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

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 8 November 2018(1)

Case C‑670/17 P

Hellenic Republic

v

European Commission

(Appeal — EAGGF Guidance Section — Operational programme CCI No 2000GR061PO021 (Greece — Objective 1 — Rural reconstruction) — Financial corrections — Legal basis — Transitional provisions — Legitimate expectations — Legal certainty)

I.      Introduction

1.        For the period 2000 to 2006, Regulation (EC) No 1260/1999 (2) laid down the mechanisms to monitor, report and make financial corrections in relation to payments under a number of Funds, including the European Agricultural Guarantee and Guidance Fund (EAGGF), the European Social Fund (ESF) and the European Regional Development Fund (ERDF). Regulation (EC) No 1083/2006, (3) succeeding Regulation No 1260/1999, continued to govern certain funds, including the ESF and the ERDF. However, the EAGGF was reformed and brought under a different legal regime, namely Regulation (EC) No 1290/2005. (4) Those regulations were in turn replaced by new regulations for subsequent periods. (5)

2.        On 25 March 2015, the Commission issued an implementing decision (6) in which it made a financial correction of EUR 72 105 592.41 in relation to payments to the Hellenic Republic under the EAGGF for the period 2000 to 2006 (‘the contested decision’). The Hellenic Republic brought proceedings before the General Court against that decision.

3.        The present appeal is brought against the judgment of the General Court in case T‑327/15 (7) (‘the judgment under appeal’) by which the General Court dismissed the Hellenic Republic’s claim. It raises issues relating to the legal basis of the contested decision (first and second grounds of the appeal), the deadlines for adopting it (third and fourth grounds), and the disproportionate nature of the financial correction imposed by that decision (fifth ground).

II.    Legal framework

A.      EU law

1.      Regulation No 1260/1999

4.        Article 39 of Regulation No 1260/1999 stated as follows:

‘Financial corrections

1. The Member States shall, in the first instance, bear the responsibility for investigating irregularities, acting upon evidence of any major change affecting the nature or conditions for the implementation or supervision of assistance and making the financial corrections required.

The Member State shall make the financial corrections required in connection with the individual or systemic irregularity. The corrections made by the Member State shall consist in cancelling all or part of the Community contribution. The Community funds released in this way may be reused by the Member State for the assistance concerned, in compliance with the arrangements to be defined pursuant to Article 53(2).

2. If, after completing the necessary verifications, the Commission concludes that:

(a)      a Member State has not complied with its obligations under paragraph 1; or

(b)      all or part of an operation justifies neither part nor the whole of the contribution from the Funds; or

(c)      there are serious failings in the management or control systems which could lead to systemic irregularities;

the Commission shall suspend the interim payments in question and, stating its reasons, request that the Member State submit its comments and, where appropriate, carry out any corrections, within a specified period of time.

If the Member State objects to the observations made by the Commission, the Member State shall be invited to a hearing by the Commission, in which both sides in cooperation based on the partnership make efforts to reach an agreement about the observations and the conclusions to be drawn from them.

3. At the end of the period set by the Commission, the Commission may, if no agreement has been reached and the Member State has not made the corrections and taking account of any comments made by the Member State, decide within three months to:

(a)      reduce the payment on account referred to in Article 32(2); or

(b)      make the financial corrections required by cancelling all or part of the contribution of the Funds to the assistance concerned.

The Commission shall when deciding the amount of a correction take account, in compliance with the principle of proportionality, of the type of irregularity or change and the extent and financial implications of the shortcomings found in the management or control systems of the Member States.

In the absence of a decision to do either (a) or (b) the interim payments shall immediately cease to be suspended.

4. Any sum received unduly and to be recovered shall be repaid to the Commission, together with interest on account of late payment.

5. This Article shall apply without prejudice to Article 32.’

2.      Regulation No 1083/2006

5.        Article 105(1) and (2) of Regulation No 1083/2006 provided as follows:

‘Transitional provisions

1. This Regulation shall not affect the continuation or modification, including the total or partial cancellation, of assistance co-financed by the Structural Funds or of a project co-financed by the Cohesion Fund approved by the Commission on the basis of Regulations (EEC) No 2052/88, (EEC) No 4253/88, (EC) No 1164/94 and (EC) No 1260/1999 or any other legislation which applies to that assistance on 31 December 2006, which shall consequently apply thereafter to that assistance or the projects concerned until their closure.

2. While taking decision on operational programmes, the Commission shall take account of any assistance co-financed by the Structural Funds or of any project co-financed by the Cohesion Fund approved by the Council or by the Commission before the entry into force of this Regulation and having financial repercussions during the period covered by those operational programmes.’

III. Facts and procedure before the Commission

6.        The facts and procedural background, set out at points 1 to 15 of the judgment under appeal, can be summarised as follows.

7.        On 31 March 2011 the Hellenic Republic submitted a declaration of closure to the European Commission, accompanied by a final report, for an EAGGF operational programme running for the period 2000 to 2006 (‘the Operational programme 2000-2006’), in accordance with Article 38(1)(f) and Article 37 of Regulation No 1260/1999. Following a request for information made by the Commission on 2 August 2011, to which the Hellenic Republic replied on 5 August 2011, the Commission informed the Hellenic Republic on 24 May 2012 that the report had been accepted.

8.        On 3 January 2013, the Commission asked the Greek authorities if they would agree to a financial correction of EUR 94 465 089.65 to the amounts paid under the Operational programme 2000-2006. It stated that a financial correction of up to EUR 211 582 686.65 might be imposed if no agreement could be concluded within two months.

