C-132/85
ECLI:EU:C:1987:390
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Case 132/85
Commission of the European Communities v Hellenic Republic
(Removal from the register)
Opinion of Mr Advocate General Darmon delivered on 29 September 1987 5293 Order of the Court, 16 December 1987 5298
O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 29 September 1987*
Mr President, provisions of directives and decisions within Members of the Court, the meaning of Article 189 of the EEC T r e a t / 2 (first claim),
1. In the present action for failure by a Member State to fulfil its obligations the Court is asked to declare: secondly, that by not authorizing the B.anque de Paris et des Pays-Bas (Belgium) (hereinafter referred to as 'Paribas') to repa- triate or transfer to a convertible account first, that by virtue of Articles 2, 143 and the proceeds of the liquidation of funds 145 of the Á a of Accession of the Hellenic invested in bonds of the Hellenic Industrial Republic * that State was obliged to put into effect from 1 January 1981 'the measures 2 — First Council Directive for the implementation of Article 67 necessary for it to comply... with the of tie Treaty of 11 May 1960 (Official Journal, English Special Edition 1959-62, p. 49); Second Council Directive of 18 December 1962 adding to and amending the First * Translated from the French. Directive of 18 December 1962 (Official Journal, English 1 — Official Journal 1979, L 291, 19.11.1979. Special Edition 1963-64, p. 5).
OPINION OF MR DARMON —CASE 132/85
Development Bank, (second claim) or to transposed in the mean time and Articles 67 repatriate the accrued interest, that is to say (2) or 106 (1) of the Treaty are directly the interest resulting from that investment, applicable remains to be dealt with, including the sum deposited in a frozen inasmuch as the Hellenic Republic has account from 1984 to 1986 (third claim), submitted that Paribas could not rely the Hellenic Republic has failed to fulfil its directly on the provisions of those directives obligations under the Act of Accession, the since they were not clear or unconditional EEC Treaty and Anicie 2 of the Council and the Member States therefore retained Directive of 11 May 1960 as amended by the right to examine the nature and legality the Directive of 18 December 1962. of the transactions. Furthermore, Presi- dential Decree No 170/86 did not state that its provisions were to be retroactive to 1 January 1981. A new draft decree re-enacting the 1986 decree but making it retroactive is being published at present but 2. During the oral proceedings the since there is no certainty as to its content Commission acknowledged: or whether it will be brought into force the Commission considers that it cannot discontinue the proceedings totally or in part.
that the two directives were transposed by Presidential Decree No 170/86, published on 19 May 1986, 3. The Court has recognized that the Commission has an interest in continuing an action for failure to fulfil obligations even if satisfactory amendments have been introduced into the legislation of the defendant Member State after the expiry of that during the proceedings the Paribas the period mentioned in the reasoned affair had been the subject-matter of opinion since: decisions by the competent Greek auth- orities, which were satisfactory with regard to their obligations under Community law.
'a judgment by the Court under Articles 169 and 171 of the Treaty may be of substantive interest in establishing the basis of a respon- However, referring to the Court's case-law, sibility that a Member State can incur as a the Commission submits that it is important result of its default, as regards other that the Court should give judgment on the Member States, the Community or private alleged failure to fulfil obligations, since the parties'.3 Commission has an interest in the Member States being made to face up to their 3 — Judgment of 7 February 1973 in Case 39/72 Commission v responsibilities both to other Member States Iulian Republic [1973] ECR 101, at paragraph 11, and to individuals. As regards the second confirmed by the judgment of 5 June 1986 in Case 103/84 ECR 1759; the judgment of 20 February 1986 in Case and third claims, the problem whether the 309/84 ECR 599 and most recently by the judgment of 17 June 1987 in Case 154/85 Commission v Italian Republic provisions of the directives which have been [1987] ECR 2717.
COMMISSION v GREECE
4. As regards the first claim, the Hellenic proceedings with regard to the case of Republic does not dispute that the two Paribas cannot be challenged. As for the directives should have been transposed as reference which was made to other similar soon as the Act of Accession came into examples, I understand it as meaning that force. It has therefore failed to fulfil its obli- the Court's decision in the present case may gations in that respect. In the light of the be applied to any practices of the same kind, statement of the law to which I have just not as an application for a decision on those referred it is of substantive interest that practices. there should be a judgment to that effect.
