delivered on 1 June 2017 (1)

Case C‑521/15

(Action challenging Council Implementing Decision (EU) 2015/1289 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia — Jurisdiction of the Court of Justice — Power to adopt implementing measures under Article 291(2) TFEU — Regulation (EU) No 1173/2011 — Delegated Decision 2012/678/EU — Regulation (EC) No 479/2009 — Rights of defence — Right to good administration — Misrepresentation of data — Serious negligence — Calculation of a fine — Principle of non-retroactivity)

1.By the present action for annulment, Spain is challenging a Council decision by which the latter imposed a fine on Spain for the misrepresentation of deficit data in the Autonomous Community of Valencia. (2) The Council’s power to impose such fines flows from Article 8(1) of Regulation (EU) No 1173/2011 on the effective enforcement of budgetary surveillance in the euro area. (3)

2.That regulation is part of the bundle of secondary legislative acts known as the ‘Six Pack’, the primary purpose of which was to redress the weaknesses of the Stability and Growth Pact which had been brought to light by the sovereign debt crisis. It confers on the Council various powers to impose sanctions with the aim of enhancing the credibility of the European Union’s legal framework for budgetary surveillance. Articles 126 and 136 TFEU form the primary-law basis for that framework.

3.Budgetary surveillance is intended to ensure compliance with the reference values for government deficit and debt which are laid down in Article 1 of the Protocol on the excessive deficit procedure (EDP Protocol). (4) Under Article 3 of the EDP Protocol, all Member States are to report their deficit and debt data regularly to the Commission.

4.For budgetary surveillance to be effective, it is essential that the data reported by the Member States is meaningful. This presupposes in particular that the Member States comply with the accounting rules of the European system of national and regional accounts (ESA). (5) Article 8(1) of Regulation No 1173/2011 is intended to act as a deterrent against the infringement of those accounting rules, be this deliberate or as a result of serious negligence.

5.The present case is therefore especially significant because it is the first time (6) that the Council has exercised its power to impose a fine for the misrepresentation of deficit or debt data.

6.This explains the broad spectrum of the issues raised. These are concerned not only with the jurisdiction of the Court of Justice to hear and determine the present action but also with the observance of procedural rights, the individual conditions for imposing a fine and the calculation of such a fine. So far as concerns the issues relating to matters of procedure, reliance may be placed on the Court’s existing case-law. Otherwise, we shall have to venture into uncharted waters.

II. Legal framework

7.Article 51 of the Statute of the Court of Justice governs the jurisdiction of the Court of Justice and the General Court:

‘By way of derogation from the rule laid down in Article 256(1) of the Treaty on the Functioning of the European Union, jurisdiction shall be reserved to the Court of Justice in the actions referred to in Articles 263 and 265 of the Treaty on the Functioning of the European Union when they are brought by a Member State against:

(a) an act of or failure to act by the European Parliament or the Council, or by those institutions acting jointly, except for:

– …

– …

– acts of the Council by which the Council exercises implementing powers in accordance with the second paragraph of Article 291 of the Treaty on the Functioning of the European Union;

(b) …’

8.That rule was first introduced by a Council decision of 26 April 2004. (7) According to recital 4 of that decision, ‘the transfer of jurisdiction at first instance to the Court of First Instance has to be significant and the criteria for allocation of jurisdiction sufficiently clear to be understood unequivocally by the institutions and the Member States’.

9.Recital 5 defines the General Court’s jurisdiction to hear and determine actions brought against implementing measures:

‘Actions brought by the Member States against acts of the Council by which it exercises implementing powers in accordance with the rules referred to in the third indent of Article 202 of the EC Treaty [(following amendment, now Article 291(2) TFEU)] should fall within the jurisdiction of the Court of First Instance. These are cases where the Council has either reserved the right to exercise implementing powers or has regained the right to exercise such powers in the course of a “committee procedure”’.

10.Article 3 of Regulation (EC) No 479/2009 (8) on the application of the Protocol on the excessive deficit procedure gives specific expression to the obligation for Member States to report data on government deficit and debt:

‘1. Member States shall report to the Commission (Eurostat) their planned and actual government deficits and levels of government debt twice a year, the first time before 1 April of the current year (year n) and the second time before 1 October of year n.

…

(a) report to the Commission (Eurostat) their planned government deficit for year n, an up-to-date estimate of their actual government deficit for year n-1 and their actual government deficits for years n-2, n-3 and n-4;

(b) …’

11.Article 6(1) of Regulation No 479/2009 relates to the revision of data already reported:

‘1. Member States shall inform the Commission (Eurostat), as soon as it becomes available, of any major revision in their actual and planned government deficit and debt figures already reported.’

Article 8(1), first sentence, of Regulation No 479/2009 provides that the Commission (Eurostat) must regularly assess the quality of both actual data reported by Member States and the underlying government sector accounts compiled according to ESA 1995. To that end, Article 11(1) confers investigative powers on the Commission (Eurostat):

‘1. The Commission (Eurostat) shall ensure a permanent dialogue with Member States’ statistical authorities. To this end, the Commission (Eurostat) shall carry out in all Member States regular dialogue visits, as well as possible methodological visits.’

Article 11a of Regulation No 479/2009 defines the purpose of the dialogue visits:

‘The dialogue visits are designed to review actual data reported according to Article 8, to examine methodological issues, to discuss statistical processes and sources described in the inventories, and to assess compliance with the accounting rules. The dialogue visits shall be used to identify risks or potential problems with respect to the quality of the reported data.’

Article 11b(1) and (2) of Regulation No 479/2009 set out the purpose and frequency of the dialogue visits:

‘1. The methodological visits are designed to monitor the processes and verify the accounts which justify the reported data, and to draw detailed conclusions as to the quality of reported data, as described in Article 8(1).

Regulation No 1173/2011

Recital 25 of Regulation No 1173/2011 explains why the Council enjoys the powers to impose sanctions provided for in the regulation:

‘The power to adopt individual decisions for the application of the sanctions provided for in this Regulation should be conferred on the Council. As part of the coordination of the economic policies of the Member States conducted within the Council as provided for in Article 121(1) TFEU, those individual decisions are an integral follow-up to the measures adopted by the Council in accordance with Articles 121 and 126 TFEU and Regulations (EC) No 1466/97 and (EC) No 1467/97.’

The Council’s power to impose a fine for the manipulation of statistics and the powers of the Commission and the Court of Justice of the European Union in that connection are governed by Article 8(1), (3) and (5) of Regulation No 1173/2011:

‘1. The Council, acting on a recommendation by the Commission, may decide to impose a fine on a Member State that intentionally or by serious negligence misrepresents deficit and debt data relevant for the application of Article 121 or 126 TFEU, or for the application of the Protocol on the excessive deficit procedure annexed to the TEU and to the TFEU.

…

The Commission shall fully respect the rights of defence of the Member State concerned during the investigations.

Article 8(4) of Regulation No 1173/2011 empowers the Commission to adopt delegated acts concerning the investigation procedure (including the rights of defence of the Member State concerned) and the establishment of the amount of the fine. The Commission exercised that power when adopting Delegated Decision 2012/678/EU. (9)

Pursuant to Article 14 of Regulation No 1173/2011, that regulation entered into force on the 20th day following its publication in the Official Journal of the European Union. It was published on 23 November 2011.

Recital 8 of Delegated Decision 2012/678 on investigations and fines related to the manipulation of statistics as referred to in Regulation No 1173/2011 contains guidance on how the Commission should satisfy itself that there are serious indications that statistics have been manipulated:

‘In order to confirm a suspicion following serious indications of misrepresentation of the relevant deficit and debt data, the launch of an investigation should normally be preceded by a methodological visit conducted by the Commission (Eurostat) in accordance with Article 11b of Council Regulation (EC) No 479/2009 ...’

Recital 9 of Delegated Decision 2012/678 specifies the cases in which a misrepresentation of data should not be assumed to be present:

‘In assessing what constitutes a misrepresentation of deficit and debt data within the meaning of Regulation (EU) No 1173/2011, incorrect implementation of ESA 95 accounting rules which is not the result of either intent or serious negligence should not be considered as such. Further excluded from the application of this Decision should be revisions, including major revisions due to changes in methodology for all historical years, that are clearly and adequately explained, insignificant mistakes ...’

The second sentence of recital 10 of Delegated Decision 2012/678 defines the term ‘serious negligence’:

‘An unintentional act or omission should be considered a case of serious negligence if a person responsible for the production of general government deficit and debt data is in patent breach of his duty of care.’

Recital 15 of Delegated Decision 2012/678 states that:

‘This Decision should be without prejudice to the Commission (Eurostat) exercising its powers under Regulation (EC) No 479/2009.’