9.        The Greek authorities disputed those amounts by letter dated 5 March 2013 stating that they had (themselves) already made sufficient corrections.

10.      On 17 July 2013, the Commission revised its previous calculations and asked the Greek authorities if they would agree to a financial correction of EUR 30 472 624.09. Again, if no agreement could be reached within two months, it stated that a financial correction of up to EUR 116 487 848.75 might be imposed.

11.      The Greek authorities again disputed those amounts, by letter dated 19 September 2013, reiterating that they had (themselves) already made sufficient corrections.

12.      Further information was requested from the Greek authorities on 13 September 2013, and received by the Commission on 13 January and 14 February 2014. On 5 March 2014, the Greek authorities were invited to take part in an oral hearing on 27 May 2014. On 20 June 2014, the Greek authorities provided further information which had been discussed during that hearing. Yet more information was requested by the Commission on 11 July 2014 and provided by the Greek authorities on 26 September 2014.

13.      On 13 February 2015, the Commission informed the Greek authorities it intended to proceed with a financial correction of EUR 72 105 592.41. On 25 March 2015, the Commission adopted the contested decision.

IV.    The judgment under appeal and the proceedings before the Court

14.      The Hellenic Republic brought an action for annulment against the contested decision before the General Court (Case T‑327/15). The General Court dismissed that action for annulment by a judgment delivered on 19 September 2017.

15.      By application of 28 November 2017, the Hellenic Republic appealed against that judgment. The Commission lodged its defence on 15 December 2017. A reply and rejoinder were lodged respectively on 26 February and 5 March 2018.

16.      In its appeal, the Hellenic Republic submits five grounds of appeal.

17.      The first ground is based on an incorrect interpretation and application of the transitional provisions of Regulations No 1083/2006 and No 1303/2013 combined with Regulation No 1290/2005 and, as a subsidiary argument, an error of law in the application of the provisions of Regulation No 1260/1999 after 1 January 2007, as well as a lack of reasoning.

18.      The second ground is based on an incorrect application and interpretation of Article 39 of Regulation No 1260/1999, and contradictory and insufficient reasoning.

19.      The third ground is based on an incorrect interpretation and application of Articles 144 and 145 of Regulation No 1303/2013 and failure to apply the 24-month guarantee in Article 52(4)(c) of Regulation No 1306/2013.

20.      The fourth ground is based on the Commission’s alleged disregard for the principles of legal certainty and legitimate expectations.

21.      The fifth ground is based on insufficient reasoning in relation to the grounds of annulment based on an alleged breach of the principle of proportionality.

V.      Assessment

22.      I consider that the first and third grounds of the appeal should be upheld and the General Court’s judgment set aside. I will examine each of those grounds and, for the sake of completeness, also the second, fourth and fifth grounds (Section A). If the Court were to reach the same conclusion with regard to either the first or the third ground, then the contested decision should be annulled as well (Section B).

A.      The grounds of appeal

1.      First ground: lack of legal basis for the cancellation of EAGGF funding

23.      By its first ground, the Hellenic Republic alleges that the General Court erred in law when it upheld the Commission’s reliance on Article 39 of Regulation No 1260/1999 as the legal basis of the contested decision. It also claims that the judgment under appeal incorrectly interpreted the transitional provisions of Regulation No 1083/2006 and Regulation No 1303/2013 and lacked reasoning.

24.      The Hellenic Republic argues that Regulation No 1260/1999 had been repealed at the time of the adoption of the contested decision. Article 105(1) of Regulation No 1083/2006, which provided for the continued application of Regulation No 1260/1999, did not apply to the relevant funds (namely, the Guidance Section of the EAGGF).

25.      I consider that the Hellenic Republic’s argument is well founded. The judgment under appeal should be set aside on that basis.

26.      It is not disputed by the Commission that Regulation No 1260/1999 had been repealed at the time of the contested decision by Article 107 of Regulation No 1083/2006. According to the first paragraph of that provision, ‘without prejudice to the provisions laid down in Article 105(1) of this Regulation, Regulation (EC) No 1260/1999 is hereby repealed as of 1 January 2007’.

27.      The use of Article 39 of Regulation No 1260/1999 as a legal basis thus depended on Article 105(1) of Regulation No 1083/2006, which continued the application of Regulation No 1260/1999. Regulation No 1083/2006 was itself repealed with effect from 1 January 2014. Hence, from that date onwards, the use of Article 39 of Regulation No 1260/1999 as a legal basis depended on Article 152(1) of Regulation No 1303/2013, which continued the application of Regulation No 1083/2006 to ‘assistance approved by the Commission on the basis of Regulation [No 1083/2006] or any other legislation applying to that assistance on 31 December 2013’.

28.      Relying on those provisions, the Commission argues for a ‘cascade’ of transitional provisions. Article 39 of Regulation No 1260/1999 was repealed. However, for operational programmes dating from the period 2000 to 2006 it had been kept in place by Regulation No 1083/2006 until 2013. In 2013, Regulation No 1083/2006 was in turn repealed but kept in place for previous programmes by Regulation No 1303/2013.

29.      In practical terms, such ‘cascading’ of the applicable rules would actually mean that the applicable law would have to be cobbled together from various pieces of repealed legislation. The Commission’s theory of (apparently) infinite legislative regress appears to be, in addition, as will be apparent from further arguments made in the course of this appeal, quite selective in its nature: some provisions would indeed be cascaded whilst others would not.

30.      I have not only serious doubts about the practical viability of such an approach but, above all, more fundamental concerns about the rule of law.

