Case C-226/03 P

José Martí Peix SA

v

Commission of the European Communities

(Appeal – Fisheries – Community financial aid – Reduction of the aid – Council Regulation (EC, Euratom) No 2988/95 – Articles 1 and 3 – Limitation period)

Summary of the Judgment

1. Own resources of the European Communities – Regulation on the protection of the Community’s financial interests – Continuous irregularity – Limitation period – Interrupting act

(Council Regulation No 2988/95, Article 1(2) and Article 3(1), second and third subparas)

2. Appeals – Grounds – Grounds of a judgment vitiated by an infringement of Community law – Operative part well founded on other legal grounds – Rejected

1. According to Article 1(2) of Regulation No 2988/95 on the protection of the European Communities financial interests, an irregularity presupposes a breach of a provision of Community law resulting from an act or omission by an economic operator.

Where the omission occasioning the breach of the provision of Community law persists, the irregularity is ‘continuous’ for the purposes of the second subparagraph of Article 3(1) of that regulation. The corresponding limitation period begins to run only from the day on which the irregularity ceases.

That period is interrupted by a Commission letter which specifically seeks to investigate the irregularity and to reduce the financial aid, since that letter is an investigative document for the purposes of the third subparagraph of Article 3(1).

(see paras 16-18, 30)

2. If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed.

(see para. 29)

JUDGMENT OF THE COURT (Second Chamber) 2 December 2004 (1)

(Appeal – Fisheries – Community financial aid – Reduction of the aid – Council Regulation (EC, Euratom) No 2988/95 – Articles 1 and 3 – Limitation period)

In Case C-226/03 P,APPEAL under Article 56 of the Statute of the Court of Justice, brought on 22 May 2003,

applicant,

the other party to the proceedings being:

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, J.-P. Puissochet and N. Colneric (Rapporteur), Judges,

Advocate General: A. Tizzano,

having regard to the written procedure and further to the hearing on 10 June 2004,after considering the observations submitted by the parties,

after hearing the Opinion of the Advocate General at the sitting on 7 September 2004,

gives the following

‘Throughout the period for which aid is granted by the Community, the authority or agency appointed for the purpose by the Member State shall send to the Commission on request all supporting documents and all documents showing that the financial or other conditions imposed for each project are satisfied. The Commission may decide to suspend, reduce or discontinue aid, in accordance with the procedure laid down in Article 47:

Decisions shall be notified to the Member State concerned and to the beneficiary.

The Commission shall take steps to recover any sums unduly paid.’

‘Article 1

1. For the purposes of protecting the European Communities’ financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to Community law.

2. “Irregularity” shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure.

…

Article 3

1. The limitation period for proceedings shall be four years as from the time when the irregularity referred to in Article 1(1) was committed. However, the sectoral rules may make provision for a shorter period which may not be less than three years.

In the case of continuous or repeated irregularities, the limitation period shall run from the day on which the irregularity ceases. In the case of multiannual programmes, the limitation period shall in any case run until the programme is definitively terminated.

The limitation period shall be interrupted by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity. The limitation period shall start again following each interrupting act.

However, limitation shall become effective at the latest on the day on which a period equal to twice the limitation period expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6(1).’

The second allegation

The first allegation

On those grounds, the Court (Second Chamber) hereby:

Signatures.