Federal Republic of Germany v Commission of the European Communities.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: La Pergola
• ECLI: ECLI:EU:C:2003:320
• Date: 03 June 2003
• Docket Number: C-239/01
• Procedure Type: Recours en annulation - fondé

OPINION OF ADVOCATE GENERAL
MISCHO
delivered on 3 June 2003 (1)


Case C-239/01

Federal Republic of Germany
v
Commission of the European Communities

((Partial annulment of Commission Regulation (EC) No 690/2001 of 3 April 2001 on special market support measures in the beef sector – Power of the Commission to provide for compulsory co-financing by the Member States in an implementing regulation – Compatibility with certain financial provisions of the EC Treaty (Articles 268 EC to 270 EC) – Obligation to state reasons for Community acts))

1. The Federal Republic of Germany has asked the Court to annul Article 5(5) of Commission Regulation (EC) No 690/2001 of 3 April 2001 on special market support measures in the beef sector (2) ( the contested regulation), in so far as that provision requires each Member State concerned to finance 30% of the price of the meat purchased under that regulation. I ─ Legal context

A ─

The EC Treaty 2. Under Article 202, third indent, EC: To ensure that the objectives set out in this Treaty are attained the Council shall, in accordance with the provisions of this Treaty:...

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confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. ...

confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. ... 3. Under Article 211, fourth indent, EC: In order to ensure the proper functioning and development of the common market, the Commission shall:...

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exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.

exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter. 4. The first paragraph of Article 268 EC provides:All items of revenue and expenditure of the Community, including those relating to the European Social Fund, shall be included in estimates to be drawn up for each financial year and shall be shown in the budget. 5. The first paragraph of Article 269 EC reads:Without prejudice to other revenue, the budget shall be financed wholly from own resources. 6. Article 270 EC provides:With a view to maintaining budgetary discipline, the Commission shall not make any proposal for a Community act, or alter its proposals, or adopt any implementing measure which is likely to have appreciable implications for the budget without providing the assurance that that proposal or that measure is capable of being financed within the limit of the Community's own resources arising under provisions laid down by the Council pursuant to Article 269.

B ─

Regulations concerning the financing of the common agricultural policy 1. Regulation No 25 7. Regulation No 25 of the Council of 4 April 1962 on the financing of the common agricultural policy, (3) last amended by Regulation (EEC) No 728/70 of the Council of 21 April 1970 on additional provisions for the financing of the common agricultural policy (4) ( Regulation No 25), established the European Agricultural Guidance and Guarantee Fund (EAGGF, the Fund), which forms part of the general budget of the European Communities, and laid down the principles applying to the financing of the common agricultural policy. 8. Article 2(2) of Regulation No 25 reads: 2. Since at the single market stage price systems will be standardised and agricultural policy will be on a Community basis, the financial consequences thereof shall devolve upon the Community. The Fund shall accordingly finance: (a) refunds on exports to third countries; (b) intervention aimed at stabilising markets; (c) common measures adopted in order to attain the objectives set out Article 39(1)(a) of the Treaty ... . 2. Regulation (EEC) No 1883/78 9. Pursuant to Article 2 of Council Regulation (EEC) No 1883/78 of 2 August 1978 laying down general rules for the financing of interventions by the European Agricultural Guidance and Guarantee Fund, Guarantee Section, (5) last amended by Council Regulation (EC) No 1259/96 (6) of 25 June 1996 ( Regulation No 1883/78):Where, within the framework of a common organisation of the market, a sum per unit is determined for an intervention measure, the resulting expenditure shall be met entirely by Community funds. 10. Article 3 of Regulation No 1883/78 provides as follows:Where, within the framework of a common organisation of the market, a sum per unit is not determined in respect of an intervention measure, the measure concerned shall be financed by the EAGGF, Guarantee Section, in accordance with the provisions contained in Articles 4 to 8. 11. Articles 4 to 8 of Regulation No 1883/78 lay down the rules for calculating the intervention expenditure to be met from the Community budget and the arrangements for payment of such expenditure. 3. Regulation (EC) No 1258/1999 12. The second recital in the preamble to Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (7) reads: [w]hereas at the single market stage, in view of the fact that price systems are standardised and the agricultural policy is a Community policy, the financial consequences devolve upon the Community; whereas, in accordance with that principle as laid down in Article 2(2) of Regulation No 25, refunds on exports to third countries, intervention aimed at stabilising agricultural markets ... should be financed by the Guarantee section of the Fund in order to achieve the objectives set out in Article 33(1) of the Treaty. 13. Article 1 of Regulation No 1258/1999 provides: 1. The European Agricultural Guidance and Guarantee Fund (hereinafter called the Fund) shall form part of the general budget of the European Communities.It shall comprise two sections:─ the Guarantee Section,─ the Guidance Section. 2. The Guarantee Section shall finance: (a) refunds on exports to third countries; (b) intervention intended to stabilise the agricultural market[s]; (c) rural development measures outside Objective 1 programmes except the rural development Community initiative; (d) the Community's financial contribution towards specific veterinary measures, inspection measures in the veterinary field and programmes for the eradication and monitoring of animal diseases (veterinary measures) as well as towards plant health measures; ... 4. 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. 14. Article 2(2) of Regulation No 1258/1999 provides:2. Intervention intended to stabilise the agricultural markets, undertaken in accordance with Community rules within the framework of the common organisation of agricultural markets, shall be financed under Article 1(2)(b).