Article 2(1) of Delegated Decision 2012/678 defines the information which the Commission must make available to a Member State which it suspects of manipulating statistics at the beginning of its investigation:

‘The Commission shall notify the Member State concerned of its decision to initiate an investigation, including information of the serious indications found of the existence of facts liable to constitute a misrepresentation of general government deficit and debt data arising from the manipulation of such data as a result of either intent or serious negligence.’

Article 2(3) of Delegated Decision 2012/678 recalls recital 8:

‘The Commission may opt not to conduct such an investigation until a methodological visit has been carried out in accordance with a decision taken by the Commission (Eurostat) under Regulation (EC) No 479/2009.’

Articles 6, 10 and 11 of Delegated Decision 2012/678 confer on the Member State concerned a right to be heard, a right to access the file and a right to legal representation.

Article 14 of Delegated Decision 2012/678 concerns the calculation of the fine to be imposed:

‘1. The Commission shall ensure that the fine to be recommended is effective, proportionate and dissuasive. The fine shall be established on the basis of a reference amount that may be modulated upwards or downwards when taking into account the specific circumstances referred to in paragraph 3.

(a) the seriousness and the wider effects of the misrepresentation; in particular, the impact of the misrepresentation on the functioning of the strengthened economic governance of the Union;

…

(d) the repetition, frequency or duration of the misrepresentation by the Member State concerned; in such cases, the reference amount shall be the highest magnitude detected and shall be multiplied by the number of years, across the four years of the last notification, in which the relevant misrepresentation occurred;

(e) the degree of diligence and cooperation, alternatively the degree of obstruction, shown by the Member State concerned in the detection of the misrepresentation and in the course of the investigations.’

Pursuant to Article 16 of Delegated Decision 2012/678, that decision entered into force on the 20th day following its publication in the Official Journal of the European Union.

It was published on 6 November 2012.

III. The background to the case and the contested decision

28.On 30 March 2012, Spain notified the Commission, as part of the excessive deficit procedure, of the amount of its actual and planned government deficits for the years 2008 to 2012.

29.On 17 May 2012, Spain corrected the deficit data reported in March 2012 because a number of autonomous communities had incurred more expenditure in the years 2008 to 2011 than they had reported to the competent national authority. The difference amounted in total to EUR 4500000000 (around 0.4% of GDP), EUR 1900000000 of which was attributable to the Autonomous Community of Valencia alone.

30.The Commission subsequently made four visits to Spain: in May, June and September 2012 and in September 2013.

31.By decision of 11 July 2014, the Commission launched an investigation into a possible manipulation of statistics in the Autonomous Community of Valencia.

32.In its investigation report of 7 May 2015, (10) the Commission found that expenditure in the healthcare sector had been improperly recorded for many years in the Autonomous Community of Valencia. The regional audit office had repeatedly pointed out the unreported expenditure in its annual reports. The competent regional authority had still taken no action, however. The Commission concluded from this that the government deficit data reported by Spain in March 2012 was incorrect and that Spain had been seriously negligent in this regard. It therefore recommended that the Council impose a fine on Spain pursuant to Article 8(1) of Regulation No 1173/2011.

33.The Council followed that recommendation and, by the contested decision, imposed a fine of EUR 18930000.

34.That decision was notified to Spain on 20 July 2015 and published in the Official Journal of the European Union on 28 July 2015.

35.On 29 September 2015, Spain brought the present action. In November 2015, the Council corrected the title of the contested decision by changing ‘Decision’ to ‘Implementing Decision’. (11)

36.Spain claims that the Court should:

–annul Council Implementing Decision (EU) No 2015/1289 of 13 July 2015,

–in the alternative, limit the time period used to calculate the fine to that following the entry into force of Regulation No 1173/2011 and reduce the fine imposed accordingly, and

–order the Council to pay the costs.

37.The Council contends that the Court should:

–find that the action falls within the jurisdiction of the General Court and refer the dispute to that court,

–in the alternative, dismiss the action, and

–order Spain to pay the costs.

38.The Commission joined the proceedings as intervener in support of the Council. The parties submitted written observations, and presented oral argument on 4 April 2017.

39.The application for annulment is based on four pleas in law. First, Spain claims that the Commission disregarded Spain’s rights of defence during its investigation (see in this regard Section B). Secondly, Spain submits that its right to good administration has been infringed (see in this regard Section C). Thirdly, Spain takes the view that the material conditions for imposing a fine are not fulfilled (see in this regard Section D). Fourthly, Spain objects to the calculation of the fine imposed (see in this regard Section E).

40.A substantive assessment of those pleas in law must, however, be preceded by an examination of whether the Court of Justice has jurisdiction to hear and determine the present action (see in this regard Section A).

41.The Council and the Commission take the view that the present case falls within the jurisdiction of the General Court rather than that of the Court of Justice. Where the Court of Justice finds that an action falls within the jurisdiction of the General Court, it is to refer that action to the General Court, pursuant to the second clause in the second paragraph of Article 54 of the Statute of the Court of Justice.

42.The jurisdiction of the Court of Justice does not flow from the first sentence of Article 8(5) of Regulation No 1173/2011. It is true that, according to that provision, the Court of Justice of the European Union is to have unlimited jurisdiction to review the decisions of the Council imposing sanctions under paragraph 1. However, the term ‘Court of Justice of the European Union’ is used here, as in the first sentence of Article 19(1) TEU, as an umbrella term and does not therefore give any indication of whether jurisdiction to carry out the review lies with the Court of Justice or the General Court. (12) Moreover, Regulation No 1173/2011 could not provide for a ground of jurisdiction that is at variance with the Treaties or the Statute of the Court of Justice. Regard must therefore be had to the general rules on jurisdiction.

43.According to the first sentence of Article 256(1) TFEU, the General Court is to have jurisdiction to hear and determine at first instance actions referred to in Article 263. Subparagraph (a) of the first paragraph of Article 51 of the Statute of the Court of Justice provides for exceptions to that principle, one such being that actions brought by a Member State for annulment of acts, inter alia, of the Council are to be reserved to the Court of Justice. In accordance with the third indent of subparagraph (a) of the first paragraph of Article 51, actions against acts of the Council by which the Council exercises implementing powers in accordance with the second paragraph of Article 291 TFEU are an exception to that exception, inasmuch as they fall within the jurisdiction of the General Court.

In the present case, a Member State, Spain, has brought an action against an act of the Council, the decision imposing a sanction of 13 July 2015. The Council and the Commission take the view that the Council’s power under Article 8(1) of Regulation No 1173/2011 to impose a fine on a Member State for the manipulation of statistics is an implementing power within the meaning of Article 291(2) TFEU. If that were the case, the counter-exception provided for in the third indent of subparagraph (a) of the first paragraph of Article 51 of the Statute of the Court of Justice would apply, with the result that Spain’s action would fall within the jurisdiction of the General Court and the Court of Justice would have to refer the dispute to the General Court.

The legal classification of a Council decision cannot be formally dependent on the name that the Council gives to that decision. (13) The fact that the Council retrospectively inserted the word ‘implementing’ into the title of the contested decision in order to satisfy the requirements of Article 291(4) TFEU does not necessarily support the assumption that that decision constitutes an implementing act within the meaning of that provision or of the third indent of subparagraph (a) of the first paragraph of Article 51 of the Statute.

Conversely, the fact that Regulation No 1173/2011 does not at any point refer to Article 291 TFEU does not rule out the possibility that the decision-making power provided for in Article 8(1) of the abovementioned regulation is intended as a power to adopt an implementing act, if that intention follows from other parts of the regulation. (14) An indication that this is the case lies in the fact that recital 25 provides an express justification for the Council’s competence to that effect, as Article 291(2) TFEU requires. The decisive criterion, however, is whether the Council’s power to impose sanctions can, in substance, be classified as an implementing power.

The concept of ‘implementation’ comprises both the drawing-up of implementing rules and the application of rules (of secondary legislation) to specific cases by means of acts of individual application. (15) Imposing a fine thus appears to be an implementing measure and the power to adopt such a measure appears to be an implementing power.

The foregoing is not precluded, moreover, by the fact that the act of individual application in the present case is directed not at a natural person or an undertaking but at a Member State. Since such individual decisions are not infrequently adopted in respect of Member States, it must be assumed that they were taken into account during the drafting of Article 291(2) TFEU and the third indent of subparagraph (a) of the first paragraph of Article 51 of the Statute. Indeed, that very provision of the Statute indicates that such decisions are caught by the concept of implementing measures for the further reason that it concerns actions brought by Member States against Council decisions. Such actions are particularly likely to be brought (16) where the Council directs an individual implementing measure at a Member State.

Imposition of the sanctions at issue forms part of the coordination of economic policy

However, recital 25 of Regulation No 1173/2011 places the contested power to impose sanctions within the context of the coordination of the economic policies of the Member States that is conducted within the Council in the manner provided for in Article 121(1) TFEU. According to that recital, decisions to impose sanctions are an integral follow-up to the measures adopted by the Council in accordance with Articles 121 and 126 TFEU and Regulations No 1466/97 and No 1467/97.

