15.8.2008

EN

Official Journal of the European Union

C 209/58

(Case T-232/08)

(2008/C 209/104)

Language of the case: French

Parties

Applicant: Grand Duchy of Luxembourg (represented by: F. Probst, acting as Agent and M. Theisen, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—annul decision C(2008) 1283 of the Commission of the European Communities of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) in so far as is excludes from Community financing for the financial years 2004-2005 the expenditure of paying agencies in the amount of EUR 949 971,51 on the ground that it does not comply with Community rules;

—order the Commission to pay the costs.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Decision 2008/321/EC of 8 April 2008 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF) (1) in so far as is excludes certain expenditure incurred by Luxembourg for the years 2004-2005.

As regards the planning of on-the-spot checks of recipients, the applicant submits that the Commission wrongly complained that it had carried out the majority of the checks in the same period of the year instead of spreading them over the whole year and without taking into account the optimal period for checking certain commitments.

In addition, the applicant claims that the on-the-spot checks carried out effectively related to the entirety of the recipient's commitments and obligations from the beginning of the commitment period, contrary to what the Commission claimed in the pre-litigation stage before the conciliation body.

Concerning the documentation of the on-the-spot checks, the applicant takes the view that the mere fact that the control reports are not sufficiently detailed, as claimed by the Commission in the pre-litigation stage, does not mean ipso facto that the controls were not carried out and does not prove that there is an actual financial risk such as to give rise to the application of a flat rate correction.

Finally, the applicant submits that the non-application of sanctions where there is an over-declaration by the beneficiaries could not constitute the basis for a flat rate correction of 5 %, since the actual level of irregular expenditure can be determined exactly. Moreover, according to the applicant the amount of irregular expenditure is extremely low in relation to the total amount paid by the Community.

Notified under document number C(2008) 1283, OJ 2008 L 109, p. 35.