42The Commission contends on the basis of the Court's case-law that its discretion under Article 5 of Regulation No 729/70 is exhausted if it becomes apparent that the expenditure in respect of which clearance is contested was not incurred in accordance with Community law (Case 11/76 Netherlands v Commission [1979] ECR 245, paragraph 21). According to that case-law, the Commission is under a duty to bear such expenditure only if the misapplication of Community law is attributable to a Community institution (Netherlands v Commission, cited above, paragraph 25).
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