31.      However, for the purposes of the first ground of appeal, the present case is much simpler: even if such an unlimited cascading of legal rules were embraced as a general proposition, quod non, such a cascade would clearly be excluded in the present case ratione materiae. As pointed out by the Hellenic Republic, Article 105(1) of Regulation No 1083/2006 explicitly provides for the continued application of Regulation No 1260/1999 only for ‘assistance co-financed by the Structural Funds or … a project co-financed by the Cohesion Fund …’.

32.      The EAGGF Guidance Section does not fall within the Structural Funds or the Cohesion Fund. In particular, ‘Structural Funds’ are expressly defined in Article 1 of Regulation No 1083/2006 as the ERDF and the ESF.

33.       Notwithstanding that express definition of ‘Structural Funds’ in Regulation No 1083/2006, the General Court considered that Article 105(1) thereof could be extended to cover operational programmes co-financed by the EAGGF Guidance Section during the period 2000 to 2006. However, the General Court did not provide any reasoning, or at best provided manifestly inadequate reasoning, to justify such a conclusion.

34.      In paragraph 24 of the judgment under appeal, the General Court appears to rebut the Hellenic Republic’s arguments on this point simply by setting out the wording of Article 105(1) of Regulation No 1083/2006, without actually providing any reasoning.

35.      In paragraphs 25 and 26 of the judgment under appeal, the General Court refers to Article 105(2) of Regulation No 1083/2006, the purpose of which is said to be the provision of a transitional regime for the Structural Funds or the Cohesion Fund. The General Court refers in that regard to the judgment of 21 September 2016, Commission v Spain (C‑140/15 P, EU:C:2016:708).

36.      In my view, that reasoning on Article 105(2) in paragraphs 25 and 26 of the judgment under appeal — incidentally described by the Commission itself in its defence as subsidiary and ‘obiter’ — cannot in any way bring into question the definition of Structural Funds provided in Article 1 of Regulation No 1083/2006 and the resulting explicitly defined scope of Article 105(1) thereof. Article 105(2) also refers to ‘Structural Funds’ and ‘Cohesion Fund’ without giving any special meaning to those terms different from the definition in Article 1 of Regulation No 1083/2006. As regards the judgment of 21 September 2016, Commission v Spain (C‑140/15 P, EU:C:2016:708), that case concerned the Cohesion Fund, which fell clearly within the scope of the transitional provisions.

37.      As a more general observation, the rewriting of an express definition in a regulation, based on contextual, systemic or teleological arguments (to the extent it is possible at all without disrespecting the separation of powers) would inevitably require a much more robust reasoning by the General Court. That reasoning is manifestly lacking in the judgment under appeal.

38.      I therefore propose that the first ground be upheld and the judgment under appeal be set aside.

2.      Second ground: lack of legal basis for corrections made after the closure of the operational programme

39.      According to the Hellenic Republic, even if Article 39 of Regulation No 1260/1999 could in principle have been used as a legal basis for the cancellation of EAGGF Guidance Section funding after 2006, that provision could not be used in this case any longer, because the operational programme had already been closed at the time of the contested decision. Financial corrections under Article 39 could only be made to interim payments.

40.      By its second ground, the Hellenic Republic argues that in rejecting those arguments, the General Court’s reasoning was contradictory, insufficient and contained errors of law.In particular, paragraph 52 of the judgment under appeal dismisses the Hellenic Republic’s arguments stating that financial corrections must be possible after the end of the programmeperiod. However, the Hellenic Republic had argued that they are possible after the end of the programme period but only as long as the programme is still in force. Concerning interim payments, the Hellenic Republic considers that paragraphs 49 and 50 of the judgment under appeal are contradictory. The Hellenic Republic presents a series of arguments as to why the General Court’s interpretation of Article 39 of Regulation No 1260/1999 is incorrect.

41.      In my view, the second ground of appeal is unfounded.

42.      The General Court correctly underscores, in paragraph 50 of the judgment under appeal, that Article 39(3)(b) of Regulation No 1260/1999 gives a relatively broad power to the Commission, not explicitly limited to interim payments, to ‘make the financial correction required by cancelling all or part of the contribution of the Funds to the assistance concerned’. Contrary to what is argued by the Hellenic Republic, I do not see any contradiction between that statement and paragraph 49 of the judgment under appeal. The latter simply acknowledges the references in Article 39(2) and (3) to interim payments, without however stating that those references definitively circumscribed the powers of the Commission in ‘cancelling all or part of the contribution of the Funds’.

43.      Moreover, although the systemic arguments presented by the Hellenic Republic in favour of its interpretation may indeed raise concerns about poor and confusing drafting of the legislation in question, they are in, my view, not decisive in limiting the scope of Article 39 of Regulation No 1260/1999 to financial corrections of interim payments. In contrast, a purposive reading of Article 39 as a mechanism for making financial corrections and so avoiding unlawful payments, if anything, tends to favour the Commission’s position. Why should such a mechanism only apply to interim and not final payments? Also, as the Commission points out on a broader systemic level, it would indeed be odd if a Member State could unilaterally terminate the Commission’s power to make financial corrections by submitting a request for payment of the final balance. (8)

44.      In paragraph 53 of the judgment under appeal, the General Court held that the reasoning of the Hellenic Republic would make it impossible to apply financial corrections where irregularities appear at the stage of closure of the assistance. As regards the arguments raised by the Hellenic Republic in relation to that paragraph, I agree that the wording chosen by the General Court could have been clearer. Following the Hellenic Republic’s arguments would not make corrections technically ‘impossible’. However, the Commission’s powers would be severely curtailed. In my view, the point made by the General Court in paragraph 53 was in any event only a supporting argument.