Moreover, any such application would be inadmissible in so far as only the case of Paribas was mentioned in the reasoned 5. In the other two claims, the Commission opinion. has questioned the practice followed by the Hellenic Republic with respect to Paribas alone. In its replies to the questions which 7. As regards the Commission's interest in were asked by the Court and at the hearing obtaining a declaration that certain the Commission indicated that the purpose provisions of the directives are directly of its application was not solely to obtain a applicable, the Court has held that: declaration that Greece had failed to fulfil its obligations by not authorizing Paribas to export the funds in question (in the event, 'the aim [of Articles 169 to 171] of the Paribas was successful), but also to sanction Treaty is to achieve the practical elimination a practice of the Hellenic Republic which of infringements and the consequences had been extended to other cases and in thereof, past and future,'5 particular to establish that the provisions of the directives in question were directly applicable. and that
'the purpose of judgments given under 6. It is apparent from the Court's case-law Articles 169 to 171 is primarily to lay down that the Commission may be presumed to the duties of Member States when they fail have an interest in bringing an action for to fulfil their obligations.'6 failure to fulfil obligations when that failure has not been remedied at the expiry of the period fixed in a reasoned opinion 4 and that In the present case the Court is called on it is for the Commission alone to assess solely to rule on an alleged failure to fulfil whether it is appropriate to continue or to obligations contained in acts binding the withdraw its action. It follows that the defendant Member State, irrespective of the Commission's interest in bringing effect of those acts in its domestic law. The question of direct effect is not relevant to 4 — See the judgment of 4 April 1974 in Case 167/73 proceedings for failure to fulfil obligations. Commission v French Republic [1974] ECR 359 at paragraph IS: 'the Commission, in the exercise of the jwers which it has under Articles 155 and 169 of the 5 — Judgment of 12 July 1973 in Case 70/72 Commission v Çreary, does not have to show the existence of a legal Germany [1973] ECK 813, at paragraph 13. interest, since, in the general interest of the Community, its 6 — Judgment of 14 December 1982 in Joined Cases 314 to function is to ensure that the provisions of the Treaty are 316/81 and 83/82 Procureur de la République et Comité applied by the Member Sutes and to note the existence of national de déjense contre l'alcoolisme v Alex Waterkeyn and any failure to fulfil the obligation deriving therefrom, with Others; Procureur de la République v Jean Cayard and a view to bringing it to an end'. Others [1982] ECR 4337, at paragraph 15.
OPINION OF MR DARMON —CASE 132/85
It follows that as regards the first two claims 9. Finally, the accrued interest on both the the present proceedings must be confined to investment and the deposit in the frozen examination of the Hellenic Republic's obli- account must be regarded as 'current gations concerning authorization for the payments' within the meaning of Article 67 repatriation or convertibility of the funds (2) of the Treaty. The Commission's invested by Paribas in securities and the reliance in the alternative on Anicie 106 (1) interest thereon. of the Treaty reflects the practical difficulty of distinguishing between payments covered 8. There is no doubt that the second claim by Article 67 (2) and 'payments connected is well founded. During the procedings the with transfers of capital' falling under competent Greek authorities implicitly Article 106 (1). The application of the latter admitted as much and they finally auth- provision is more restricted than that of orized the free convertibility of all the funds Article 67 (2) since it only applies 'to the resulting from the liquidation of Paribas' extent that the movement of goods, services, investment in securities. Similarly, in its capital and persons between Member States rejoinder the defendant State abandoned the has been liberalized pursuant to the Treaty', main line of argument which it originally set whereas Article 67 (2) does not contain that out in its defence, namely that the oper- restriction. Although Article 106 (1) appears ations in question were not covered by the sufficient to cover the present case, which two directives; it submitted that authori- concerns interest connected with an uncon- zation had been issued late owing to a ditionally liberalized operation, Article 67 review of the legality and genuine nature of (2) should, in my view, be relied on as the the transaction, a requirement which can provision having more extensive effects not excuse the alleged failure to fulfil obli- concerning liberalization of capital gations. movements.
10. Consequently, I propose that the Court should
(1) declare that
the Hellenic Republic has failed to fulfil its obligations under Articles 2, 143 and 145 of the Act concerning the conditions of accession of the Hellenic Republic to the European Communities and under the Treaty establishing the European Economic Community, in particular Article 67 (2),
COMMISSION y GREECE
(i) by not bringing into force from 1 January 1981 the national measures necessary to comply with the provisions of the directive of 11 May 1960 for the implementation of Article 67 of the Treaty, as added to and amended by Directive 63/21 of 18 December 1962,
(ii) by refusing to authorize the Banque de Paris et des Pays-Bas (Belgium) freely to repatriate or to credit to a convertible account in Greece the proceeds of the liquidation of investments in national securities traded on the stock exchange,
(iii) by failing to authorize the free transfer from Greece of all interest connected with those investments, and
(2) order the Hellenic Republic to pay the costs of the hearing.