In Cases T-492/93 and T-492/93 R,
Nutral SpA, a company incorporated under Italian law, established at Casalbuttano (Italy), represented by Emilio Cappelli and Paolo de Caterini, of the Rome Bar, and Mario de Bellis, of the Mantua Bar, with an address for service in Luxembourg at the Chambers of Charles Turk, 13b Avenue Guillaume,
applicant,
v
Commission of the European Communities, represented by Eugenio de March, Legal Adviser, acting as Agent, assisted by Alberto Dal Ferro, of the Vicenza Bar, with an address for service in Luxembourg at the office of Nicola Annecchino, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION,
in Case T-492/93, for annulment of Commission decision No SG(93) D/140.082 of 3 March 1993 and of any other prior, linked or associated measure, relating in particular to inquiry report No SG(93) D/140.028 of the Unit on the Coordination of Fraud Prevention of 18 January 1993,
and, in Case T-492/93 R, for
° suspension of operation of the Commission' s decision of 3 March 1993 and of the prior, linked or associated measures, in particular the inquiry report of the Unit on the Coordination of Fraud Prevention of 18 January 1993,
° an order requiring the Commission to direct the Italian authorities to suspend operation of any measures to recover aid paid to the applicant and import duties pending delivery of judgment in the main proceedings,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of: J.L. Cruz Vilaça, President, C.P. Briët, D.P.M. Barrington, A. Saggio and J. Biancarelli, Judges,
Registrar: H. Jung,
makes the following
Order
Facts and procedure
1 The applicant is a company specializing in the production, processing, importing and exporting of feedingstuffs for animals. The Commission considered that irregularities had been committed with regard to certain imports carried out by the applicant and therefore requested the Italian authorities by letter of 6 August 1992, pursuant to Article 6 of Council Regulation (EEC) No 595/91 of 4 March 1991 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organization of an information system in this field and repealing Regulation (EEC) No 283/72 (OJ 1991 L 67, p. 11), to take part in an inquiry concerning imports from Austria of a preparation with a basis of skimmed-milk powder called "edible preparation with a basis of liquid skimmed milk, emulsified with refined edible beef fat".
2 Pursuant to Regulation (EEC) No 986/68 of the Council of 15 July 1968 laying down general rules for granting aid for skimmed milk and skimmed-milk powder for use as feed (OJ, English Special Edition 1968 (I), p. 260) and Commission Regulation (EEC) No 1725/79 of 26 July 1979 on the rules for granting aid for skimmed milk processed into compound feedingstuffs and skimmed-milk powder intended for feed for calves (OJ 1979 L 199, p. 1, hereinafter "Regulation No 1725/79"), the applicant received from 1988 to 1991, through the intermediary of the Italian intervention agency, the Azienda di Stato per gli Interventi sul Mercato Agricola ("AIMA"), Community aid for skimmed-milk powder which has been denatured or used in the production of compound feedingstuffs.
3 Moreover, in so far as, first, the declared content of that preparation was less than 1.5% as regards milkfat and less than 2.5% as regards milk proteins and, second, the preparation originated in a country belonging to the European Free Trade Association, the consignments successively imported were subject neither to an ad valorem duty nor to the levying of a "variable component" charge, to which goods imported from third countries are normally subject pursuant to Article 5(1) of Council Regulation (EEC) No 3033/80 of 11 November 1980 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (OJ 1980 L 323, p. 1).
4 By letter of 19 January 1993 the Head of the Unit on the Coordination of Fraud Prevention ("UCLAF") sent to the Italian authorities the report drawn up by the agents appointed by the Commission to participate in the inquiry referred to above. He requested them to take the necessary administrative measures to ensure the recovery of the sums in issue and to inform the Commission of the judicial steps taken in the matter.
5 According to the inquiry report, and contrary to the declaration previously given, the milk-protein content of the preparation imported by the applicant was in excess of 2.5% and should thus have been subject to the "variable component" normally applicable to imports from third countries. The inquiry had also revealed that part of the product in question (500 tonnes) originated from the German intervention agency and had already been the subject of an export refund, with the result that it did not qualify for aid for skimmed-milk powder in accordance with Article 1(2)(b) of Regulation No 1725/79.