45.      In the light of the foregoing, I consider that the Hellenic Republic’s second ground should be dismissed as unfounded.

3.      Third ground: adoption of the contested decision outside the applicable deadlines

46.      According to the judgment under appeal, deadlines in the context of the financial correction procedure are procedural rules that apply immediately. As a result, when applying the procedure for financial correction under Regulation No 1260/1999 and, in particular, Article 39 thereof, the substantive rules from that provision apply, but the procedural deadlines must be imported from ‘successor’ regulations (namely, Article 100(5) of Regulation No 1083/2006 for the period from 1 January 2007 to 31 December 2013; Article 145(6) of Regulation No 1303/2013 for the period from 1 January 2014). In the present case, the relevant deadline from Article 145(6) of Regulation No 1303/2013 (9) should therefore apply.

47.      By its third ground, the Hellenic Republic essentially argues that the General Court misinterpreted Articles 144 and 145 of Regulation No 1303/2013 and should have applied the 24-month long stop date in Article 52(4)(c) of Regulation No 1306/2013. On a correct interpretation and application of those provisions, the Commission would have acted outside the scope of its competence ratione temporis. The Hellenic Republic invokes an error of law and lack of reasoning in that regard. The Hellenic Republic also refers to the Commission’s failure to respect applicable deadlines, which was raised as the second part of the second ground in its original action for annulment. However, it does not present any further argument on that issue in the appeal.

48.      The Commission, for its part, considers that the third ground is inadmissible, as it has been raised for the first time in the appeal. Moreover, it argues that the Court has no obligation to consider the issue ex officio, since the deadline in Article 52(4)(c) of Regulation No 1306/2013 limits the material scope of the financial correction and is not a question of competence ratione temporis. Should the Court nonetheless address the third ground, the Commission considers that it is unfounded. According to the transitional provisions in Article 105(1) of Regulation No 1083/2006 and Article 152 of Regulation No 1303/2013, financial corrections under the EAGGF Guidance Section for the period 2000 to 2006 continue to be governed by the rules on Structural Funds (material rules in Regulation No 1260/1999 and procedural rules in Regulation No 1303/2013), not those on the common agricultural policy (Regulation No 1290/2005).

49.      The Commission’s plea of inadmissibility in relation to the third ground is, in my view, manifestly unfounded. As can be seen from paragraph 57 of the judgment under appeal, the Hellenic Republic clearly made the argument before the General Court that the 24-month deadline in Article 52(4)(c) of Regulation No 1306/2013 had not been respected.

50.      On the substance, if the Court agrees that the first ground is founded, the transitional provisions in Article 105(1) of Regulation No 1083/2006 and Article 152 of Regulation No 1303/2013 do not apply at all and the third ground need not be considered further.

51.      If, however, the Court were to reject the first ground and, against the explicit wording of Article 105(1) of Regulation No 1083/2006 to hold that that provision applied to EAGGF Guidance Section funding, then the question of applicable deadlines and competence ratione temporis raised in the third ground would have to be addressed.

52.      According to the judgment under appeal, the substantive rules on financial correction in Regulation No 1260/1999 continue to apply to the financing at issue. However, the relevant procedural deadlines were first replaced by those in Article 100(5) of Regulation No 1083/2006 and subsequently by those in Article 145(6) of Regulation No 1303/2013.

53.      There is case-law supporting the idea of replacement of deadlines in ongoing programmes with continued application of substantive rules from previous legislation. (10) However, I do not consider that it applies here in the way argued by the Commission.

54.      I note in that regard that the line of case-law being referred to in this context by the Commission to support its argument at least began with cases where the Court had to decide between no procedural deadlines at all and some sort of reasonable deadline. As the Court opted for the second option, it quite naturally decided to import or extrapolate those reasonable deadlines from subsequent relevant legislation. The same will be true in cases in which new or different procedures are laid down in subsequent legislation and made applicable to ongoing, unfinished programmes from the previous period. In such cases, new deadlines under the legislation will be logically applicable if a new procedure provided for by the new legislation is launched under that new legislation.

55.      That is rather different from a situation such as the one in the present case where, after a procedure is started, the original applicable deadline is subject to a cascading replacement of deadlines as the procedure unfolds. Such an approach, the antithesis of legal certainty, also implies that the Commission would positively have an incentive to drag procedures on for years, in the (not unfounded) assumption that the next procedural timetable could be even longer.

56.      Indeed, in the present case, approval for the final report submitted by Greece was granted by the Commission more than 18 months before Regulation No 1083/2006 was repealed. Had either the deadlines in that regulation (11) or in Regulation No 1260/1999 (12) applied, the Commission would have been time-barred in this case. (13)

57.      Moreover, even if the kind of cascading replacement of procedural deadlines proposed in this case were to be considered acceptable, I agree with the Hellenic Republic that the General Court erred in the way it applied those deadlines in this case. As a result, the third ground of appeal should be upheld.

58.      First, I recall again that the European Agricultural Fund for Rural Development (‘EAFRD’), which replaced the EAGGF Guidance Section, is outside the scope of Regulation No 1083/2006 in accordance with Article 1 thereof. It is true that Article 105(1) of that regulation provides for the continued application of Regulation No 1260/1999 to EAGGF Guidance Section financed programmes from before 2007. (14) However, that cannot in my view be understood as meaning that parts of Regulation No 1083/2006itself (in casu Article 100) should apply to EAGGF Guidance Section financed programmes. I note in that regard that none of the judgments of the Court cited by the Commission and the General Court, where the cascading replacement of procedural deadlines is endorsed, concerns financing by the EAGGF Guidance Section. These cases concern the Cohesion Fund (15) and the ERDF, (16) which are clearly covered by Regulation No 1083/2006.