The Council’s powers under Articles 121 and 126 TFEU are not implementing powers within the meaning of Article 291(2), since they are conferred directly on the Council by the Treaty. It must therefore be assumed (17) that actions brought by Member States in connection with the exercise of those powers fall within the jurisdiction of the Court of Justice rather than the General Court, in accordance with subparagraph (a) of the first paragraph of Article 51.

The question thus arises as to whether measures which are an ‘integral follow-up’ to measures that may be contested only before the Court of Justice must themselves fall within the jurisdiction of that court.

That view is supported not only by the similarity of the abovementioned competences from the point of view of their subject matter, but also by the fact that Article 291 TFEU is not exhaustive in its regulation of the assignment of implementing powers. (18) It is therefore conceivable that the sanctions at issue are sui generis implementing measures which do not fall within the scope of that provision and, therefore, are also not caught by the third indent of subparagraph (a) of the first paragraph of Article 51 of the Statute.

Schematic considerations

A further argument in favour of the proposition that jurisdiction lies with the Court of Justice appears — at first glance — to lie in the similarity of the sanctions procedure to the procedure for failure to fulfil obligations provided for in Articles 258 to 260 TFEU, jurisdiction in respect of which continues to be reserved exclusively to the Court. (19) Even in the latter procedure, however, the Commission may, within narrow limits, adopt decisions which the Member State concerned may contest before the General Court. (20) This shows that the division of grounds of jurisdiction between the General Court and the Court of Justice is not breached by general considerations.

Militating against the assumption that jurisdiction lies with the Court of Justice, moreover, is the fact that its jurisdiction under subparagraph (a) of the first paragraph of Article 51 of the Statute is an exception to the principle, provided for in Article 256(1) TFEU, that jurisdiction lies with the General Court and must therefore be interpreted strictly. (21) In contrast, an exception to such an exception, that is to say to the fact that jurisdiction lies with the General Court under the first to the third indents of subparagraph (a) of the first paragraph of Article 51 of the Statute, may not be interpreted strictly as it triggers a return to the general principle. (22)

That analysis is confirmed by the aims of the rules on jurisdiction contained in Article 51 of the Statute. According to recital 4 of Decision 2004/407, the transfer of jurisdiction at first instance to the General Court should be significant and the criteria for allocation of jurisdiction should be sufficiently clear to be understood unequivocally by the institutions and the Member States. The proposition that jurisdiction lies with the Court of Justice on account of the similarity of particular measures to other measures which, if challenged, probably fall within the jurisdiction of the Court of Justice would be incompatible with that requirement of clarity.

A further argument in favour of observance of the basic principle that jurisdiction lies with the General Court is that this gives the Member State concerned an additional level of judicial review, that additional level having been created, moreover, in order to improve legal protection in the case of actions requiring close examination of complex facts. (23) The infringements sanctionable under Article 8 of Regulation No 1173/2011 will often be very factually complex, particularly where — unlike in the present case — the Member State disputes the findings of fact.

Finally, although the power to impose sanctions provided for in Article 8 of Regulation No 1173/2011 sits within the context of measures under Articles 121 and 126 TFEU, any sanctions imposed under that regulation are imposed in procedures entirely separate from those used for the adoption of measures based on the Treaty. It is therefore inconceivable that sanctions imposed under that regulation and measures adopted on the basis of the aforementioned provisions of the Treaty would have to be adjudicated upon in the same dispute. The fact that those competences are similar from the point of view of their subject matter does not therefore mean that they must fall within the same ground of jurisdiction.

Conclusion

Spain’s action is therefore directed at an act of the Council by which the latter exercised implementing powers under Article 291(2) TFEU. Consequently, in accordance with Article 256(1) TFEU and the third indent of subparagraph (a) of the first paragraph of Article 51 of the Statute, jurisdiction lies with the General Court and the Court of Justice must refer the case to the General Court, in accordance with the second clause in the second paragraph of Article 54 of the Statute.

59.

However, in the event that the Court does not share that view, I shall now examine, in the alternative, the pleas in law put forward by Spain.

60.

By its first plea, Spain claims that the contested decision is based on information which the Commission obtained during its visits in 2012 and 2013, in breach of Spain’s rights of defence. At that time, the Commission had already investigated whether Spain had misrepresented deficit data. Those investigations, which were preliminary to the formal investigation procedure initiated in July 2014, are not covered by Article 8(3) of Regulation No 1173/2011 and Article 2(3) of Delegated Decision 2012/678. As such, they fall outside the framework provided for that purpose, one of the very objectives of which is to ensure respect for the rights of defence of the Member State concerned. In particular, the Commission omitted to notify Spain, contrary to Article 2(1) of Delegated Decision 2012/678, of its allegation that the latter had misrepresented statistics and of the indications supporting that allegation. It effectively conducted those investigations in secret.

61.

We must begin by considering this plea in law in the context of the course of the procedure that preceded the decision imposing sanctions (see in this regard Section 1), before we come to examine the issue of Spain’s rights of defence itself (see in this regard Section 2).

(a) The purport of Regulation No 1173/2011 and Delegated Decision 2012/678

62.

First of all, it must be found that Spain failed to take into account the purport of Regulation No 1173/2011 and Delegated Decision 2012/678.

63.

Under the second sentence of the first subparagraph of Article 8(3) of Regulation No 1173/2011, the Commission may decide to initiate an investigation when it finds that there are serious indications of a manipulation of deficit and debt data. The details of that formal investigation procedure are set out in Article 8(3) [of that regulation] and, in particular, in Articles 2 to 12 of Delegated Decision 2012/678.

64.

Since that regulation treats a mere suspicion as insufficient for its purposes, requiring instead the presence of serious indications of a misrepresentation, it not only permits investigations preliminary to the initiation of the formal investigation procedure, but actually insists upon them — with a view, namely, to protecting the Member State concerned. The latter is not to be publicly accused of misrepresenting deficit data until after indications to that effect have been gathered.

(b) The significance of Regulation No 479/2009

65.

The power which the Commission needs to conduct investigations prior to the initiation of the formal investigation procedure follows from Article 11 et seq. of Regulation No 479/2009, as the substantive link between that regulation and Regulation No 1173/2011 shows.

66.

After all, the data the misrepresentation of which is sanctioned by Article 8(1) of Regulation No 1173/2011 is the deficit and debt data which the Member State must report to the Commission in accordance with Article 3 of Regulation No 479/2009. Where there are doubts as to the quality of the reported data, the Commission is empowered under the second sentence of Article 11(1) of the latter regulation to carry out dialogue visits and, in exceptional cases, methodological visits in the Member State concerned. These are designed to identify any errors in the collection and reporting of data and to assist the Member State concerned in correcting those errors. The Commission may make recommendations to that end.

Article 2(3) and recital 8 of Delegated Decision 2012/678 follow on from the foregoing inasmuch as they refer to the possibility of carrying out a methodological visit prior to the launch of the formal investigation procedure. They do not therefore limit the Commission’s powers of investigation prior to the initiation of the formal investigation procedure but, on the contrary, require the Commission to make full use of the instruments provided for in Regulation No 479/2009. Recital 15 of the delegated decision confirms that finding by stating that that decision is to be without prejudice to the Commission exercising its powers under Regulation No 479/2009.

68.

Since Regulation No 1173/2011 came into force, the procedure under Article 11 et seq. of Regulation No 479/2009 has thus also served to establish whether the conditions for the initiation of a formal investigation procedure under the second sentence of the first subparagraph of Article 8(3) of Regulation No 1173/2011 are met.

69.

It is true that Spain raises the further objection that the Commission carried out visits not provided for in Regulation No 479/2009, that is to say technical visits, an upstream dialogue visit and an ‘ad hoc visit’. Notwithstanding the names given to those visits, however, there is nothing to indicate that, in making them, the Commission exercised investigative powers which went beyond the bounds of the visits defined in Article 11a and Article 11b.

70.

Not even Spain’s reference to a Eurostat document leads to a different conclusion. Although, in that document, Eurostat recommends that ‘upstream dialogue visits’ should be included in Regulation No 479/2009, it also states that these are simply a special form of the dialogue visits already provided for.

71.

Contrary to the view expressed by Spain, therefore, those visits did not constitute an investigation without a legal basis.

(c) Interim conclusion: the investigation procedure is divided into two stages

72.

All things considered, the conclusion may be drawn that the procedure for investigating a manipulation of statistics is divided into two distinct stages.

