Judgment_paragraph 2 · Nutral SpA v Commission of the European Communities (C-476/93 P)

2The following findings were made by the Court of First Instance in its order: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(1), 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 “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:...“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(1), 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 ΑΙΜΑ 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.’