultural Guidance and Guarantee Fund, Guarantee Section, expenditure for 1983 in so far as the Commission has not charged to the European Agricultural Guidance and Guarantee Fund the amount representing the sums received on the sale of two consignments of 30 000 tonnes of common wheat;
( 2 ) Dismisses the remainder of the application;
( 3 ) Orders the Commission to pay the costs .