The first stage of the procedure begins as soon as the Commission, on the basis of a suspicion that deficit or debt data has been misrepresented, adopts measures of inquiry, and ends, if the outcome of those measures is unfavourable to the Member State concerned, with the decision to initiate the formal investigation procedure. Already the preliminary investigation procedure itself is intended to establish whether there are serious indications of a misrepresentation of deficits. The legal basis for such investigations is formed by Article 11 et seq. of Regulation No 479/2009.

74.

The second stage of the procedure extends from the decision to initiate the formal investigation procedure to the decision to recommend that the Council impose a fine. The purpose of the formal investigation is to ascertain whether deficits within the meaning of Article 8(1) of Regulation No 1173/2011 have actually been misrepresented. This stage of the procedure is governed by Article 8(3) of the aforementioned regulation and Articles 2 to 12 of Delegated Decision 2012/678.

75.

Against that background, the fact that Delegated Decision 2012/678 had not yet come into force at the time of the visits in May, June and September 2012 is irrelevant, the preliminary investigation procedure being based on Article 11 et seq. of Regulation No 479/2009.

76.

The nub of Spain’s claim, however, does not lie in the foregoing. It lies rather in the allegation that the Commission did not notify Spain of its suspicion that the latter had misrepresented statistics and of the indications supporting that suspicion at the stage of its visits in 2012 and 2013 but left it until the initiation of the formal investigation procedure in July 2014 to do so. The Commission thus infringed Article 2(1) of Delegated Decision 2012/678 and breached Spain’s rights of defence.

77.

However, Spain misunderstands the purport of Article 2(1) of Delegated Decision 2012/678. That provision obliges the Commission to notify the Member State concerned of the initiation of the formal investigation and at the same time to disclose the indications it has found of a manipulation of statistics. It is common ground that those requirements were complied with.

In reality, Spain is claiming not that there has been an infringement of Article 2(1) of Delegated Decision 2012/678 but a breach of its right to be informed of the suspicion of manipulation and of the facts on which the Commission bases that suspicion at the stage of the preliminary investigation.

Does such a right even exist, however?

Regulation No 479/2009, the legislation applicable to the preliminary investigation procedure, only provides one indication of a right to be heard. The first sentence of Article 13 states that the Commission is to report to the Economic and Financial Committee on the findings of dialogue and methodological visits, including any comments on those findings made by the Member State concerned. That provision does not, however, support the inference of an obligation on the Commission to inform the Member State of any suspected misrepresentation of deficit data.

According to the Court’s case-law, however, respect for the rights of defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, one of the fundamental principles of EU law which must be guaranteed even in the absence of any rules governing the proceedings in question. (28)

Although the Member State concerned enjoys extensive rights of defence in the procedure at issue here, this is the case only in the second stage of the procedure, the formal investigation.

Now, it might be assumed that the enjoyment of comprehensive rights of defence during the formal investigation makes up for the lack of a right to be informed during the preliminary investigation procedure. This, however, would leave out of account the fact that the course followed by the preliminary investigation procedure may have an impact on the defences available during the formal investigation procedure. The Court has recognised a similar potential knock-on effect in antitrust procedures.

The procedure to investigate whether there has been an infringement of Article 101 or 102 TFEU is, like the present procedure, divided into two stages: a preliminary investigation and a formal examination. (29) The latter begins with the notification of the statement of objections to the undertaking concerned. (30) To this extent, there is a parallel with Article 8(3) of Regulation No 1173/2011 and Article 2(1) of Delegated Decision 2012/678.

In the case of the competition law procedure, the Court has held in particular that, in the interests of protecting the rights of defence, information obtained in the course of investigations carried out during the preliminary inquiry, that is to say, in particular, as part of the conduct of searches and questioning of individuals, must be used only for the purposes indicated in the order or decision under which the investigation is carried out. (31) This could be understood as meaning that, in the case of preliminary inquiries relating to a sanction for misrepresentation of budgetary data, too, the purpose of those inquiries must be made known to the persons concerned.

On the other hand, the Court has also recognised that the Commission may initiate a new inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty. (32)

At first sight, it may seem appropriate, in the light of the structural comparability of the procedures concerned, to apply those considerations, mutatis mutandis, to the present case. And there may indeed be an issue from that point of view here. In the present case, after all, the parties are in dispute as to whether the Commission disclosed its suspicion in September 2013 or did not do so until July 2014. What is not in dispute is that there was no mention of a sanctions procedure during the visits in 2012.

At the level of the preliminary investigations, however, there are significant differences between the matter at issue here and competition law which place limits on the latter’s transposability.

While, in competition law, the preliminary investigations themselves must be based on grounds which can also be communicated to the undertakings concerned, in the field of budgetary surveillance, the Member States and the Commission are in permanent dialogue, pursuant to Regulation No 479/2009. One of the purposes of that dialogue is to allow for the emergence of any indications of a misrepresentation of data within the meaning of Article 8(1) of Regulation No 1173/2011. (33) Indeed, the Member States must in principle expect this to be the case. This is particularly true of Spain in the situation at issue here, since that Member State discovered the issues and communicated them to the Commission.

There is, on the other hand, nothing to indicate that the Commission must continually check whether indications of misrepresentation are so extensive as to call for an additional warning to be issued to the Member State concerned.

Moreover, according to the undisputed submissions of the Council and the Commission, the Commission reviewed and confirmed during the formal investigation procedure all of the findings relevant from the point of view of the imposition of sanctions which had been made in the dialogue process before the Council based the sanction on that information. To this extent, the position is much the same as in the case of the chance findings in competition law.

Even assuming that the Commission is under an obligation to issue a warning, Spain does not adequately substantiate the extent to which the timing of the disclosure is supposed to have adversely affected its ability to defend itself. Instead, it simply claims to have been adversely affected in this way, without adducing any evidence in support of that claim. (34)

In so far as Spain contends that the Spanish authorities submitted incriminating material to the Commission only because they knew nothing of the suspicion of manipulation, it pays no regard to the function of the rights of defence. These do not include the right to be informed of a suspicion in sufficient time to be able to withhold specific items of information from the Commission. (35) This is particularly true in the case of Member States. Undertakings may not be compelled to provide answers which might involve an admission on their part of the existence of an infringement. (36) Member States, on the other hand, if suspected of having misrepresented deficit or debt data, have an obligation to cooperate even if they incriminate themselves in doing so. This follows from the duty of loyalty to the European Union imposed on the Member States in Article 4(3) TEU. (37)

Interim conclusion

The first plea in law must therefore be rejected.

Respect of the right to good administration (second plea in law)

By its second plea in law, Spain claims infringement of its right to good administration under Article 41 of the Charter of Fundamental Rights of the European Union. It calls into question the impartiality of the investigation committee, since this included persons who had taken part in the investigations prior to the initiation of the formal procedure.

1.The applicability of Article 41 of the Charter

96.The Council disputes the applicability of Article 41 of the Charter to Member States, although it recognises that they are entitled to rely on the requirement of impartiality. The Commission even goes one step further by calling into question the very applicability of that requirement, or at least its purport, in relation to Member States.

97.However, whether or not a Member State may rely on Article 41 of the Charter, it is common ground that the requirement of impartiality is an expression of the general legal principle of the right of Member States to good administration. (38)

2.Restriction of the requirement of impartiality

98.The requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no officer of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any doubt as to bias on the part of the institution concerned. (39)

99.Spain claims that three of the four officers that headed up the formal investigation had taken part in the visits in 2012 and 2013. The Council’s objection to the effect that Spain must make and prove a case to show that the members of the investigation committee were indeed biased seems to be justified at first sight, in so far as Spain’s submission does not demonstrate any subjective bias. However, Spain complains only of an infringement of the requirement of objective impartiality.

100.In so far as Spain argues as against the foregoing that an infringement may not be prosecuted and punished by the same service that is impacted by that infringement, (40) it is to be conceded that Eurostat is, on the one hand, the addressee of the deficit and debt reports and, on the other hand, the body responsible for reviewing the quality of the reported data and carrying out an investigation where there is a suspicion as to the manipulation of statistics. It is, however, difficult to regard Eurostat as a ‘victim’ of any misconduct.

101.Spain is nevertheless right to submit that the Commission’s conduct did not ensure the maximum degree of impartiality. Indeed, there is much to support the assumption that persons who have already conducted preliminary investigations and have proposed that the Commission initiate the formal investigation procedure will no longer act entirely without bias in the latter procedure.

102.Moreover, at the hearing, the Commission prompted further doubts with respect to the absence of any bias when it responded to a question from the Court by saying that the purpose of the formal investigation is deterrence. This raises fears that that stage of the procedure, at least, was not conducted with an open mind as to its outcome.

103.One can think, it is true, of numerous measures that might have provided a more robust guarantee of an impartial investigation. Preventing the persons that took part in the preliminary investigation from also taking part in the formal investigation would have been but the easiest option. Another possibility might have been to assign the formal investigation to another Commission department, be it within Eurostat or outside it, such as one in the Directorate-General for Economic and Financial Affairs or the European Anti-Fraud Office (OLAF). The investigation would have been even more independent if another institution, such as the Court of Auditors or the European Central Bank, for example, had taken on that task.