59.      Second, having been kept completely out of the scope of Regulation No 1083/2006, it is true that the EAFRD was to some extent brought back under the subsequent legal regime, namely Regulation No 1303/2013. The latter thus contains rules relating to financial corrections under the EAFRD. However, those rules are first and foremost found in Part Two of Regulation No 1303/2013, and not Part Four, under which Articles 144 and 145 fall.

60.      According to paragraph 3 of Article 1 of Regulation No 1303/2013, ‘Part Four lays down general rules applicable to the Funds [defined as the Structural Funds and the Cohesion Fund, thus not includingthe EAFRD] and the EMFF [European Maritime and Fisheries Fund] on management and control, financial management, accounts and financial corrections.’

61.      Paragraph 1 of the same provision states, by contrast, that ‘the common rules applying to the [European Structural and Investment Funds, defined as including the EAFRD] are set out in Part Two’ and paragraph 4 states that the regulation applies ‘without prejudice to the provisions laid down in Regulation [No 1306/2013]’. Article 85(4), appearing in Part Two of Regulation No 1303/2013, entitled ‘Financial corrections by the Commission’ states that the ‘criteria and the procedures for applying financial corrections shall be laid down in the Fund-specific rules’.

62.      Thus, it is not clear what relevance Article 145 of Regulation No 1303/2013 has for funds, such as the EAFRD, which by definition fall outside Part Four of that regulation.

63.      By contrast, I agree with the Hellenic Republic that Regulation No 1306/2013 does indeed contain Fund-specific rules that lay down the ‘criteria and procedure for applying financial corrections’ in the sense of Article 85(4) of Regulation No 1303/2013. I note in that regard that Article 2(4) of Regulation No 1303/2013 defines ‘Fund-specific rules’ as ‘the provisions laid down in … a Regulation governing one or more of the [European Structural and Investment] Funds listed in the fourth paragraph of Article 1’. Regulation No 1306/2013 is one of the regulations listed in the fourth paragraph of Article 1 of Regulation No 1303/2013. Thus the provisions of Regulation No 1306/2013, which governs the EAFRD, qualify as Fund-specific rules.

64.      In particular, Article 52(4)(c) of Regulation No 1306/2013 states that ‘financing may not be refused for … expenditure for measures in programmes … for which the payment … is made more than 24 months before the Commission notifies the Member State …’.

65.      In short, if the transitional provisions of Regulation No 1303/2013 are to be understood as meaning that procedural rules in that regulation are to be imported into procedures relating to EAGGF Guidance Section funding from the period 2000 to 2006, I consider that at the very least the most relevant procedural deadlines should be chosen. Those would, in my view, clearly be those applicable to the EAFRD as the successor of the EAGGF Guidance Section, and in particular Article 85 of Regulation No 1303/2013, which in turn defers to Fund-specific rules.

66.      Since Article 52(4)(c) of Regulation No 1306/2013 is such a Fund-specific rule and the General Court dismissed the relevance of that provision, I propose that the Court uphold the third ground and the judgment under appeal be set aside for manifest error of law and/or lack of reasoning in that regard.

4.      Fourth ground: (disregard for) legal certainty and legitimate expectations

67.      By its fourth ground of appeal the Hellenic Republic argues that the General Court erred in its interpretation and application of the principles of legal certainty and legitimate expectations, in particular in the light of the acceptance by the Commission of the final report and the delays in the subsequent procedure.

68.      I have already addressed the temporal dimension of the procedure under the third ground, concluding that the General Court erred in its application of the relevant deadlines. I also concluded that the first ground should be upheld. If the Court accepts those conclusions (or indeed either of them), there is no need to consider the fourth ground further. After all, the fourth ground as phrased raises a general point about legal certainty and legitimate expectations, in effect assuming that no specific time limits were in fact applicable. However, if the Court comes to a different conclusion in relation to the first or the third grounds, thus indirectly endorsing the view that no specific time limits were applicable, then the broader issues of legitimate expectations and legal certainty would indeed have to be addressed.

69.      As observed by the General Court in paragraph 107 of the judgment under appeal, the procedure of closure and payment of the final balance (17) involves in particular the submission by the Member State of a declaration of closure (inter alia, summarising the conclusions of the checks carried out) (18) and the submission of a final report. (19) Whilst acceptance of the latter by the Commission is subject to a five month deadline, there is no procedure or deadline for the Commission to formally accept the declaration of closure. As stated in paragraph 110 of the judgment under appeal, the Commission proceeds with the necessary verifications of the contents of the declaration and, if it has concerns, may initiate the financial correction procedure. However, although certain stages of the financial correction procedure are subject to explicit deadlines, none of the successive regulations referred to in this case (20) contain any specific deadline within which the Commission must initiate that procedure.

70.      In light of the above, I see no error in the General Court’s conclusion as to the absence of a breach of the principle of legitimate expectations. The acceptance of the report cannot be interpreted as an endorsement of the contents of the declaration and an assurance by the Commission in that regard, leading to legitimate expectations on the part of the Hellenic Republic. Whilst it is true that the final report must contain information on monitoring and financial corrections, that document is, as the Commission points out, of a very different nature from the declaration of closure. Nor can the duration of the procedure itself amount to specific assurances giving rise to legitimate expectations. (21)

71.      As regards the principle of legal certainty, in my view the lack of a deadline before which the Commission must initiate the financial correction procedure is one of the fundamental issues in this case. Normally, and in principle, that is an issue for the legislature to address, not the Court.