6 On 26 February 1993 the Comando Nucleo Polizia Tributaria di Cremona della Guardia di Finanza (hereinafter "Guardia di Finanza") drew up a report against the applicant "al fine di contestare l' indebita percezione di auiti comunitari nel settore agricolo su 500 tonnellate di latte in polvere, giusto quanto indicato al punto 2) delle concluzione della relazione di inchiesta trasmessa con lettera SG(92) D/140.028 del 19.01.93 dell' UCLAF" ("for the purposes of notification of the undue payment of Community aid in the agricultural sector in respect of 500 tonnes of milk powder, as referred to in paragraph (2) of the conclusions of the inquiry report sent by UCLAF in its letter SG(92) D/140.028 of 19 January 1993").
7 On 3 March 1993, by letter bearing the reference SG(93) D/140.082, the head of UCLAF informed the Italian authorities that:
"A maggiore precisazione di quanto indicato al punto 2) delle conclusioni della relazione d' inchiesta ... rappresento che, sebbene l' aiuto al latte scremato in polvere trasformato in alimenti per animali sia stato legittimamente corrisposto ... da parte dell' organismo competente alla Nutral, il percepimento di tale aiuto ... é da considerarsi illegitimo.
Per quanto precede, le Autorità nazionali competenti dovranno provvedere, oltre che all' accertamento dell' elemento mobile relativo alla totalità del prodotto importato ed al recupero dell' aiuto alla trasformazione relativo alla preparazione realizzata a partire dalle 500 tonnellate di polvere in provenenzia da Ilyichevsk, al recupero di tutto l' aiuto alla trasformazione concesso alle polveri di latte ricavate dalla preparazione importata dal gennaio 1988 al 14 agosto 1991."
("With a view to clarifying the points made in paragraph (2) of the conclusions of the inquiry report ... I would inform you that, although the aid for skimmed milk processed into feedingstuffs was properly awarded ... to Nutral by the competent agency, the payment of such aid ... must be regarded as unlawful.
In view of the foregoing, the competent national authorities must proceed not only to calculate the variable component in respect of all of the product imported and to recover the processing aid relating to the preparation manufactured from the 500 tonnes of powder originating in Ilyichevsk, but also to recover all of the processing aid awarded in respect of milk powder which was granted in relation to the preparation imported between January 1988 and 14 August 1991.")
8 By letter of 23 March 1993 sent by Commissioner Schmidhuber to the Minister of Finance, the Minister of Agriculture and Forestry and the Minister of Community Policy and Regional Affairs, the Commission drew attention to its previous communications of 19 January and 3 March 1993 and requested the competent Italian authorities to proceed as rapidly as possible to take the necessary steps to recover the sums in issue, in accordance, first, with Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties (OJ 1979 L 197, p. 1, hereinafter "Regulation No 1697/79") and, second, with Article 8 of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970 (I), p. 218, hereinafter "Regulation No 729/70").
9 On 27 April 1993 the Guardia di Finanza drew up against the applicant a "record of findings" in respect of the aid for skimmed-milk powder unduly paid by AIMA between 1988 and 1991. A copy of the record of findings was sent to the Ministry of Agriculture and Forestry with a view to the issue by that ministry of the "decree-injunction" provided for by Article 3 of Italian Law No 898 of 23 December 1986.
10 It was in those circumstances that, by application lodged at the Registry of the Court of Justice on 6 July 1993, the applicant brought an action under the second paragraph of Article 173 of the EEC Treaty for annulment of Commission decision No SG(93) D/140.082 of 3 March 1993 and of any other prior, linked or associated measure, relating in particular to UCLAF' s inquiry report dated 18 January 1993.
11 By document lodged at the Registry of the Court of Justice on 3 August 1993 the Commission raised an objection of inadmissibility under Article 91(1) of the Rules of Procedure of the Court of Justice.