104.A reason for strengthening the impartiality of investigations in this way might be respect for the budgetary sovereignty of the Member States. This is already considerably restricted by the surveillance conducted by the European Union, and further still by the imposition of sanctions for misrepresentations of reported budgetary data. Such respect also explains why there is a special procedure for investigating misrepresentations and why the task of imposing sanctions is entrusted to the Council. It is therefore only to be expected that a special procedure of this kind should entail equally special measures to ensure independent investigations.

3.Justification for the decision not to maximise impartiality

105.However, the decision not to maximise impartiality may be justified notwithstanding those substantial interests. By analogy with Article 52(1) of the Charter, this is the case where such a decision is provided for by law and respects the essence of the principle of impartiality. Moreover, in accordance with the principle of proportionality, restrictions may be imposed only if they are necessary and genuinely serve to meet objectives in the general interest which are recognised by the European Union or to satisfy requirements associated with protecting the rights and freedoms of others.

106.As regards the legal basis for the aforementioned decision, the Commission’s competence to conduct the formal investigation flows from Article 8(3) of Regulation No 1173/2011. Pursuant to Article 2(2) of Delegated Decision 2012/678, that investigation is carried out by Eurostat, that is to say by the Directorate-General which also conducts the preliminary investigations provided for in Regulation No 479/2009. That the employees assigned to those investigations were competent to perform their work under the internal rules of Eurostat, is not in doubt. It must therefore be assumed that the interference with the requirement of impartiality is founded on an adequate legal basis.

107.The essence of the requirement of impartiality was not adversely affected in the present case not least because the decision to impose the sanction was adopted by another institution, the Council. Moreover, that institution adopted its decision on the basis of a Commission recommendation which emanated ultimately not from the relevant Eurostat employees but from the College of Commissioners. The Council quite rightly draws attention to this fact.

108.The decisive factor is therefore the proportionality of the Commission’s conduct.

109.The principle of proportionality requires that a measure be ‘appropriate, necessary and proportionate to the objective it pursues’. (41) That objective must be recognised by the European Union and either serve the general interest or be necessary to protect the rights and freedoms of others.

110.As regards the legitimate objectives of the decision not to adopt additional measures to strengthen the impartiality of the investigation, the Council points to the Commission’s limited resources and the need for specialist knowledge. That decision therefore pursues the legitimate objectives of limiting the resources assigned to the investigation (42) while at the same time ensuring its quality.

111.The Commission’s conduct was appropriate and necessary to the attainment of those objectives. Indeed, given the complexity of the subject matter, it makes perfect sense to use the same persons for the preliminary investigations and the formal investigation. From a practical point of view, this approach is also likely to expedite the formal investigation and thus attain the further objective of the right to good administration.

112.Finally, I also consider the Commission’s conduct to be reasonable in relation to the interference with the requirement of impartiality. For the participation of persons who have already taken part in the preliminary investigations serves not only the Commission’s interests in efficiency but also Spain’s interests as the Member State forming the subject of the investigation. Because of their knowledge of the circumstances, after all, those persons can help to avoid errors — including those detrimental to Spain — in the formal investigation and expedite its progress.

113.In the final analysis, the question of the balance to be struck between the advantages of continuity of staffing and the reduced impartiality associated with such an approach need not be resolved in the present case, since Spain’s legitimate interest in an unbiased assessment of the situation is more than adequately ensured by the fact that the recommendation to be made to the Council is first decided upon by the College of Commissioners, with the Council alone being able to order the imposition of a fine. Neither of those bodies is directly involved in the investigations.

114.The interest in impartiality is further safeguarded by the legal protection afforded by the equally impartial EU Courts, of which Spain also avails itself in the present case. As the Council and the Commission rightly submit, that legal protection is particularly extensive, given that, pursuant to Article 8(5) of Regulation No 1173/2011, the EU Courts are to have unlimited jurisdiction to review decisions of the Council imposing fines.

Consequently, the Commission did not infringe the requirement of impartiality and this plea in law must be rejected.

Whether the conditions for imposing a fine are met (third plea in law)

By its third plea in law, Spain submits that the conditions for imposing a fine as laid down in Article 8(1) of Regulation No 1173/2011 are not met. In that connection, Spain, first, disputes the contention that data was misrepresented, since that data was corrected in good time, secondly, takes the view that the reported data was not relevant to the application of Article 121 or 126 TFEU or the EDP Protocol, given that, having been promptly corrected, it was not taken into account by the Commission during the surveillance, and, thirdly, takes issue with the proposition that any misconduct must be regarded as serious.

Misrepresentation of data (first part of the third plea in law)

First and foremost, Spain claims that it did not misrepresent any data. The data reported in March 2012 was neither incorrect nor correct, but provisional. Spain updated that data by the correction it made in May 2012. This was a routine revision. Such a process does not fall within the scope of Article 8(1) of Regulation No 1173/2011, as is clear from Article 6 of Regulation No 479/2009 and recital 9 of Delegated Decision 2012/678.

That argument cannot be endorsed.

Although corrections which are made necessary by the misapplication of accounting rules constitute revisions within the meaning of Article 6 of Regulation No 479/2009, they do not justify the misrepresentation of data within the meaning of Article 8(1) of Regulation No 1173/2011.

Article 6 of Regulation No 479/2009 governs the obligation of the Member States to inform the Commission of any major corrections made to data they have already reported. Corrections are not simply permitted, they are compulsory. For budgetary surveillance to be effective, it is essential that the Commission has access to correct figures. The reason for the need to make corrections is irrelevant in this context. The fact that the Commission itself referred to that process as revision and published the corrected data without reservation is thus consistent with that regulation.

Revisions may nevertheless provide proof of a misrepresentation of data within the meaning of Article 8(1) of Regulation No 1173/2011. This fact is illustrated by the second sentence of recital 9 of Delegated Decision 2012/678, which lists cases in which data already reported, although needing to be corrected, is not to be regarded as misrepresentation warranting a sanction.

It is true that Delegated Decision 2012/678 is not capable of determining the scope of Article 8(1) of Regulation No 1173/2011. After all, the Commission’s regulatory power under Article 8(4) does not extend to determining the criteria for the imposition of sanctions. Furthermore, such a delegation would be incompatible with the second subparagraph of Article 290(1) TFEU, according to which the essential elements of an area cannot be delegated to the Commission. The delegated decision may, however, clarify the Commission’s view of the content of the regulation.

In the second sentence of recital 9 of Delegated Decision 2012/678, the Commission assumes that revisions that are clearly and adequately explained are not to be regarded as misrepresentations. Contrary to the view expressed by Spain, this does not mean that misrepresentations which are disclosed and explained cannot be sanctioned. Rather, the Commission takes account of the fact that there is often a time lag in the availability of definitive deficit and debt data and, for that reason, the EDP reports always contain some data which is based on estimates. Adjustments to such estimates must be permitted where they are explained as being such. Moreover, the Commission explicitly accepts retrospective changes to data recording methodology as a further ground for revision.

The correction of the data submitted to the Commission in March 2012, however, was due neither to the provisional nature of that data nor to changes of methodology. It was necessary, rather, because the Autonomous Community of Valencia infringed the ESA 1995 accounting rules. That infringement consisted in the fact that expenditure in the healthcare sector had for years either not been recorded at all or had been recorded late. The regional authority had thus incurred more expenditure than it had reported to the competent national authority. As a result, the national authority had based its calculation of the total national deficit for the years 2008 to 2011 on incorrect figures and recorded a deficit figure in the EDP report for March 2012 that was too low.

Spain does not deny that the reason for the correction in May 2012 was the misapplication of the accounting rules in the Autonomous Community of Valencia. That being the case, it is illogical for Spain to rely at the same time on the provisional nature of the data sent to the Commission as a justification for its correction. The actual amount of the expenditure incurred in the Autonomous Community of Valencia was definitive, at least at regional level; it had just not been properly recorded.

It may therefore be concluded that Spain misrepresented data in reporting figures in March 2012 which had been based on an infringement of the accounting rules and were thus incorrect. The fact that it corrected the data itself in May 2012 does nothing to alter that position, because that correction cannot be classified as a revision necessary through no fault of its own. Whether Spain clearly and adequately explained that correction is therefore irrelevant for the purposes of establishing an infringement of Article 8(1) of Regulation No 1173/2011.

I should like to make the point, purely in passing, that what other Member States do has no bearing on the assessment of Spain’s conduct. In accordance with the Court’s settled case-law, after all, a Member State may not rely on the fact that other Member States have also failed to perform their obligations in order to justify its own failure to fulfil its obligations under EU law.

The first part of Spain’s third plea in law is therefore untenable.