72.      However, it is equally the case that, even in the absence of a formal deadline, the principle of legal certainty and its derivative, the ‘reasonable period principle’, prevents the Commission, as well as any other EU institution, from delaying taking action for unreasonable lengths of time. (22) The Hellenic Republic also refers in that regard to the particular importance of timely decisions where significant sums are at stake. It is indeed true that the Court has underlined the importance of legal certainty particularly where decisions have significant financial implications. (23) Moreover, the Court’s case-law refers to the parallelism of procedural timetables as reflecting the duty of mutual cooperation. (24) In other words, imposing strict deadlines on Member States measured in weeks and then allowing the Commission a response time measured in years may indeed not be seen as living up to that ideal.

73.      In the light of that case-law, the argument based on legal certainty made by the Hellenic Republic certainly cannot be said to be devoid of some traction. However, to the extent I consider that the first and third grounds should be upheld, and having already addressed, under the third ground of appeal, the issue of disregard for the specific time limits, and that the judgment under appeal should be set aside on that basis, there is no need to explore the general argument based on the same concerns in further detail here.

5.      Fifth ground: disproportionate nature of the financial correction

74.      By its fifth ground of appeal, the Hellenic Republic argues that the General Court provided insufficient reasoning in relation to its rejection of the disproportionate nature of the financial correction. The Hellenic Republic considers that the Commission imposed a double correction because it failed to take fully into account the corrections already imposed at national level.

75.      I consider that this ground of appeal should be rejected as inadmissible.

76.      The judgment under appeal states clearly in paragraphs 119 to 122 that the Commission did in fact carry out the necessary adjustments to ensure that there would be no double corrections. The question of whether or not there was a double correction is an issue of factual finding and assessment of the evidence for which the General Court has exclusive jurisdiction. Thus, save where the facts or the evidence are distorted, such an issue cannot be subject to review by the Court of Justice on appeal. (25)

77.      I note in that regard that the Hellenic Republic has not alleged a distortion of the facts by the General Court. The fifth ground of appeal should therefore be rejected as inadmissible.

B.      Judgment on the substance

78.      In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, I propose that the Court give judgment in the matter, without referring the case back to the General Court.

79.      If the Court upholds the first and third grounds as I suggest (or indeed either of them), then not only would that lead to the annulment of the judgment under appeal, but the contested decision would inevitably have to be annulled as well. In such circumstances, a fresh assessment of the case by the General Court would not be necessary.

80.      For the reasons set out above at points 53 to 66, I consider that the Court should uphold the third ground of appeal.

81.      If the Court were to agree on that point, it would logically follow that the contested decision was adopted in breach of the 24-month deadline laid down in Article 52(4)(c) of Regulation No 1306/2013 (as also pleaded by the Hellenic Republic in its second ground for annulment presented before the General Court). Indeed, the contested decision was adopted on 25 March 2015, more than 24 months after the Commission initially informed the Hellenic Republic of the proposed financial correction, on 3 January 2013.

82.      For the reasons set out above at points 26 to 37, I consider that the Court should uphold the first ground of appeal for lack of reasoning.

83.      I also consider that the Hellenic Republic is correct in its argument (corresponding to the first branch of the first ground of appeal before the General Court) that Article 105(1) of Regulation No 1083/2006 (and subsequently Article 152 of Regulation No 1303/2013) is not applicable to EAGGF Guidance Section financing for the period 2000 to 2006. As a result, the contested decision could not be based on Article 39 of Regulation No 1260/1999. Therefore, the contested decision lacked a valid legal basis.

84.      Accordingly, the contested decision should also be annulled.

85.      None of the arguments presented by the Commission are capable of altering that conclusion.

86.      First, contrary to what is stated by the Commission, I recall that the clear wording of Article 105(1) of Regulation No 1083/2006 limits application of that transitional provision to cancellation of assistance co-financed by the Structural Funds or of a project co-financed by the Cohesion Fund. These funds, by explicit legislative definition, do not include the EAGGF Guidance Section. According to this Court’s case-law, it is only where the wording of a provision is ambiguous that further assistance should be sought in the context of that provision and in the general scheme and aim of the text of which it forms part. (26) In this case, the meaning is clear. The notion of ‘Structural Funds’ is expressly defined in Article 1 of Regulation No 1083/2006.

87.      Even if there were perceived ambiguity in the text, that does not mean that the text should simply be jettisoned or ignored in favour of a purely contextual or purposive interpretation, which is, in addition, very one-sided. A balance must be found. Moreover, where there is, as in this case, at most a rather limited degree of ambiguity in the text, greater deference should be paid to the latter. That is particularly the case given the nature of the text here. This is not a decades-old, tersely worded, open-textured provision, in dire need of interpretation. It is the third iteration of a transitional provision in a highly technical field, which is redrafted every few years. In such circumstances, the strong presumption must be that the words mean what they explicitly say. It is not this Court’s job to redraft legislation in order to ‘fix’ poor drafting or to assume that the legislature simply did not think the problem through.

88.      Further arguments beyond the text of the provision presented by the Commission in support of a reading of Article 105(1) of Regulation No 1083/2006 in the sense that it extends to EAGGF Guidance Section financing are in my view extremely weak.

89.      Second, the Commission in effect argues that the notion of ‘Structural Funds’ used in Article 105(1) of Regulation No 1083/2006 should not be interpreted by reference to the definition of Structural Funds in that regulation, but rather by reference to the definition of that notion in Regulation No 1260/1999. I must admit that this appears to be a rather novel approach to statutory interpretation, and a good recipe for confusion, whereby clear and explicit provisions in the new legislation are supposed to be in practice overridden by those older provisions that the new legislation sought to replace. Lex prior derogat legi posteriori.