C ─

Regulations on the common organisation of the markets in the beef and veal sector 1. Regulation (EC) No 1254/1999 15. The 31st recital in the preamble to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (8) reads:[w]hereas it is appropriate to provide for measures to be taken when a substantial rise or fall in prices disturbs or threatens to disturb the Community market; whereas these measures may also include ad hoc intervention buying-in. 16. In the words of the 36th recital in the preamble to Regulation No 1254/1999:[w]hereas expenditure incurred by the Member States as a result of the obligations arising out of the application of this regulation should be financed by the Community in accordance with Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy. 17. Pursuant to Article 38 of Regulation No 1254/1999: 1. When a substantial rise or fall in prices is recorded on the Community market and this situation is likely to continue, thereby disturbing or threatening to disturb the market, the necessary measures may be taken. 2. Detailed rules for the application of this article shall be adopted by the Commission in accordance with the procedure laid down in Article 43. 18. Under Article 45 of Regulation No 1254/1999:Regulation (EC) No 1258/1999 and the provisions adopted in implementation thereof shall apply to the products listed in Article 1. 2. Regulation (EC) No 2777/2000 19. On the basis of Article 38(2) of Regulation No 1254/1999, the Commission adopted Regulation (EC) No 2777/2000 of 18 December 2000 adopting exceptional measures for the beef market, (9) amended by Commission Regulation (EC) No 111/2001 of 19 January 2001, (10) which provided for a purchase scheme, from 1 January 2001 to not later than 30 June 2001, for the purpose of the destruction of animals more than 30 months old and mainly of animals not subject to screening for bovine spongiform encephalopathy (BSE) when being slaughtered. 20. Article 4(2) of Regulation No 2777/2000 provided that, for each fully destroyed animal, the Community should co-finance 70% of the expenditure on purchasing the animal at a flat rate, leaving 30% to be financed by the national authorities. 3. The contested regulation 21. The contested regulation was adopted on the basis of Article 38(2) of Regulation No 1254/1999. 22. It introduces a special new purchase scheme for meat from certain categories of bovine animals aged more than 30 months which have been tested for BSE, enabling Member States to store the meat instead of destroying it. The scheme is applicable in any Member State, except the United Kingdom, from 1 July 2001 to 31 December 2001. 23. In the words of the fifth recital in the preamble to...