Data relevant to the application of Article 121 or 126 TFEU or the EDP Protocol (second part of the third plea in law)

In the alternative, in the event that the Court finds that there has been a misrepresentation of data, Spain claims that any such misrepresentation was not capable of adversely affecting budgetary surveillance. For, on the one hand, Spain corrected the data in good time to enable the Commission to use the correct figures in its reports. On the other hand, the correction for 2011 (in Spain’s view, the only relevant year) amounted to only EUR 0.9 billion (0.08% of GDP) and did not exceed the 3% threshold.

This argument too is unsustainable. It is based on a misinterpretation of Article 8(1) of Regulation No 1173/2011.

It is true that, contrary to the Council’s view, it makes no difference to the interpretation of Article 8(1) of Regulation No 1173/2011 that, pursuant to Article 14(3) of Delegated Decision 2012/678, the consequences of misrepresentation are taken into consideration in the determination of the amount of the sanction. As I have already said, the Commission was not competent to prescribe the conditions for imposing the sanction, not even indirectly by laying down the criteria for determining the amount of that sanction, which, in the Council’s view, should no longer be relevant when it comes to establishing whether the conditions for imposing the sanction are met.

It should be noted in addition that not even the drafting history of Regulation No 1173/2011 provides any further indication as to how to interpret the conditions governing the imposition of sanctions. The conditions governing the imposition of a sanction were not contained in the original Commission proposal but appeared for the first time — already in the wording that would become final but lacking any further explanation — in the draft Council Regulation of 16 June 2011. They were reproduced in that form, again without commentary, in the Parliament’s observations on that proposal.

even though the Rapporteur’s draft (49) had been silent on the matter.

It is, however, clear from the very wording of Article 8(1) of Regulation No 1173/2011 that the imposition of a fine is not dependent on the consequences which misrepresentation may have for budgetary surveillance. According to that provision, the misrepresented data must be deficit or debt data relevant for the application of Article 121 or 126 TFEU, or for the application of the EDP Protocol. It is therefore sufficient for the data to be intended to facilitate budgetary surveillance.

The interpretation based on the wording of the aforementioned provision is also consistent with the objectives set out in recital 13 of Regulation No 1173/2011. According to the first sentence of that recital, the enforcement of budgetary surveillance in the euro area is to be made more effective through sanctions. The second sentence provides that sanctions are intended to enhance the credibility of the fiscal surveillance framework of the European Union. Although neither of those objectives necessarily requires the sanctions provided for, they are more actively promoted where misrepresentation itself is sanctionable.

It must therefore be concluded that a misrepresentation of data that is relevant to the application of Article 121 or 126 TFEU, or for the application of the EDP Protocol, fulfils in and of itself the conditions for imposing a sanction, where it is deliberate or the result of serious negligence. The data at issue here is data as defined above, since the Member States must report it to the Commission, in accordance with Article 3 of Regulation No 479/2009, so that it can be duly taken into account for the purposes of budgetary surveillance.

Furthermore, contrary to the view expressed by Spain, the amounts in question are large enough to justify the application of Article 8(1) of Regulation No 1173/2011. A misrepresentation of deficits by EUR 1.9 billion, which gives a reference amount for the purposes of imposing a sanction of almost EUR 100 million, cannot be ignored.

The second part of the third plea in law must also be rejected, therefore.

Serious negligence (third part of the third plea in law)

The decisive factor is thus whether Spain misrepresented the data by serious negligence. Spain denies this, in particular because only one region is affected by the issue.

(a)

The basis of the allegation of serious negligence

The basis of the allegation of serious negligence is the conduct sanctioned by Article 8(1) of Regulation No 1173/2011. This consists in the misrepresentation of data in an EDP report to the Commission. It is true that the heading ‘Sanctions concerning the manipulation of statistics’ establishes a link between that provision and the infringement of the EU accounting rules. That infringement is the cause of the incorrect EDP report and lends itself to concise formulation. The heading does nothing to alter the fact, however, that the fine is not imposed for the misapplication of the accounting rules, but for the reporting of incorrect data to the Commission. (50) This follows from the purpose of the sanction, which is to make budgetary surveillance in the euro area more effective. (51) A threat to budgetary surveillance does not arise, however, until such time as the incorrect data is reported to the Commission. Before then, the issue is a purely domestic one which the Member State can and must yet rectify.

The misapplication of the accounting rules is nonetheless relevant as the point of reference for the subjective component of Article 8(1) of Regulation No 1173/2011. After all, anyone who infringes the accounting rules as a result of serious negligence and does not correct that error before the next EDP report submits incorrect data to the Commission as a result of serious negligence.

It must therefore be examined whether Spain infringed the accounting rules as a result of serious negligence before the EPD report in March 2012.

(b)

Imputability of the conduct of both the national and regional authorities

In the second sentence of recital 10 of Delegated Decision 2012/678, the Commission makes it clear that serious negligence should be assumed to be present where a person responsible for the production of general government deficit and debt data is in patent breach of his duty of care. The Commission thus rightly takes as its yardstick the task of producing deficit and debt data, without confining itself to the production of nationwide data or otherwise indicating any reference to the domestic order. (52)

Any other conclusion would run counter to the principle that a Member State cannot plead conditions prevailing in its domestic legal order, including those resulting from the constitutional organisation of that State, in order to justify a failure to comply with obligations under EU law. (53) So far as concerns the obligations applicable in the context of the surveillance of government finances, that principle is explicitly enshrined in Article 2 and 3 of the EPD Protocol. (54) The obligation specifically at issue here consists in the reporting of correct deficit and debt data to the Commission. The fact that the national authority has received incorrect data from a regional body does not relieve the Member State concerned of that obligation.

Spain is thus accountable for any misconduct on the part of either the national authority or the competent body in the Autonomous Community of Valencia.

(c)

Existence of serious negligence

The parties are in dispute as to whether the national authority knew or should have known about the irregularities before May 2012. There is, nevertheless, no need to consider this question in detail.

After all, Spain does not deny that the competent regional authority was in patent breach of its duty of care in failing to record at all or recording late a substantial volume of healthcare expenditure and in providing incorrect data to the national authority, even though the regional audit office had alerted it to the error at an early stage.

What is more, for the purposes of establishing serious negligence on the part of the regional authority, there is no need to rely on conduct predating the entry into force of Regulation No 1173/2011 on 13 December 2011. Regard may be had rather to the fact that the regional authority did not correct its error in good time before the report of March 2012. The issue of retroactivity mentioned by Spain does not therefore arise.

In failing to correct that error, the regional authority breached its duty of care just as patently as it did in misapplying the accounting rules. The fact that the allegation of failure to correct that error covers a shorter period of time does not warrant a different analysis.

Spain’s objection that the Commission and the Council left out of account the fact that Spain detected the irregularities in May 2012, brought them to the Commission’s attention and gave it its fullest cooperation and loyalty, is unsustainable.

The relevant time for the purposes of establishing whether the subjective conditions of Article 8(1) of Regulation No 1173/2011 are met is the point at which the infringement was committed, that is to say when the data was communicated to the Commission. (55) Any conduct thereafter is irrelevant to the question of whether a fine must be imposed. In accordance with Article 14(3)(e) of Delegated Decision 2012/678, such conduct can be taken into account only for the purposes of determining the amount of the fine, as was indeed the case here.

(d)

Interim conclusion with respect to the third part of the third plea in law

151.In the light all the foregoing, it may be concluded that, as a result of serious negligence, the competent authority in the Autonomous Community of Valencia failed to notify the competent national authority of the historical misapplication of the accounting rules and of the resulting defects in the data communicated to that authority. That conduct must be imputed to Spain, with the result that Spain, as a result of serious negligence, misrepresented the deficit data in the EPD report sent to the Commission in March 2012.

152.Accordingly, the third part of the third plea in law is also unfounded.

153.The third plea in law must therefore be rejected in its entirety.

154.By its fourth plea in law, Spain submits that the reference amount on which the Council based its calculation of the fine imposed was too high. In the event that the Court considers the imposition of a fine to be justified, Spain therefore requests that the fine be reduced from EUR 18930000 to EUR 8620000. In support of its claim, Spain relies on Article 14(2) of Delegated Decision 2012/678 and on the submission that the penalising of the misrepresentation of deficit data has been provided for only since the end of 2011. In its response it makes clear that it is referring to the principle of non-retroactivity. Before those arguments can be analysed, it is important first to explain how the Council arrived at the reference amount on which it based the fine and to define the calculation method Spain seeks to have applied.

155.Pursuant to the second sentence of Article 14(1) of Delegated Decision 2012/678, the fine is to be established on the basis of a reference amount that may be modulated when taking into account the specific circumstances referred to in paragraph 3. Spain does not call into question the fact that the Council reduced the fine to a fifth of the reference amount.