90.      Third, there is the argument emanating from a negative consequence: the Commission suggests that, if Article 105(1) of Regulation No 1083/2006 were not applicable to EAGGF Guidance Section financing for the period 2000 to 2006, a legal void would be created. It would become impossible to make any financial corrections in relation to EAGGF financing for that period, since the regulations replacing Regulation No 1260/1999 in relation to the common agricultural policy contained no transitional provisions at all. That would be contrary to good financial administration, which requires that financial corrections be possible in case of expenses that have been incurred in breach of applicable rules. (27)

91.      On the mere practical level, it is incorrect to allege that the absence of transitional provisions would make financial corrections for the period 2000 to 2006 impossible. Financial corrections in relation to EAGGF Guidance Section were clearly possible on the basis of Article 39 of Regulation No 1260/1999 until its repeal. Moreover, following the repeal of that provision on 31 December 2006, it cannot be excluded that financial corrections might have been made on some other basis. However, such alternative bases were not proposed. Instead, a very questionable rewriting of legislative definitions was used almost a decade after the operational period had ended.

92.      On the level of principle, it is perhaps worth taking a step back and looking at the bigger picture, beyond the individual (indeed rather difficult and confusing) provisions analysed in some detail in this case. When looking at the coherence of the overall argument presented by the Commission, one cannot but admire the interpretative creativity and intellectual ease with which the Commission is apparently able to mix and match, in a bewitching game of ‘Legislative Lego’, provisions from different pieces of legislation outside of their material and substantive scope of application in order to retroactively fit and so justify what it actually did in a given case.

93.      In this regard, ‘cascading back’ to the then applicable law is the general rule. (28) However, that apparently applies only to substantive rules, not to procedure. (29) Even deciding what are ‘substantive rules’ and what are ‘procedural rules’ is far from straightforward, (30) especially since it is likely to lead to the splitting up of individual provisions. But even then, taking the example of time limits, and assuming that these were indeed procedural provisions, as is otherwise suggested in the present case, there are apparently some further exceptions to the exception: for example a time limit that would actually limit the power of the Commission, such as Article 52(4)(c) of Regulation No 1306/2013, is not supposed to apply, because that deadline limits the material scope of the financial correction and is not a question of competence ratione temporis. (31)

94.      Faced with such a ‘construction’ of applicable rules, needless to say outside any clear legislative provisions to that effect, it is not only persons enjoying musical comedies who would very likely exclaim at this stage that if all this is indeed possible, then ‘Anything Goes’ (potentially adding the pragmatic question as why then to bother with any written rules at all). But it is precisely in such an area of law, namely one having considerable financial implications, that the Court has repetitively insisted that the principle of legal certainty requires that the rules must enable those concerned to know precisely the extent of their obligations. (32) More generally, it might be also recalled that the Court has rejected the ad hoc creation of legal bases and competences to recover funds at all costs, in the absence (not to speak against the clear wording) of relevant provisions. (33)

95.      It should be certainly acknowledged that the administration of various EU funds is a complex legal area which is not evolving to become more straightforward. In the three iterations of the regulations described in this Opinion, the volume of law has ballooned. That increasing complexity does not, however, mean that there should be increased judicial magnanimity towards the Commission in the case of shoddy drafting. (34) This is especially the case considering the role of the Commission in the drafting of the provisions at stake. Thus, without denying the role that the European Parliament and the Council (and thus the Member States) have in the legislative procedure, it does not seem in general unfair to ask the Commission, as the primary drafter and later enforcer of a text, to bear the (negative) consequences of its own (poor) drafting.

96.      In the light of the foregoing, I consider that the contested decision could not be validly based on Article 39 of Regulation No 1260/1999 and must, accordingly, be annulled.

VI.    Conclusion

97.      In the light of the aforementioned considerations, I propose that the Court:

–        set aside the judgment of the General Court of the European Union of 19 September 2017, Greece v Commission (T‑327/15, not published, EU:T:2017:631);

–        annul Commission Implementing Decision C(2015) 1936 final of 25 March 2015 on applying financial correction on the EAGGF Guidance Section of the operational programme CCI No 2000GR061PO021 (Greece — Objective 1 — Rural reconstruction);

–        order the Commission to bear its own costs and those incurred by the Hellenic Republic at first instance and on appeal in this case.

1      Original language: English.

2      Council Regulation of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

3      Council Regulation of 11 July 2006 laying down general provisions on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation No 1260/1999 (OJ 2006 L 210, p. 25).

4      Council Regulation of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1).

5      Regulation No 1083/2006 was replaced by Regulation (EU) No 1303/2013 of the European Parliament and of the Council of 17 December 2013 laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund and the European Maritime and Fisheries Fund and repealing Council Regulation No 1083/2006 (OJ 2013 L 347, p. 320). Regulation No 1290/2005 was replaced by Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, No 1290/2005 and (EC) No 485/2008 (OJ 2013 L 347, p. 549).

6      Commission Implementing Decision C(2015) 1936 final of 25 March 2015 on applying financial correction on the EAGGF Guidance Section of the operational programme CCI No 2000GR061PO021 (Greece — Objective 1 — Rural reconstruction).

7      Judgment of 19 September 2017, Greece v CommissionGreece v CommissionGreece v Commission (T‑327/15, not published, EU:T:2017:631).

8      Such a consequence is indeed one reading of the Hellenic Republic’s argument. However, in this case that request was coupled with a final report that was explicitly accepted by the Commission. Therefore, the Commission’s reference to entirely unilateral behaviour being capable of curtailing its powers is somewhat misleading. These issues are addressed in more detail below under the fourth ground of appeal (see below points 67 to 73).

