OPINION OF ADVOCATE GENERAL

delivered on 6 May 2004(1)

(EAGGF – Guarantee Section – Clearance of accounts – Arable crops – Olive oil – Milk quotas)

– arable crops (failure to impose special set-aside): financial correction of ESP 27 823 775 209;

I – Legal background

10. In accordance with Article 9(1) of Regulation No 729/70, the Member States are to make available to the Commission all the information required for the proper working of the EAGGF and take all suitable measures to facilitate the supervision which the Commission may consider it necessary to undertake within the framework of the management of Community financing, including inspections on the spot. Member States are to communicate to the Commission any provisions laid down by law, regulation or administrative action which they have adopted for the application of legal acts of the Community relating to the common agricultural policy in so far as those acts have financial consequences for the EAGGF.

II – Arable crops: the 1994 harvest and the effects of the failure to impose special set-aside for the 1995 harvest

11. The Kingdom of Spain disputes the financial correction applied in this respect by the Commission. The correction arises from the non-observance of the imposition of special set-aside of arable crops for the 1995 harvest, provided for by Regulation (EEC) No 1765/92 (5) because of the exceeding of the areas guaranteed for arable crops found for the 1994 year. The Kingdom of Spain submits that its action was justified. It relies on separate arguments as regards arable crops on unirrigated land and arable crops on irrigated land.

Arable crops on unirrigated land

12. The Spanish authorities requested, in respect of unirrigated land, the application of Regulation (EC) No 1422/97 (6) which would exempt them among other things from the extraordinary set-aside. That regulation provides, in certain circumstances, such as an exceptional drought, for a different assessment of excesses. The Kingdom of Spain experienced precisely such a drought.

Arable crops on irrigated land

14. The Spanish authorities have cited Regulation (EC) No 1040/95 (7) which provides, exceptionally, for the 1994/95 marketing year, that the excess in areas is to have effect only for producers of oil seeds, not for producers of other arable crops on irrigated land. Thus, they maintain, the obligation of special set-aside for the 1995/96 marketing year applies only to irrigated arable oil seed crops. However, according to the Kingdom of Spain, that obligation no longer applies to oil seeds because of a political agreement with the Commission to that effect.

16. It is clear from the foregoing that, on that point, the Kingdom of Spain has produced no proof of its allegations.

III – Consumption aid for olive oil

17. The Commission imposed on the Kingdom of Spain a financial correction of 10% of the total of the costs declared for consumption aid for olive oil corresponding to the financial year 1996. The correction is based on failings in the Spanish management, payment and control systems. The Kingdom of Spain contests that decision and asserts that the correction thus made by the Commission is void, because the legal procedure was not observed.

18. The legal procedure provides that the written communication of the results of the checks, which the Commission sends to the Member State concerned, may not involve expenditure effected prior to 24 months preceding that communication, in compliance with Article 5(2)(c) of Regulation No 729/70, as amended by Regulation (EC) No 1287/95. (8) In addition, that communication must make express reference to Article 8 of Regulation (EC) No 1663/95, (9) the regulation implementing Regulation No 729/70 (hereinafter ‘the implementing regulation’), which specifies the contents of the written communication.

21. Accordingly, there is no ground for objection to the financial correction applied and, consequently, the plea in law advanced by the Kingdom of Spain cannot be upheld.

IV – Conclusion

22. In the light of those considerations, and without prejudice to the examination of the factual matters at issue in the present application, I suggest that the Court should:

– dismiss the action;

– order the Kingdom of Spain to pay the costs.

1 – Original language: French.

2 – OJ 2001 L 50, p. 9.

3 – .