12 By separate document lodged at the Registry of the Court of Justice on 13 September 1993, Nutral applied to the Court of Justice, first, for suspension of the operation of the Commission' s decision of 3 March 1993 and of the prior measures adopted, in particular UCLAF' s inquiry report of 18 January 1993, and, second, for instructions to be given to the Commission to direct the Italian authorities to suspend operation of any measures to recover the aid received by it and the import duties, pending delivery of judgment in the main proceedings.
13 By document lodged at the Registry of the Court of Justice on 24 September 1993 the Commission submitted its observations on the application for interim measures.
14 By order of 27 September 1993 the Court of Justice transferred the two cases to the Court of First Instance pursuant to Article 4 of Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993, amending Decision 88/591/ECSC, EEC, Euratom establishing the Court of First Instance of the European Communities (OJ 1993 L 144, p. 21).
15 The President of the Court of First Instance referred the application for interim measures, pursuant to the first paragraph of Article 106 of the Rules of Procedure of the Court of First Instance, to the Chamber to which the case had been assigned in the main proceedings.
16 Article 114(3) of the Rules of Procedure of the Court of First Instance provides that the remainder of the proceedings in respect of an objection of inadmissibility must be oral, unless the Court of First Instance otherwise decides. In the present case, the Court of First Instance (Second Chamber) considers that it has sufficient information and that there is no need to open the oral procedure.
Admissibility
Arguments of the parties
17 In its objection of inadmissibility the Commission maintains, first, that the measure the annulment of which is sought is not a decision capable of being challenged within the meaning of Article 173 of the Treaty, inasmuch as the letter of 3 March 1993 and the inquiry report on which it is based do not constitute a decision in relation to their addressee, the Italian authorities, and even less so in relation to the applicant. The Commission observes that neither the letters of 3 and 23 March 1993 nor the inquiry report impose in themselves any obligation on the State or, a fortiori, the applicant. The Member States' obligation to recover uncollected or unduly paid sums arises in fact not from the contested letter but from the aforementioned Regulations Nos 729/70 and 1697/79.
18 The Commission considers, second, that the contested measure is not of direct concern to the applicant, since it is incapable of affecting its legal situation. According to the Commission, only a measure adopted under national law, such as the record drawn up by the Italian authorities, against which the applicant may avail itself of the remedies afforded by Italian law, is capable of causing it prejudice. The Commission recalls in that regard that the Community rules on the common agricultural policy and on own resources are based on the strict criterion of differentiation between, first, the Commission and the Member States and, second, between the Member States and economic operators. As is confirmed by the settled case-law of the Court of Justice, it is the Member States, according to the Commission, who are required, in accordance with the provisions of national law in force and subject to the limits established by Community law, to take the measures necessary to recover overpaid aid (Case C-197/91 FAC v Asprofrut and AIMA [1993] ECR I-2639, paragraph 23).
19 Lastly, the Commission points out that the inquiry report was communicated to the applicant by the national authorities in the form of an annex to the record of 26 February 1993. It follows, according to the Commission, that, in so far as the action is directed against that report, it was in any event brought after the time-limit laid down by Article 173 of the Treaty.
20 In its submissions on the objection of inadmissibility, the applicant considers that, contrary to the Commission' s contentions, the issue is not who is required to undertake the recovery of the overpaid sums but establishing that a breach of the rules has been committed. The applicant maintains that it is only in the letter contested in the present action that the aid received by it is described as "illegal aid" and that the breach is established. It is therefore the definitive establishment of the breach, unequivocally and definitively formulated in the contested letter, which damaged its interests. This is evidenced, moreover, by the subsequent conduct of the Italian authorities. Those authorities merely entered the results of the inquiry in the record notified to the applicant on 27 April 1993, which already contained an indication of the sums to be repaid, and formally demanded payment of the sums in question by means of a letter from AIMA of 30 June 1993 and a demand of 9 August 1993 issued by the San Candido customs office, without the issue by any of the competent authorities of a "decree-injunction" establishing the breach as required by Italian Law No 689 of 24 November 1981.