156.In accordance with Article 14(2) of Delegated Decision 2012/678, the reference amount is to be equal to 5% of the larger impact of the misrepresentation on the level of either the general government deficit or debt of the Member State for the relevant years covered by the notification in the context of the excessive deficit procedure.

157.The report sent in March 2012 concerned the years 2008 to 2012, in accordance with Article 3(2)(a) of Regulation No 479/2009.

158.The unreported expenditure amounted to EUR 29000000 in 2008, EUR 378000000 in 2009, EUR 624000000 in 2010 and EUR 862000000 in 2011, giving a total of EUR 1893000000.

159.On the basis of the total amount of unreported expenditure, the Council calculated a reference amount of EUR 94650000 and established the fine as being a fifth of that amount.

160.In rebuttal of the foregoing, Spain contends that the Council should have taken into account the unreported expenditure in 2011 alone. This would have led to a reference amount of EUR 43100000 and a fine in the amount of EUR 8620000.

161.In so far as Spain relies on Article 14(2) of Delegated Decision 2012/678, the foregoing view is based on the proposition that, under that provision, it is the ‘[higher value]’ (German-language equivalent of ‘larger impact’ in the English-language version of the decision) that is relevant. From this, Spain infers that account may be taken only of the year in which the reported data is most at variance with the actual data.

162.That view is unconvincing because the expression ‘[higher value]’ used in Article 14(2) of Delegated Decision 2012/678 refers not to the annual variance but to the impact of the misrepresentation on the deficit or debt level. After all, the reference amount has to be equal to 5% of the larger impact of the misrepresentation on the level of either the general government deficit or debt of the Member State for the relevant years covered by the notification in the context of the excessive deficit procedure.

163.It should be noted in this regard that, in most of the language versions, it is specifically not the highest but the higher value that is relevant. Since, however, each report relates to several years, one would expect a comparison of the annual variances to show a number of higher values. So it was in the present case that each annual variance was higher than the variance for the previous year. However, the applicability of Article 14(2) of Delegated Decision 2012/678 is subject to the condition that the relevant value is clearly identifiable.

164.Moreover, the position of that criterion within the text of most language versions of the provision shows that it refers to any differences in the variances exhibited by the deficit and debt level values respectively rather than to the differences between the annual values. The German-language version even elects to use the relatively unusual stylistic device of a parenthetical phrase to make the meaning clear. In other language versions, particularly the Spanish and those languages that use the superlative here, that meaning is implicit in the sentence structure.

165.Furthermore, the interpretative conclusion that is inherent in the wording is also consistent with the objective of establishing a sanction that is reasonable. A misrepresentation that affects only one year is clearly less unlawful than one that affects a number of years. Consequently, it would be unreasonable to treat both cases in the same way by taking into account only one year when calculating the sanction.

166.Moreover, since the present case concerns only one incorrect report, there is no need to clarify how the reference amount would have to be calculated under Article 14(3)(d) of Delegated Decision 2012/678 if misrepresented figures had been reported on a repeated basis.

167.On the other hand, Spain bases its argument on the principle of non-retroactivity. It claims that, since Regulation No 1173/2011 did not enter into force until 13 December 2011, its conduct in the years 2008 to 2010 must be left out of account.

168.This line of argument is also unsustainable.

169.Whether or not Member States may rely on the first sentence of Article 49(1) of the Charter, which governs the non-retroactivity of criminal penalties, they are certainly not bound by retroactive legislation providing for sanctions. Any other view would be unacceptable in a Union based on the rule of law.

170.In the present case, however, the complaint that the principle prohibiting the retroactive application of sanctions has been infringed is unfounded.

171.As I have already submitted, a fine under Article 8(1) of Regulation No 1173/2011 is imposed for the reporting of incorrect data to the Commission, not for the misrepresentation of data before it is reported.

Spain submitted the sanctioned EDP report in March 2012 and thus after the entry into force of Regulation No 1173/2011. The deficit data for the years 2008 to 2011 which it contained was incorrect at the time of reporting. The fact that the misapplication of the accounting rules that led to the incorrect EDP report had begun long before 13 December 2011 does nothing to alter that position.

An infringement of the principle of non-retroactivity would be present only if the Council, acting in accordance with Article 14(3)(d) of Delegated Decision 2012/678, had taken into account, when calculating the fine, the fact that the EDP reports for the years 2008 to 2011 had also been misrepresented. For it would then have imposed sanctions relating directly to those reports, even though Regulation No 1173/2011 did not come into force until after they had been submitted. According to recital 11 of the contested decision, however, the Council did not take into account in its analysis the incorrect figures in the reports for the years 2008 to 2011.

Interim conclusion

The Council therefore calculated the reference amount correctly. It neither disregarded the provisions of Article 14(2) of Delegated Decision 2012/678 nor infringed the principle of non-retroactivity.

The fourth plea in law is therefore also unfounded.

Summary

Since none of the pleas in law raised by Spain have been upheld, the action will have to be dismissed in its entirety as unfounded if the Court of Justice does not refer the case to the General Court.

Costs

In the event that the Court of Justice endorses my view and refers the case to the General Court, no decision as to costs needs to be taken at this stage.

If the Court does adjudicate upon this case, however, then, in accordance with Article 138(1) of the Rules of Procedure, the unsuccessful party must be ordered to pay the costs where they have been applied for. Since, under my proposal for a decision, the Council would be the successful party, Spain would have to bear the costs.

In accordance with Article 140(1) of the Rules of Procedure, however, Member States and institutions which intervene in the proceedings must bear their own costs. The Commission would therefore bear its own costs.

Conclusion

In the light of the foregoing considerations, I propose that the Court should:

refer Spain v Council (C‑521/15) to the General Court of the European Union;

reserve the decision as to costs.

In the event that the Court does not endorse that proposal, I propose, in the alternative, that the Court should dismiss the action and order Spain to pay the costs, with the exception, however, of the Commission’s costs, which it must bear itself.

(1) Original language: German.

(2) Council Implementing Decision (EU) 2015/1289 of 13 July 2015 imposing a fine on Spain for the manipulation of deficit data in the Autonomous Community of Valencia (OJ 2015 L 198, p. 19). The word ‘implementing’ was inserted into the title retrospectively (OJ 2015 L 291, p. 10).

(3) Regulation of the European Parliament and of the Council of 16 November 2011 (OJ 2011 L 306, p. 1).

(4) Protocol No 12 to the EU Treaty and the FEU Treaty.

(5) Council Regulation (EC) No 2223/96 of 25 June 1996 on the European system of national and regional accounts in the Community (OJ 1996 L 310, p. 1) (ESA 1995). Regulation (EU) No 549/2013 (OJ 2013 L 174, p. 1) (ESA 2010), which replaced that regulation, is not applicable to the present case.

(6) In proceedings against Austria, the Commission recently published an investigation report (COM(2017) 94 final) in which it announced a recommendation to the Council.

(7) Decision 2004/407/EC, Euratom amending Articles 51 and 54 of the Protocol on the Statute of the Court of Justice (OJ 2004 L 132, p. 5).

(8) Council Regulation of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (OJ 2009 L 145, p. 1), applicable in the present case in the version amended by Council Regulation (EU) No 679/2010 of 26 July 2010 (OJ 2010 L 198, p. 1).

(9) Commission Delegated Decision of 29 June 2012 (OJ 2012 L 306, p. 21).

(10) Report from the Commission on the investigation related to the manipulation of statistics in Spain as referred to in Regulation (EU) No 1173/2011 of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (Commission Decision of 11 July 2014) (COM(2015) 211 final).

(11) See footnote 2 above.

(12) See judgment of 17 March 2005, Commission v AMI Semiconductor Belgium and Others (C‑294/02, EU:C:2005:172, paragraph 49), and order of 14 July 2005, Switzerland v Commission (C‑70/04

EU:C:2005:468

paragraph 18).

(13) So far as concerns the right of individuals to institute proceedings, see, for example, judgments of 5 May 1977, Koninklijke Scholten Honig v Council and Commission (101/76, EU:C:1977:70, paragraphs 5 to 11), and of 19 December 2012, Commission v Planet (C‑314/11 P, EU:C:2012:823, paragraphs 94 and 95). On the failure to classify an implementing decision as such, see my Opinion in Borealis Polyolefine and Others (C‑191/14, C‑192/14, C‑295/14 and C‑389/14, EU:C:2015:754, point 177).

(14) Judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 66).

(15) Judgment of 1 March 2016, National Iranian Oil Company v Council (C‑440/14 P, EU:C:2016:128, paragraph 36), and, even earlier, judgments of 24 October 1989, Commission v Council (16/88, EU:C:1989:397, paragraph 11), concerning the third indent of Article 145 of the EEC Treaty, and of 23 February 2006, Commission v Parliament and Council (C‑122/04, EU:C:2006:134, paragraphs 36 and 37), concerning the third indent of Article 202 of the EC Treaty, both of which provisions were precursors to Article 291(2) TFEU.

