Brussels, 04/11/2010 (Agence Europe) - The European Court of Justice has given a nuanced answer to a question raised by the Antwerp appeals court in Case C-367/09, namely that a company responsible for monitoring and checking exports that has not acted as it should can be considered a legal person who has been involved in an irregularity and be held accountable for it under EU Regulation 2988/95 (protection of the European Communities' financial interests).
This means that an export monitoring company can be subject to administrative penalties but not just under Regulation 2988/95 because at the time when the events took place, EU regulations governing the industry in question did not yet include the obligation on member states to provide for effective penalties for such irregularities.
The Court of Justice recognises, however, that member states may levy penalties under their own legislation as long as the application of such a penalty is founded on a clear and unambiguous legal basis and this should be checked by the court that sent the case to the Court of Justice.
In the case in question, the Belgian court of appeal was to rule on a dispute between the “Bureau Belge d'Intervention et de Restitution” (BIRB) and SGS Belgium NV, a company specialising in the international control and monitoring of exports, for enabling the company Derwa NV illegally to obtain export subsidies by providing false export certificates.
The Belgian court asked the European Court of Justice: - whether the EU Regulation intervened directly in national legal systems and whether it left the legal systems room for interpretation; - whether the company SGS could be considered an “economic operator” and what its responsibilities were under the above-mentioned EU Regulation; - and whether the communicated documents and items requested of the company in the course of the investigation could be considered as evidence under the same Regulation. (F.G./transl/fl)