9      According to that provision, the Commission ‘shall take a decision … within six months of the date of the hearing, or of the date of receipt of additional information where the Member State agrees to submit such additional information following the hearing …’.

10      See judgment of 21 September 2016, Commission v SpainCommission v SpainCommission v Spain (C‑140/15 P, EU:C:2016:708, paragraph 89 and the case-law cited).

11      In accordance with Article 100(5) of Regulation No 1083/2006, the Commission ‘shall take a decision on the financial corrections within six months of the date of the hearing …’.

12      In accordance with the combined reading of Article 39(3) of Regulation No 1260/1999 and Article 5(3) of Commission Regulation (EC) No 448/2001 of 2 March 2001 laying down detailed rules for the implementation of Regulation No 1260/1999 as regards the procedure for making financial corrections to assistance granted under the Structural Funds (OJ 2001 L 64, p. 13), the latter stating that ‘the three-month period within which the Commission may take a decision under Article 39(3) of [Regulation No 1260/1999] shall begin to run from the date of the hearing’.

13      The contested decision was adopted on 25 March 2015, 10 months after the hearing held on 27 May 2014.

14      Assuming, of course, that the first ground of appeal is rejected by the Court (see above points 26 to 37).

15      Judgments of 4 September 2014, Spain v CommissionSpain v CommissionSpain v Commission (C‑192/13 P, EU:C:2014:2156); of 4 September 2014, Spain v CommissionSpain v CommissionSpain v Commission (C‑197/13 P, EU:C:2014:2157); of 22 October 2014, Spain v CommissionSpain v CommissionSpain v Commission (C‑429/13 P, EU:C:2014:2310); and of 4 December 2014, Spain v CommissionSpain v CommissionSpain v Commission (C‑513/13 P, not published, EU:C:2014:2412).

16      Judgments of 24 June 2015, Germany v CommissionGermany v CommissionGermany v Commission (C‑549/12 P and C‑54/13 P, EU:C:2015:412), and of 24 June 2015, Spain v CommissionSpain v CommissionSpain v Commission (C‑263/13 P, EU:C:2015:415).

17      Article 32(4) of Regulation No 1260/1999.

18      Article 38(1)(f) of Regulation No 1260/1999.

19      Article 37(1) of Regulation No 1260/1999.

20      Regulations No 1260/1999, No 1083/2006 and No 1303/2013.

21      Judgment of 7 April 2011, Greece v CommissionGreece v CommissionGreece v Commission (C‑321/09 P, not published, EU:C:2011:218, paragraph 46).

22      See judgments of 13 November 2014, Nencini v ParliamentNencini v ParliamentNencini v Parliament (C‑447/13 P, EU:C:2014:2372, paragraph 48), and of 14 June 2016, Marchiani v ParliamentMarchiani v ParliamentMarchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 96).

23      Most recently see, for example, judgment of 6 September 2018, Czech Republic v CommissionCzech Republic v CommissionCzech Republic v Commission (C‑4/17 P, EU:C:2018:678, paragraph 58); see also Opinion of Advocate General Kokott in Czech Republic v CommissionCzech Republic v CommissionCzech Republic v Commission (C‑4/17 P, EU:C:2018:237, point 65 and the case-law cited).

24      Judgment of 4 September 2014, Spain v CommissionSpain v CommissionSpain v Commission (C‑192/13 P, EU:C:2014:2156, paragraphs 86 and 87).

25      See, for example, judgments of 28 June 2005, Dansk Rørindustri and Others v CommissionDansk Rørindustri and Others v CommissionDansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 177), and of 28 February 2018, mobile.de v EUIPOmobile.de v EUIPOmobile.de v EUIPO (C‑418/16 P, EU:C:2018:128, paragraph 65).

26      See, for example, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria(C‑83/14, EU:C:2015:480, paragraph 55 and the case-law cited).

27      The Commission refers to paragraph 45 of judgment of 23 September 2004, Italy v CommissionItaly v CommissionItaly v Commission(C‑297/02, not published, EU:C:2004:550).

28      Above, points 28 to 29.

29      Above, point 46.

30      By way of illustration, are time limits leading to prescription substantive or procedural rules? The Grand Chamber of the Court explored this matter in a rather contentious area (see notably judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555)) and ultimately arrived at the conclusion that what should really matter are the overarching principles of foreseeability, precision, and non-retroactivity of the (criminal) law applicable (judgment of 5 December 2017, M.A.S. and M.B. (C‑42/17, EU:C:2017:936, paragraph 51 et seq.).

31      Above, point 48.

32      Judgment of 6 September 2018, Czech Republic v CommissionCzech Republic v CommissionCzech Republic v Commission (C‑4/17 P, EU:C:2018:678, paragraph 58).

33      Recently see for example judgment of 6 September 2018, Czech Republic v CommissionCzech Republic v CommissionCzech Republic v Commission (C‑4/17 P, EU:C:2018:678, paragraph 52), or of 7 August 2018, Château du Grand Bois (C‑59/17, EU:C:2018:641, paragraph 30).

34      There are indeed other elements of the transitional provisions of Regulation No 1083/2006 that might be somewhat surprising, not to say eye-popping, to a person diving into the legislation in this area of law for the first time. For example, Article 108 of that regulation provides that ‘the provisions laid down in [Article 105] … shall apply … only for programmes for the period 2007 to 2013’. However, Article 105 is itself concerned exclusively with programmes from before 2007.

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