21 The applicant further maintains that, in the absence of any steps by the national authorities to initiate the procedure provided for by the abovementioned Law No 898, pursuant to which the Ministry of Agriculture and Forestry is to proceed, in cases of fraud under Community law, to apply administrative sanctions and, where necessary, to issue a "decree-injunction" ordering payment, it is totally deprived of legal protection. In particular, the payment order issued by the customs authorities cannot be effectively contested under domestic law as the applicable procedure in customs matters does not provide for the suspension of recovery of dues. Thus it is currently facing proceedings for the recovery of approximately LIT 130 billion, without being able to challenge the conclusions of the inquiry before the national courts.
22 In the applicant' s view, it is impossible to accept the Commission' s argument that, in the absence of Community competence, there is no decision capable of being challenged. Such an argument would result in the removal of any judicial control over measures taken by an authority ultra vires.
23 Lastly, the applicant contests the Commission' s argument that, inasmuch as the action is directed against the inquiry report, it is out of time. It was not until after despatch of the letter of 3 March 1993, establishing the illegality of the aid and requiring it to be recovered by the national authorities, that that report, the status and effect of which had until then been that of a preparatory act, acquired a different significance and scope in relation to the establishment of the breach.
Findings of the Court
24 In order to decide whether the objection of inadmissibility raised by the Commission is well founded, it should be recalled, first, that the Court of Justice has consistently held that "only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment under Article 173 of the Treaty" (order in Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR I-1143, paragraph 26).
25 In the present case, as is stated above, the Commission contacted the Italian authorities following an inquiry in which it had at its request taken part, asking them to undertake, first, the recovery of certain aid granted to the applicant which the Commission characterized as illegal and, second, the recovery of certain import duties which the applicant was liable to pay. Upon receiving the communications addressed to them by the Commission, the Italian authorities took various measures with a view to recovery of the sums overpaid to the applicant.
26 According to the general principles on which the institutional system of the Community is based and the rules governing the relations between the Community and the Member States, it is for the Member States, in the absence of any contrary provision of Community law, to ensure that Community regulations, particularly those concerning the common agricultural policy, are implemented within their territory (Joined Cases 89/86 and 91/86 Étoile Commerciale and CNTA v Commission [1987] ECR 3005, paragraph 11). Article 8(1) of Regulation No 729/70 states that "the Member States in accordance with national provisions laid down by law, regulation or administrative action shall take the measures necessary to (...) prevent and deal with irregularities (and to) recover sums lost as a result of irregularities or negligence".
27 Next, it should be noted that Article 2(1) of Regulation No 1697/79 provides that "where the competent authorities find that all or part of the amount of import duties (...) has not been required of the person liable for payment, they shall take action to recover the duties not collected". Article 4 states that "the action for recovery shall be taken by the competent authorities, subject to the relevant provisions in force, against the natural or legal persons responsible (...) for the payment of the import duties (...)".
28 It is therefore for the Member States to implement the Community regulations in that sphere and to take the necessary individual decisions regarding the traders concerned, in accordance with the rules and procedures laid down by national legislation, subject to the limits imposed by Community law, with a view to the recovery of undue payments (Étoile Commerciale, cited above, paragraph 12). Consequently, it is only the measures taken by the national authorities which produce binding legal effects capable of prejudicing the interests of the applicant.
29 It follows that the contested acts cannot be regarded as decisions capable of having a direct effect on the applicant' s legal position. Consequently, it is for the applicant, if it considers that it has sufficient grounds, to have recourse to the remedies available to it under national law in order to contest before the national courts the measures taken in relation to it.
30 It must also be stated in that regard that even if it be the case, as the applicant maintains, that there is no procedure in national law whereby enforcement of an order for payment issued by the customs authorities can be suspended, that fact cannot in any event modify the division of powers between the Community and the Member States for which the EEC Treaty provides nor, consequently, the rules, described above, governing the admissibility of actions in the Community legal order.
31 In those circumstances, the action must be declared inadmissible, without there being any need to determine whether it was brought within the time-limit laid down in the third paragraph of Article 173 of the Treaty.
32 Inasmuch as the application for interim measures is based on an inadmissible action for annulment, it must also be dismissed as inadmissible in its own right.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The application in Case T-492/93 is dismissed as inadmissible.
2. The application for interim measures in Case T-492/93 R is dismissed as inadmissible.
3. The applicant is to pay the costs.
Luxembourg, 21 October 1993.