(16) It must be noted in this regard that the General Court has not as yet exercised its jurisdiction under the counter-exception provided for in subparagraph (a) of the first paragraph of Article 51 of the Statute.

(17) The judgment of 13 July 2004, Commission v Council (C‑27/04, EU:C:2004:436), however, provides no proof of the proposition that jurisdiction lies with the Court of Justice, since the current division of powers was not applicable at that time and any jurisdiction on the part of the Court of Justice would follow from the second paragraph of Article 51 of the Statute.

(18) Judgment of 22 January 2014, United Kingdom v Council and Parliament (C‑270/12, EU:C:2014:18, paragraphs 78 to 86).

(19) Judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3, paragraphs 50 and 51).

(20) Judgment of 15 January 2014, Commission v Portugal (C‑292/11 P, EU:C:2014:3, paragraphs 77 and 78).

(21) See, for example, judgments of 29 April 2004, Beuttenmüller (C‑102/02, EU:C:2004:264, paragraph 64); of 16 July 2009, Infopaq International (C‑5/08, EU:C:2009:465, paragraph 56); and of 8 March 2017, Euro Park Service (C‑14/16, EU:C:2017:177, paragraph 49).

(22) See judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting (C‑442/14, EU:C:2016:890, paragraphs 55 to 58).

(23) The third recital of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1).

(24) See in this regard Article 11b(2) of Regulation No 479/2009.

(25) Article 11a, first sentence, and Article 11b(1) of Regulation No 479/2009.

(26) Report from the Commission (cited in footnote 10, p. 8).

(27) Note to the ESSC/EFC — implementation of ESA 2010 and changes needed in regulation 479 (Annex F.1 to Spain’s response to the Commission’s statement in intervention).

(28) Judgments of 21 September 2000, Mediocurso v Commission (C‑462/98 P, EU:C:2000:480, paragraph 36); of 9 June 2005, Spain v Commission (C‑287/02, EU:C:2005:368, paragraph 37); and of 17 March 2016, Bensada Benallal (C‑161/15, EU:C:2016:175, paragraph 33).

(29) Judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 181 to 183), and of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 38).

(30) Judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 183.

(31) Judgments of 17 October 1989, Dow Benelux v Commission (85/87, EU:C:1989:379, paragraphs 17 and 18).

of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraphs 298 and 299); and of 22 October 2002, Roquette Frères (C‑94/00, EU:C:2002:603, paragraph 48).

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0032" href="#c-ECR_62015CC0521_EN_01-E0032">32</a> </span>) Judgments of 17 October 1989, Dow Benelux v Commission (85/87, EU:C:1989:379, paragraph 19); and of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 301).

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0033" href="#c-ECR_62015CC0521_EN_01-E0033">33</a> </span>) See point 65 et seq. above.

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0034" href="#c-ECR_62015CC0521_EN_01-E0034">34</a> </span>) See judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission (C‑105/04 P, EU:C:2006:592, paragraph 56 et seq.).

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0035" href="#c-ECR_62015CC0521_EN_01-E0035">35</a> </span>) See, on the subject of competition law, judgment of 25 January 2007, Dalmine v Commission (C‑407/04 P, EU:C:2007:53, paragraph 60).

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0036" href="#c-ECR_62015CC0521_EN_01-E0036">36</a> </span>) Judgments of 18 October 1989, Orkem v Commission (374/87, EU:C:1989:387, paragraphs 34 and 35), and of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 65).

(<span class="note"> <a id="t-ECR_62015CC0521_EN_01-E0037" href="#c-ECR_62015CC0521_EN_01-E0037">37</a> </span>) See, so far as concerns proceedings for failure to fulfil obligations, judgments of 11 December 1985, Commission v Greece (192/84, EU:C:1985:497, paragraph 19); of 9 November 1999, Commission v Italy (C‑365/97, EU:C:1999:544, paragraph 85); of 13 July 2004, Commission v Italy (C‑82/03, EU:C:2004:433, paragraph 15); of 26 April 2005, Commission v Ireland (C‑494/01, EU:C:2005:250, paragraphs 41, 197 and 198); and of 5 October 2006, Commission v Belgium (C‑275/04, EU:C:2006:641).

paragraph 82).

(38) Judgment of 6 November 2008, Netherlands v Commission (C‑405/07 P, EU:C:2008:613, paragraph 56). See also judgment of 16 April 2013 Spain and Italy v Council (C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 54).

(39) See judgments of 19 February 2009, Gorostiaga Atxalandabaso v Parliament (C‑308/07 P, EU:C:2009:103, paragraph 46), and of 11 July 2013, Ziegler v Commission (C‑439/11 P, EU:C:2013:513, paragraph 155).

(40) See my Opinion in Ziegler v Commission (C‑439/11 P, EU:C:2012:800, point 145).

(41) See, for example, judgment of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324, paragraph 48 and the case-law cited). On the form of words, see my Opinion in G4S Secure Solutions (C‑157/15, EU:C:2016:382, point 98), which draws on the case-law of the French Conseil constitutionnel (Constitutional Court), decisions No 2015-527 QPC of 22 December 2015 (FR:CC:2015:2015.527.QPC, paragraphs 4 and 12) and No 2016-536 QPC of 19 February 2016 (FR:CC:2016:2016.536.QPC, paragraphs 3 and 10); see, similarly, the case-law of the French Conseil d’État (Council of State), judgment No 317827 of 26 October 2011 (FR:CEASS:2011:317827.20111026); see also the case-law of the German Bundesverfassungsgericht (Constitutional Court), BVerfGE 120, 274, 318 and 319 (DE:BVerfG:2008:rs20080227.1bvr037007, paragraph 218).

(42) See, on the subject of the administrative burden in connection with data protection, the judgment of 7 May 2009, Rijkeboer (C‑553/07, EU:C:2009:293, paragraph 59 et seq.); as well as, mutatis mutandis, in connection with access to documents, judgments of 6 December 2001, Council v Hautala (C‑353/99 P, EU:C:2001:661, paragraph 30), and of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 28).

(43) On the need for revision on that basis, see https://webgate.ec.europa.eu/fpfis/mwikis/gfs/index.php/Revisions_of_EDP_data.

(44) That is to say, not recorded at the time when the expenditure was incurred, in breach of the accrual principle (point 1.57 of ESA 1995).

(45) Judgments of 26 February 1976, Commission v Italy (52/75, EU:C:1976:29, paragraph 11); of 29 March 2001, Portugal v Commission (C‑163/99, EU:C:2001:189, paragraph 22); and of 19 November 2009, Commission v Finland (C‑118/07, EU:C:2009:715).

EU:C:2009:715

paragraph 48

(1) COM(2010) 524 final.

(2) Council Document No 11480/11, therein Article 6a and recital 3.

(3) European Parliament amendments adopted on 23 June 2011 to the proposal for a regulation of the European Parliament and of the Council on the effective enforcement of budgetary surveillance in the euro area (P7_TA(2011)0290).

(4) Document A7-0180/2011.

(5) That is particularly apparent in the French-language version of Article 8(1) of Regulation No 1173/2011: ‘… État membre qui a … fait des déclarations erronées au sujet des données relatives au …’. It is somewhat less obvious that the German- and English-language versions are referring to the misrepresentation of data. The Spanish-language version, on the other hand, is expressly based on the premiss of misrepresentation: ‘… Estado miembro que … tergiverse datos relativos al …’.

(6) Recital 13 of Regulation No 1173/2011.

(7) That is clear from the German-, Spanish- and French-language versions. The English-language version, on the other hand, is open to misunderstanding: ‘An unintentional act or omission should be considered a case of serious negligence if a person responsible for the production of general government deficit and debt data is in patent breach of his duty of care.’

(8) Judgments of 13 December 1991, Commission v Italy (C‑33/90, EU:C:1991:476, paragraph 24), and of 1 April 2008, Government of the French Community and Walloon Government (C‑212/06, EU:C:2008:178, paragraph 58).

(9) Article 3 of the EPD Protocol states: ‘In order to ensure the effectiveness of the excessive deficit procedure, the governments of the Member States shall be responsible under this procedure for the deficits of general government as defined in the first indent of Article 2. The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from these Treaties. The Member States shall report their planned and actual deficits and the levels of their debt promptly and regularly to the Commission.’ Article 2, first indent, defines the term ‘government’ as referring to ‘general government, that is central government, regional or local government and social security funds’.

(10) See point 129 above.

(11) Only the Danish, Estonian and Swedish versions appear to use the superlative instead of the comparative.

(12) Judgement of 11 December 2012, Commission v Spain (C-610/10, EU:C:2012:781, paragraph 51).