Commission Decision of 3 October 2006 on the financial treatment to be applied, in the context of clearance of expenditure financed by the European Agricultural Guidance and Guarantee Section, in certain cases of irregularity by operators (notified under document number C(2006) 4324) (Only the Spanish, German, English, French, Italian, Dutch and Portuguese texts are authentic) (2006/678/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy^f1, and in particular Article 8(2) thereof,

After consulting the Fund Committee,

Whereas:

Article 8(1)(c) of Regulation (EEC) No 729/70 provides for the Member States to take the measures necessary to recover sums lost as a result of irregularities or negligence. Pursuant to Article 8(2) of Regulation (EEC) No 729/70, in the absence of total recovery, the financial consequences of irregularities or negligence are to 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.

In its judgments in Cases C-34/89, Italy v Commission^f2, C-54/95, Germany v Commission^f3 and C-277/98 France v Commission^f4, the Court of Justice has held that the Member States must take steps to rectify irregularities promptly. It follows in particular from the judgment in Case C-34/89 that a Member State cannot be inactive for a period of four years from the moment of the first indication of an irregularity^f5. Within that period the investigation should generally be conducted and a decision be taken on the initiation of recovery procedure. In Case C-54/95 the Court indicated that, in principle, the Member States have to start the recovery procedure within one year after the all relevant facts are known with regard to the irregularity.

To date, the Commission has evaluated the recovery proceedings carried out by the Member States as regards irregularities communicated under Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organisation of an information system in this field and repealing Regulation (EEC) No 283/72^f6 before 1 January 1999 and involving amounts of more than EUR 500 000 in order to decide on the financial consequences of those irregularities in accordance with Article 8(2) of Regulation (EEC) No 729/70. In so doing, the Commission has followed the procedure set out in Article 5 of that Regulation and in Article 8 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^f7.

The verifications and the bilateral discussions with the Member States have shown that in certain cases the Member States did not act with the necessary promptness and diligence. Therefore, the financial consequences of non-recovery should in such cases not be borne by the Community budget.

In all other cases the financial consequences of the irregularities examined should be borne by the Community budget.

Cases notified under Regulation (EEC) No 595/91 in which undue payments have been recovered in full or for which it has been found that no undue payment was made should be removed from the list of notifications provided for in Articles 3 and 5 of that Regulation.

The Commission has informed the Member States in a summary report of the amounts to be excluded from the Community financing and of the grounds on which such exclusion should be decided,

HAS ADOPTED THIS DECISION: