Brussels, 25/05/2000 (Agence Europe) - What reply must the European Parliament give to the letter from the Court of Auditors on the "Fléchard case"? During the discussion this Tuesday and Wednesday on this issue, the Budgetary Control Committee (COCBU) appeared somewhat divided though not on one point, the need to find the missing verbal trail - The account of the meeting chaired, on the 7 January 1994, by the Deputy chef de cabinet of the European Commission President of the time, Jacques Delors, during which the Directors General of the different services concerned had finally agreed to advise the Irish authorities to reduce from EUR 17.6 to 3 million the fine imposed on the company Fléchard for having delivered to Poland butter from intervention destined for Russia.
The European Parliament should pay attention to the lessons from the Fléchard case more than the case itself felt the Labour member Eluned Morgan, when denouncing the game of "who can beat the Commission the hardest". The Frenchwoman Anne Ferreira (ESP) denounced the excessive attention that COCOBU dedicated to this single case and called on her colleagues, and notably, Mrs. Sauner, to look into other similar cases. For Jean-Louis Bourlanges the letter from the Court of Auditors does not bring "any new elements to the case in question, neither over the studying of the facts or on the legal appreciation's." Jan Mulder (ELDR, Netherlands) on the other hand called for the forming of a investigative committee into this case, case that he however called for it to be dealt with outside the 1998 budgetary discharge. Morgan Camre (UEN), supported the idea of an investigation, he would have even wanted to wait for the results of this investigation before taking a decision on the discharge (while feeling that there would probably not be a majority to support this idea). The rapporteur for this discharge, Gabriele Stauner, as Jan Mulder, criticised the use that the Commission made of the "principal of proportionality." She once more complained that the Commission did not hand over to her all the documents requested: "without all these documents, we cannot give a discharge," she asserted.
As for the court of Auditors, it called on the Commission to both "re-examine all the possibilities of carrying out an correcting action concerning this case" and, on the other hand, in the framework of its administrative reform, ensure that such cases cannot re-occur. On the other hand, she clearly adds that it is too late to start penal proceedings.
Presenting a letter before the EP's Budgetary Control Committee, Maarten Engwirda, member of the Court of Auditors, also alluded (though without citing) the criticisms levied against Pascal Lamy, present trade Commissioner and at the time chef de cabinet of President Delors. He clearly denounced "the pressures brought to bear by the French authorities" on several occasions, on the Commission, to reach and less damaging agreement for Fléchard." He also spoke of the "good will of certain Commission civil servants and certain members of the cabinet to reach such an agreement for a case seen as a fraud (…) and to propose to the Irish authorities a deal against the legal requirements enforced, and that was decided in a meeting, whose minutes had inexplicably disappeared." For as much, the Court "cannot and thus will not rule on the concrete actions of former or present Commissioner, simply because they do not have the necessary proof to do so."
The Budget Commissioner, Mrs. Schreyer, dismissed that the European commission turn against Ireland asking it to return, in the framework of the "clearance of accounts", a share of the money not claimed by the Fléchard company: the Irish decision, she reminded was based on a formal undertaking by the Commission not to claim this money. The Commissioner underlined that OLAF (Anti-Fraud office) had just launched a new investigation to find the missing minutes. After anonymous letters where sent at the end of 1998 to the Court of Auditors, UCLAF, the predecessor to OLAF, had already made an investigation, factual, on this case, releasing an opinion that acted as a basis to the Court of Auditors letter. The EP, in the framework of the 1998 discharge procedure, requested this opinion.
For and against implementation of "principal of proportionality"
For the European Commission, the main consequence to be drawn from the Fléchard case, is the need to clarify the use of the principal of proportionality. After having initially suggested to the Irish authorities to conserve the totality of the 17.6 million Ecu placed as a guarantee by the Fléchard company, the Commission finally felt that this would have had "disproportionate consequences" and "the commission would have been accused, rightly, of blindly following a mechanical approach." The Commission feels that it must preserve "a margin for manoeuvre"; but it will be necessary to create a "catalogue of criteria" stated Mrs. Schreyer, before COCOBU. The Court of Auditors rejects the argument of the principle of proportionality. According to Mr Engwirda, only the Court of Justice could have decided that retaining the whole of the guarantee, included in the regulation applied to the sale of intervention butter in Russia, ran counter to the principle of proportionality. The Court of Auditors does not adopt the use of the principle of proportionality and, in its letter from early this month on this affair, it criticised the lack of "specific" legal base in the position taken by the European Commission in January 1994. It did not say there was no legal base but that it was not "specific". Jean-Louis Bourlanges casts doubt as to the interest of making such a distinction, knowing that "if the words have any meaning, then this in no way means that the opinion in question was taken outside any legal base". The DG Agriculture at the Commission had first of all suggested to Irish authorities that they demand the whole sum. Ireland called on the Fléchard enterprise to pay this amount, but the latter made an appeal on this decision. The French authorities intervened at the Commission in favour of the incriminated company. The legal services of the Commission - first of all opposed to application of a regulation to the Fléchard affair, which came later, on the liberation of part of the guarantee as soon as the goods have left the customs territory of the Community - then changed its mind.
The Court of Auditors also criticised in its letter the fact that "despite the existence of sufficient prima facie elements to cast doubt on the good faith of the Fléchard company", Ireland "did not require further investigations". Generally speaking, the verification by the Commission of proof of different butter deliveries in Russia, including the batch from the Fléchard society, "proved inadequate", as OLAF and the Court of Auditors had noted a considerable number of shortcomings.